A Theory of Credit Human Rights

预付人权理论

 

ZHAO, Tingyang

赵汀阳

Professor of Institute of Philosophy, Chinese Academy of Social Sciences

中国社会科学院哲学所研究员

 

 

 

人权已经发展成为一个虽无宗教之名而有宗教之实的西方新宗教。现代世界曾经缺乏能够一统江湖的最高意识形态，直到人权观念消化了基督教和自由主义资源而成为新宗教。人权宗教正在传遍世界，这是基督教过去想做而没有做到的。目前流行的人权观念存在着可能在未来导致混乱的理论隐患，因此我准备提出一个新的普遍主义人权理论，称为“预付人权理论”，它保留了天赋人权理论的几乎所有优点，而消除了天赋人权理论的各种危险因素。我试图论证，人权必须被理解为以“借贷”方式无条件地预付给每个人的权利，但每个人必须履行相应义务去回报所预支的人权，以此为条件才可以保有人权。一句话，人权必须无条件预付，但只能有条件享有。

Human rights have become a new type of de facto religion in the West, though it bears no such name. The modern world had long lacked a super ideology until the concept of human rights has evolved into a new religion by assimilating the resources of Christianity and liberalism. Spreading to every corners of the world, the human rights religion has been doing so successfully what the Christianity has failed to do. But I see a theoretical big problem in human rights, probably leading to practical disorder in the future. So I prepare a theory of credit rights in terms of neo-universalism, by contrast, more reasonable than natural rights, for it preserves nearly all that is good in the latter while removing the risk of discarding justice. My argument runs as that human rights should be granted or prepaid unconditionally and equally to everyone in terms of credit or "loan", but one will keep his rights only on condition that he would carry out his corresponding obligations as a return for his granted rights. In short, human rights are granted unconditionally but to enjoy conditionally.

 

天赋人权没有理论合法性

Natural rights are not theoretically justified

 

如果一个理论是普遍有效的，它就必须能够为其实践上的可能后果负责。于是一个理论至少必须满足：（1）给定理论T，T必须把所有可达的可能世界考虑在内，必须有能力承当和应付T所可能导致的各种问题；（2）T必须在“存在论成本”之内是可能的，即T所承诺的事情必须是真实世界所能够支付得起的。

If a theory is supposed universally good, it must be responsible for its possible consequences arising there-from. So a theory is required to consider (1) its theoretical responsibility in that given a theory T, T has to take in account all accessible possible worlds and see if T is capable to cope with all the practical problems implied by T; and (2) its possibility in terms of "ontological cost" which says that T's plans should be what the world could afford to let them be.

在此我想论证，天赋人权是一个反公正理论，而且在理论上不合格。

（1）“权利为本”的现代性颠覆了“诸善为本”的自然传统，把“善者优先”变成“权利优先”，这不是价值观的变化，而是对任何价值的釜底抽薪。如果权利优先于任何一种善，权利的正当性又能以什么为根据呢？似乎只剩下欲求了，由此可以发现，天赋人权根本没有价值依据。权利优先原则蕴涵着一个关于权利的维特根斯坦式悖论：假如对自由和利益的某种要求可以被搞成一种权利，那么对自由和利益的任何一种要求就都可以以同样理由被搞成权利。既然权利优先于任何一种善，就没有任何价值理由去规定什么能或什么不能被搞成权利。这个悖论将是价值混乱和社会失控的根源。权利背后是欲望，欲望无数而且互相冲突，因此权利也互相冲突，而且权利终将过满为患，没有一个世界能够支付其多无比的权利。权利反噬权利是个无法避免的问题。太多互相冲突的权利将造成对个人权利和公共空间的侵占，使主体间成为是非之地，就像国际间是个是非之地一样。

Here I try to argue that the theory of natural rights is a theory of injustice and lack of theoretical justification.

