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

Main source: Wenar, Leif, “Rights”, The Stanford Encyclopedia of Philosophy (Fall 2011 Edition), Edward N. Zalta (ed.), URL = .

The Function of Rights: The Will Theory and the Interest Theory in the United States

From: Introduction to Rights

2.2.1 Conceptual Analysis versus Definitional Stipulation

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

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

To have a right is to have a “valid claim.” (Feinberg 1970, 257)
“In the strictest sense” all rights are claims. (Hohfeld 1919, 36)
“A right, in the most important sense, is the conjunction of a [privilege] and a claim-right.” (Mackie 1979, 169)
“Rights are permissions rather than requirements. Rights tell us what the bearer is at liberty to do.” (Louden 1983, 95)
“No one ever has a right to do something; he only has a right that some one else shall do (or refrain from doing) something.” (Williams 1968, 125)
“A right is an established way of acting.” (Martin 1993, 1)
“A person who says to another ‘I have a right to do it’ is not saying that … it is not wrong to do it. He is claiming that the other has a duty not to interfere.” (Raz 1994, 275)
“It is hard to think of rights except as capable of exercise.” (Hart 1982, 185)
“A right is a power which a creature ought to possess.” (Plamenatz 1938, 82)
“All rights are essentially property rights.” (Steiner 1994, 93)
“Rights are themselves property, things we own.” (Feinberg 1973, 75)

At first this survey might remind one the proverb of the blind men and the elephant. However, we should distinguish between two different aims that a theorist might have when he make a statement of the form “All rights are x.” A theorist may be attempting to analyze the meaning of our ordinary concept of rights, or he may be stipulating a definition of “rights” within his own ethical, political or legal theory.

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

When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education and opinion… To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of. (Mill 1861, 54)

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

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

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

There are two main theories of the function of rights: the will theory and the interest theory. Each presents itself as capturing an ordinary understanding of what rights do for those who hold them. Which theory offers the better account of the functions of rights has been the subject of spirited dispute, literally for ages.

Will theorists maintain that a right makes the rightholder “a small scale sovereign.” (Hart 1982, 183) More specifically, a will theorist asserts that the function of a right is to give its holder control over another’s duty. Your property right diagrammed in the figure above is a right because it contains a power to waive (or annul, or transfer) others’ duties. You are the “sovereign” of your computer, in that you may permit others to touch it or not at your discretion. Similarly a promisee is “sovereign” over the action of the promisor: she has a right because she has the power to waive (or annul) the promisor’s duty to keep the promise. In Hohfeldian terms, will theorists assert that every right includes a Hohfeldian power over a claim. In colloquial terms, will theorists believe that all rights confer control over others’ duties to act in particular ways.

Interest theorists disagree. Interest theorists maintain that the function of a right is to further the right-holder’s interests. An owner has a right, according to the interest theory, not because owners have choices, but because the ownership makes owners better off. A promisee has a right because promisees have some interest in the performance of the promise, or (alternatively) some interest in being able to form voluntary bonds with others. Rights, the interest theorist says, are the Hohfeldian incidents you have that are good for you.

The contest between will-based and interest-based theories of the function of rights has been waged for hundreds of years. Influential will theorists include Kant, Savigny, Hart, Kelsen, Wellman, and Steiner. Important interest theorists include Bentham, Ihering, Austin, Lyons, MacCormick, Raz, and Kramer. Each theory has stronger and weaker aspects as an account of what rights do for rightholders.

The will theory captures the powerful link between rights and normative control. To have a right is to have the ability to determine what others may and may not do, and so to exercise authority over a certain domain of affairs. The resonant connection between rights and authority (the authority to control what others may do) is for will theorists a matter of definition.

However, the will theory’s account of the function of rights is unable to explain many rights that most think there are. Within the will theory there can be no such thing as an unwaivable right: a right over which its holder has no power. Yet intuitively it would appear that unwaivable rights are some of the most important rights that we have: consider, for example, the unwaivable right not to be enslaved. (MacCormick 1977, 197) Moreover, since the will theorist holds that all rights confer sovereignty, he cannot acknowledge rights in beings incapable of exercising sovereignty. Within the will theory it is impossible for incompetents like infants, animals, and comatose adults to have rights. Yet we ordinarily would not doubt that these incompetents can have rights, for example the right not to be tortured. (MacCormick 1982, 154–66) Will theories also have difficulties explaining privilege-rights, which are not rights of authority over others.

The interest theory is more capacious than the will theory. It can accept as rights both unwaivable rights (the possession of which may be good for their holders) and the rights of incompetents (who have interests that rights can protect). The interest theory also taps into the deeply plausible connection between holding rights and being better off.

