Theories of rights: Is there a third way?

Oxford Journal of Legal Studies

Volumn 27, Issue 2, 2007, Pages 281-310

  Kramer, Matthew H ^a   Steiner, Hillel ^b  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

^b UNIVERSITY OF MANCHESTER   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 34447623250     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqi039     Document Type: Article

References (44)

1. L. Wenar, 'The Nature of Rights' (2005) 33 Philosophy and Public Affairs 223
2. G. Sreenivasan, 'A Hybrid Theory of Claim-Rights' (2005) 25 OJLS 257.
3. In our reply, we take for granted a basic familiarity with the analysis of legal entitlements devised by the American jurist Wesley Hohfeld. That analysis is recounted in Wenar's article, and is expounded at length in Kramer, 'Rights without Trimmings', in M. Kramer, N. Simmonds and H. Steiner, A Debate over Rights (1998) [hereinafter Debate at 7-60.
4. Hohfeld distinguished four types of entitlements: Claims or rights, liberties, power, and immunities. Like Hohfeld, but unlike most contemporary writers, Wenar uses the term 'privileges' in lieu of 'liberties'. We have opted for the latter term and have silently altered his wording in our quotations. An early version of the first half of this essay was presented at a workshop on rights at the University of Edinburgh in February 2005. We are very grateful to the organizers of that workshop, Antony Hatzistavrou and Rowan Cruft. We are likewise grateful to Antony Duff, John Eekelaar, Neil MacCormick, Sandra Marshall, Saladin Meckled-Garcia, Victor Tadros, Leif Wenar and an anonymous OJLS reader for thier illuminating comments. We owe special thanks to Wenar for making his work readily available to us before it was published.
5. After all, one of us (Kramer) is an Interest Theorist, while the other one of us (Steiner) is a Will Theorist.
6. H.L.A. Hart, 'Legal Rights' in Essays on Bentham (1982) 162 at 166-67.
7. Wenar, above n 1 at 228 n 6.
8. Ibid at 246.
9. We include the words 'while accepting that John exists' simply in order to forestall any technical quibbles.
10. Wenar, above n 1 at 231.
11. Ibid.
12. Ibid at 231 n 9.
13. A legal duty D is effectuated if either of the following conditions is met: (1) violations of D are averted through preventative steps taken by legal officials; or (2) although D is violated, the violation is subsequently rectified through the application of some remedial measure(s) such as punishment, compensation, or restitution. The effectuation of legal duties occurs more frequently via the second of these two routes than via the first.
14. Although one or the other of the two default rules must be operative in application to each duty within any legal system, it is not perforce true that one or the other of the default rules will have been consciously adopted as such beforehand by legal officials (or by anyone else). The operativeness of the applicable default rule might become apparent only after a duty has been breached.
15. For a full exposition of the Interest Theory, see Kramer, above n 1 at 60-101.
16. Wenar, above n 1 at 241.
17. Ibid.
18. Ibid at 241-42.
19. Kramer, above n 1 at 85-88.
20. Wenar, above n 1 at 248.
21. Note that the intrinsic effect in question is not the benefiting of any terminally ill person (even pro tanto). Instead, it is the absence of penalties for any terminally ill person who commits or seeks to commit suicide. Of course, under any credible empirical assumptions, the absence of penalties will per se almost always be beneficial for a terminally ill person; but, strictly speaking, the intrinsic effect of the relevant legal norm is the lack of penalties rather than the pro-tanto benefit derived therefrom.
22. As we shall see in the second half of this article, the Interest Theory is sometimes criticized for being too far-reaching in its classification of people as right-holders. For example, suppose that two corporations have formed a legally binding agreement on the terms of a merger. Suppose further that the shareholders in each corporation will stand to benefit from the occurrence of the merger. According to the Interest Theory, then, each shareholder has a legal claim-right (vis-à-vis each corporation) to the consummation of the merger - even though each shareholder very likely does not have a legal power to seek or waive the enforcement of the duty correlative to that right. We do not feel that this classification of every shareholder as a right-holder is problematic for the Interest Theory. Perhaps, however, Wenar does view it as problematic. Even so, he will have left himself vulnerable to a 'tu quoque' recort. If there is nothing internal to the notion of a benefit or an interest that will curb the wide-rangingness of the Interest Theory's criterion for the attribution of rights, there is likewise nothing internal to the notion of protection of secured provision or secured performanced - the distinctive functions of claim-rights, according to Wenar - that will curb the wide-rangingness of any criterion for the attribution of claim-rights that emerges from his Several-Functions Theory. If Wenar is inclined to avail himself of an extraneous limitation that will rein in his criterion, an Interest Theorist can equally legitimately do the same (though, as we have indicated, we believe that an Interest Theorist should not in fact take such a route). Hence, once again Wenar's theory turns out to be on a par with the Interest Theory. The former is a version of the latter.
23. Of course, we do not mean to suggest that every rendering of each theory is so restricted. For some capacious versions of the Will Theory, see Hart, above n 3 at 188-89
24. H.L.A. Hart, 'Definition and Theory in Jurisprudence' in Essays in Jurisprudence and Philosphy (1983) 21 at 35-36, n 15
25. Simmonds, 'Rights at the Cutting Edge' in Debate, above n 1 at 211-25.
26. For a recent caoacious version of the Interest Theory, see R. Cruft, 'Rights: Beyond Interest Theory and Will Theory?' (2004) 23 Law and Philosophy 347.
27. Wenar, above n 1 at 243.
28. Ibid.
29. Ibid at 238.
30. Ibid at 236.
31. Ibid at 237.
32. Ibid at 229, n 7.
33. Wenar puzzlingly suggests that the Interest/Will division is derivative of the disputes between welfarists and Kantians within moral and political philosophy (ibid at 224, 250-51). His suggestion along these lines is puzzling because, although some Will Theorists have indeed been Kantians, hardly anyone among the main exponents of the Interest Theory is a welfarist. Wenar's position would make it very difficult to understand, for example, why John Firmis is both a champion of the Interest Theory and a scathing critic of welfarism.
34. Sreenivasan, above n 1 at 259, emphasis deleted.
35. Ibid at 259, n 9.
36. Raz's main analyses of rights are in his 'Legal Rights' (1984) 4 OJLS 1
37. and The Morality of Freedom (1986), 165-92.
38. Sreenivasan, above n 1 at 263-64. Purely for stylistic reasons, we have substituted 'X's' for 'your' throughout this passage and our other quotations from Sreenivasan.
39. Ibid at 266, emphases in original. Wenar agrees with Sreenivasan (and us) on this point;
40. see Wenar, above n 1 at 242.
41. Sreenivasan, above n 1 at 264, emphases in original, footnotes omitted.
42. Such a view underlies the analysis of freedom and time in Matthew H. Kramer, The Quality of Freedom (2003) at 76-91.
43. Sreenivasan, above n 1 at 271.
44. Ibid at 267, emphases in original