Chapter (in Edited Book) ()
Cruft R (2017) The circularity of the interest and will theories of rights. In: McBride M (ed.). New Essays on the Nature of Rights, Oxford: Hart, pp. 169-186.
Theories of the nature of rights - which for present purposes I shall take to be the same as theories of what it is for a duty to be owed to someone, and of what it is for violation of that duty to wrong someone - standardly bifurcate into (1) a ‘will' theory, which claims that a given duty is owed to whoever has some control over this duty as a matter of their will, and (2) an ‘interest' theory, which claims that a given duty is owed to whoever's interests bear an appropriate relation to it. In this paper, I argue that versions of both theories can be developed which are extensionally accurate, but that the theories in these forms cannot avoid circularity. My conclusion will be that if we want a broadly reductive account of the nature of rights and directed duties, we need to look beyond both interest and will theory. To put it roughly, the best versions of these theories cannot avoid saying (in will theory mode) that to be owed a duty is to have the kind of control over it (including control on one's behalf by another) that comes with being owed it, or (in interest theory mode) that to be owed a duty is for it to serve one's interests in the way that a duty owed to one does.
Rights; Interest Theory; Will Theory; Hohfeld
|Place of publication||Oxford|