The Principle Study Of Right Presumption And Institutional Arrangement

Analysis school stands for separating law from value judgment to preserve the stability of the existing laws, which is just a nice coat."Draconian law is law", which Hitler’s repressive laws declared, is an assault on human rights. Natural rights, natural law school preaches, though difficult to obtain a permit, always stress that the purpose of the law is to achieve the freedom of human rights, highlighting the ultimate concern for human rights. The objective beingness of the due rights and the Marxist proposition (that rights result from the specific production relations and communication form of material) illustrate the logical priority of the rights relative to the law in nature, thus proving the existence of presumption of rights. The contradiction between the limitations of legislative technology and the development and changes of social life determines that presumption of rights becomes a theme in actual legal practice, unable to avoid or to terminate. As an open concept, rights have been constantly accepting the value judging of the society, and also expanding according to the needs of social subjects. Rights are a kind of institutionalized value, which requires constantly discovering and proving to be rightful, then gets the legal protection. The open rights also mean aside from the legal rights, there exist other kinds of rights. The establishment of the legal system is to take in those rights, unceasingly discovering and confirming the rights. In this case, presumption of rights is the promptest way to find rights.The open rights also mean aside from the legal rights, there exist other kinds of rights. The establishment of the legal system is to take in those rights, unceasingly discovering and confirming the rights. In this case, presumption of rights is the promptest way to find rights. Presumption of rights not only exists somewhere in the chain of law movement, but throughout the entire process of legal operation. As a special kind of rights thinking, presumption of rights take place in legislation, administration, justice and law abiding, the whole law practice process, where rights or laws generate. The subjects of the presumption are diverse, including all participants in the running processes, namely, lawmakers, and law enforcers, judiciary and the general public. The principle of "people reserve rights" established in the constitution of the United States and principle of "law does not prohibit the freedom" established in the constitution of France lay a foundation for legitimacy of presumption of rights. The principle of rule of law demand legal information has priority. However, when the existing legal information is not sufficient, or does not conform to the current actual requirements, the social reality can be the objective basis of presumption of rights. The realization of presumption of rights depends on the clear and specific institutional arrangements and operational mechanism. The justice, fairness, democracy and efficiency of presumption of rights rely on a series of feasible due processes. Moreover, social traditional morality must also be respected, in order to achieve good social effect of the presumption.