What Is the Will Theory of Rights?

• Author: David Frydrych
• Published date: 01 December 2019
• Date: 01 December 2019
• DOI: http://doi.org/10.1111/raju.12259

© 2019 The Author. Ratio Juris © 2019 John Wiley & Sons Ltd.

Ratio Juris. Vol. 32 No. 4 December 2019 (455–472)

What Is the Will Theory of Rights?

DAVID FRYDRYCH

Abstract. This article helps to clear up some misunderstandings about the Will Theory of

rights. Section 2 briefly outlines the Theories of Rights. Section 3 elucidates some salient dif-

ferences amongst self-described anti–Interest Theory accounts. Section 4 rebuts Carl Wellman’s

and Arthur Ripstein’s respective arguments about the Will Theory differing from “Choice” or

Kantian theories of a right. Section 5 then offers a candidate explanation of why people might

subscribe to the Will Theory in the first place.

1. Introduction

This article helps to clear up some misunderstandings about the Will Theory of

rights. Section 2 briefly outlines the Theories of Rights. Section 3 elucidates some sa-

lient differences amongst self-described anti–Interest Theory accounts. Section 4 re-

buts Carl Wellman’s and Arthur Ripstein’s respective arguments about the Will

Theory differing from “Choice” or Kantian theories of a right. Section 5 then offers a

candidate explanation of why people subscribe to the Will Theory in the first place.1

2. The Interest and Will Theories

What is A RIGHT?2 Does the concept, or concepts, admit of necessary and sufficient

conditions? Do all rights serve some singular ultimate purpose or function? There is

a long-standing philosophical debate over these matters. The two main contenders,

the Interest and Will Theories, claim to offer competing answers.3 However, certain

versions of each theory are delimited in one or two ways: to a certain (1) normative

domain (i.e., as concerning legal rights, or moral rights, exclusively) and/or (2) kind

of a right (e.g., in Hohfeldian terminology, to claims, but not liberties, powers, or

1 This article revises and expands upon Frydrych 2018, 4–5.

2 The contemporary philosophical convention is to use all capitals to mark concepts. This, to

distinguish them from denotations of words, phrases, and terms, for which quotation marks are

used instead.

3 There have, of late, been efforts to construct alternatives theories. Scholars present these as

“third” theories, or as hybrids of the Interest and Will Theories; e.g., Rainbolt 2006; Sreenivasan

2005 and 2010; Wenar 2005 and 2013. Building on the work of Matthew Kramer and Hillel

Steiner (2007), I have argued elsewhere (Frydrych 2018, 580–84) that these all nonetheless con-

stitute versions of the Interest Theory.

David Frydrych456

Ratio Juris, Vol. 32, No. 4© 2019 The Author. Ratio Juris © 2019 John Wiley & Sons Ltd.

immunities).4 The debate tends to focus on the kind of a right that correlates to a duty,

hereinafter “an RCTD,” of which Hohfeld’s claim is but one conception.5 However, a

handful of versions of both the Interest and Will Theories allow for more expansive

accounts (e.g., they include liberties, powers, and immunities as kinds of rights).

Each rights theory, Interest and Will, contains three features: (I) an ultimate pur-

pose that all rights (or at least those covered by the particular version of the the-

ory) purportedly serve; (II) means of protecting or effectuating that purpose, e.g., by

imposing duties on other parties, by including enforcement mechanisms, etc.; and (III)

specifying which candidates constitute rights, i.e., which types of normative posi-

tions (e.g., Hohfeldian claims, liberties, etc.) and which tokens of those types (e.g.,

what subset of Hohfeldian claims) count as rights—not all might (Frydrych 2018,

567–77).

While admitting of different versions, the Interest Theory is best understood as

holding that (I) rights secure, protect, or advance interests (of some sort or other),

however imperfectly or inadequately; (II) RCTDs secure such interests via the ex-

istence (or imposition) of correlative duties borne by other parties; and (III) that

legal RCTDs can be, but are not invariably, enforceable legally (e.g., Kramer 1998, 62;

MacCormick 2008, 129; Raz 1994, 256–8).

Matthew Kramer (2017, 49) holds that the two core propositions of “jurispruden-

tial” versions of the Interest Theory are these:

(IT-1) Necessary though insufficient for the holding of a legal right by X is that the duty cor-

relative to the right, when actual, normatively protects some aspect of X’s situation that on

balance is typically beneficial for a being like X (namely, a human individual or a collectivity or

a non-human animal).

(IT-2) Neither necessary nor sufficient for the holding of some specified legal right by X is that X

is competent and authorized to demand or waive the enforcement of the duty that is correlative

to the right.

Certain versions of the Interest Theory seem to hold that only certain sorts of inter-

ests are capable of grounding legal rights, e.g., those concerning individual

4 There are two different kinds of philosophical accounts of rights’ “formal” features: models

and theories. Models explain whether there are different conceptually basic types of a right and

how rights and other kinds of normative positions (e.g., duties and liabilities) relate to one an-

other. The most famous model is Wesley Hohfeld’s. See Frydrych 2017b; Harel 2007, 192.

Hohfeld notes that different senses of the term “a right” abound and argues that there are five:

claims, privileges (a.k.a. liberties), powers, immunities, and “complexes.” (A rights complex is

a combination of Hohfeld’s more basic normative positions aggregated into a larger construct,

e.g., a claim+two powers+four liberties to exercise those powers, etc. [Hohfeld 1913, 28–30, 35

n. 39, 38 n. 48].) He presents the four basic kinds, and their four correlatives (duties, “no-rights,”

liabilities, and disabilities) in a schema of jural relations. See Hohfeld 1913; Frydrych 2017b.

5 H. L. A. Hart (1982) and Joseph Raz (1986 and 1994), for example, provide rival conceptions of

AN RCTD to Hohfeld’s claims. (Throughout this article, “rights” shall refer to all kinds, not just

RCTDs, unless specifically noted otherwise). Further, the label RCTD is presented with the im-

portant caveat that certain conceptions deem enforcement powers to be features of an RCTD;

others hold that RCTDs are simply constituted by such powers; while still others treat enforce-

ment powers as being conceptually distinct from an RCTD, but necessitate that both serve as

components within a unified right complex. (Indeed, many scholars explain many legal and

moral rights in terms of right complexes.)