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THE FUNDAMENTAL ISSUES OF PHILOSOPHY

1. BASIC ISSUES OF RIGHTS

1.1. Rights Concepts

The Chinese word quanli, now used to translate the English ‘rights’, appears very early in classical Chinese texts but in broadly negative or derogatory senses. Examples of the latter include the Xunzi ‘When ministers were exposed to the pleasures of music and women, to the privileges and benefits of power (quanli), to angry indignation and violent outbursts of fury and to misfortune and adversity, the ruler observed their ability not depart from strict observance of their duties’ 1or Huan Kuan’s Discourses on Salt and Iron: ‘Some esteem benevolence and righteousness; some work to gain power and benefit (quanli)’.2 Quanli in this sense is not a legal concept suitable for use in creating relationships in . Ancient Chinese legal language did not have equivalents to the English ‘rights’ and ‘obligations’. When in the 19th century W.A.P. Martin and his Chinese collaborators came to translate Henry Wheaton’s Elements of International Law into Chinese, they selected the classical term quanli as their translation of the English ‘rights’ and succeeded in persuading the Qing imperial court to accept the term. From this point on, quanli gradually came to have positive or at least neutral connotations in Chinese and was used widely in its new sense. Here we will consider the meaning of this latter or what has been called ‘modern’ usage of the word quanli.

1 See ‘Jundao’ (On the Way of a Lord), in Zhu Zhi Ji Cheng (Collected Works of Pre-Qin ), Beijing: Zhonghua Shuju (Zhonghua Book Company), 1954, p. 159. 2 See Huan Kuan, ‘Za Lun Pian’ (Various Discourses Fascicle), in Yan Tie Lun (Discourses on Salt and Iron).

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The definition and explanation of this word quanli has been one of the trickier problems of in China. In modern politics and law, ‘rights’ is a concept that is well respected but also vague and unclear. Kant wrote on the definition of ‘rights’ that asking a jurist what are rights was like asking a logician about truth – one would be embarrassed by the question. ‘It is all the more so, if, on reflection, he strives to avoid tautology in his reply and recognise the fact that a reference to what holds true merely of the of some one country at a particular time is not a solution of the general problem thus proposed.’3 The contemporary political and social Joel Feinberg has argued that it is impossible to give a normative definition of rights; they should instead be understood as a ‘simple, undefinable, unanalysable primitive.’4 To a certain extent, the difficulty of giving a definition of ‘rights’, is related to the excessive use that has been made of the word. Although rights language has its origins in the West, rights culture is by now a global phenomenon. As a convenient and ingenious tool for demanding and expressing , the language of rights provides a way to formulate and realise rational demands.5 Put another way, so long as one believes ones’ claim to be reasonable and legitimate, it can be called a ‘right’. A negative consequence of this is that the language of rights is often abused and debates about rights and their meanings are commonly plagued by misunderstandings.6 It is perhaps for this reason that the entry for ‘rights’ in the Oxford Companion to Law states somewhat bluntly that ‘right’ is ‘a word that has been severely misused and

3 , ‘The Metaphysics of Morals’, in Practical Philosophy, Mary J. Gregor (trans.), (New York: Cambridge University Press, 1996), p. 386. 4 Joel Feinberg, ‘The Nature and Value of Rights’, (1970) 4 (4) Journal of Value Inquiry, p. 250. 5 Michael J. Lacey and Knud Haakonssen (eds.), A Culture of Rights: the Bill of Rights in Philosophy, Politics and Law 1791 and 1991, Cambridge: Cambridge University Press, 1992, pp. 2-3. 6 , and Natural Rights, Oxford: Clarendon Press, 1982, pp. 198, 210. There has been a noticeable tendency to expand the concept of rights in recent decades, for which see Norman P. Barry, An Introduction to Modern Political Theory, New York: St. Martin’s Press, 1989, pp. 226-227.