论权利冲突中的权利位阶——规范法学视角下的透析

权利体系中存在着一定的权利位阶,为此各种权利的类型不可能均得到"平等"的保护,但权利的位阶秩序并没有整体的确定性,不可能形成像"化学元素表"那样先在的图谱,因为权利位阶的确立本身往往涉及复杂的价值判断,为此,权利冲突的解决不能以此作为一种普适的依据,而需就个案进行具体的价值衡量.这也说明,返回"法的形而下",形成"具体实证"的实践品格,正是今后我国法学理论研究的一个进路.

RevisedRank of Rights in Conflicts:An Analysis in the Perspective of Normative Jurisprudence

There is no denying the facts that the subjects of rights enjoy equal protection from the law, both the qualification for them and the individuals being equal under the law. However, we cannot deduce the conclusion that all types of rights are equally protected by the law. In fact, there exists a ranking order of rights in the rights system. The rank of rights is mainly influenced and determined by the value of rights. It is the value of rights at different levels that makes the system of rights into some ranking order. This order has a relative certainty, so it can be an effective standard for some simple events and cases, or it can at least be a background of standards for law thinking. Therefore, it is impossible that all types of rights can have "equal" protection from the law, as Liu Zuo-xiang a Chinese law scholar argues. Otherwise, the conflicts of rights are always hard to resolve. On the other hand, there is no certainty on the whole for the ranking order of rights, and there is no possibility of a pre-existent picture like "The Chemical Elements" due to its more complicated relationship with value judgment. It is the value measurement, rather than the ranking order of rights, that is regarded as an effective criterion in dealing with some special cases of conflicts of rights. Just as the German jurist Hubmann says, it is true that kinds of values have different levels, high or low, but to decide what values are prior to the others in particular cases depends completely on the specific instances. To some degree, this approach, from metaphysics to common sense and to be more connected with positivism , can be an important approach for the Chinese jurisprudence studies. As positivism has never dominated the Chinese theoretical circles as it does in the Western countries, normative jurisprudence, which is the backbone of modern legal science, has never obtained a satisfying development. In contemporary China, with the era of large-scale legislative activities going past, the era of a judicial country will come by. Appropriate systems of case law and reviews of constitutionality will have to be established. In this historical trend, it is obvious that the progress and maturity of normative jurisprudence is an expected, unavoidable and inevitable step for china to enter the modern international community.