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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.
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.
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.
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.