A Research On The Theories Of The Concept Of Rights

The research object of this dissertation is the concept of rights. In this dissertation the author analyze the main theories of the concept of rights, including the will theory, interest or benefit theory, entitlement theory and so on. By researching on these theories we can find that every theory explains some parts of the characteristics of the concept of rights and has some advantages, but every theory as the result of certain circumstances also has some disadvantages. So we should probe thoroughly into the above theories of the concept of rights, breaking through the limitation of the will theory and benefit theory, and unifying the subjective factor and the objective factor on the base of the entitlement theory. A comprehensive and profound concept of rights can help us to accelerate the development of the practice and research of rights. This dissertation, apart from the introduction, consists of five chapters.The introduction summarizes the significance of the research, the methods of the research and the general framework of the dissertation. There are two reasons for researching the concept of rights. On one hand, the concept of rights is important not only to the legal research, but also to the legal practice of our social life. On the other hand, it is a topic hard to deal with. There are so many concepts of rights in our legal research, but we still can not understand what indeed the rights is. The introduction summarizes the current situation of the research home and abroad, and introduces the research methods in this dissertation, including the positive method and the comparative analysis. In the dissertation, the author discusses the main theories of the concept of rights at first, and then come to the conclusion from the research.Chapter one deals with the origin and evolution of the concept of rights. In this chapter the author reviews the history of the concept of rights in the Occident and China. First, the dissertation discusses the history of the concept of rights in the Occident Second, the dissertation explains the course of the introduction, translation and spread of the concept of rights in China. Along with the introduction of this occidental legal concept, the Chinese traditional notion of rights transforms into a modern notion of rights.Chapter two refers to the will theory. The will theory is one of the most important two theories of the concept of rights, and the will theory uses the term of will to explain the concept of rights. The will theory includes the classical will theory and the modern will theory. The classical will theory is the early theory of rights, and it does not divide the concept of legal rights from the natural rights, so the classical will theory has not been the main theory today. H. L. A. Hart was regard as the contemporary exponent of will theory, and he advanced the will theory into the choice theory of rights. For choice theory, a rights is a form of choice by a person, and the person to whom a duty is owed is able to control the performance of that duty by his choice. As an exponent of legal positivist, Hart insisted that legal rights should be distinguished from natural rights, so he replaced the term of will with choice. The choice theory is an important theory of rights, but it also faces some difficult problems.Chapter three is the interest theory. The interest theory was created by Jeremy Bentham, as a part of his utilitarian theory. In Bentham's opinion, the law created both rights and duties, and the duty rendered benefit to someone else. The beneficiary of the duty possessed a rights. After Bentham, John Austin, John Mill, Rudolf Jhering and Roscoe Pound advanced the interest theory. But the interest theory was opposed to by the will theory, and Hart criticized the interest theory sharply. David Lyons, D.N. MacCormick and J. Raz pushed forward the modern interest theory. Lyons redefined the concept of beneficiary. MacCormick analyzed the feature of rights-conferring rules. Raz systematized the interest theory. In our country, the unity of the interest theory and the power theory is the common theory in the domain of private law research, and the possibility theory has influenced the research of civil law.Chapter four is the entitlement theory. The entitlement theory should be taken seriously. In this chapter the author researches the entitlement theory, especially the theory by H.J. McCloskey. For the entitlement theory, the possession of a rights is conceived as the possession of an entitlement. The entitlement theory focuses on the origin and the essence of rights, but not only on its form. Different from the other theories, the entitlement theory does not exclude the moral factor, and it focuses on the obligation of the rights holder, but not the relative person. In the chapter the author also discusses the claim theory. The exponents of the claim theory are Joel Feinberg and S.J. Stoljar. For Feinberg's claim theory, having a legal rights is having a claim against someone whose recognition as valid is called for by some set of governing rules. To apprehend the entitlement theory, people need to answer an important question: where does the entitlement come from, or we can say, why a person should have the entitlement.Chapter five is the unity and amelioration of the concept of rights by the author. We can find that every theory of the concept of rights has its advantages and disadvantages, so we should comparatively analyze the different theories, and find the common characteristics of rights. The root of the differences of the will theory and the interest theory reflects the confliction between the idea of rights of liberalism and utilitarianism. The entitlement theory has the advantages to be the base of a concept of rights, so we should unite the will theory and the interest theory on the base of the entitlement theory.