The Nature of Rights Debate Rests on a Mistake

Abstract

The recent debate over the nature of rights has been dominated by two rival theories of rights. Proponents of the Will Theory of rights hold that individual freedom, autonomy, control, or sovereignty are somehow to be fundamental to the concept of a right, while proponents of the Interest Theory argue that rights rather protect people's welfare. Participants in this debate commonly assume the existence of a single 'concept' of which both theories provide competing descriptions. The aim of this article is to show that both accounts are better understood as providing characterizations of different 'kinds' of rights.

Fundamental Legal Concepts: The Hohfeldian Framework

“…The literature on the correlativity axiom has mostly focused, as I said, on the claim‐right/duty pair, but some authors, like Brown () or van Duffel (), have considered the issue from the perspective of liberties. Brown has an interesting take on the matter: her claim is that alongside Hohfeldian claim‐rights, we should recognise three kinds of liberties rather than just one.…”

“…Indeed, several of Hohfeld's examples of liberties – like the ‘privilege of entering’ one's own land (: 39), or the ‘privilege against self‐crimination’, which he says ‘signifies the mere negation of a duty to testify’ (: 46) – are conspicuous for their lack of reference to anything other than the simple absence of a duty . Perhaps the confusion stems from the fact that – as van Duffel (: 112‐113) also points out – if one is legally permitted to φ, one cannot be under a directed duty not to φ: if one has a directed duty not to φ, one has a duty not to φ and is therefore not permitted to φ. But that does not mean that being permitted to φ – although it does entail that no‐one has a claim‐right that one not φ – is itself a relational or ‘directed’ position correlating with someone's no‐right that one not φ…”

“…That is why several authors prefer to substitute ‘contradictories’ for Hohfeld's ambiguous ‘opposites’: see e.g. Radin (: 1148), Williams (: 1135), Kramer (: 8, n. 1), or van Duffel (: 105).…”

“…See Pound (: 94), Moritz (: 63‐4), Stone (: 140, 160), Feinberg (: 139‐141), Lyons (: 164), Feinberg (: 243‐4), and van Duffel (: 107).…”

Hohfeldian Infinities: Why Not to Worry

“…The issue has been addressed in some other writings, but usually very tangentially. 2 For a discussion of the relational nature of Hohfeldian first-order positions, see Van Duffel (2012).…”