TY - JOUR
AU1 - Frydrych,, David
AB - Abstract There is a long-standing debate about how best to explain rights—one dominated by two rivals, the Interest and Will theories. This article argues that, not only is each theory irredeemably flawed, the entire debate ought to be abandoned. Section two explains the debate and its constituent theories as a dispute over the criteria for the concept of a right, or for some subset of rights. Section three argues that each theory contains fatal idiosyncratic defects—ones that mostly differ from the canonical criticisms found throughout the literature. Section four then argues that the theories also suffer from graver common defects that have hitherto gone undetected. First, their criteria are unmotivated, unjustified, and of questionable accuracy. Secondly, rights theorists’ own commitments to different kinds of accounts (i.e. models) of rights and theories of law (eg legal positivism) show why any theory of this sort is unnecessary for understanding rights. 1. Introduction What is a right? What do rights do? Do all rights serve some overarching purpose? What makes rights different from rules, standards, duties, etc? There is a long-standing debate about how best to explain A RIGHT.1 Despite recent efforts to provide novel or hybrid accounts,2 the debate, which some believe has stalemated,3 remains dominated by two rivals, the Interest and Will theories. This article nevertheless claims that (i) both theories are irredeemably flawed; and (ii) the debate itself ought to be abandoned. It proceeds as follows. Section 2 briefly explains the Interest and Will theories. Section 3 argues that each theory contains serious idiosyncratic defects—ones that mostly differ from the canonical charges levied in the debate literature. Section 4 then shows that both theories also bear common problems that have hitherto gone undetected, and why any theory of this sort is unnecessary for understanding rights. 2. The Nature of the Debate4 The theories of rights provide competing explanations of, and criteria for, A RIGHT, or for some specified subset of rights.5 The Interest and Will theories’ (hereinafter IT and WT) rivalrous criteria for the concept are either analytical definitions6 or something akin to them. The latter seems to be the better explanation for three reasons. First, some versions of each theory only claim to offer the concept’s necessary conditions, not the sufficient ones.7 Secondly, theorists’ criteria are often not fully encapsulated by their analytical definitions (if proffered) anyway. Thirdly, normative—in the sense of being morally or politically evaluative—rights theorists also provide such criteria.8 Each theory’s criteria include: (i) an ultimate purpose that all instances purportedly serve; (ii) means of protecting or effectuating that purpose, eg by imposing duties on other parties, by including means of enforcement, etc; and (iii) specifying which candidates are worthy of rights status, ie which types of normative positions (eg Hohfeldian claims, liberties) and which tokens of those types (eg what subset of Hohfeldian claims) count as rights—not all might.9 There are both analytical and normative versions of the theories. Analytical versions aim to be morally and politically neutral, in the sense of elucidating what ultimate purpose rights serve, but without judging whether rights are good, bad or valuable things, whether people ought to have them, whether their ultimate purpose is good or evil, etc. Normative versions provide criterial accounts that fit into a larger story of what role rights should serve in a normative system. These can be moral or political explanations of what rights ought to do and which values they ought to advance. Although historically about A RIGHT,10 some versions of the theories are qualified in one or two ways: particularly, by specifying that theirs only concerns (i) the rights of a given normative domain or system and/or (ii) a certain kind of a right. For example, some exclusively cover legal rights, not moral ones. (Some even just concern a subset of rights within a domain, eg private law rights, rather than all legal rights.) Others may, additionally or alternatively, only profess to explain a right correlative to a duty (‘an RCTD'),11 not liberties, powers or immunities. Even so, some versions cover moral, social and/or institutional RCTDs,12 while others concern additional basic types, eg RCTDs, immunities, and liberties of any sort (legal, moral, game-based, etc).13 Theorists also differ over what their stated delimitations entail. Some claim that their respective versions of IT or WT are mere preparatory efforts for more expansive accounts, ie more work could be done to extend their accounts to apply to other kinds of rights and/or to other normative domains. Others insist that their versions (should) extend only as far as the kind of right and/or domain discussed. Hence, neither of the two types of delimitation entails a denial that other (kinds of) rights exist, which are ungoverned by the version of IT or WT presented. Proponents generally believe these sorts of theories to be indispensable for: (i) determining A RIGHT’s essential features and ascertaining what all rights have in common; (ii) providing a standard by which to assess theory-neutral rights models (eg Wesley Hohfeld’s schema of jural relations);14 (iii) providing guidelines for constructing new rights models; (iv) assessing functional versus modal views of rights;15 and, some theorists seem to contend, (v) helping to determine (perhaps in conjunction with other legal theories, facts, etc) where real rights obtain. Again, theorists who adopt an existing rights model, such as Hohfeld’s schema, superimpose their criteria upon it. These function as a qualification test to determine which of the model’s components actually count as rights and which do not. (Theorists who construct their own models, rather than adopting existing ones, declare what counts as a right based on their specified criteria.) For example, there are at least eleven theory-driven interpretations of Hohfeld:16 The only real type of a right is a claim Only ‘complexes’ containing a claim and enforcement and/or waiver power(s) are rights Rights are any one of Hohfeld’s four types of rights Rights are any one of Hohfeld’s four types of rights and complexes composed of such types Rights are any of Hohfeld’s four types of rights plus one or more type of normative position (eg a duty right, a liability right) and complexes thereof Rights are only some of Hohfeld’s four types of rights Rights are only some of Hohfeld’s four types of rights and complexes containing such types Rights are suitable tokens of any of Hohfeld’s types Rights are suitable tokens of only certain Hohfeldian types Rights are only suitable tokens and complexes containing such tokens Rights are only complexes containing suitable tokens IT and WT are both families of theories. All versions of WT posit that a right necessarily affords its holder (and, in some versions, also another party authorised to act on the holder’s behalf) the capacity to control a correlative normative position. ‘Control’ here generally means using enforcement powers.17 Typically, this is control over someone else’s correlative duty. Consider first HLA Hart’s ‘later’ WT of private law (and certain other public legal) RCTDs, power-rights, and liberty-rights. Given its composition, a particular private law RCTD may afford ‘fuller’ or ‘lesser’ measures of control. The fullest measure includes all of the following ‘elements’: Element I: the right holder may (Ia) waive or (Ib) extinguish the duty, or (Ic) leave it in existence. Element II: after (II) breach or (II′) threatened breach of a duty [the right holder] may (IIa) leave it ‘unenforced’ or (IIb) may ‘enforce’ it by suing for compensation or, in certain cases, (IIc) for an injunction or (IId) mandatory order to restrain the continued or further breach of duty. Element III: the right holder may (IIIa) waive or (IIIb) extinguish the obligation to pay compensation to which the breach gives rise.18 Hart believes that a private law RCTD is a kind of normative power.19 Indeed, each element forming the ‘measures of control' presented in Hart's account here is an enforcement power. He also posits that private law RCTDs, other power-rights, and liberty-rights (three types of right complexes) provide their holders a legally respected choice and control because each actually contains bilateral liberties by which to exercise it or not. For example, liberties by which to (not) exercise a power to waive a RCTD's correlative duty.20 For Hart, a private law RCTD's ‘modicum of control' over a correlative duty renders its holder a ‘private legislator'21 or ‘small-scale sovereign', one who is afforded a ‘locus standi' by which to be recognised by the legal system (and by others), and through which to effectuate one's will within the law.22 Hence, such rights provide a sort of status, recognition, and empowerment within a normative domain. On Carl Wellman’s WT, rights afford their holders a kind of dominion status, one entitling them to prevail in (even hypothetical) conflicts with others wherein the right’s content is pertinent.23 This dominion status is, in turn, a form of freedom and control within the specified domain.24 Other versions of the theory hold that rights protect, and afford the ability to make choices regarding, (legally constructed or protected) domains of personal liberty.25 Some versions of WT posit that only a right complex composed of an RCTD plus one enforcement or waiver power (but at least one as a minimum) used to protect or effectuate the holder’s will counts as a real right. A minority, though, also hold that rights can be complexes composed of various positions (eg Hohfeldian immunities, liberties) on the condition that they include at least one instance of the relevant sorts of enforcement power(s). Two versions of WT maintain that liberties and powers count as rights, seemingly even without component enforcement powers, so long as the holders can make choices regarding their usage. However, these two versions nonetheless interpret an RCTD to be (an) enforcement power(s).26 All versions of WT nevertheless agree that RCTDs protect their holders’ wills via enforcement powers over other parties’ correlative normative positions.27 Most versions of IT lack an equally developed teleology. Still, each tries to delimit the relevant sorts of interests in some way. Some versions (seemingly) present accounts of interests in terms of (individual) well-being.28 Others maintain that the interests in question are limited to ones that are normally, standardly, or typically beneficial to, or advantageous for, the class of agent to which an individual right holder belongs.29 ITs also divide over whether a right must have a predicate interest and justify the imposition of normative positions (eg a duty) on others, or whether a right merely protects or fulfils an interest via the right–correlative position relationship.30 (One could advance a hybrid justification–protection version, though.) Some versions of IT hold that only RCTDs are rights. Others posit that liberties, powers, immunities, and complexes can be rights too. All versions of IT agree, however, that normative positions which fail to serve the ultimate purpose of serving the interests in the relevant way(s), whether via correlative duties or through other specified means, are not real rights. 