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2.

2 The Function of Rights: The Will Theory and the Interest


Theory

2.2.1 Conceptual Analysis versus Definitional Stipulation

All rights can be represented by Hohfeldian diagrams like the diagram


of the part of the property right “molecule” above. However, some
diagrams of Hohfeldian incidents that we could construct do not
correspond to any right. Rights are only those collections of Hohfeldian
incidents that have a certain function (or perhaps certain functions). To
take an analogy: all thrones are chairs, but only chairs with a certain
function are thrones.

The question of the function of rights is the question of what rights do


for those who hold them. Before discussing the two major positions on
this issue, we can survey some statements that theorists have made that
may appear to be analyzing which Hohfeldian incidents are rights:

• To have a right is to have a “valid claim.” (Feinberg 1970, 257)


• “In the strictest sense” all rights are claims. (Hohfeld 1919, 36)
• “A right, in the most important sense, is the conjunction of a
[privilege] and a claim-right.” (Mackie 1979, 169)
• “Rights are permissions rather than requirements. Rights tell us
what the bearer is at liberty to do.” (Louden 1983, 95)
• “No one ever has a right to do something; he only has a right that
some one else shall do (or refrain from doing)
something.” (Williams 1968, 125)
• “A right is an established way of acting.” (Martin 1993, 1)
• “A person who says to another ‘I have a right to do it’ is not
saying that … it is not wrong to do it. He is claiming that the
other has a duty not to interfere.” (Raz 1994, 275)
• “It is hard to think of rights except as capable of exercise.” (Hart
1982, 185)
• “A right is a power which a creature ought to
possess.” (Plamenatz 1938, 82)
• “All rights are essentially property rights.” (Steiner 1994, 93)
• “Rights are themselves property, things we own.” (Feinberg
1973, 75)
At first this survey might remind one the proverb of the blind men and
the elephant. However, we should distinguish between two different
aims that a theorist might have when he make a statement of the form
“All rights are x.” A theorist may be attempting to analyze the meaning
of our ordinary concept of rights, or he may be stipulating a definition
of “rights” within his own ethical, political or legal theory.

Consider, for example, Mill's famous assertion in Utilitarianism:

When we call anything a person's right, we mean that he has a valid


claim on society to protect him in the possession of it, either by the
force of law, or by that of education and opinion… To have a right,
then, is, I conceive, to have something which society ought to defend
me in the possession of. (Mill 1861, 54)

As an analysis of the everyday concept of a right, Mill's assertion


would be weak. There is nothing incoherent in asserting, for example,
that God has the right to command man; yet presumably no one
asserting such a right would hold that society ought to defend God in
the possession of anything. Indeed there seems nothing incoherent in
the thought that individuals have a right not to be protected by society;
yet this thought could not make sense on Mill's characterization of
rights. (On Mill see also Hart 1982, 100–04.)

Mill's statement is better seen as a stipulative definition of the term


“right.” Mill stipulates this particular definition because the concept of
“those possessive relations that are valuable enough that it is
worthwhile for society to institute sanctions to protect them” is a
concept that works well within his larger utilitarian theory. So where
Mill's statement departs from the common understanding of rights, we
should charitably read Mill as prescribing, instead of describing, usage.
Many authors' pronouncements about rights are charitably interpreted
as these kinds of exercises in stipulation, rather than as attempts to
analyze the ordinary concept of rights.

In the scholarly literature it is not uncommon to encounter a general


statement about rights aligned with Hohfeld's assertion in the list above:
that all rights are, or at least include, claim-rights (see, e.g., Raz 1986,
166, 173-75; Steiner, 1994, 55; Kramer, Steiner and Simmonds 1999,
9-14). Again these “rights are claims” statements are better interpreted
as stipulative, rather than as analyzing common usage. “Rights are
claims” positions cannot recognize, for example, rights in a Hobbesian
state of nature where each person has unlimited privileges of self-
defense. Neither could a “rights are claims” theory recognize rights in a
section of a political constitution comprising only the powers of various
office-holders to appoint to other political offices. The statement that
rights are claims is prescriptive for, not descriptive of, usage.

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 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
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 theory, 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. 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 aspects 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, he cannot acknowledge 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 privilege-rights, 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 2008, 258–62).
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. Also in the second category are
counter-examples such as Kamm's (2007, 245): “If I simply endow you
with the right to some of my money, your interest in having the money
or property in general played no role, let alone a sufficient role, in my
now having a duty to give you my money.”

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) The seemingly
interminable debate between these two major theories has encouraged
the development of 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, such
accounts 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 difficulty explaining power-rights. Demand theories also
share the will-theory's challenges in explaining the rights of
incompetents, and in explaining privilege-rights.

Other recent analyses of what rights do for rightholders attempt to


combine the strengths of both of the leading theories. Sreenivasan
(2005, 2010) puts forward a hybrid analysis of the claim-right that
grafts the interest theory onto the will theory: here the function of the
claim-right is to endow the right-holder with the amount of control over
another's duty that advances her interests. Cruft (2004) suggests an
inclusive analysis where all rights are “of value” in securing the right-
holder's autonomy or interests. Wenar (2005) abandons the idea that all
rights have any single function at all, describing instead several distinct
functions that rights perform.

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