The case against the theories of rights

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Abstract

There is a long-standing debate about how best to explain rights - one dominated by two rivals, the Interest and Will theories. This article argues that, not only is each theory irredeemably flawed, the entire debate ought to be abandoned. Section two explains the debate and its constituent theories as a dispute over the criteria for the concept of a right, or for some subset of rights. Section three argues that each theory contains fatal idiosyncratic defects - ones that mostly differ from the canonical criticisms found throughout the literature. Section four then argues that the theories also suffer from graver common defects that have hitherto gone undetected. First, their criteria are unmotivated, unjustified, and of questionable accuracy. Secondly, rights theorists' own commitments to different kinds of accounts (i.e. models) of rights and theories of law (eg legal positivism) show why any theory of this sort is unnecessary for understanding rights.

Original languageEnglish
Pages (from-to)320-346
Number of pages27
JournalOxford Journal of Legal Studies
Volume40
Issue number2
DOIs
Publication statusPublished - 2020

Keywords

  • Interest Theory
  • Legal philosophy
  • Philosophy of rights
  • Rights
  • Theories of rights
  • Will Theory

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