3. Each Theory’s Idiosyncratic Failings This section addresses each theory’s unique flaws, ie ones its rival does not bear. It also shows why most of the canonical arguments levied against the theories throughout the literature are somewhat off the mark and that their respective idiosyncratic difficulties actually lie elsewhere. Let us commence with WT’s problems, both real and purported. A. WT’s Particular Problems (i) Divvying up a right’s components One of WT’s unique defects is that it lacks a principled explanation of how a given right’s components, eg RCTD and enforcement powers, can be held (and exercised) by different people.31 Its claim that rights perforce afford control is therefore untenable. To see why, though, first requires understanding IT’s under-inclusivity charge: WT purportedly fails to account for clear cases of rights (and erroneously entails that certain sorts of agents are not right holders). The set of wrongly excluded cases includes the rights of: children; the mentally handicapped; the comatose; the dead; non-persons; third-party beneficiaries of contracts; substantive criminal law victims; and animals.32 Interest theorists offer several grounds to try to substantiate this charge. One is their ‘incompetency’ argument, which chastises WT for not recognising certain legal rights simply because their holders are not personally competent to enforce them, eg minors, the mentally handicapped,33 and victims’ rights under substantive (as opposed to procedural) criminal law in common law jurisdictions.34 Secondly, in response to will theorists’ ‘third-party beneficiary of contracts’ argument against IT (addressed in Section 3.B(i) below), some interest theorists respond that, instead of marking their inability to explain why third-party beneficiaries lack rights, WT cannot explain why such parties do in fact have rights.35 Each of IT’s grounds relies on the same point: pace WT, real rights can obtain even if their holders cannot personally enforce them. Debaters nevertheless miss the fact that this under-inclusivity charge is off the mark for some (superior) versions of WT. These allow for the separation and apportionment of a single right’s components—eg its RCTD, various enforcement powers (if construed to be distinct from the RCTD) and/or liberties by which to exercise those powers—amongst different people. Namely, between one party and a second legally competent and authorised party, eg between a child and a legal guardian; a citizen and a legal official; etc.36 These versions of WT can acknowledge the existence of rights even where their holders neither possess nor can exercise enforcement powers.37 Hence, it is false that WT must hold that being personally enforceable by the right holder is a necessary condition of A RIGHT. A right can obtain so long as someone (eg a legal guardian, a government prosecutor, a principal’s agent) possesses and may use the relevant sort of powers. WT’s real problem is rather the lack of a principled basis for these distributive manoeuvres. How can you believe that a right’s components can be divvied up if you also insist that it perforce affords its holder some ‘control’ over others? Whose will gets protected or effectuated here? Given WT’s criteria, what makes the parcelled-out normative positions count as components of ‘a’ right? Why treat it as a unified construct, rather than as distinct (kinds of) rights held by different people? Additionally, versions of WT allowing for this apportionment cannot explain why the powerless party (or unauthorised power holder) is a right holder38 or why the power holder/wielder is not the true right holder—as certain other versions of WT insist.39 If, moreover, RCTDs necessarily protect their holders’ wills via enforcement powers, then how could such cases count as ‘mere exceptions to the rule’ of one person holding all of a right’s components, including those necessary for enforcement? (ii) Explaining control Another of WT’s idiosyncratic defects is that it does not adequately explain why only certain modes of control are germane to will vindication. Neil MacCormick's ‘inalienability' argument against WT is slightly narrower in focus. If rights serve to protect their holders’ wills, why are certain ways of doing so unavailable for some rights? Further, if all (legal) RCTDs protect their holders’ wills via enforcement powers, why is it that our more politically significant legal rights, such as constitutional ones, are inalienable (or unwaivable) in certain ways? If enforceability is essential to the concept, why is it that, sometimes, a right’s lacking certain such powers is more valuable than having them? WT, he claims, generates a paradox: the fewer the means of control afforded, the less of a right it is.40 While partially on point, the ‘inalienability’ argument cannot falsify WT. For one thing, inalienable rights may nonetheless be enforceable.41 For another, will theorists disagree amongst themselves about which enforcement and/or waiver powers are essential. Hart claims that rights admit of ‘fuller’ and ‘lesser’ measures of control,42 while Simmonds suggests that any right may have a variable set of such mechanisms.43 Hence, the absence of a given power is no proof that other relevant powers fail to obtain. For the incompetency and ‘inalienability’ arguments to succeed, one would need to establish the possibility of a right where no one possesses or can exercise the relevant enforcement mechanisms. Specifically, one would have to (i) show that any given type of element of control need not obtain in a given case, and then (ii) adduce that a right could exist lacking any such control in anyone’s hands.44 The problem, again, is that will theorists might simply deny that the candidate instance constitutes a genuine case … Regardless, WT lacks a principled explanation about why only certain sorts of powers (and other normative positions) are germane to will vindication. (iii) A mere version of IT WT’s third major defect is that is it wholly subsumable under its rival. Even if all rights were enforceable, IT could still deny that enforceability is essential to A RIGHT. Imagine that there was universal agreement that all rights are enforceable and thus afford some form of control. That would still leave open the question of whether all rights (exist in order to) facilitate or protect interests or the will. IT might also claim to have a better explanation of why enforcement mechanisms obtain, ie as tools to help protect the interests behind, or effectuated by, the right. (Early versions of IT may even have maintained that all legal rights are enforceable.)45 Moreover, WT lacks an adequate account of why the locus of concern for rights is or ought to be the will in the first place. Now, some versions claim to emphasise will vindication via right-holder-status recognition, rather than via the ability to make choices regarding enforcement.46 Even so, all versions are subsumable under IT. For, in response to the possible objection that IT and WT's ultimate purposes still clash, it must still be asked: is right-holding status vindicated for its own sake, ie for the sake of one's will, personhood, soul, etc, or in order to advance one's interests? What might the differences between personhood vindication and those interests be? (iv) The threat of redundancy Another of WT’s idiosyncratic problems is somewhat ironic: it erroneously reduces rights to powers. Through its ‘redundancy’ argument(s), WT charges IT with erroneously reducing, analytically, AN RCTD to A DUTY and/or making the term ‘a right’ superfluous. The theory purportedly entails that all propositions about RCTDs can be (better) restated in terms of duties.47 IT could nevertheless levy a ‘redundancy’ argument of its own, charging WT with erroneously reducing AN RCTD to A POWER.48 However, we already have the concept, A POWER, which concerns the capacity to change (create, modify or terminate) parties’ normative positions and statuses. Further, even if normative powers are a subset of rights, not all rights are powers. Some will theorists would deem this to be a misplaced charge, as their versions hold that rights are complexes composed of an RCTD (not construed as a power on their conception, but as a passive position) plus enforcement powers, and that these components can be distributed amongst different agents. This understanding of A RIGHT therefore requires including the feature of being entitled to someone else’s duty-bound action or forbearance, which is not covered by the concept of A POWER per se. Hence, they will insist that WT does not reduce rights to powers. The reduction charge nonetheless remains apt because enforcement powers are equally integral to the ‘distributional’ versions of WT’s conception of A RIGHT. Take away all of the enforcement power(s) and there is no real right left according to WT—even if it contains (what I have labelled) a distinct ‘RCTD’. Other will theorists might insist that this charge misses the point of their distinct versions: to recognise or vindicate a party’s right holder status (his or her ‘dominion’) in the face of real or hypothetical disputes. However, these versions of WT also suffer the same difficulty: the inability to explain the passive RCTD component.49 Hence, the charge of reducing rights to powers applies to their versions too. B. IT’s Particular Problems (i) Fails to delimit IT also contains serious idiosyncratic defects. One is failing to credibly delimit the relevant interests—the only way to render the theory potentially worthwhile and illuminating. As shall be discussed in section 3.B(ii), an ‘interests simpliciter’ version of IT does not suffice. For example, legal rights need not be predicated upon beneficial, weighty or important interests, let alone ones based on their holders’ individual interests (as certain versions of the theory insist). Leif Wenar suggests this is typical of IT, because rights ‘outrun’ interests of any sort.50 All versions of IT nevertheless (seemingly) deny this; they claim to delimit the relevant sorts of interests in some way or other. Their reason for doing so is at least in part because they deem WT’s charges of IT’s (i) suffering an infinite proliferation problem and (ii) being incapable of explaining why certain rule-governed situations do not include rights to be on point.51 However, all of their delimitation efforts, eg to interests that concern well-being,52 or ones which are normally, typically, or standardly beneficial for a class of beings or entities,53 are unsuccessful. What has nonetheless gone unnoticed in the debate literature is that, by virtue of these theorists’ legal positivist commitments, they are, or ought to be—in the name of consistency—committed to the idea that legal rights can reflect any sorts of interests, including ones that cut against well-being, being typically beneficial, etc.54 Their versions therefore cannot, and need not be, delimited to those sorts of normative concerns. Additionally, with no specific subset of interests being endorsed, there is no reason why certain versions of WT could not embrace the notions of rights being grounded in, or protecting, interests. Consider Raz’s IT first. His is not what it appears to be at first glance because its ‘well-being’ prong is not actually integral to it.55 To provide some context, Raz’s account of LAW includes the ideas that (i) the law can be identified simply by its sources and (ii) law necessarily claims to possess legitimate authority (whether it has it or not).56 In accordance with his (exclusive) legal positivism, and despite his IT criteria, he also notes that authorities can create legal rights for any reason they see fit. ‘One has a legal right because the authority declared that one has an interest which justifies holding others to be subject to duties. One has that legal right even if the authorities’ declaration is mistaken.’57 There are also trivial legal rights.58 Further, legal officials can create rights that fail to work as hoped or designed.59 For example, legislators may address some concern with an individual or class of persons’ well-being (which ostensibly catalysed the officials to act in the first place) by codifying a right that either unwittingly protects different interests instead or is actually incapable of advancing or protecting the intended interest. (One may add