Obligation-based Theory vs.Right-based Theory:Confrontation of Ideas Between Warrender and Strauss  

作　　者：唐学亮 JIANG Yu(译) TANG Xueliang;JIANG Yu(the Xi’an Jiaotong University School of Law;不详)

机构地区：[1]the Xi’an Jiaotong University School of Law [2]不详

出　　处：《The Journal of Human Rights》2023年第5期1134-1150,共17页人权（英文版）

基　　金：a phased project of two general projects:the Translation and Study of Hobbes’s Of Man(Project No.22YJA720009);a project of the Humanities and Social Sciences Planning Fund by the Ministry of Education;the Research on Early Modern Western Sovereignty Theory(Project No.SK2022010);a project of the Basic Scientific Research of the Institutions of Higher-learning affiliated to Central Departments。

摘　　要：There is a transition from the objective laws or moral orders that precede human will in classical natural law to the subjective demands or rights emanating from human will in modern natural law,and it represents a historical debate on the shift from an obligation-based theory to a right-based theory.Strauss,within the context of this transition across time,assesses Thomas Hobbes's philosophy of law and recognizes him as the founder of modern natural rights theory.Using Wesley Newcomb Hohfeld's analysis of jurisprudence,Howard Warrender assesses the privilege nature of Hobbes's concept of natural rights and concludes that,since Hohfeld's privilege is the opposite of obligation and related to no-right,obligations cannot be derived from natural rights.Therefore,Warrender argues that Strauss's assertion requires correction.However,Warrender places excessive emphasis on Hohfeld's static separation of the concept of privilege within his theoretical system,overlooking the dynamic transformation from privilege to claim rights.In this regard,Hobbesian scholar Carlan's criticism of Warrender is valid.Meanwhile,Warrender's research holds theoretical significance in that he,under the premise of being a part of Hobbes'natural law tradition,transforms Hohfeld's flat,two-party legal rights relationships into a three-party legal rights structure,which could represent a potential innovation in the 20^(th)century legal philosophy.

关 键 词：OBLIGATION nature rights PRIVILEGE Warrender Strauss 

分 类 号：D909.1[政治法律—法学理论]