권리담론의 세 차원: 개념분석, 정당화, 제도화

Abstract

We can distinguish three dimensions of rights discourse. There is the analytical dimension which concerns the question of what it means to have a right, and there is the moral/political dimension concerning the question of what rights we should have. The last dimension of rights discourse deals with the question about the institutionalization of human rights into legal rights. It is no doubt that these three dimensions are closely related and the answers to them interdependent. In this essay I wish to make a modest contribution to the discussion of the relations between these dimensions. The discussion will follow traditional path. In the first section, I will provide a very brief outline of the Hohfeldian rights analysis and of the two rival theories of rights. The second section deals with the normative foundations of basic moral rights. I shall consider also how basic human rights can be incorporated into the constitutional texts, arguing that in the institutionalization of moral rights a metaright should be presupposed. Finally, in the last section, I will discuss how we might measure the relative strength of rights. According to the interest theory of rights, rights are intermediary conclusions in arguments which begin with the evaluation of interests and end with conclusions about duties which should be imposed on other people. That is, rights are protected interests in that a person has a right if and only if an interest of his is a sufficient ground for holding another to be subject to a duty. Such an account gives the language of rights the same sense in legal as in moral discourses. I will try to show that the interest theory of rights can provide a attractive solution for the question of conflicts of rights.