that officials can even intentionally misrepresent a legal right as promoting someone’s well-being, knowing full well that it does not and will not. They might therefore simply ignore considerations of well-being altogether when constructing the right.)60 In light of these considerations, Raz cannot really be taken to hold that rights perforce protect individuals’ well-being; and when taken together with his overall account of LAW, his rights theory turns out to be neutral about which sorts of interests legal rights can protect or advance. The same can be said of Kramer’s IT. He insists that his version does not, and that rights theories generally need not, provide A LEGAL RIGHT’s sufficient conditions.61 The question of which interests to recognise is, he convincingly suggests, a jurisdictionally contingent matter.62Qua positivist, though, Kramer ought to believe that officials may deem that a putative (class of) legal right(s) counts as valid if it meets the jurisdiction’s rule(s) of recognition—irrespective of whether it is typically beneficial for a class of beings or entities. Furthermore, while he (correctly) denies the need to do so, Kramer nonetheless tries to provide the sufficient conditions via a revised version of a test originally devised by Jeremy Bentham. However, this ‘Minimum Sufficiency’ test cannot delimit the relevant sorts of interests accurately.63 Stripped of the test, then, Kramer’s IT is best understood, like Raz’s, as concerning any sort of interest. Authorities may very well claim to either be advancing right holders’ well-being or to have in its legal repertoire rights that protect interests which are typically beneficial for some class of beings. For positivists, however, the officials’ claims need not be true or accurate, and nor are they even relevant to determinations of the rights’ legal validity. Even non-positivist versions of IT, such as John Finnis’,64 can admit that there exist legal rights borne of corruption or mistakes, trivial ones, ones with design flaws, etc. This, even if such theorists would want to deem these to be ‘peripheral’ or ‘degenerate’ cases, per the central case method. However, after admitting that such cases exist, or that the relevant sorts of interests are jurisdictionally contingent (even if there is some central set of interests with which officials ought to concern themselves), you are, again, left with an account that is basically unobjectionable to WT—save in terms of the latter’s insistence about rights perforce offering some modicum of control. Additionally, if one insists that IT must limit the relevant sorts of interests to those concerning right holders’ well-being, it is difficult to see how a contemporary normative version of IT can account for status-based, inegalitarian rights, eg those that help structure aristocratic or priestly classes. For example, had primum noctum been a real medieval right, how would we determine if it was really a matter of the lord's well-being? (Since it is in the right holder’s interest to increase his chances of having offspring?) A fortiori if the theory needed to hold that this right’s existence was buttressed by the community’s interests. What about the rights to select wager of battle and to designate a champion to do the actual fighting?65 (Is it in a combative community's interest to allow the more skilled fighters, or their employers, to escape/establish justice in this fashion?) This is not to say that these rights fail to protect or advance interests. A theory could insist that such rights do advance their holders’ well-being. However, it would be incongruous with the dominant values of this epoch, with most (if not all) contemporary Western normative theories of law and with those of any interest theorist of the last two centuries. The flipside of that problem, however, is this: WT’s canonical charges of IT’s being incapable of explaining or delimiting which interests warrant rights actually miss the mark.66 To see why, let us first consider the charges and the argument standardly used to advance them. Purported Flaws #1 and #2: IT is said to systematically register false positives and be incapable of delimiting the set of genuine rights. First, the theory cannot but attribute rights to beings and entities that, despite arguably bearing interests, do not actually possess (specific, real-world) legal rights. Take, for example, individual blades of grass and their ‘interests’ not to be stepped on.67 Secondly, the theory misattributes particular rights to undisputed classes of right holders (eg sane, adult humans) who nevertheless do not actually possess those specific rights. Purported Flaw #3: Relatedly, IT cannot explain why particular interest bearers—those known to have had particular laws created in their favour, ones that impose duties on other parties—do not possess correlative rights.68 Critics therefore ‘condemn the Interest Theory for its failure to specify why some interests receive legal protection while others do not’.69 WT’s third-party beneficiary of contracts (3PB) argument is standardly used to exhibit Purported Flaws 1 and 2. It runs thus. A 3PB contractual relationship is one where A and B enter a contract whereby B must either perform a service for or provide a good to C (say, to fix C’s roof). Legally, it may be irrelevant whether C is aware of the contract’s existence. The issue is this: does C have a legal right under the contract? What about C’s neighbours on the same street, who have an interest in C’s roof being fixed (eg it may affect their own properties’ value). How about neighbours on different streets, whose property values may also be affected by B’s work? Etc. IT, so the 3PB argument goes, lacks sufficient grounds to deny that parties C, D, E, etc possess legal rights per their criteria for A RIGHT, even though these identified parties, along with an indeterminate set of people, might be said to have interests in seeing that the roof gets fixed.70 Again, the 3PB argument aims to serve a dual role: first, to mark a problem with IT’s criteria: they require identifying rights in places where, according to certain legal systems, they do not (and need not) actually obtain; and secondly, to show that IT cannot establish which interests warrant rights-bearing status.71 However, scholars have failed to notice that these purported flaws are either false charges or at least off the mark. Rights theories aim to explain A RIGHT’s structural and purposive features. It is not actually their job to (i) identify all instances or (ii) decide who counts as a right holder in any given domain or system and on what bases. The latter are, or ought to be, tasks for either a different kind of (legal) theory or simply be a system-contingent query.72 Further, that 3PBs may have contract-based rights should be of no great concern to IT, as it is conceivable that a legal system could afford all of them (and even some larger set of people) such rights. Different systems can have different rules for determining which parties possess rights and on what bases, ie which interests warrant rights protection. Thus, WT’s charges are not real problems for any theorist who does not offer the (full set of) sufficient conditions for A RIGHT, irrespective of which theory of law that rights theorist also propounds (if any). The 3PB argument is also impotent if, as is often the case, one’s IT is tethered to legal positivism. For then it is not simply that the relevant types of interest warranting legal rights may be a system-contingent matter, it is also the case that determining whether candidate instances constitute bona fide rights is a job for legal positivist theses, eg about the rule(s) of recognition. Real world legal systems' sets of rights need not track some normative theory about only certain kinds and sets of rights being morally or politically warranted. Just because the roof owner, the next-door neighbour, etc have an interest in the roof being fixed, it need not follow that IT must attribute (legal) rights to them. On a positivist view, a legal system may afford rights to some such parties and not others—for whatever meritorious or unmeritorious reasons. This virtue of positivism, however, itself undercuts the credibility of, and need for, an IT espousing a robust conception of well-being or some other delimited subset of interests. (We shall return to the relationship between theories of law and of rights below in section 4.B.) Stripped of any credible delimitations of (i) interests and (ii) a particular form of interest-right connection (ie grounding, advancing, protecting, etc), we are left with a version of IT that is no real rival to WT.73Qua theory, it also provides no reason to believe that rights serve a unique ultimate purpose.74 An Interests-Simpliciter version therefore holds the following: I-S IT: A right is invariably related to an interest. Any right is either grounded in an interest, protects it, effectuates it and/or advances it. Additionally, a right is connected to that interest either by design or by accident. The interest may be important, trivial or even counterproductive to its holder’s aims and ends. Furthermore, interest theorists present purported cases of rights lacking (one or more) enforcement mechanisms in order to falsify WT. However, we do not need a theory to do that. In other words, rights theories are not needed to advance or resolve the (older) debate about whether rights are perforce enforceable. (ii) Cannot adequately distinguish rights IT’s second major defect is that its putative necessary conditions for the concept do not help distinguish rights from other normative concepts and features, for others (eg rules, standards, principles liabilities) may be predicated upon, advance, protect or fulfil interests too. IT may not even be able to help to sufficiently distinguish rights from ‘absolute’ duties: ones not grounded in, or correlated to, rights. (iii) Interests versus normative positions Certain versions of IT bear a third idiosyncratic defect: insufficiently accounting for (i) again, the relationship between interests and rights75 and (ii) rights qua normative positions. Although aware that officials may mispresent the real reasons for codifying a right or err in constructing it, some interest theorists tend to ignore a distinction raised by Roscoe Pound generations ago: there is a difference between the legally codified right and the interest it is (purportedly) predicated upon.76 Furthermore, in response to Wesley Hohfeld’s deeming ‘a claim’ to be the ‘stricto sensu’ case of a right, Pound asserts that ‘If we define [the right] in terms of claim, we put in the foreground the idea of interest, whereas we are defining something conferred by law to make the interest effective’.77 For one thing, while a given interest might catalyse the construction process for a legal right, it might not be the same interest the position actually protects. Additionally, legal officials could claim to create a right that protects interest X but instead intentionally make one that does not do the work, or even one they believe to be wholly useless. (Here, one could resort to Interest-Simpliciter IT and go fishing for some interest or other that the right might accidentally advance.) For another thing, while Pound’s assertion may be disputed, a (purported) predicate interest does differ from understanding the features of a right qua normative position, entitlement, normative advantage, etc. By construing rights to be interests (or interests-reasons), some versions of IT, but not all, cannot adequately account for this aspect of A RIGHT.78 4. Shared Problems A. Questionable Criteria Section 3 showed that most of the standard debate charges are inaccurate and that each theory’s serious idiosyncratic faults lie elsewhere. This section presents their common problems and argues against the very theoretical enterprise’s being worthwhile. For one