(1) The rights-based modernity replacing the virtues-based tradition in terms of the change from the priority of virtues to the priority of rights is not a change in values, but rather a deconstruction of any value. Rights find nothing as their justification but the wants when rights are considered priori to any virtue. And natural rights are essentially not the natural right grounded on virtues. The priority of rights implies a Wittgensteinian paradox running as that all wants could be claimed to be the justified rights on the same reason on which some wants are claimed the rights. This paradox of rights theoretically prepares the confusion in values and the social disorder that has partly come true today in the spectacle of a world crowded with so many rights increasing in horrible speed. No possible world is so rich as to afford so many rights. And the conflicting rights, in the case of rights against rights, will become inevitable in a world full of competitive wants to invade the public sphere and even violate the individual rights, making problems in the interpersonal relations as in the international.

（2）天赋人权所默认的人的概念是自然人，即生理学意义上的人，这是错误的选择。自然界不存在权利，权利是由社会游戏所定义的。把人的自然性说成人权的理由，权利就由“是”所定义而与“行为”无关，可是从“p是人” 这个事实命题推不出“p应该享有权利”这一价值命题。自然人的概念最多只能推出事实自由而不可能推出政治自由。权利所依赖的人的概念只能是道德人，这才能表达人性本质，因为人是做成的，并非本来就是。天赋人权以人的自然存在本身去定义无条件的绝对人权，这会成为一切不公正行为和过多权利的借口。

(2) It is a wrong choice to recognize the physiological concept of human, or physical person, as the foundation for human rights.  Rights can never be found available in the nature, but only be defined in the social game. The nature of a person cannot justify the rights of him in that the value claim "p ought to be given the rights" cannot be inferred from the factual statement "p is a human"(Hume's law). The concept of physical person could only imply the natural freedom, but never political liberty. The concept of human that makes sense for human rights is  "moral person" rather than a "physical person", for the essence of humanity has to be found in what human does rather than is. The wrong concept of human underlying natural rights has misled people to the fabricated absolute rights for human beings qua natural beings, which would result in the dangerous consequences of the expansion of rights and of making the excuse for criminals to be free of punishment.

（3）天赋人权破坏了权利概念和公正原则。公正原则是极少数具有先验性的（即能够通得过先验论证的）价值原则之一，它具有无懈可击的对称性结构（相当于数学或者逻辑的等值关系）。违反公正原则的价值选择不可能被证明为正当的。天赋人权破坏公正原则的一个突出表现（同时也破坏了权利概念）是把权利看作是仅仅根据个人存在本身而无条件成立的个人资格，就好像在他人缺席的情况下权利就能够被确定一样，而忘记了义务是权利的条件。

义务相当于成本，权利相当于收益。权利和义务关系的公正在于对称性，即权利和义务是互相蕴涵的：某人p拥有某权利R，当且仅当，R承诺了与之对称的义务O。如果某人拥有的权利大于义务，就等于多占了别人的利益。天赋人权的错误是，由于认定人权是无条件的，于是只强调这样的关系：p的权利蕴涵他人q尊重p的权利的义务，即（pR→qO）。它隐瞒了权利的合法性问题。假如给定一个游戏，人人无论怎么耍赖作弊，都不会被取消游戏资格，这样的游戏虽然兼备了自由、平等和公平，可就是没有公正。这个游戏是玩不下去的。我们不能随便替他人做主，他人未必同意我们拥有如此这般的权利以及因此强加给他的义务，他人对权利的想象可能不同，或者权利排序的偏好有所不同。只有先承诺我的义务以获得我的权利的正当性，然后才有正当理由去申请他人尊重我的权利的义务。义务先于权利，只有义务才能够保证权利的正当性。于是必须有这样的关系：p所承诺的义务pO在先而蕴涵着权利pR，因此又蕴涵着他人q尊重这一权利的义务qO，即（pO → pR）→ qO。

(3) The theory of natural rights abuses the principle of justice and the concept of rights.  Justice is one of the few transcendental principles of values, which could be proved in a transcendental argument, with its perfect structure of symmetry in quite a same way in the mathematical or logical equivalence，so that any choice in values cannot be justified if against justice. The theory of natural rights betrays justice as well as the concept of rights in that it takes it granted that the individual rights are his unconditional entitlements justified only in terms of the individual-in-itself, as if the rights of an individual could be decided in the absence of others, while ignorant of the fact that obligations are the necessary conditions for any rights.

