Cruft R (2004) Rights: Beyond interest theory and will theory?. Law and Philosophy, 23 (4), pp. 347-397. http://link.springer.com/article/10.1023/B%3ALAPH.0000015417.05737.0e
First paragraph: It is common for philosophers and legal theorists to bemoan the proliferation of the language of rights in popular discourse. In a wide range of contemporary public political and ethical debates, disputants are quick to appeal to the existence of rights that support their position - the ‘human rights' of innocent victims of war, animals' noninterference rights, individuals' and businesses' rights to economic freedom. It is often maintained, with some plausibility, that these public disputes involve hasty and undefended reliance on assumptions that certain specific rights exist, and that such profligacy with the language of rights does little to clarify and enhance public debate. By contrast, the two prominent theoretical analyses of the concept ‘a right' - the Will Theory and the Interest Theory - are both revisionary theories which, if widely adopted, would require people to revise their usage of the term ‘a right'. The Will Theory is an explicitly revisionary theory, according to which rights can be held only by beings capable of waiving their rights (and hence rights cannot be held by animals or young children). I shall argue that traditional versions of the Interest Theory would also require revisions of popular usage of the term ‘a right' (by implying that certain property rights and promissory rights cannot genuinely qualify as rights). Such revisionary analyses of the concept ‘a right' might be applauded for aiming to enhance the conceptual clarity of public debate. However, my stance in this paper is avowedly non-revisionary. My aims are to seek an analysis of the concept ‘a right' that accords with the multifarious ways in which this term is used in everyday ethical and political debates, and to argue that philosophers and legal theorists would benefit from adopting such a non-revisionary approach.
Law and Philosophy: Volume 23, Issue 4