thing, any such theory of rights' criteria are suspect. Undertaking repair work for the existing theories, or constructing alternatives, is unmotivated because the construction process for criteria of this sort is somewhat arbitrary. Here is why. Rights theorists generally fail to establish, let alone justify, (i) the selection criteria for their theoretical criteria and (ii) how they fix the content for each criterion.79 Posing basic questions about the latter is long overdue. On what grounds were certain features selected while other candidates were rejected? Why must rights ultimately protect or advance just one thing?80 (Wenar’s ‘Several Functions’ theory was a step in the right direction against this feature of rights theories. However, it did not go far enough, and its own candidate features can all be explained in terms of interest protection/effectuation.) Why do particular normative positions, which seem fully capable of effectuating or protecting interests or wills, not count as rights under certain versions of each theory’s criteria?81 For WT, why must an RCTD be protected by (some variable number of) enforcement powers? Why must a right typically protect the will via personal control mechanisms, why are there exceptions to this rule and why should such cases count as mere ‘exceptions’ to that rule? In the last couple of decades, certain scholars have presented more expansive versions of both theories (or ‘hypothetical’ versions thereof) that account for more kinds of rights than just RCTDs.82 Still, most versions of WT delimit will vindication to enforcement mechanisms—means by which to try to remedy or vindicate a right—enforcement powers, especially.83 However, those sorts of powers do not exhaust the ways by which rights can be exercised or enforced, let alone constitute the full set of means by which rights can vindicate the will. Why, then, restrict consideration to just them? (Given their narrow focus on enforcement, even versions of WT with specified domain or kind-of-a-right qualifications could not adequately determine such rights’ ultimate purpose.) As examples, the powers used to create, modify and terminate rights (eg to buy property, or for entering and ending contracts) seem no less utile than those concerning enforcement for the purposes of will effectuation. All versions of WT lack adequate accounts of will vindication to justify limiting their concern to rights enforcement rather than rights exercise more generally. Further, WT’s various explanations of a right’s putative ultimate purpose (eg of a private law right holder being a ‘small-scale sovereign’ or ‘private legislator’, or of having ‘dominion’ status) are all woefully underdeveloped. In turn, IT’s ideas that rights must protect or advance some notion of well-being, interests that are typically beneficial for a class of beings, or some other subset of interests has already been put into doubt. What, therefore, would justify its proponents deeming it to be a conceptual impossibility for legal systems to contain sets of evil rights, entitling their holders to (or to do) horrible things?84 Why cannot there also be certain rights designed to run contrary to their holders’ (or the class of beings to which the holders belong) best interests? Aside from those who explicitly argue in favour of restricting the term ‘a right’ to RCTDs, why do some interest theorists exclude normative powers and immunities from their accounts, which could be said to ‘justify’ others bearing Hohfeldian liabilities and disabilities? Furthermore, both theories fail to adequately address plausible criteria for A RIGHT, including the ideas of rights as entitlements, advantages, norms, capacities, etc.85 Rights are also sometimes said to possess the qualities of weight, (peremptory) force or trumping power. The absence of any of these latter (purported) candidate features, or at least good reasons for excluding them, is somewhat surprising, given certain theorists’ discussions of them.86 While one might deem these to be surmountable difficulties, repairing the theories or constructing alternatives remains unmotivated because there is no reason to even believe that all (specified) rights must meet these putative criteria. Rather than simply questioning the very idea of credibly identifying a normative concept’s essential features,87 it suffices in this article to note that both analytical and normative theories of rights’ criteria are methodologically suspect. First, the idea that all rights, or even just some designated subset of a kind-of-a-right and/or a right within one normative domain, necessarily bear some singular, non-trivial, ultimate purpose is under-motivated. Theorists offer no good reason to believe that rights must have one, and there probably is not just one (or three or six, depending on how one interprets Wenar’s ‘Several Functions’ theory). So, too, with a criterion specifying modes of protecting, justifying, etc: there is no reason to believe that rights perforce must do only one of these sorts of things. As such, there is little reason to put faith in theoretical criteria of this sort. B. Superfluous Theories There are two more bases for thinking that rights theories are unnecessary and that their debate ought to be abandoned. First, there are both Hohfeldian interest and will theorists. Indeed, there are both normative and analytical Hohfeldian theorists. They all agree that Hohfeld's schema identifies what lawyers, judges and others call (and what legal sources style as) ‘rights’. Still, they insist that their theoretical criteria are indispensable for determining which (tokens of which) types of normative positions within the schema really count as rights.88 On the contrary, rights theories are superfluous supplements to, and restrictions upon, Hohfeld. Their criteria are complicated stipulations about which of the schema’s normative positions count as rights, on grounds that depart from why these rights theorists came to adhere to it in the first place. One is, of course, free to believe that the schema is unsound. What matters instead is this: how was Hohfeld able to construct a model, one many (but not all) rights theorists believe to be basically sound, without relying on any rights theory’s criteria? Is it a mere coincidence? Did he stumble upon the appropriate conceptions?89 No. Rights modellers can look at legal and moral sources and discourses to decide whether the term ‘a right’ is used equivocally (eg compare ‘A’s right to do φ’ with ‘A’s right that B must φ for C’) and that the different meanings concern different concepts. Modellers can then make practical judgments and stipulations about those concepts (eg distinguishing between an RCTD, a liberty, a power, etc) and how they connect to one another, if at all, and to other sorts of normative positions (eg in terms of correlativity, logical contradictoriness, etc). As the process involves practical judgments, modellers need not try to justify their accounts via comprehensive inquiries into all possible data sets—even if they must be receptive to empirically driven critiques. Additionally, they need neither posit some ultimate purpose that all rights must serve nor provide other candidate necessary conditions for their conceptions (tested against actual and hypothetical cases—methods both analytic and normative rights theorists employ). Hohfeld never did so. (He also showed that rights modelling need not be normative—again, in the sense of being morally or politically evaluative. For example, endorsing or rejecting the distinction between A CLAIM and AN IMMUNITY need not be based on moral or political judgments.)90 Now, Hohfeld’s popularity with many rights theorists is no proof of the schema’s soundness. For example, you might believe that A CLAIM cannot accommodate the idea of rights being reasons (of varying weight) that can ground duties and other normative positions.91 Even if it could not,92 you still do not need a theory to advance that view. Take Raz’s overall account of A RIGHT. It ostensibly holds that rights perforce justify others’ bearing duties that advance right holders’ (beings of ultimate value or corporations) well-being.93 The ‘theory’ portion could nonetheless be excised, leaving a model according to which a right is a reason (good, bad, weighty, trivial) deemed (by officials, by a community, etc) or presented as being sufficiently weighty to justify imposing normative positions on others. Further, even if you reject all existing models, you could create a new one without relying on ‘theoretical’ criteria to do so. There are more credible alternative methods.94 Secondly, as seen above in section 3.B(i), legal positivists (should) find it difficult to stick to a right’s theory’s criteria.95 For such rights theorists, it is both problematic and unnecessary for them to make claims about rights' necessary features (not just the sufficient ones) that can run contrary to their positivistic commitments. Consider first positivist interest theorists. How can they claim to delimit the relevant interests to those concerning well-being, or those which are ‘typically’ or ‘standardly’ beneficial for a certain class of being or entity, and deem these to be essential to A LEGAL RIGHT?96 If a legal system’s rule of recognition identifies as valid certain rights that do not meet such criteria, positivists should consider them to be genuine cases and counterexamples to IT (rather than as pseudo-rights for failing to meet the rights theory's criteria). Once again, Kramer’s argument against Raz’s view that law necessarily claims legitimate authority97 applies equally to legal rights: a wicked legal system’s officials do not even pretend that all of the system’s rights are typically beneficial, advance well-being, etc, nor should they be.98 For positivist will theorists, why do cases of unenforceable rights fail to establish that A LEGAL RIGHT does not perforce afford control, dominion, or private legislator status? For example, if officials can recognise unenforceable legal rights (albeit not via dispute resolution processes triggered by a right holder or guardian’s enforcement powers) as being valid per their rule of recognition, why would they fail to count as bona fide instances within the legal system? Rights theorists might object that officials’ positing certain laws creating (aberrantly, putatively) what they claim to be rights cannot thereby change the very concept, A LEGAL RIGHT. Theorists could also insist that their accounts offer ‘conceptual clarifications’: although beholden to empirical evidence to some extent, their theories are ‘correctives’ to the messiness of rights discourse and practices, and are therefore not subject to empirical falsification.99 These objections miss the point. Actual and hypothetical cases qua counterexamples provide grounds for deeming a rights theory’s criteria to be erroneous. The demand for methodological consistency across one's theories of LAW and A RIGHT should therefore lead to scepticism about all positivist rights theories. Even if they are in part correctives (and we already have credible bases to doubt they are ‘correcting’ using reliable techniques), it is simply untrue that such theories are immune from empirical falsification. On the contrary, an abundance of counterexamples affords (i) grounds to deem an account of the concept suspect and (ii) a basis for seeking a superior alternative available on the jurisprudential marketplace. If rights theories were otherwise immune to this sort of scrutiny, there would probably be no reason for positivists (or others) to lend credence to any of them, let alone prefer one over the other.100 5. Conclusion The theories of rights debate is over seemingly rivalrous criteria for A RIGHT, or for some subset of rights. This article argues that the existing theories are irredeemably flawed and that theories of this sort are unnecessary for understanding rights