Obligations constitute something of the cost for rights as the payoff, The relationship between rights and obligations is justified only in its symmetry, that is, their reciprocal implications: person p has right R if and only if p recognizes his obligation O equivalent to R. If p enjoys much more or greater rights than his obligations, this means to grab more than his share at the expense of others in terms of interests. But the theory of natural rights, by regarding human rights as something unconditional, recognizes only that the rights of p imply the obligations of q to respect the rights of p (pR→qO). This implication conceals the problem of justification of rights. Given a game where everybody will remain always a rightful player no matter how indecent his behavior, there may be liberty, equality and fairness, but no justice. It is unlikely that such a game will last long. We are not supposed to represent the others' minds, for they may not agree on such and such rights for us while such and such obligations for them as we claim. Others may be thinking of other kinds of rights or different ranking of rights. Only after committing ourselves to our obligations and thereby making our rights justified, can we have reason to ask the obligations of the others to respect our rights. Obligations are priori to rights so far as only obligations can support the legitimacy for rights, and never the converse. Hence the right relationship: the obligations accepted by p (pO) come first to imply his corresponding rights (pR), then further imply the obligations accepted by q (qO) to respect the rights pR, that is (pO →pR) → qO.

 

天赋人权定义了一个糟糕的生存游戏

The theory of natural rights defines a bad game of life

 

按照天赋人权理论，人权不仅无条件拥有，而且无条件永远享有。于是，一个人无论做了多么可怕的事情都永远保有不可剥夺的人权。如果某人为了获利去破坏他人的人权而无损于自己人权，即使犯了严重罪行也只受到轻微惩罚，他就等于获得额外奖励。不当奖励破坏了公正、平等以及人们对善恶是非的恰当理解，造成坏的生存博弈，显然，如果破坏了行为与报应的对称关系，使得社会博弈环境相对有利于不公正的行为，犯罪的惩罚轻微，做坏事的成本变小而收益很大，坏人坏事就获得博弈优势，通过坏事而获利就变成优选策略，而坏事作为有利策略将因此被更多的人所模仿，以至于成为普遍的占优策略而形成整个社会的坏的纳什均衡。我们有必要思考：什么是能够经得起被普遍模仿的行为策略？好的社会游戏应该有这样的元规则：任何人都不得从其犯罪行为中获得利益，或者，惩罚制度必须使犯罪行为成为得不偿失的行为。假如情况相反，人们就没有必要把保护自己的自主自由出让给作为正义代理人的国家和法律而换取受到国家和法律所保护的政治自由了。一旦公正原则崩溃，所有价值将如覆巢之卵。任何一种游戏都必以公正原则作为游戏的元规则，否则无法维持。

According to natural rights, everyone has and keeps unconditionally human rights all his life and at any case, so much so that one will never be deprived of his human rights even if he had done the worst crimes. It thus means an extra reward for one whose terrible crimes, doing great harm to the human rights of the others while improving much of himself, have come to slight punishments. The wrong reward will encourage injustice, inequality and bad conceptions of the right and wrong, and make a very bad game of life in which the unjustified behavior by evil player will be dominant in competitions because of the decrease in the cost of crime and the increase in payoff. It is very likely that the crime will become the profitable dominating strategy to be imitated by more and more players and finally make a universal Nash's equilibrium. We have to think seriously about what kind of strategy is really acceptable if universally imitated. To our sound rationality, a meta-rule of a good society should be that no one can be benefited from his wrong deeds, or that one will lose more than he has gained from his wrong behaviors. If on the contrary, say that the persons who have done terrible crimes could be protected from their deserved punishments in name of natural rights, people will find it an absurd mistake to render their naturally right freedom of self-defense to a government as the agency in charge of justice to ensure their liberty and deserved payoff. Neither a usual game nor the game of human rights has the right to break the rule of justice.

