The question here is whether there are fundamental aspects of rights that are exclusive or at least more important in legal systems, as opposed to morality. A preliminary point should be mentioned. Do all legal systems have a legal concept? Their use is ubiquitous in modern legal systems. We are talking about legislators who have the legal right to legislate, judges who decide cases, individuals who make wills and contracts; as well as constitutions that grant citizens legal rights against their fellow citizens and against the state itself. However, it has been suggested that even some sophisticated earlier systems, such as Roman law, did not have terminology that clearly separated rights from duties (see Maine (1861), 269-70). The question is primarily addressed to legal historians and will not be discussed here, but it can be noted that in describing these systems, it may still be legitimate to speak of rights in the modern sense, since Roman law, for example, has clearly achieved many of the same results as contemporary systems. Presumably, it did so by employing some of the most fundamental concepts in which rights can arguably be analyzed. As a general rule, the rights of appeal themselves have other rights of recourse, for example to get the court to make a more compulsive order, perhaps under the threat of a criminal or quasi-criminal sanction, or for a person`s assets to be frozen or confiscated if, for example, someone has not paid damages previously awarded by the court. The details of these additional bypass rights vary from system to system. (3) It can be argued that Quine is referring here mainly to logical rather than practical consequences, but especially with legal categories, the point of this document is that there is no clear line between the two. The question I am trying to address here concerns two things: not only the extent to which the alternative “ontologies” of law and rights are implicit in the theoretical debate, but also the question of whether conceptualization itself can exert some control over the nature of the law and rights that the theoretical debate itself seeks to understand.
Do such theories imply what Quine calls an “ontological obligation” (1980, 8), in the sense that they engage the theorist in one or more of the possible “existences” of law and rights with different and resulting differences? If so, would a theory eventually prevail and reach an overwhelming consensus, so that academics, lawyers, judges and legislators, and perhaps even the general public, would think and act according to their assumptions, will the law and rights be “discovered” or “transformed” accordingly? Legal rights are clearly rights that exist under the rules of legal systems or on the basis of decisions of the competent bodies assigned to them. They raise a number of different philosophical questions. (1) Whether legal rights are conceptually related to other types of rights, mainly moral rights; (2) What is the analysis of the concept of legal claims; (3) What types of companies may hold legal rights; (4) Whether there are types of rights that are exclusively subject to legal systems or that have at least much greater importance in legal systems, as opposed to morality; (5) What rights should legal systems create or recognize? Question (5) is first and foremost a question of moral and political philosophy and, in general, is no different from the question of what duties, authorizations, powers, etc. should create or recognize legal systems. It will therefore not be discussed here. ABSTRACT: This article discusses the ontology of Bentham`s rights from a perspective influenced by American philosophical pragmatism. I study how rights are conceived and discussed in relation to reality. Jeremy Bentham claimed that all rights were “fictitious entities”.
But by privileging “political” rights over moral and natural rights, Bentham implies that legal rights are in a privileged position over natural rights over the relationship of the mind to reality. Because of its applicability through sanctions, a legal claim for Bentham has a privileged link with reality. I argue that non-legal rights can be understood as having a roughly parallel relationship with reality by directing human behavior through persuasion and not through sanctions.
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