Essays in Legal Philosophy
Edited By Tomasz Pietrzykowski and Brunello Stancioli
Beyond Personhood: From Two Conceptions of Rights to Two Kinds of Right-Holders
← 146 | 147 →
Beyond Personhood: From Two Conceptions of Rights to Two Kinds of Right-Holders*
1. Two Theories of Rights
The long debate over the concept of rights is widely known. The so-called Interest Theory of Rights has been advanced by, i.a., Jeremy Bentham, Rudolf von Jehring, Joseph Raz, Neil MacCormick, and recently, Matthew H. Kramer. The proponents of the competing Will Theory include such names as Bernard Windscheid, Herbert L. A. Hart, Nigel Simmonds, or Hillel Steiner. Both theories continue to attract supporters and remain in use until today.
According to the Interest Theory, the essence of a right is the legal protection of the right-holder’s interest. Legal rights correspond to some duties of others constraining freedom to infringe on the interest protected by a given right. Thus, having a right means to be the beneficiary of a duty imposed for the sake of the good (interest) of the right-holder. The main weakness of this account of rights is difficulty in distinguishing genuine rights from cases in which someone’s benefit is a mere reflection (a side-effect) of somebody else’s duty. Second, someone may possess a legal right despite having no actual interest in holding it (neither preferring nor having any clear benefit from the protection she is provided with).
The alternative theory of rights, the so-called Will Theory (or Choice-Theory), claims that having a right means being entitled to choose freely from some available options. An...
You are not authenticated to view the full text of this chapter or article.
This site requires a subscription or purchase to access the full text of books or journals.
Do you have any questions? Contact us.Or login to access all content.