 

预付人权在理论上更合理

Credit rights is better in its theoretical consistency

 

预付人权不是与天赋人权对立，而是一个更好的理论。只有在一个人人非常良善而决不愿意损害他人的完美世界里，天赋人权才是说得通的，但是这个世界不存在。如果世界足够好，那么预付人权等价于天赋人权；如果世界不够完美，预付人权就能够解决天赋人权所不能对付的问题。既然不能选择世界，就只能选择更好的理论。

The theory of credit rights is a better theory rather than one opposite to natural rights. Natural rights theory works only in a perfect world where everyone is nice and kind. But we do not bet on a never world. The credit rights are equal to natural rights in a perfect world, and capable to deal with the problems that natural rights fail to solve in an imperfect world. It must be rational to choose a better theory since we cannot choose a better world.

预付人权坚持自然正当的公正原则的优先地位，并且认为凡是违反公正原则的策略如果被普遍模仿，世界将无法承担；同时还选择以他人为核心的关系存在论作为基础的他人原则，从“做”而不从“是”去定义人的价值，从对他人做什么的义务去界定权利。根据公正和他人原则的优先性，对于生活游戏，至少需要这样的元规则：（1）“人所不欲，勿施于人”代替“己所不欲，勿施于人”。这是我对金规则所做的改进版；（2）生活游戏必须有一个对善和正义更有利的博弈环境而不是相反。特别表现为，任何人都不得从其犯罪行为中获得利益，或者，任何犯罪都必须成为得不偿失的行为。

The theory of credit rights insists on the priority of justice qua the natural rightness on the reason that, from the point of view of game theory, the world will be ruined if the strategies that betray justice are universally imitated. And it also highlights the priority of the others-centered views from the Chinese ontology of relationship, so leading to the definition of humanity in terms of what one does to the others rather than he is, as well as the justification of one's rights only by his obligations to the others. With recognition of the priority of justice and the other people, a good game of life should have such meta-rules as follows: (1) an improved representation of the golden rule as that never do to others whatever others would not like you to do to them instead of the traditional as that never do to others whatever you would not like others to do to you. I have rewritten the golden rule from an others-centered point of view; (2) the game of life should be so designed as to favour the good and the justice and to stop any one being benefited from his crimes.

基于以上理由，以预付人权去修正人权理论具有明显优势。人权被理解为平等地借贷给每个人的预付权利，但每个人必须履行作为权利的有效条件的义务，如果拒绝相关义务，将被视同自愿和自动放弃了所预付的权利。天赋人权的失误在于背叛了权利与义务之间的公正对称关系，因此只能在很少的可能世界中有效而无法应付各种可能世界中的可能问题。预付人权似乎有希望用于可达的任何可能世界，因为它要求权利始终与普遍有效的公正原则保持一致。

Upon these reasons, the theory of credit rights could be claimed an adjustment of human rights. It says that every person is born entitled to the equal credit rights unconditionally, but enjoying them conditionally. One has to carry out his obligations, which justify his credit rights given in advance, so as to keep his rights. And one will be regarded to have abandoned voluntarily and automatically his rights if he refuses or abuses his obligations. In terms of the justice of the symmetry of rights-to-obligations, the claim of natural rights could be accused of being the betrayal of the natural right-ness, so that it could work only in a few possible worlds thus fails to be universal, whereas the theory of credit rights seem to work in all accessible possible worlds of human life, for it always keeps to the universal principle of justice.

 

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                               制作：Lin Hang           from 2005. -    .