7 Two Theories of Rights: The Interest Theory and the Choice/Will Theory
“Rights” by Leif Wenar (from the Stanford Encyclopedia of Philosophy–just Google it)
2.2.2 The Will Theory and the Interest Theory
There are two main theories of the function of rights: the will theory and the interest theory. Each theory presents itself as capturing an ordinary understanding of what rights do for those who hold them. Which theory offers the better account of the functions of rights has been the subject of spirited dispute, literally for ages.
Will theorists maintain that a right makes the rightholder “a small scale sovereign” (Hart 1982, 183). More specifically, a will theorist asserts that the function of a right is to give its holder control over another's duty. Your property right diagrammed in the figure above is a right, says the will theorist, because it contains a power to waive (or annul, or transfer) others' duties. You are the “sovereign” of your computer, in that you may permit others to touch it or not at your discretion. Similarly a promisee is “sovereign” over the action of the promisor: she has a right because she has the power to waive (or annul) the promisor's duty to keep the promise. In Hohfeldian terms, will theorists assert that every right includes a Hohfeldian power over a claim. In colloquial terms, will theorists believe that all rights confer control over others' duties to act in particular ways.
Interest theorists disagree. Interest theorists maintain that the function of a right is to further the right-holder's interests. An owner has a right, according to the interest theorist, not because owners have choices, but because the ownership makes owners better off. A promisee has a right because promisees have some interest in the performance of the promise, or (alternatively) some interest in being able to form voluntary bonds with others. Your rights, the interest theorist says, are the Hohfeldian incidents you have that are good for you.
The contest between will-based and interest-based theories of the function of rights has been waged for hundreds of years. Influential will theorists include Kant, Savigny, Hart, Kelsen, Wellman, and Steiner. Important interest theorists include Bentham, Ihering, Austin, Lyons, MacCormick, Raz, and Kramer. Each theory has stronger and weaker points as an account of what rights do for rightholders.
The will theory captures the powerful link between rights and normative control. To have a right is to have the ability to determine what others may and may not do, and so to exercise authority over a certain domain of affairs. The resonant connection between rights and authority (the authority to control what others may do) is for will theorists a matter of definition.
However, the will theory's account of the function of rights is unable to explain many rights that most think there are. Within the will theory there can be no such thing as an unwaivable right: a right over which its holder has no power. Yet intuitively it would appear that unwaivable rights are some of the most important rights that we have: consider, for example, the unwaivable right not to be enslaved (MacCormick 1977, 197). Moreover, since the will theorist holds that all rights confer sovereignty, she cannot acknowledge any rights in beings incapable of exercising sovereignty. Within the will theory it is impossible for incompetents like infants, animals, and comatose adults to have rights. Yet we ordinarily would not doubt that these incompetents can have rights, for example the right not to be tortured (MacCormick 1982, 154–66). Will theories also have difficulties explaining bare privilege-rights (such as in the Hobbesian state of nature), which are not rights of authority over others.
The interest theory is more capacious than the will theory. It can accept as rights both unwaivable rights (the possession of which may be good for their holders) and the rights of incompetents (who have interests that rights can protect). The interest theory also taps into the deeply plausible connection between holding rights and being better off.
However, the interest theory is also misaligned with any ordinary understanding of rights. We commonly accept that people can have interests in x without having a right to x; and contrariwise that people can have a right to x without having interests sufficient to explain this. In the first category are “third party beneficiaries” (Lyons 1994, 36–46). You may have a powerful interest in the lottery paying out for your spouse's winning ticket, but you have no right that the lottery pays out to your spouse. In the second category are many of the rights of office-holders and role-bearers (Jones 1994, 31–32; Wenar 2013b). Whatever interest a judge may have in exercising her legal right to sentence a convict to life in prison, the judge's interests cannot possibly justify ascribing to her the power to make such a dramatic change in the convict's normative situation.
The difficulties of the interest theory have often been noted in Raz's version, which is perhaps the most prominent. In Raz's account, “X has a right if X can have rights, and, other things being equal, an aspect of X's well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty” (Raz 1986, 166).
Yet there appear to be many rights for which the interests of the putative right-holder are not sufficient to hold other person(s) to be under a duty. For example, Raz himself allows that the interest of a journalist in protecting his sources is not itself sufficient reason to hold others to be under the corresponding duty (Raz 1986, 179, 247–8). It is rather the interests of the general public in an active and independent media that grounds the journalist's right to protect his sources. Yet as Kamm observes, “If the satisfaction of the interests of others is the reason why the journalist gets a right to have his interest protected, his interest is not sufficient to give rise to the duty of noninterference with his speech” (Kamm 2002, 485).
