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The Nature of Rights

By Leif Wenar

Abstract

The twentieth century saw a vigorous debate over the nature of rights.\ud Will theorists argued that the function of rights is to allocate domains of\ud freedom. Interest theorists portrayed rights as defenders of well-being.\ud Each side declared its conceptual analysis to be closer to an ordinary\ud understanding of what rights there are, and to an ordinary understanding\ud of what rights do for rightholders. Neither side could win a decisive\ud victory, and the debate ended in a standoff.\ud \ud \ud This article offers a new analysis of rights. The first half of the article\ud sets out an analytical framework adequate for explicating all assertions\ud of rights. This framework is an elaboration of Hohfeld’s, designed around\ud a template for displaying the often complex internal structures of rights.\ud Those unfamiliar with Hohfeld’s work should find that the exposition\ud here presumes no prior knowledge of it. Those who know Hohfeld will\ud find innovations in how the system is defined and presented. Any theorist\ud wishing to specify precisely what is at stake within a controversy over\ud some particular right may find this framework useful.\ud \ud The analytical framework is then deployed in the second half of the\ud article to resolve the dispute between the will and interest theories. Despite the appeal of freedom and well-being as organizing ideas, each\ud of these theories is clearly too narrow. We accept rights, which do not (as\ud the will theory holds) define domains of freedom; and we affirm rights\ud whose aim is not (as the interest theory claims) to further the interests\ud of the rightholder. A third theory, introduced here, is superior in describing\ud the functions of rights as they are commonly understood

Publisher: Blackwell Publishing
Year: 2005
OAI identifier: oai:eprints.whiterose.ac.uk:1619

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