anyway. The dominant existing theories, the Interest theory and the Will theory, contain both significant idiosyncratic and common defects. (Most of the idiosyncratic ones, moreover, differ somewhat from the standard charges levied in the debate literature.) WT’s idiosyncratic defects are these. First, its thesis that rights perforce afford some form of control is untenable. This is because it cannot adequately explain or justify the distribution of a single right’s components amongst different people (eg a child’s possessing an RCTD, but the child’s legal guardian having the enforcement powers), let alone why such divvying up should constitute an exception to the rule. Secondly, WT cannot explain why some rights have (available) more enforcement powers than others. Thirdly, the theory is subsumable under IT. Fourthly, WT erroneously reduces AN RCTD, if not also A RIGHT, to A POWER. IT’s idiosyncratic failings are in turn these. First, an Interests-Simpliciter version of the theory is unilluminating—especially in terms of an ultimate purpose all rights serve and as a necessary condition for the concept. An explanation of all rights’ ultimate purpose in terms of interests of any sort, where rights either—intentionally or accidentally—protect or advance an interest or justify others bearing normative positions, is, at best, trivially true. Further, not all legal rights are predicated upon individuals’ actual interests or those of some class to which they belong. Even when catalysed by a genuine interest, a posited right need not protect or reflect that interest. As no version of IT credibility delimits the set of interests, we are left with the Interest-Simpliciter version. Secondly, IT offers inadequate necessary conditions for A RIGHT as other sorts of normative concepts and features may also advance and/or protect interests (and even be the basis for imposing duties on others), eg rules, principles, absolute duties. Thirdly, as shown in sectoin 3.B(iii), certain versions of IT fail to adequately address: (i) the difference between rights and the interests upon which they are (purportedly) predicated; (ii) the possibility of rights without predicate interests; and (iii) accounts of rights qua entitlements and qua normative positions. Fourthly, you do not need a whole theory to counter the proposition that rights are perforce controllable. While there are grounds for deeming IT’s and WT’s respective idiosyncratic flaws to be fatal, this article also provided some reasons for adjudging any rights theory of this sort and the very debate to be unnecessary. First, the bases for constructing such theoretical criteria for A RIGHT are suspect. (The existing criteria are also under-inclusive in terms of: (i) which normative positions count as rights; and (ii) the ways in which a right can protect, vindicate, effectuate, etc a right holder’s interests or will.) For those tempted to alleviate these problems by undertaking repair work or constructing new theories, this article suggests that the selection process for theoretical criteria of this sort is somewhat arbitrary and unmotivated because there is little reason to believe that all rights do, or must, meet these criteria, eg an ultimate purpose and a singular mode of effectuation. Secondly, rights theorists themselves point to (i) non-arbitrary alternatives for understanding rights and (ii) grounds for believing that their own rights theories are incongruous with their overall views about law. Their commitments to other kinds of (i) legal philosophical accounts (eg legal positivism) and (ii) accounts of rights (ie ‘models’, which can rely on distinct methodologies for their construction) actually render such rights theories superfluous. This article developed the case in terms of analytical rights theories, but the same can be done for normative versions too.101 It is therefore time to abandon the theories of rights debate. Scholars can look to both ordinary and legal discourses and practices to harvest the relevant data to shape their accounts without concocting these sorts of ‘theoretical’ criteria. One last point. Rights theorists who present domain or kind-of-right qualifications might complain of unfair treatment here. Their versions have a more limited aim: not to explain the ultimate purpose of all rights, just that of certain kinds of rights and/or those in certain normative domains. The article’s criticisms nevertheless apply equally to these versions. Theirs are equally problematic in terms of whether all such instances really concern interests or the will. Their criteria, moreover, still assert global scope over the specified domains or particular kinds of positions, determining or entailing which instances count as rights. They purport to explain what makes these sorts of normative positions count as rights, despite acknowledging that other kinds of rights obtain. Hence, their theories are under-motivated: why adopt them if we already know that there are other kinds, ones that do not rely on their specified criteria? This article revises a chapter from my doctoral thesis, David Frydrych, ‘Against the Theories of Rights', in The Architecture of Rights (DPhil Thesis, University of Oxford 2016). Footnotes 1 A contemporary philosophical convention is to use all capitals to mark concepts. This is done to distinguish them from denotations of words, phrases, and terms (for which quotation marks are used instead). 2 The article does not discuss most would-be hybrid and alternative theories; for, building on Matthew Kramer’s earlier efforts, I argue elsewhere they are just Interest theories: David Frydrych, ‘The Theories of Rights Debate’ (2018) 9(3) Jurisprudence 566; Matthew Kramer and Hillel Steiner, ‘Theories of Rights: Is There a Third Way?’ (2007) 27 OJLS 281. For such accounts, see, e.g., Rowan Cruft, ‘Rights: Beyond Interest and Will Theory’ (2004) 23 Law and Philosophy 347; Gopal Sreenivasan, ‘A Hybrid Theory of Claim-Rights’ (2005) 25 OJLS 257; George Rainbolt, The Concept of Rights (Springer 2006); Leif Wenar, ‘The Nature of Rights’ (2005) 33 Philosophy and Public Affairs 223; Leif Wenar, ‘The Nature of Claim-Rights’ (2013) 123 Ethics 202; Mark McBride, ‘The Tracking Theory of Rights’ in Mark McBride (ed), New Essays on the Nature of Rights (Hart Publishing 2017). 3 eg L Wayne Sumner, The Moral Foundations of Rights (Clarendon Press 1987) 51; Leif Wenar, ‘The Analysis of Rights’ in Matthew Kramer and others (eds), The Legacy of HLA Hart: Legal, Political, and Moral Philosophy (OUP 2008) 269; Siegfried van Duffel, ‘Adequacy Constraints for a Theory of Rights’ in McBride, New Essays (n 2) 187. 4 This section summarises and revises Frydrych (n 2) 567–76. 5 I argue elsewhere that scholars are wrong to try to delimit A RIGHT and the cognate term ‘a right’ to just one type of normative position, eg to just a Hohfeldian claim, thereby denying that liberties, powers, or immunities can be rights. David Frydrych, ‘Rights Modelling’ (2017) 31(1) Canadian Journal of Law & Jurisprudence 125. The debate literature often refers to rights and their correlatives (eg duties, liabilities) as ‘normative positions’. This suggests people’s and institutions’ identities and/or statuses within a normative system or domain: a legal system, a community’s positive morality, a corporation, etc. It is also a slightly controversial term, as some deny that certain positions (eg liberties, powers) constitute ‘norms’ on the grounds that they do not guide or regulate behaviour. See eg Carl Wellman, Real Rights (OUP 1995) 8. 6 On analytical definitions offering ‘criteria’ (eg for something’s counting as X), see, eg Hilary Putnam, ‘The Analytical and the Synthetic’ in Hilary Putnam (ed), Philosophical Papers, Volume 2: Mind, Language, and Reality (CUP 1979) 67: Although sufficient conditions, necessary conditions, etc, are sometimes called ‘criteria’ (eg the above ‘criteria’ for analyticity), the sense of ‘criterion’ in which an analytical definition provides a criterion for something’s being the sort of thing to which a term applies is a very strong one: (a) the ‘criteria’ I am speaking of are necessary and sufficient conditions for something’s being an A; and (b) by means of them people can and do determine that something is an A. 7 eg Matthew Kramer, ‘In Defence of the Interest Theory of Right Holding: Rejoinders to Leif Wenar on Rights’ in McBride, New Essays (n 2) 54. 8 While the theories are concerned with words and terms (eg ‘a right’), they are not simply efforts to provide clearer meaning to ordinary usage. 9 Frydrych (n 2) 567–76. ‘Tokens of a type’ is simply used to mean instances of a class here. 10 The debate appears to build on an earlier one dating back to (at least) the 12th century. If the two debates actually differ, it is because the older one does not concern theories offering detailed criteria for the concept but is instead simply a dispute over whether rights are invariably enforceable. See Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law 1150–1622 (Scholars Press 1997) 117–18, 189. 11 The philosophy of rights contains various conceptions of this type of a right. The most famous are perhaps Hohfeld’s claim, HLA Hart’s right-correlative-to-an-obligation and Raz’s right. Wesley Newcomb Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale LJ 16, 30–2; HLA Hart, Essays on Bentham: Jurisprudence and Political Theory (OUP 1982), especially the chapter ‘Legal Rights’; Joseph Raz, The Morality of Freedom (OUP 1986), especially the chapter ‘The Nature of Rights’; Joseph Raz, Ethics in the Public Domain (revised edn, OUP 1994), especially the chapter ‘Legal Rights’. My label ‘RCTD’ can cover the various conceptions, with two important caveats. First, certain conceptions deem enforcement powers to be features of an RCTD; others hold an RCTD to simply be constituted by such powers; while still others treat such powers as being conceptually distinct from an RCTD yet insist that both serve as components within a right complex. (A ‘right complex’ is a combination of instances of the—conceptually more—basic kinds of normative positions aggregated into one larger, unified construct, eg a claim + an enforcement power + a liberty to exercise that power, etc. Many scholars explain a lot of legal and moral rights in terms of complexes, eg Henry Terry, Some Leading Principles of Anglo-American Law Expounded with a View to its Arrangement and Codification (T & JW Johnson & Co, 1884) 386; Hohfeld, ‘FLC #1’ 28–30, 35 fn 39, 38 fn 48.) Secondly, despite my label ‘RCTD’, some theorists might deny that all tokens of a given type count as real rights if they fail to meet their theoretical criteria. For example, not all Hohfeldian powers might count as rights. 12 eg Gopal Sreenivasan, ‘Duties and Their Direction’ (2010) 120(3) Ethics 465, 468. 13 For example, while they admit that there could be more expansive versions of both theories, Matthew Kramer and Hillel Steiner, an interest and a will theorist respectively, think it dubious to inflate the debate—as least insofar as it concerns legal rights—beyond an RCTD. In other words, the debate ought not to concern legal immunities, legal liberties, etc. Kramer and Steiner (n 2) 295–9; Matthew Kramer, ‘Refining the Interest Theory of Rights’ (2010) 55 Am J Juris 31, 31–2. 