However, the interest theory is also misaligned with any ordinary understanding of rights. We commonly accept that people can have interests in x without having a right to x; and contrariwise that people can have a right to x without having interests sufficient to explain this. In the first category are “third party beneficiaries.” (Lyons 1994, 36–46) You may have a powerful interest in the lottery paying out for your spouse’s winning ticket, but you have no right that the lottery pays out to your spouse. In the second category are many of the rights of office-holders and role-bearers (Jones 1994, 31–32; Wenar 2008, 258–62). Whatever interest a judge may have in exercising her legal right to sentence a convict to life in prison, the judge’s interests cannot possibly justify ascribing to her the power to make such a dramatic change in the convict’s normative situation. Also in the second category are counter-examples such as Kamm’s (2007, 245): “If I simply endow you with the right to some of my money, your interest in having the money or property in general played no role, let alone a sufficient role, in my now having a duty to give you my money.”

Will theorists and interest theorists have developed their positions with increasing technical sophistication. The issues that divide the two camps are clearly defined, and the debates between them are often intense. (Kramer, Simmonds, and Steiner 1998) The seemingly interminable debate between these two major theories has encouraged the development of alternative positions on the function of rights.

“Demand” theories fill out the idea that, as Feinberg (1973, 58–59) puts it, “A right is something a man can stand on, something that can be demanded or insisted upon without embarrassment or shame.” For Darwall (2006, 18), to have a claim-right, “includes a second-personal authority to resist, complain, remonstrate, and perhaps use coercive measures of other kinds, including, perhaps, to gain compensation if the right is violated.” On Skorupski’s account (2010, XII.6, XIV.2–3) rights specify what the right-holder may demand of others, where “demand” implies the permissibility of compelling performance or exacting compensation for non-performance. Like the will theory, such accounts center on the agency of the right-holder. They do not turn on the right-holder’s power over the duty of another, so they do not share the will theory’s difficulty with unwaivable rights. They may, however, have more difficulty explaining power-rights. Demand theories also share the will-theory’s challenges in explaining the rights of incompetents, and in explaining privilege-rights.

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

Intellectual historians have tangled over the origins of rights. These debates are sometimes framed in terms of when “the concept of a right” emerged. Yet insofar as it is really the emergence of the concept of a right that is at issue, the answer lies beyond the competence of the intellectual historian and within the domain of the anthropologist. Even the most primitive social order must include rules specifying that certain individuals or groups have special permission to perform certain actions. Moreover, even the most rudimentary human communities must have rules specifying that some are entitled to tell others what they must do. Such rules ascribe rights. The genesis of the concept of a right was simultaneous with reflective awareness of certain social norms.

The more productive characterization of the debate within intellectual history concerns when a word or phrase appeared that has a meaning close to the meaning of our modern word. This debate turns on when in history the pre-modern “objective” sense of “right” came also to bear our modern, “subjective” sense of “a right.”

“Right” in its older, objective sense means “what is just” or “what is fair.” (Finnis 1980, 206) Aristotle uses dikaion, for example, to indicate that a society is “rightly ordered”: that it displays the correct structure of human relationships “Right” in this objective sense can also be attributed to individuals. The Roman jurist Ulpian, for instance, held that justice means rendering each his right (ius). In this sense, a person’s “right” is what is due to him given his role or status. This objective sense of “right” is not the same as our modern idea of “a right.” For instance, Ulpian noted that the ius of a parricide was to be sewn into a sack of snakes and tossed into the Tiber. (Tierney 1997, 16)

The scholarly inquiry into when our modern, subjective sense of “a right” became established as a meaning of some word or phrase has proved long and divisive. The ancient authors often used words imprecisely, and smeared their meanings across and beyond the Hohfeldian categories. The intellectual historians themselves have occasionally congested the discussion by taking different features of rights as definitive of the modern concept. Moreover, the scholarly debate has sometimes accepted over-optimistic assumptions about the sharpness of conceptual boundaries.

Nevertheless, two broad trends in the scholarly discussions are clear. The first is to push the origins of a term indicating a modern, subjective sense of “a right” back further into history: from Locke to Hobbes to Grotius in the seventeenth century, then to Gerson in the fifteenth century, Ockham in the fourteenth, perhaps even to Gratian in the twelfth (Brett 1997, Tierney 1997). The second and related trend has been to establish that terms referring to active rights (what we would call privilege-rights and power-rights) predate terms referring to passive rights (what we would call claim-rights and immunity-rights). It appears that the earliest debates using recognizably modern rights-language concerned topics such as whether the pope has a (power-) right to rule an earthly empire, and whether the poor have a (privilege-) right to take what they need from the surplus of the rich.


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