何以“主导但不自主”

Why “Dominant but not Autonomous” : The Establishment Basis of Parental Rights in Modern Law

In modern law, parental rights present a contradictory situation of “dominant but not autonomous”, which needs to analyze the fact and normative basis of its establishment in modern law. As far as the facts are concerned, modern parental rights are not only based on the consanguineous relationship between parents and minor children under the reproductive behavior, but also rooted in the reproductive mechanism,parents’ social responsibility to care for and raise minor children. In terms of the normative elements, the establishment of parental rights has two aspects: moral and ethical norms and human rights legal norms. The former, the ethical attribute of family identity relationship and the moral subject status of parents in the family have shaped the ethical norm foundation of parental rights in modern law. The latter, the relationship between reproductive freedom and specific human rights interests in human rights theory, together with the recognition and protection of parental rights as family rights in basic rights norms, constitute the legal normative basis of parental rights in modern law. Although the argumentation elements of the factual and normative basis of parental rights are filled with the interwoven confrontation between family identity autonomy and individual personality equality, the fact connection and interest interweaving between parents and minor children make the setting balance of parental rights in modern law between personality and identity.

家长权在现代法中呈现出“主导但不自主”的矛盾局面，对此需要分析其在现代法中设定的事实与规范基础。就事实要素，家长权在现代法中不仅立足于生育行为下家长与未成年子女的血缘关联，更植根于生育机制中，家长照护抚养未成年子女的社会责任。就规范要素，家长权的设定存在道德伦理规范与人权法律规范两个面向。前者，家庭身份关系的伦理属性以及家长在家庭中道德主体地位塑造了家长权在现代法中的伦理规范基础。后者，人权理论中的生育自由和具体人权利益的关联性，加之基本权利规范中对作为家庭权的家长权的确认与保障共同构成了家长权在现代法中的法律规范基础。尽管家长权的事实与规范基础的论证要素充斥着家庭身份自治与个体人格平等的交织对抗，但是家长与未成年子女间的生育事实关联与利益交织使得家长权在现代法中的设定权衡在人格与身份之间。