后代人权利理论批判
刘卫先后代人权利理论批判
Critiques on the Theory on Rights of Future Generations
期刊名称：《法学研究》
期刊年份：
作者：刘卫先
单位：清华大学法学院环境资源与能源法研究中心
中文关键词：后代人权利;代际平等;代际契约;跨代共同体;环境义务
英文关键词：right of future generation;intergenerational equity;intergenerational contract;intergenerational community;obligation to protect environment
中文摘要：
当今世界环境学科领域存在着具有广泛影响的“后代人权利”理论。但后代人权利论者用以支持后代人权利的各种证据都无法在逻辑上必然推出后代人享有权利的结论。后代人权利理论赖以成立的预设性前提也是虚构的客观事实。虽然近代以来，传统权利的主体范围确实有所扩展，但这种扩展并非是随意的。权利不可能扩展到后代人权利论者所说的“后代人”身上。环境义务是后代人权利理论的本质，也是后代人权利理论的正确出路和归宿。
英文摘要：
The theory on rights of future generations was first proposed in 1971 by Joel Feinberg, a well-known contemporary philosopher in the United States. Since then, this theory has been further developed and supported by majority of scholars under the background of environmental crisis. Scholars support, systematize and practice this theory by using different theories from different angles, among which representative scholars and their theories include Professor K.S.Shrader-Frechette’s theory on intergenerational contract, Professor Edith Brown Weiss’theory on intergenerational equity and Professor George Wright’s theory on interpretation of the intergenerational community.The theory on rights of future generations from its origin to its rapid development has widespread impact in the world. The following logic connotations can be found through the course of its development. Firstly, this theory aims to protect the environment by the name of the rights of future generations. And it characterizes the relationship between mankind and nature as the dominant control relationship of possession. Moreover, it artificially divides the whole of mankind into two independent and opposing subjects of contemporary and future generations. At last, it is an integral part and the inevitable result of the expansion theory of the subject of rights, which is intricately linked with the natural rights theory.However, through the rebuttal analysis, the theory on rights of future generations can be found a theory on fictional relation between right and obligation. Nonetheless, its purpose of environmental protection is no doubt correct, only its approach to achieve this purpose will not work. Protecting the Earth’s environment which is a necessary condition for human beings to survive and propagation can only rely on assuming the general obligation to protect the environment. Whether in theory or in practice, the pursuit of rights of future generations only leaves people the real obligations to protect the environment. At this point, it shares the same views with the theory on obligations to protect environment. Obligations to protect environment are not only the essence of the theory on rights of future generations, but also its right way out and its end.
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