ACKNOWLEDGEMENT

TABLE OF CONTENTS

Interest Theory
Your having a right to
something means that it is in
your interest, or is to your
benefit, and someone else has
a duty to provide it.
Someone violates your right by
not doing his or her duty to
provide the thing that is in
your interest.
INTRODUCTION
vs. Will Theory
Your having a right to
something means that you
have control over others’ free
will in regard to it; otherwise,
they can do as they please.
Someone violates your right by
acting contrary to your will in
regard to your right’s object.
 Hohfelds Table of Rights and its co -relatives

The concepts of rights and and its legal correlative can be better understood by the help of
hohfeld’s table representing the inter relationship between these jural concepts;-

(Right) (Liberty) or Power Immunity

(Claim) (No duty)

Liability Disability

(Duty) (No right)

(No claim)

In the above table, four terms I the fist rectangle are related to each other in more or less the
same way as the four terms in the second rectangle.

Jural co-relatives- (vertical arrows and read both ways) right- duty, privilege-no right, power-
liability, immunity-disability.

Right in X implies the presence of duty in Y, again liberty in X implies the presence of no
right in Y and vice versa.

Jural opposites- (diagonal arrows and read both ways) right- no right, privilege- duty, power-
disability, Immunity- disability.

right in X implies the absence of no right in him, vice versa.

Jural contradictories- (horizontal arrows and read both ways) right in X implies the absence
of liberty in Y, and vice versa .
THEORIES OF LEGAL RIGHTS

Will theory of legal right- the will theory of legal right has been supported by Hegel, kant,
Hume and others. Herbert L.A. Hart (1907-92), a British legal scholar, is credited with developing the will
theory of rights. “Your having a right to something means that you have control over others’ free will in regard
to it; otherwise, they can do as they please. Someone violates your right by acting contrary to your will in
regard to your right’s object”.

He cited Kant as inspiring his thinking about the importance of human freedom, or liberty. Freedom is the most
basic right, according to will theory. It is a moral (or natural) right. All other rights, moral or legal, are specific
protected freedoms. Limiting anyone’s freedom always requires the authorization of others’ rights; and the
subjects of rights remain free to “claim” them or not. According to this theory, A right is an inherent attribute of
the human will the subject matter of right has been derived from human will. The theory suggests that it is
through a right a man expresses his will over an object. Puchta observed that a legal right is a power over an
object which by means of his right can be subjected to the will of the person enjoying the right.
Vinogradoff consider that psychology of asserting claim is the basic of legal right in a social order
established by law no man is absolutely free to act as he likes, but his freedom of action is restricted
due to rights of others. According to Austin, right of a person means that others are obliged to do or
forbear from doing something in relation to him. Austinian concept of right is obviously based on
sovereign power of the state.

Problems for the Will Theory

1. No inalienable rights: The freedom protected by rights includes the freedom to waive any right, including
freedom to accept payment for waiving rights. Rights-holders could bargain away any of their rights.

2. Right-holders’ cognitive capacities: having a right requires understanding how to claim or waive it, which
infants cannot understand, nor can mentally incapacitated adults; so, like animals, they cannot have rights.

Interest theory of legal right

Jeremy Bentham (1748-1832) initiated the interest theory. Whainly propounded by german jurist
inhering . According to this theory “ a legal right is a legally protected interest”. Inhering does not
emphasis on the element of will in a legal right. He asserts that the basis of legal right is an
interest and not will. The main object of law is the protection of human interests and to avert a
conflict between their individual interests. But salmond has criticised ihering’s theory on the on the
ground that it is incomplete since it completely overlooks the element of recognition of the state. A
legal right should not only protected by the state but should also be legally recognised by it. He
treats the protection of animals from cruelty merely as a moral right. Your having a right to
something means that it is in your interest, or is to your benefit, and someone else has a duty to
provide it.
Someone violates your right by not doing his or her duty to provide the thing that is in your
interest.
 Someone would have a right to something (x), against a second person, if that person had a legal
duty to provide the first person with x. For example, on Bentham’s interest theory, you have a right
to vote if someone is legally required to provide you with the opportunity to vote, and count your
ballot, and so on.

Problems for the Interest Theory

1. Limiting interests: Specifying the set of interests that are sufficient reasons for rights is nearly impossible.
The proliferation of interest-based rights continues: welfare rights; health-care rights; women’s rights; animal
rights; etc.

2. Third-party interests: If you promise to tend a neighbour’s child, you have a duty, and the child has an
interest in your doing your duty; so the interest theory says the child has a right to your care. But only the
neighbour has the right.

Protection theory of legal rights-

The totalitarian view completely denies the existence of legal rights. Tey argue
that state being omnipotent, individual has no separate existence from it .
therefore in fact all rights