14 There are two different kinds of philosophical accounts of rights’ ‘formal’ features: models and theories. Models explain whether there are different conceptually basic types of rights and how rights and other kinds of normative positions (eg duties, liabilities) relate to one another. It is not within a model’s purview to explain whether rights ought to exist, or if they all serve some singular, ultimate purpose. Ostensibly, the latter is a job for rights theories. The most famous model is Hohfeld’s. His schema is usually taken to register at least four distinct senses of ‘a right’, which in turn refer to four distinct concepts: A CLAIM, A PRIVILEGE (LIBERTY), A POWER and AN IMMUNITY. Hohfeld, ‘FLC #1’ (n 11). On some differences between the two kinds of accounts, see Alon Harel, ‘Theories of Rights’ in Martin P Golding and William Edmundson (eds), The Blackwell Guide to the Philosophy of Law and Legal Theory (Blackwell, 2007) 192; Leif Wenar, ‘Rights’, Stanford Encyclopedia of Philosophy <http://plato.stanford.edu/entries/rights/> accessed 28 June 2018; Frydrych (n 5). On Hohfeld’s schema being neutral between the theories, see Matthew Kramer, ‘Rights Without Trimmings’ in Matthew Kramer (ed), A Debate Over Rights: Philosophical Enquiries (OUP 1998) 61; Andrew Halpin, ‘The Value of Hohfeldian Neutrality when Theorising about Legal Rights’ in McBride, New Essays (n 2) 19–22. 15 The functional/modal distinction is adopted from Leslie Green. He argues that law is a modal, not a functional, kind of normative system: it has no unique function by which to distinguish it from morality, custom, religion, etc. Leslie Green, ‘The Concept of Law Revisited’ (1995–6) 94 Mich L Rev 1687, 1711. Similarly, some scholars believe that moral legal, social, institutional, and other rights differ in structure. For example, that a moral right is invariably enforceable while a legal one is not, or vice versa. eg Jeremy Waldron, ‘A Right to Do Wrong’ (1981) 92 Ethics 21, 23. Others insist that legal and moral rights are modal, ie they are the same despite being housed in different normative domains. eg Joseph Raz, The Authority of Law (2nd edn, OUP 2009) 158–9; Raz, Ethics in the Public Domain (n 11) 255–8, 269–74. 16 This builds on Pavlos Eleftheriadis’s classification. Pavlos Eleftheriadis, Legal Rights (OUP 2008) 7. 17 Begrudgingly, this article mostly follows the literature’s practice of treating ‘enforcement’ as a synecdoche for both enforcement and waiver. 18 Hart, Essays on Bentham (n 12) 183–4 (emphases, labels, and extra numerals added). Hillel Steiner adds to Element III the capacity to seek to enforce the obligation to pay. Hillel Steiner, ‘Working Rights’ in Kramer, A Debate Over Rights (n 14) 240 fn 14. Hart also notes another element of control—at least for public law rights—that would fit under Element I: demanding compliance directly from the duty bearer: Hart, Essays on Bentham (n 12) 186. 19 ‘These legal powers (for such they are) over a correlative obligation...’: Hart, Essays on Bentham (n 12) 184. Will theorists’ stances on the merits of the primary/secondary/tertiary rights distinction, ie whether these are distinct rights, or instead one and the same right that is enforced or waived through different stages, are sometimes unclear. 20 Ibid 188–9. However, bilateral liberties only count as liberty-rights if they are protected directly or indirectly by duties. Hart, Essays on Bentham (n 12) 171-3. Presumably the liberty-right-holder also possesses the RCTDs correlative to those duties. 21 HLA Hart, The Concept of Law (2nd edn, Clarendon Press 1994) 41. 22 Hart, Essays on Bentham (n 12) 183, 186. cf Friedrich Carl von Savigny, System of the Modern Roman Law (William Holloway tr, J Higginbotham 1867) 6, 271. 23 Carl Wellman, A Theory of Rights: Persons Under Laws, Institutions, and Morals (Rowman & Allenhead 1985) 95–102; Wellman, Real Rights (n 5) 8. Similar to Hart, Wellman believes rights afford their holders a special kind of standing. Wellman, A Theory of Rights 192. 24 Wellman, A Theory of Rights (n 23) 25, 59–60, 81, 93, 95–6, 204–11; Wellman, Real Rights (n 5) 8, 25, 123. Wellman allows for different kinds of right complexes with various Hohfeldian positions serving at their ‘cores'. Wellman, A Theory of Rights 59, 81; Wellman, Real Rights 8, 24–5, 30, 100, 108, 178, 181–2. However, every complex contains at least one liberty and power, which afford the right holder the relevant freedom–control/dominion status. Wellman, A Theory of Rights 93, 204-11; Wellman, Real Rights 108–12, 140, 186–7. See also Hillel Steiner, An Essay on Rights (OUP 1994) 57–8, 61. Hence, despite the emphasis laid upon a right-holder’s will being vindicable in potential disputes, Wellman also holds that rights necessarily afford at least some control via power. Indeed, control over another party via (at least one of) the powers to claim, enforce, and waive (along with the freedom—Hohfeldian liberties—to exercise those powers) is essential to ‘dominion’ status. This in turn also entails that right-holders possess some kind of special standing. Wellman, A Theory of Rights 192. 25 eg Steiner (n 19) 238. cf Nigel Simmonds, ‘Rights at the Cutting Edge’ in Kramer, A Debate Over Rights (n 14) 164, 182, 195. 26 Hart, Essays on Bentham (n 12) 183–4, 188; Simmonds (n 25) 222–3. Save in regards to treating an RCTD as a kind of power, Nigel Simmonds nevertheless rejects Hart’s ‘later’ account of private law rights from Essays on Bentham and defends Hart’s ‘earlier’ Hohfeldian one instead. Simmonds (n 25) 211–32. In the earlier account, Hart allowed for a singular Hohfeldian claim, liberty, power, and immunity to each count as rights. Each protects the holder’s ability to choose either affirmatively by giving legal effect to the choice (claims and powers) or negatively by not impeding or instructing it (liberties and immunities). HLA Hart, ‘Definition and Theory in Jurisprudence', in Essays in Jurisprudence and Philosophy (Clarendon Press 1983) 35 fn 15 (first published in 1954). 27 I argue elsewhere that, despite some claimed differences, these features are the tie that binds all versions of WT together. David Frydrych, ‘What is the Will Theory of Rights?’ (2019) 32 Ratio Juris 455. 28 eg Raz, Ethics in the Public Domain (n 11), particularly the chapter ‘Rights and Individual Well-Being’; Raz, The Morality of Freedom (n 11), particularly the chapter ‘The Nature of Rights’; Matthew Kramer, ‘Getting Rights Right’ in M Kramer (ed), Rights, Wrongs, and Responsibilities (Palgrave MacMillan 2001) 28. 29 eg Neil MacCormick, ‘Rights in Legislation’ in PMS Hacker and J Raz (eds), Law, Morality and Society: Essays in Honour of HLA Hart (Clarendon Press 1977) 202; Kramer and Steiner (n 2) 289–90, 302–4; Kramer (n 7) 49. However, Matthew Kramer simultaneously claims that determinations of the kinds of interests which rights serve are system- or domain-contingent inquiries. For him, determining which sorts of interests legal rights ought to protect is a matter for political philosophy, not analytical jurisprudence (and hence not for an analytical IT like his). Kramer, ‘Rights Without Trimmings’ (n 14) 79. Kramer's latest published version of his IT of legal RCTDs is this: (IT-1) Necessary though insufficient for the holding of a legal right by X is that the duty correlative to the right, when actual, normatively protects some aspect of X’s situation that on balance is typically beneficial for a being like X (namely, a human individual or a collectivity or a non-human animal). (IT-2) Neither necessary nor sufficient for the holding of some specified legal right by X is that X is competent and authorised to demand or waive the enforcement of the duty that is correlative to the right. Kramer, ‘In Defence of the Interest Theory' (n 7) 49. 30 Rainbolt (n 2) 86–7. 31 David Frydrych, ‘The Architecture of Rights’ (DPhil Thesis, University of Oxford 2016) 132–5, 155–8; David Frydrych, ‘Kramer’s Delimiting Test For Legal Rights’ (2017) 62(2) Am J Juris 197, 199–200; Rowan Cruft, ‘The Circularity of the Interest and Will Theories of Rights’ in McBride, New Essays (n 2) 170. 32 eg Neil MacCormick, Legal Right and Social Democracy: Essays in Legal and Political Philosophy (Clarendon Press 1982) 154; MacCormick (n 29) 196–9; Cruft (n 2) 347, 369, 380; Wenar, ‘The Nature of Rights’ (n 2) 240; Kramer, ‘Rights Without Trimmings’ (n 14) 4, 69–75; Matthew Kramer, ‘On the Nature of Legal Rights’ (2000) 59 CLJ 473, 487. 33 eg MacCormick (n 32); MacCormick (n 29); Kramer, ‘Rights Without Trimmings’ (n 14) 4, 69–75. 34 While victims may be legally competent, they are generally unauthorised to personally enforce their rights in criminal law proceedings. Hart, Essays on Bentham (n 12) 182–3 tries to defend WT from this charge. 35 eg MacCormick (n 29) 205–6. 36 eg Hart, Essays on Bentham (n 12) 184 fn 86; Joel Feinberg, Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princeton UP 1980) 209; Simmonds (n 25) 226 fn 138; Wenar, ‘The Nature of Claim-Rights’ (n 2) 226. cf Wellman, A Theory of Rights (n 23) 192: ‘the representative does not thereby become the possessor [of the right]’. Some will theorists nonetheless posit differences between moral and legal rights in this regard. eg Wellman, A Theory of Rights 192; Wellman, Real Rights (n 5) 135; Simmonds (n 25) 226 fn 138. While Hart himself understands an RCTD to be a power, it is in principle open to will theorists to distinguish between the two and apportion the normative positions amongst different people. 37 eg Hart says that the powers belong to the non-sui juris parties but are exercised exclusively by their (competent and authorised) representatives. Hart, Essays on Bentham (n 12) 184 fn 86. How an incompetent party can nonetheless be a power holder is left unexplained. 38 They therefore do not (and perhaps cannot) offer the sufficient conditions for A RIGHT. Frydrych, ‘The Architecture of Rights’ (n 31) 132–35, 155–58. Certain will theorists might claim that, once an enforcement power is identified, then you have also found a bona fide right. In response, it is unclear that we can rely upon, or even need, a rights theory to be able to identify where such powers obtain. The subset of WTs that allows for the apportioning of a right’s components amongst different parties might nonetheless respond that one need only take the further step of discerning who the power holders/wielders are acting on behalf of in order to find the relevant right. However, they need only be reminded that certain powers can be exercised without any cognate RCTDs. 39 eg Steiner (n 19) 148–62. What if no one possesses the relevant enforcement powers? WT will simply deny there are actually rights in those cases. (That does not necessarily amount to a denial of the possibility of right holder status for an entire class of agent, though.) 40 MacCormick (n 29) 195–9. The ‘inalienability’ label appears to have been affixed to MacCormick’s argument by others. He himself discusses both alienability and waivability, and so covers more ground than is generally supposed. Waiver can change a correlative person’s duty, e.g., to do φ by adding a liberty not to do φ for a certain time. The right may nonetheless persist post-waiver and may be exercisable or enforceable at a later date. A waiver power can also alter a duty bearer’s requirement to fulfil a secondary or tertiary duty altogether without thereby nullifying the primary duty and correlative right. Alienability means forfeiture of a right through transfer or nullification. Consider the difference between waiving your right to collect a debt on a certain specified date versus selling your property, thereby making someone else the new owner. 41 Simmonds (n 25) 229; Wellman, Real Rights (n 5) 109. For an argument that an immunity (as opposed to inalienability, ie a Hohfeldian disability from being able to alienate) actually protects its holder’s choices, see Simmonds (n 25) 218–19. cf ibid 153–4, 228. 42 Hart, Essays on Bentham (n 12) 183–4. 43 Simmonds (n 25) 229–30. 44 I have attempted this elsewhere. Frydrych, ‘The Architecture of Rights’ (n 31) ch 6. 45 See Rudolph von Jhering, Geist des Romischen Rechts auf den verschidenn Stufen seiner Entwicklung (1865) vol III, 316-7; Roscoe Pound, ‘Legal Rights’ (1915) 26 International Journal of Ethics 92, 111; Roscoe Pound, Jurisprudence (West Publishing Co 1959) vol IV, 62–3, 67; Hart, Essays on Bentham (n 12) 181 fn 76 (Hart on Rudolph von Jhering’s account of enforceable rights that protect interests); Markus Stepanians, ‘Rights as Relational Properties—In Defense of Right/Duty-Correlativity’ (Habilitation Thesis, University of Saarland 2005) 72 n.28, 144–50. Apparently, certain medieval scholars such as Marsilius of Padua and William of Ockham believed that rights (ius) were both (i) necessarily enforceable in courts and (ii) protected interests. Tierney (n 10) 117–21, 189. For a different reason to think WT is subsumable under IT, see William Edmundson, An Introduction to Rights (2nd edn, CUP 2012) 102. 