Nor does this difficulty only affect the rights of office-holders like journalists; Raz admits that weighty rights such as the rights of free expression and freedom of contract are not justified solely by the interests of the individual citizens who hold them (Raz 1996a, 30–43, 131). Or again, parents may have the right to receive child benefit payments from the state, but here only the interests of the children, and not the interests of the parents, could be sufficient to hold the state to be under a duty.
Raz's version of the interest theory continues to be the most widely-cited account of the function of rights, despite such concerns that are now commonplace in the specialist literature. Kramer's version of the interest theory, which specifies necessary conditions for holding a legal right, is the major contemporary alternative (Kramer 2013, 246 n. 4).
Will theorists and interest theorists have developed their positions with increasing technical sophistication. The issues that divide the two camps are clearly defined, and the debates between them are often intense. (Kramer, Simmonds, and Steiner 1998, Van Duffel 2012a, Kramer 2013) The seemingly interminable debate between these two major theories has driven some to conclude that the debate itself rests on the mistaken premise that there is a single concept of a right for which these theories provide rival analyses (Van Duffel 2012b, Hayward 2013). The deadlock has encouraged other theorists to develop alternative positions on the function of rights.
“Demand” theories fill out the idea that, as Feinberg (1973, 58–59) puts it, “A right is something a man can stand on, something that can be demanded or insisted upon without embarrassment or shame.” For Darwall (2006, 18), to have a claim-right, “includes a second-personal authority to resist, complain, remonstrate, and perhaps use coercive measures of other kinds, including, perhaps, to gain compensation if the right is violated.” On Skorupski's account (2010, XII.6, XIV.2–3) rights specify what the right-holder may demand of others, where “demand” implies the permissibility of compelling performance or exacting compensation for non-performance. Like the will theory, these demand theories center on the agency of the right-holder. They do not turn on the right-holder's power over the duty of another, so they do not share the will theory's difficulty with unwaivable rights. They may, however, have more difficulties in explaining power-rights. Demand theories also share the will-theory's challenges in explaining the rights of incompetents, and in explaining privilege-rights.
“Rights” by Leif Wenar (from the Stanford Encyclopedia of Philosophy–just Google it)
2.2.2 The Will Theory and the Interest Theory
There are two main theories of the function of rights: the will theory and the interest theory. Each theory presents itself as capturing an ordinary understanding of what rights do for those who hold them. Which theory offers the better account of the functions of rights has been the subject of spirited dispute, literally for ages.
Will theorists maintain that a right makes the rightholder “a small scale sovereign” (Hart 1982, 183). More specifically, a will theorist asserts that the function of a right is to give its holder control over another's duty. Your property right diagrammed in the figure above is a right, says the will theorist, because it contains a power to waive (or annul, or transfer) others' duties. You are the “sovereign” of your computer, in that you may permit others to touch it or not at your discretion. Similarly a promisee is “sovereign” over the action of the promisor: she has a right because she has the power to waive (or annul) the promisor's duty to keep the promise. In Hohfeldian terms, will theorists assert that every right includes a Hohfeldian power over a claim. In colloquial terms, will theorists believe that all rights confer control over others' duties to act in particular ways.
Interest theorists disagree. Interest theorists maintain that the function of a right is to further the right-holder's interests. An owner has a right, according to the interest theorist, not because owners have choices, but because the ownership makes owners better off. A promisee has a right because promisees have some interest in the performance of the promise, or (alternatively) some interest in being able to form voluntary bonds with others. Your rights, the interest theorist says, are the Hohfeldian incidents you have that are good for you.
The contest between will-based and interest-based theories of the function of rights has been waged for hundreds of years. Influential will theorists include Kant, Savigny, Hart, Kelsen, Wellman, and Steiner. Important interest theorists include Bentham, Ihering, Austin, Lyons, MacCormick, Raz, and Kramer. Each theory has stronger and weaker points as an account of what rights do for rightholders.
The will theory captures the powerful link between rights and normative control. To have a right is to have the ability to determine what others may and may not do, and so to exercise authority over a certain domain of affairs. The resonant connection between rights and authority (the authority to control what others may do) is for will theorists a matter of definition.
