%0 Journal Article
%T RevisedRank of Rights in Conflicts:An Analysis in the Perspective of Normative Jurisprudence<br>论权利冲突中的权利位阶——规范法学视角下的透析
%A LIN Lai-fan
%A ZHANG Zhuo-ming
%A <br>林来梵
%A 张卓明
%J 浙江大学学报(人文社会科学版)
%D 2003
%I 
%X 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.
%K rank of rights
%K equal protection of rights
%K conflicts of rights
%K value
%K measurement
%K normative
%K jurisprudence<br>权利位阶
%K 权利(类型)的平等保护
%K 权利冲突
%K 价值衡量
%K 规范法学
%U http://www.alljournals.cn/get_abstract_url.aspx?pcid=01BA20E8BA813E1924CB483152CA50D4FC5BD3CBB47B847F&cid=585D04A2453D8AD5DDFFE8BE5B16E24C&jid=D60DCFE5A8F7BD187924CADC70161E70&aid=4087ADE4688DFB26&yid=D43C4A19B2EE3C0A&vid=27746BCEEE58E9DC&iid=B31275AF3241DB2D&sid=94C357A881DFC066&eid=FC0714F8D2EB605D&journal_id=1008-942X&journal_name=浙江大学学报(人文社会科学版)&referenced_num=24&reference_num=10