Re-survey On The Right-based Theory

It's a due attitude on academic research that we should understand the theories fully and correctly before adducing them.Beginning with the view that "right is the purpose,obligation is the means," the right-based theory was told and unfolds.We ascertain the base according to the opposite relation between different essences rather than different pure-forms.The right-based theory is not for a political career,however,it's a tool of rectification on politics.Before accepting a correct explanation on it,people can easily misunderstand its name "right-based" by hearsay.Yet without the existence of misunderstanding,there's not any "explanation,re-explanation,survey,re-survey".So it begins with a survey on the right-based theory itself "again",and places its point on restating the right-based theory's keystone.In addition to keeping the theory's development and extension in an appropriate area,it's important to restate that the value of duty means is a component of the theory's keystone.We shall not compare the size or quantity of importance between each indispensable component.It's wise to compare the functions of them rather than quantize them.It would lead to some bigoted pursuit of right if the right-based theory is going to quantize their importance and compare them.However,the theory's keystone that "right is the purpose,obligation is the means,and obligation is derived from right and serve it,and is used to achieve it as well," does not mean that the size or quantity of the right's importance could be more than the obligation's.Both right and obligation are indispensable.The right-based theory just do an analysis job on each component's different function rather than quantizing their importance.At this point,the relationship between this theory and the obligation focus theory is not contradictory.These two theories both have explained the value of obligation,while from different points of view.The obligation focus theory is different from the obligation priority theory,though the writer of them has put them in one book and named the book just as The Obligation Priority Theory.These two theories have one name,but debate two separable issues.Without the obligation focus theory,only the obligation priority theory opposes the right-based theory in fact.In the second part,it surveys the relation between the right-based theory and other theories.Firstly,the natural law,which is about legal philosophy,provides some theoretical bases for the right-based theory,so it could be considered as a theoretical source of the right-based theory.But it is not the only theoretical source.And its whole content,which explains the source of natural right,is obviously different from the right-based theory that explains the value relationship between right and obligation.Secondly,we have a look on the western right view,especially the western individualist right view.The right-based theory in the science of law in China faces a question that whether it came from the western individualist right view or not.In China,as we know,the western individualist right view is always in a critical circumstance.The "right-based" in Chinese academic circle is not the same as that in western theory circle.The "right-based" in Chinese academic circle means that "right is the origin of obligation,and obligation is based on right,but not on power,even power should be in the service of right as well." And,in the Chinese right-based,the "right" is not about the individualism,it is an abstract concept,something about popular right in general meaning,or about general human right.Different from selfish departmentalism,individualism,collectivism,the Chinese right-based does not debate the issue or the contradictory relation between one person and the other person,or between the private and the collective or community.Thirdly,we have a look on the contradictory relation between the right-based theory and the obligation priority theory.Frankly,before I wrote this paper,I had been swinging between the right-based theory and the obligation priority theory ever for a long time.I was not a right-based supporter until I saw through the appearance to perceive the essence.During the opinions against the right-based theory,some criticized that it caused the lack of duty and morality,some criticized that it caused the overflow of them,some even criticized that it caused the lack and overflow of them at the same time.It's unimaginable that one theory could cause two completely opposite direction in one time just like a patient with schizophrenia.The reason of this schizophrenia is the conception confusion among right,obligation,behavior,interest,blame and another relative conceptions.It happens.We all naturally consider "having something" and "having some interest" as ownership itself,consider "pursuing interest" as a right,consider blame and responsibility as obligation and duty.So it is necessary to use some meticulous words and expressions for explaining the ontology of right and obligation and distinguishing the fore-mentioned conceptions.And I hope this job was done in the third part of the paper.The third part begins with the separation between the legal philosophy and the positive law,then it gradually derivate the ontology of right,obligation and power,and then it compares and analyses the differences of the relative conceptions above.Finally,it explains that the right-based regularity should mean a long circuitous process through which right gradually moves back to its original position,acting the base of obligation again.People in primitive society could not know about right and obligation,which does not mean that there was no existence of them.Subjective unknowing and un-dividing are not equal to objective non-existence.It's exactly the power dividing obligation from right and occupying the base position of law.Then the relationship between right and obligation is forced to metamorphose under the influence of power.The existence of power,the height of dominator's will,and the situation of most people's cognitive ability will codetermine the length of the time from discovering the right-based regularity to reflecting it and then to fulfilling it,while we should be well prepared for this long-time transition.Just as Rome was not built in a day,as Marx's communism needs the material ability's maximal accumulation and the maximal advance of the realm of thought,the whole society's fulfillment of the right-based regularity needs generation-after-generation efforts before "from quantitative to qualitative changes".