46 See eg (n 22–23). 47 eg Hart, Essays on Bentham (n 12) 181–2; Hans Kelsen, Pure Theory of Law (2nd edn, Max Knight tr, University of California Press 1967) 125–30, 132–6. There are therefore both conceptual and semantic versions of this redundancy charge. Stepanians (n 45) 71–6. 48 Frydrych, ‘The Architecture of Rights’ (n 31) 191–2. See also above (n 22, 24, 26). 49 For example, Wellman denies that singular Hohfeldian claims count as rights, and defines ‘claim rights’ as including a power to enforce. Wellman, A Theory of Rights (n 23) 28, 39, 59–60; Wellman, Real Rights (n 5) 123, 186–7. 50 Wenar (n 3) 256. cf Bentham on useless legal duties (without correlative rights) that benefit no one, discussed in Hart, Essays on Bentham (n 12) 168. 51 Hamish Stewart suggests that analytic interest theorists make these delimitations for crypto-normative reasons. Hamish Stewart, ‘The Definition of a Right’ (2012) 9(3) Jurisprudence 319. 52 See Raz, Ethics in the Public Domain (n 11), particularly the chapter ‘Rights and Individual Well-Being’. 53 See n 29. Kramer also hints at further specifications to his version by distinguishing between ‘vicarious’ and ‘altruistic’ interests. Kramer and Steiner (n 2) 302–4. 54 Frydrych, ‘The Architecture of Rights’ (n 31) 162–73; Frydrych, ‘Kramer’s Delimiting Test’ (n 31) 205. Contemporary legal positivists posit the existence of a rule of recognition: (a) master social rule(s), held by officials, which include overarching criteria for determining whether something counts as a genuine legal rule of their legal system. Hart (n 20) 94–5, 292–3. Exclusive legal positivists, moreover, advance the sources thesis: the law is determinable simply by looking at its social sources, without needing to assess its merits. eg Raz, The Authority of Law (n 15) 47–8; John Gardner, Law as a Leap of Faith: Essays on Law in General (OUP 2012) ch 2. Exclusive positivists thus hold that a legal system’s rule of recognition can never include moral criteria; inclusive legal positivists, by contrast, believe that that rule can, but need not, include moral criteria. 55 Frydrych, ‘The Architecture of Rights’ (n 31) 117, 162–3, 173, 182–3; Frydrych, ‘Kramer’s Delimiting Test’ (n 31) 201 fn 24; Frydrych (n 2) 571. Raz’s IT criteria are only partly covered by his ‘philosophical definition': ‘Definition: “X has a right” if and only 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, The Morality of Freedom (n 11) 166. The setup makes clear that Raz intends this to be a definition of A RIGHT, not RIGHT HOLDING. ibid 165-6. Even so, he immediately afterwards provides this additional definition: ‘Capacity for possessing rights: An individual is capable of having rights if and only if either his well-being is of ultimate value or he is an “artificial person” (eg a corporation)’. ibid 166. 56 Raz, The Authority of Law (n 15) 29–30; Raz, Ethics in the Public Domain (n 11) 215. 57 Raz, The Morality of Freedom (n 11) 262. 58 Raz, The Morality of Freedom (n 11) 186. 59 Raz, The Morality of Freedom (n 11) 170. cf Raz, Ethics in the Public Domain (n 11) 45–9, 269–74. 60 Pace Raz's thesis that law necessarily claims legitimate authority, Kramer argues that wicked legal systems need not even feign belief in the moral basis of their laws, or of a given law. Matthew Kramer, In Defense of Legal Positivism: Law Without Trimmings (OUP 2004); cf Matthew Kramer, ‘Legal and Moral Obligation’ in Martin P Golding and William Edmundson (eds), The Blackwell Guide to the Philosophy of Law and Legal Theory (Blackwell 2007) 186. Kramer’s argument ought also to be considered sufficient to undermine Raz’s modal view of rights and other normative positions (see n 15 on the functional/modal distinction). For if legal rights need not be weighty interests, or even (mis-)represented as weighty interests, then they need not be said to be, or be presented as, the codification of (purported) moral rights. In other words, lawmakers need not present rights as being morally legitimate, as being anything other than expressions of their power, and thus need not claim to protect or promote their holders’ well-being. For similar arguments against Raz, see Rainbolt (n 2) 89–91. 61 Kramer (n 7) 54. 62 See n 29. 63 Frydrych, ‘Kramer’s Delimiting Test’ (n 31). 64 John Finnis, Natural Law and Natural Rights (2nd edn, OUP 2011) ch 8. 65 Kramer holds that ‘rights of action’ are just Hohfeldian powers. He would therefore deem these latter cases to be outside of the purview of his IT. Kramer, ‘Rights Without Trimmings’ (n 14) 34 fn 14. Hohfeld himself, however, insists that rights of action are, or include, claims. Hohfeld, ‘FLC #1’ (n 11) 35 fn 39; Wesley Newcomb Hohfeld, ‘The Relations Between Equity and Law’ (1913) 11 Mich L Rev 537, 554, 556; Wesley Newcomb Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917) 26 Yale LJ 710, 753, 760. The idea of a tertiary right being a claim (or a complex containing one), at any rate, makes better sense of the idea of a judgment creditor being entitled to a judgment debtor’s obligation to pay a court-imposed damages award, and not just the mechanisms by which to enforce the judgment. 66 This argument was first presented in Frydrych, ‘Kramer’s Delimiting Test’ (n 31) 200–1. 67 eg Kramer (n 13) 34. Though an interest theorist, Kramer explains this charge well (and provides the example). 68 Frydrych, ‘The Architecture of Rights’ (n 31) 168–9, 172; Frydrych, ‘Kramer’s Delimiting Test’ (n 31) 204–5. Jhering’s domestic manufacturer challenge serves as an example. Through political or financial pressure, or corruption, a domestic manufacturer gains the government’s favour. He convinces it to pass a law imposing tariffs on certain foreign goods that compete with his own. The domestic manufacturer has an interest in the new law being enforced (indeed, it was grounded in his interests), which also directly benefits him—and intentionally so. Does he therefore have a right under that law? Is it a right correlative to consumers' duties to pay the tariff-based level of tax? Rudolph von Jhering, Geist des Romischen Rechts auf den verschidenn Stufen seiner Entwicklung (1924 edn) vol III, 351–3, cited in Hart, Essays on Bentham (n 12) 180. 69 Kramer, ‘Rights Without Trimmings’ (n 14) 79. 70 Hart, Essays on Bentham (n 12) 187; Simmonds (n 25) 197. To be sure, some legal systems grant certain 3PBs rights. Even within that subset of legal systems, though, the law might only recognise rights for certain sorts of 3PBs and not others. Historically, most 3PBs did not have legal rights and they still do not in many systems. There is also no reason why any legal system must recognise such rights or be rendered incapable of rescinding them. Until a change in law in 1999, many 3PBs in England did not have such rights. Contracts (Rights of Third Parties) Act 1999, c 31. Even with that change, many sorts of 3PBs still lack them. WT could nevertheless hold that those 3PBs possess rights because the law affords them, or others authorised to act on their behalf, enforcement powers. See eg Hart, Essays on Bentham (n 12) 187 fn 91. 71 Gopal Sreenivasan posits that Raz’s IT avoids the proliferation problem. ‘[Raz’s] threshold requirement that Y’s interest must itself suffice, other things equal, to justify X’s duty may be regarded as formidable enough to set a suitable limit on the number holding a claim-right correlative to X’s duty to φ’: Sreenivasan (n 2) 265. However, this not only begs the question, for example, about who else may be afforded correlative rights, it cannot be squared with Raz’s view that officials can: make mistakes when weighing interests; disagree about their weight; be disingenuous about the importance of those interests; etc. His IT also cannot explain why certain 3PBs possess legal rights while others do not, and why certain jurisdictions recognise a type of subset of 3PB rights but others do not. Raz must instead just rely on legal positivism to account for these differences. 72 On the latter view, determining which interests warrant legal recognition is simply a matter of a given jurisdiction’s laws, not a theory of rights or of law. cf Kramer, ‘Rights Without Trimmings’ (n 14) 67, 79; Kramer (n 13) 33, 35; Kramer (n 7) 54. But see Wenar, ‘The Nature of Claim-Rights’ (n 2) 210. Again, though, Kramer offers a delimiting test for interests. 73 cf Simmonds (n 25) 201–2, 222–3. This is also why Wenar’s Kind-Desire theory is not on a par with IT, but a mere version of it. ‘Desire’ would only be at ‘the same conceptual space’ as interests, as he claims (Wenar, ‘The Nature of Claim-Rights’ (n 2) 225), if IT’s interests were actually delimited in some fashion, eg to well-being. 74 This is not to suggest that rights in fact have one; it is simply to note that most theorists generally insist that they do. 75 For different arguments to this effect, see Rainbolt (n 2) 88–99. 76 See Pound, ‘Legal Rights’ (n 45) 67–8 for differences between predicate interests and the ‘legally delimited and secured’ ones that purportedly form part of legal rights as normative constructs. 77 Pound, ‘Legal Rights’ (n 45) 70. Pound is equally responding here to Jhering’s IT. 78 Raz also posits that rights have justificational priority over some—but not all—duties, ie A’s right is the reason for B’s bearing a duty, but not all duties are grounded in rights. Raz, The Morality of Freedom (n 11) 169–71, 181, 183–4, 188, 192–3, 202, 210. Margaret Holmgren nevertheless demonstrates why rights are not actually justificationally prior to duties within Raz’s account: Margaret Holmgren, ‘Raz on Rights’ (1985) 94 Mind 591. On Raz’s analysis, in order for a candidate interest to be deemed sufficiently weighty to generate a legal right, potential duty bearers must also be determinable within the first step of the (legal officials’) deliberative process: Raz, Ethics in the Public Domain (n 11) 35; Raz, The Morality of Freedom (n 11) 169, 183–4. As such, his IT is really about the justificational priority of interests to both rights and duties. cf Simmonds (n 25) 196 (Raz's and other versions of IT conflate interests and rights). But see Kramer, 'Rights Without Trimmings' (n 14) 44, who denies that Raz muddles the distinction between interests and entitlements. 79 Theorists’ intuitions seem to drive their criteria construction process, at least in part. Here are some examples. Building on Steiner and Wayne Sumner’s work, Rainbolt claims that rights invariably constrain, but does not justify why this must be so: Rainbolt (n 2) 27. Hart, Simmonds and Steiner remark that rights just seem, to them, to invariably be exercisable; you do things with rights: Hart, Essays on Bentham (n 12) 181–90; Steiner, An Essay on Rights (n 25) 56–7; Simmonds (n 25) 216, 229. Pace those latter three theorists, rights exercise is neither restricted, nor reducible, to rights enforcement. Hillel Steiner’s stance is representative of will theorists’ conflation here. ‘There are at least six features that have been attributed to rights or presupposed about them in virtually all legal and moral discussions of rights… 5. Rights are exercisable. 6. This exercisability consists in the capacity to control [ligation bearers’] encumbrances by either extinguishing them or enforcing them’: Hillel Steiner, ‘Moral Rights’ in David Copp (ed), The Oxford Handbook of Ethical Theory (OUP 2006) 461 (emphasis added). 