社会权与自由权区别主流理论之批判

积极权利与消极权利之间存在明确而具体的区别,但它不同于社会权与自由权之间的区别。主流人权理论所谓社会权与自由权之间的“义务区别”、“冲突区别”和“效力区别”都是虚构的、错误的。每一项权利都与积极义务和消极义务相联系;相应地,与社会权一样,自由权之间也存在相互冲突;社会权对国家不仅产生政治和道德约束力,也产生与自由权同样的法律约束力,并在一定范围和程度内产生可由司法裁决的法律效力。

Criticism of Mainstream Theory on Distinction between Social Rights and Liberal Rights

Distinction between positive rights and negative rights are clear and specific, but they are different from those between social rights and liberal rights. The alleged distinction of duty, conflict and validity between social rights liberal rights, which the mainstream human rights theory claims arbitrarily, are fictive and wrong. Every right associates with both positive and negative duties. Correspondingly, there are conflicts among liberal rights just as those among social rights. Social rights, like liberal rights, constrain the government in politics and moral as well as in law, and lead to judicial protection in some areas and to certain extent.