The procedural theory of rights

BY DAI MENGYONG | 02-07-2024
Chinese Social Sciences Today

The Nature of Legal Right and Intrinsic Value of Humans

The Nature of Legal Right and Intrinsic Value of Humans, by Peng Chengxin, a professor from the Koguan School of Law at Shanghai Jiao Tong University, presents the charm of subject consciousness and spirit of rights from the reasons and premises of their existence, namely subjectivity, to explore the best way to realize rights through the intrinsic value of human beings.

The emergence and formation of the theory of private rights is linked with the individual’s self-subject consciousness and the degree of recognition and respect of the individual’s subject status by law. The study of private rights must begin with subjectivity. In modern society, where an individual’s legal subject status is universally recognized, the values of equality, freedom, and rights are self-evident as fundamental points. However, if these values continue to be regarded as ultimate theoretical values and used on this basis for systems design and theoretical argumentation, it will be difficult to develop and innovate with the right theory. 

When individuals’ subject status is universally recognized by the law, the traditional values of equality, freedom, and rights will no longer share a unified connotation, since people with subject consciousness have their own personalized understanding of these values. This is reflected in the principles of systems design, where the key lies not in providing people with a fixed and unique formulaic value model, but in ensuring that people participate in the creation of institutional procedures to realize these values. Therefore, the author emphasizes the importance of procedural values in modern society.

It is only individuals who have been endowed with equal subject status under the law and possess subjectivity themselves that can participate in the evaluation of the legitimacy of interests, establish the evaluation procedure of the legitimacy of interests, protect the evaluation results of interests, and elevate legitimate interests to rights. This is the procedural theory of rights the author advocates for. Specifically, rights originate from the pursuit of interests by the subject, which must undergo legitimacy evaluation with the participation of subjects. Only those interests (legitimate interests) that have been evaluated by the subject and have been explicitly recognized or at least not denied can be legally expressed as rights. 

Among the categories of interests, justice, and rights, interests represent the subjective desires of the subject or the freedom to pursue those desires, justice pertains to the due process of evaluating interests, and rights result from the evaluation of legitimate interests based on the principle of justice. Thus, this theory establishes the trilateral relationship between interests, justice, and rights: the essence of rights is legitimate interests, while justice is both the core of rights and the bridge between interests and rights.

Dai Mengyong is a professor from the Civil, Commercial and Economic Law School at China University of Political Science and Law.