80 Frydrych, ‘The Architecture of Rights’ (n 31) 176–81 provides examples of legal rights (particularly, complexes containing liberties and powers) that neither ‘protect’ the holder’s will or interests per se, nor justify the imposition of correlative normative positions on other people. 81 For some reasons to doubt that the rights theories are inherently political, or that subscription to them must be for moral or political reasons, see Frydrych (n 2) 584–7. 82 At least in 1994, Steiner considered rights to be Hohfeldian claims or immunities protected by enforcement and waiver powers: Steiner, An Essay on Rights (n 25) 61. He may have modified his view since then, though, by restricting it to claims: Kramer and Steiner (n 2) 295. He even believed the theories of rights debate to just be about whether rights are perforce enforceable: Steiner, An Essay on Rights 57–8. Again, while Wellman allows for different kinds of right complexes (with various Hohfeldian positions serving at their cores), he believes that each complex contains a liberty and (enforcement) power: see n 24. Cruft and Wenar also suggest the possibility of more expansive versions of IT and WT, in addition to other hypothetical theories no one actually endorses, ie Normative-Constraint-Sans-Justification and ‘Any Incident’ theories. Cruft’s more expansive version of WT (which he does not personally endorse) treats normative positions other than RCTDs as kinds of rights, but maintains that each must be accompanied by enforcement powers. Wenar’s Kind-Desire theory of RCTDs also holds that they are necessarily enforceable. He suggests such powers need not be held by the right holder personally, but leaves it unclear whether the RCTD + powers nevertheless form a complex with its various components being held by different agents. Cruft (n 2) 367–8, 381, 388; Wenar, ‘The Nature of Claim-Rights’ (n 2) 226; Wenar, ‘The Nature of Rights’ (n 2) 233–4, 239, 243–6. 83 Hart and Simmonds are important exceptions. Again, see Hart, Essays on Bentham (n 12) 188 on liberty-rights and power-rights, but 183–4, 188 on RCTDs being enforcement powers plus liberties to exercise them. Simmonds allows for singular Hohfeldian liberties, claims, powers, and immunities to be rights, but interprets a claim to be an enforcement power: Simmonds (n 25) 218–25. 84 Normative will theorists Judith Thomson and Pavlos Eleftheriadis claim that immoral legal rights in wicked legal systems (a right to hunt certain minority groups, say) are not ‘real’ rights in some sense: Judith Jarvis Thomson, The Realm of Rights (Harvard UP 1990) 74–5; Eleftheriadis (n 16) viii. Officials, they believe, cannot change the meaning, or the conceptual features, of a legal right simply by fiat, by creating immoral rights. This, Eleftheriadis further insists, cannot be done because it betrays the ‘ordinary’ sense of the term ‘[a] right’: Eleftheriadis (n 16) viii. Pace both theorists, it simply begs the question that the concept(s) cannot already accommodate these sorts of cases. Being morally disgusted by such examples and stipulating that ‘real’ rights necessarily contain moral content, moreover, is insufficient reason to believe that all rights do and must. 85 See Frydrych (n 5) 135–7, 140, 146–7. 86 Raz and Simmonds insist that rights possess peremptory force. Raz, The Morality of Freedom (n 11) 192, 249–50; Simmonds (n 25) 114, 176, 200–5, 214–16, 225. Simmonds also argues that Raz cannot actually account for this putative feature. (I would add that, at best, Razian duties could account for it, but these do not mirror Razian rights in structure.) However, as Simmonds’s WT emphasises rights’ affording the ability to make negative or affirmative choices, it does not entail or require that rights necessarily possess such force either. 87 Briefly, rights theorists lack a shared paradigm within and by which to weigh their accounts’ respective faults and virtues. For example, many remain stalwart in the face of putative counterexamples—which they nonetheless take to be genuine cases. Moreover, I argue elsewhere that legal philosophers tend to appeal in vain to metatheoretical desiderata (consilience, extensional adequacy, etc) as tools for assessing and comparing legal theories, as they lack common grounds by which to quantify and weigh such factors: David Frydrych, ‘Down the Methodological Rabbit Hole’ (2017) 49(147) Crítica 41, 59–62. Space does not allow for a discussion of the matter here, but doubts about conceptual analysis and analytical definitions’ viability are also nothing new. 88 eg Cruft (n 2) 356 fn 17; Eleftheriadis (n 16) 8; Hart, Essays on Bentham (n 12) 189; Rainbolt (n 2) 25. Some theorists also insist that Hohfeld cannot adequately explain the direction of duties that correlate with rights. A theory, they believe, must do that job. See eg Finnis (n 64) 202–5; Simmonds (n 25) 222; Sreenivasan (n 2) 322. It is doubtful, however, whether Hohfeld would have considered this to be a genuine problem. For one thing, his ‘passive’ claim correlates with a duty. He also insists that there are no necessary or logical connections between any of the non-correlating positions (eg claims to powers, duties to powers, duties to liabilities): Hohfeld, ‘FLC #1’ (n 11); Hohfeld, ‘FLC #2’ (n 65); David Frydrych, ‘Rights Correlativity’ in Shyam Balganesh, Ted Sichelman and Henry Smith, Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries (CUP) (forthcoming). Why, then, should Hohfeldian rights theorists problematise this, unless they either just disagree (in part) with Hohfeld or wish to modify his work to suit their own ends? 89 The schema is largely unoriginal. Hohfeld’s jurisprudential predecessors also did not rely on a rights theory’s criteria to build their models. See Pound, ‘Legal Rights’ (n 45); Frydrych (n 5) Appendix; David Frydrych, ‘Hohfeld vs the Legal Realists’ (2018) 24(4) Legal Theory 291. 90 Consider further: no one seems to believe that the debate over whether A DUTY (simply) involves weighty reasons or (also) exclusionary ones is necessarily a moral or political dispute. 91 See Michael Steven Green, ‘Why No Deontic Logic?’ and comments (PrawfsBlawg, 12 October 2007) <https://prawfsblawg.blogs.com/prawfsblawg/2007/10/why-no-deontic-.html> accessed 8 August 2019. 92 Kramer, ‘Rights Without Trimmings’ (n 14) 45–9 nonetheless shows that Hohfeld’s and Raz’s conceptions could be rendered compatible. One could also tack on to Hohfeld the idea of rights being predicated upon interests of any sort without thereby creating a Hohfeldian rights theory. cf Hohfeld, ‘FLC #2’ (n 65) 725–6 fn 34. 93 See n 55. 94 cf Halpin (n 14) 21–3. Halpin’s sound critique nonetheless misses the fact that some theorists deny that all tokens of each Hohfeldian type, let alone certain types, count as rights, and believe their theories to be the indispensable bases by which to make such determinations. 95 Frydrych, ‘The Architecture of Rights’ (n 31) 182–3; Frydrych, ‘Kramer’s Delimiting Test’ (n 31) 204–5. This is also a problem for those who believe the debate is framed in terms of the ‘direction of directed duties’ issue. 96 An inclusive legal positivist, Kramer suggests that a moral judgment about demarcating the set of proper kinds of right holders must be made before IT can be applied: Kramer (n 13) 35. Why, though, should a positivist believe that an account can be constrained thus? How does this affect which legal rights a right holder may possess? (Why, additionally, must a ‘genuine’ RCTD be protected by immunities from nullification?) See Matthew Kramer, ‘Some Doubts About Alternatives to the Interest Theory of Rights’ (2013) 123 Ethics 245, 247; Kramer and Steiner (n 2) 297. 97 See n 60. Raz would need to abandon his modalism in order to distinguish legal and moral rights, eg whereby moral rights are grounded in aspects of their holders’ well-being, while legal rights need only be treated by officials as if they are. (Doing so would also lead to an interests-simpliciter IT for legal rights.) Raz nonetheless reaffirmed his modalist stance to your author recently. Personal conversation with Joseph Raz, NYU School of Law, 1 November 2018. 98 The same could be said for the moral rights of a given society’s conventional morality. 99 eg Kramer, ‘Rights Without Trimmings’ (n 14) 22 (regarding Hohfeld’s schema); Personal conversation with Kramer at Festschrift for Matthew Kramer, Churchill College, Cambridge, July 2019 (concerning IT). Kramer now claims to posit that (i) he is offering a conceptual clarification of LEGAL RIGHT-HOLDING, rather than of A LEGAL RIGHT, one which is not beholden to empirical counterexamples; (ii) again, a moral theory must delimit the set of right holders before IT can even be applied; and (iii) following Visa Kurki, the Bentham Test, not ‘IT-1’ of his earlier formulations (see n 29), is the true core of his theory. (Personal conversation with Kramer, July 2019); Kramer (n 7) 49. cf Visa Kurki, ‘Rights, Harming, and Wronging: A Restatement of the Interest Theory’ (2018) 28(3) OJLS 430. Pace Kramer, given his own example (of Doris and the Shopkeeper in Kramer, ‘Refining the Interest Theory' (n 13) 36-8), the revised Bentham test really concerns where rights obtain, not who can count as a right holder or what it is to be a right holder. Again, even granting a ‘moral’ judgment about of the class of legal right holders, that does not delimit the set of rights each right holder may have. Frydrych, ‘Kramer’s Delimiting Test’ (n 31). Further, the (set of) rights one does or can have cannot be a matter of ‘conceptual’ truth, even for Kramer, as a positivist cannot credibly deny that legal rights based on 3PB contracts or corrupt tariff laws could in some systems be afforded to contingently affected people, domestic manufacturers, etc. 100 Stewart believes that, while normative rights theories are fine, analytical versions are flawed, crypto-normative accounts. (He also thinks the latter are incapable of meeting two putatively conflicting metatheoretical desiderata. However, only a handful of rights theorists actually appeal to both, let alone deem them both to be indispensable standards.) Hence, analytical scholars should just ‘retreat’ to Hohfeld’s claim: Stewart (n 51) 320. He also offers an inaccurate ‘active’ interpretation of Hohfeld’s claim (a right ‘to interfere’), whereby a claim entitles you to make claims (ibid 339). Stewart’s reasons for thinking thus about analytical versions are nevertheless erroneous: Frydrych (n 2) 586–7. More importantly, he does not see that both analytical and normative versions offer unnecessary criteria and that the entire debate ought to be abandoned. 101 Take John Finnis’ IT as an example. A Hohfeldian interest theorist, he generally seems to advance a teleological view of law (and deems legal positivism to be inadequate). Sound legal theorisation, moreover, utilises the perspective of the ‘central case of the central case’ of the internal point of view: that of the spoudaios: Finnis (n 64) 14–19. While he therefore ought to have one about rights, Finnis neither employs the preferred sort of approach, nor the central case method generally, when endorsing and utilising Hohfeld’s schema (198–205). Finnis furthermore believes a rights theory is needed to explain what it is to have a right and what all the Hohfeldian types of a right have in common (202–3, 465 fn 35). However, it is difficult to square (i) his claim about the putative need for a rights theory with (ii) his avowed methodological stances; for laying down essential criteria for A RIGHT does not seem to be necessary to the latter methodology (e.g., for both putative central and peripheral cases of rights), if it is not also outright inconsistent with it. © The Author(s) 2020. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - The Case Against the Theories of Rights
JF - Oxford Journal of Legal Studies
DO - 10.1093/ojls/gqaa006
DA - 2020-06-01
UR - https://www.deepdyve.com/lp/oxford-university-press/the-case-against-the-theories-of-rights-R43VTHiB05
SP - 320
VL - 40
IS - 2
DP - DeepDyve
ER -