However, the will theory's account of the function of rights is unable to explain many rights that most think there are. Within the will theory there can be no such thing as an unwaivable right: a right over which its holder has no power. Yet intuitively it would appear that unwaivable rights are some of the most important rights that we have: consider, for example, the unwaivable right not to be enslaved (MacCormick 1977, 197). Moreover, since the will theorist holds that all rights confer sovereignty, she cannot acknowledge any rights in beings incapable of exercising sovereignty. Within the will theory it is impossible for incompetents like infants, animals, and comatose adults to have rights. Yet we ordinarily would not doubt that these incompetents can have rights, for example the right not to be tortured (MacCormick 1982, 154–66). Will theories also have difficulties explaining bare privilege-rights (such as in the Hobbesian state of nature), which are not rights of authority over others.
The interest theory is more capacious than the will theory. It can accept as rights both unwaivable rights (the possession of which may be good for their holders) and the rights of incompetents (who have interests that rights can protect). The interest theory also taps into the deeply plausible connection between holding rights and being better off.
However, the interest theory is also misaligned with any ordinary understanding of rights. We commonly accept that people can have interests in x without having a right to x; and contrariwise that people can have a right to x without having interests sufficient to explain this. In the first category are “third party beneficiaries” (Lyons 1994, 36–46). You may have a powerful interest in the lottery paying out for your spouse's winning ticket, but you have no right that the lottery pays out to your spouse. In the second category are many of the rights of office-holders and role-bearers (Jones 1994, 31–32; Wenar 2013b). Whatever interest a judge may have in exercising her legal right to sentence a convict to life in prison, the judge's interests cannot possibly justify ascribing to her the power to make such a dramatic change in the convict's normative situation.
The difficulties of the interest theory have often been noted in Raz's version, which is perhaps the most prominent. In Raz's account, “X has a right if X can have rights, and, other things being equal, an aspect of X's well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty” (Raz 1986, 166).
Yet there appear to be many rights for which the interests of the putative right-holder are not sufficient to hold other person(s) to be under a duty. For example, Raz himself allows that the interest of a journalist in protecting his sources is not itself sufficient reason to hold others to be under the corresponding duty (Raz 1986, 179, 247–8). It is rather the interests of the general public in an active and independent media that grounds the journalist's right to protect his sources. Yet as Kamm observes, “If the satisfaction of the interests of others is the reason why the journalist gets a right to have his interest protected, his interest is not sufficient to give rise to the duty of noninterference with his speech” (Kamm 2002, 485).
Nor does this difficulty only affect the rights of office-holders like journalists; Raz admits that weighty rights such as the rights of free expression and freedom of contract are not justified solely by the interests of the individual citizens who hold them (Raz 1996a, 30–43, 131). Or again, parents may have the right to receive child benefit payments from the state, but here only the interests of the children, and not the interests of the parents, could be sufficient to hold the state to be under a duty.
Raz's version of the interest theory continues to be the most widely-cited account of the function of rights, despite such concerns that are now commonplace in the specialist literature. Kramer's version of the interest theory, which specifies necessary conditions for holding a legal right, is the major contemporary alternative (Kramer 2013, 246 n. 4).
Will theorists and interest theorists have developed their positions with increasing technical sophistication. The issues that divide the two camps are clearly defined, and the debates between them are often intense. (Kramer, Simmonds, and Steiner 1998, Van Duffel 2012a, Kramer 2013) The seemingly interminable debate between these two major theories has driven some to conclude that the debate itself rests on the mistaken premise that there is a single concept of a right for which these theories provide rival analyses (Van Duffel 2012b, Hayward 2013). The deadlock has encouraged other theorists to develop alternative positions on the function of rights.
“Demand” theories fill out the idea that, as Feinberg (1973, 58–59) puts it, “A right is something a man can stand on, something that can be demanded or insisted upon without embarrassment or shame.” For Darwall (2006, 18), to have a claim-right, “includes a second-personal authority to resist, complain, remonstrate, and perhaps use coercive measures of other kinds, including, perhaps, to gain compensation if the right is violated.” On Skorupski's account (2010, XII.6, XIV.2–3) rights specify what the right-holder may demand of others, where “demand” implies the permissibility of compelling performance or exacting compensation for non-performance. Like the will theory, these demand theories center on the agency of the right-holder. They do not turn on the right-holder's power over the duty of another, so they do not share the will theory's difficulty with unwaivable rights. They may, however, have more difficulties in explaining power-rights. Demand theories also share the will-theory's challenges in explaining the rights of incompetents, and in explaining privilege-rights.
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