The nature and basis of inalienable rights

This paper has two purposes. One is primarily (but not exclusively) conceptual and the other is normative. The first aim is to say what inalienable rights are. To explain this, inalienable rights are contrasted with the notions of forfeitable rights and absolute rights. A recent novel analysis of inalienable rights by Feinberg is explained and criticized. The first task is concluded by discussing what duties inalienable rights imply. The second aim is to see what moral principles, if any, justify designating some rights as inalienable. The claim of Nozick and others that inalienable rights must be paternalistically grounded is examined and rejected. After a brief critical discussion of the Lockean and Hobbesean accounts of the basis of inalienable rights, it is argued that the harm principle can serve as an adequate ground for categorizing at least the right to life (and perhaps other rights) as inalienable.An earlier version of this paper was read at Guilford College, Tulane University, and Wake Forest University. I have benefited from the suggestions and comments of members of those audiences and from Stephen Darwall, Thomas Hill, Jr., Edward Langerak, Ruth Lucier, James Smith, Lance Stell, Laurence Thomas, and Donald Van DeVeer.     

论公证权的基本属性

在以德国、法国为代表的大陆法系国家的公证法律制度中,公证员都具有国家公职人员和自由职业的双重属性。关于公证权的性质界定,在法学界比较一致的看法都认为它是一种国家权力,是国家在对当事人所涉及的法律行为、有法律意义的文书进行证明,以此来证明其真实性、合法性。由此得出了公证权是国家授权的理论。很多教材、专著和论文都认为公证权是一种国家权力或是国家以法律的形式将该项权力授予公证人来行使,从而使得公证证明具有不同于一般民间私证     

调解权的价值、性质与实现

本文以纠纷当事人的调解权为核心和基础,以调解权与相关国家权力的关系为视角,分析了调解权的被动性、调解权的差异性以及调解权的受支配性等特征。认为当事人之间的调解权利意识,是社会公众所昭示的公共性政策在法律领域的延伸,强调在需求多样化与多元化的今天,调解权的实现有利于维护公民的利益。     

试析我国农村土地承包经营权的性质

农村土地承包经营权是我国农村土地制度的核心。对于土地承包经营权的法律属性,学术界曾经存在较大的分歧。结合对《中华人民共和国农村土地承包法》条文的理解,从几方面论证了土地承包经营权是物权;与传统的用益物权永佃权进行了差别比较;指出农村土地承包经营权有关制度尚须完善。     

Bibliographical essay / the hart‐Devlin debate

Richard Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency New York: Oxford University Press, 2006, 208 pp.     

Review essay / rights and responsibilities

Lloyd Weinreb, Oedipus at Fenway Park: What Rights There Are and Why There Are Any Cambridge, MA: Harvard University Press, 1994, viii, 221 pp.     

HIV/AIDS and human rights revisited

In their article, Sofia Gruskin and Daniel Tarantola demonstrate how, as the number of people living with HIV and with AIDS continues to grow in nations with different economies, social structures, and legal systems, HIV/AIDS-related human rights issues are not only becoming more apparent, but also increasingly diverse. In the 1980s, the relationship of HIV/AIDS to human rights was only understood as it involved people with HIV or AIDS and the discrimination to which they were subjected. The concerns included mandatory HIV testing; restrictions on international travel; barriers to employment and housing, access to education, medical care, or health insurance; and the many issues raised by named reporting, partner notification, and confidentiality. Almost 20 years into the epidemic, these issues remain serious and most often have not been resolved. In the 1990s, however, there was increased understanding of the importance of human rights as a factor in determining people's vulnerability to HIV infection and their consequent risk of acquiring HIV infection and their chances of accessing appropriate care and support. And most recently, human rights have also come to be understood to be directly relevant to every element of the risk/vulnerability paradigm. Gruskin and Tarantola identify three situations and three levels of governmental obligations that should be considered when identifying the specific needs and related rights of individuals in the context of HIV/AIDS. They conclude that policymakers, program managers, and service providers must become more comfortable using human rights norms and standards to guide and limit government action in all matters affecting the response to HIV/AIDS; and that those involved in HIV/AIDS advocacy must become more familiar with the practicalities of using international human rights law when they strive to hold governments accountable.     

The Philippines: HIV/AIDS, condoms, and human rights

Influential leaders are increasingly attacking condoms through HIV-prevention programs that focus on sexual abstinence and marital fidelity. In May 2004 Human Rights Watch (HRW) released a report that examines the impact of these policies in the Philippines, the largest Roman Catholic country in Asia and a major recipient of US HIV/AIDS funding.     

The statue of security: human rights and post-9/11 epidemics

Following the attacks of September 11, 2001(9/11), there have been increasingly divisive proposals for Americans to sacrifice liberty for safety. "Health and human rights" provides a much more constructive and effective framework than fear on which to base both routine public health actions and responses to public health emergencies. This can be illustrated by the failure of bioterrorism-based government initiatives at both the state and federal levels since 9/11, as well as the worldwide response to the post-9/11 SARS epidemic. Effective public health work can only occur with a population that trusts its public health officials. 9/11 can serve as a catalyst to reform public health by adopting the health and human rights framework that can move it from a fragmented state and local activity to one that is federal and coordinated, and ultimately one that is global and based on transparency, trust, science, and respect for human rights.     

The contextual nature of the family structure/delinquency relationship

It is well established that growing up in a nontraditional family represents a risk factor for delinquent behavior; however, the understanding of whether this effect is universal remains imperfect. The present study examined whether the link between nontraditional family structure and delinquency varies according to six distinct circumstances: gender, race, age, SES, family size, and place of residence. Regression analysis of a nationally representative sample of adolescents between the ages of twelve and seventeen (n = 3,499) suggests that gender, race, SES, and place of residence do not condition the family structure/delinquency relationship. Significant interactions, however, were discovered with respect to age and family size. Generally, living in a nontraditional family is more criminogenic for older adolescents, and for those from larger families. The theoretical and practical implications of the findings are discussed.