Getting Rights Right

Abstract

In a long essay published in 1998, I have defended a version of the Interest Theory of legal rights.1 That theory, which stands in opposition to the Will Theory, can be tersely and approximately summarized in the following two theses:(1)Necessary but insufficient for the actual holding of a right by X is that the right, when actual, protects one or more of X’s interests.(2)The mere fact that X is competent and authorized to demand or waive the enforcement of a right will be neither sufficient nor necessary for X’s holding of that right.For the Interest Theory, then, the essence of a right consists in the normative protection of some aspect(s) of the right-holder’s well-being. The two principal tenets of the Interest Theory are squarely rejected by the proponents of the Will Theory. Most of the Will Theorists maintain that a right’s potential to protect an interest of X is not necessary (as well as not sufficient) for X’s holding of the right, and they also maintain that X’s competence and authorization to demand/ waive the enforcement of a right are separately necessary and jointly sufficient for X’s holding of that right. For the Will Theory, the essence of a right consists in opportunities for the right-holder to make normatively significant choices relating to the behaviour of someone else.