The will theory of rights: A defence

PAUL GRAHAM

THE WILL THEORY OF RIGHTS: A DEFENCE

ABSTRACT. Hart's will theory of rights has been subjected to at least three significant criticisms. First, it is thought unable to account for the full range of legal rights. Second, it is incoherent, for it values freedom while permitting an agent the option of alienating his or her capacity for choice. Third, any attempt to remedy the first two problems renders the theory reducible to the rival benefit theory. My aim is to address these objections. I argue that will theory has been made vulnerable due to misinterpretation. The theory has been characterized as placing great stress on liberty rights (or claim-protected liberties), whereas it is powers that are central, and hence not choice but control. My argument does, however, depend upon appealing to an extra-legal notion - the hypothetical contract- but I argue that this is consistent with the main aim of a "theory of rights".

H.L.A. Hart's "will theory" of rights has not fared well in the debate on the nature and function of a right. Hart's argument that to have a right entails being in the position either to demand or else to waive the performance of a duty has been subjected to at least three significant criticisms. First, it is thought unable to account for many, if not most, of what are regarded as the "basic liberal rights", as well as the now popular concept of welfare rights. 1 Second, the theory is attacked as incoherent, since it appears to maintain that all rights must be alienable, with the implication that you must be able to choose to rid yourself of the capacity for choice. Third, defenders of the main alternative to will theory, benefit theory, argue that any attempt to deal with the first two objections will simply result in conceding that rights are, as benefit theorists maintain, the advantageous consequences for the rightholder of the performance of a duty by another person.

My aim in this article is to address these objections - what I term the "narrowness", "incoherence", and "redundancy" objections. But it should be made clear that I am concerned to justify will theory from the standpoint of moral and political theory, and I do not purport

I By "basic liberal rights" I mean the right to free speech, to association, to vote, to a fair trial, to a private life, and to ownership of one's own body. By "welfare rights" I mean rights to levels of resources, such as health care or education.

Law and Philosophy 15: 257-270, 1996. @ 1996 Kluwer Academic Publishers. Printed in the Netherlands.

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to explain the operation of rights within a legal system. That said, my arguments do have significant implications for how we are to understand the role of "theories of rights" such as benefit theory, will theory, or "compromise" theories advanced by such writers as Joseph Raz, Neil McCormick and Carl Wellman. 2 In that sense, the claims I make are of relevance for legal theory.

I shall begin with a preliminary discussion of rights-theory (section I), before turning to a consideration of will theory. I argue (section II) that will theory has been rendered vulnerable to criticism through misinterpretation; the theory is wrongly understood to be about "choice" whereas in fact it is about "control". My preferred interpretation does, I believe, overcome the incoherence objection (section III), but in its basic form leaves the narrowness objection untouched, and so in section IV, I develop my account so as to overcome that objection. I also argue that will theory, understood in terms of control, is quite distinctive (section V) and hence defensible against the redundancy objection. I conclude with some remarks on the preferability of will theory to benefit theory.

I. RIGHTS-THEORY AND POLITICAL THEORY

Rights are clearly of central concern to political theory. Virtually every political community in the world makes reference to rights, and rights are of particular importance to Western societies. What is more, liberal political theory frequently appeals to the concept of moral rights in justifying particular political arrangements.

The difficulty that political theorists face is conceptual. If we accept the arguments of jurists such as Wesley Hohfeld that "rights" can be analysed into different forms - claims, privileges, powers and immunities 3 - then it is incumbent upon us to ask whether

2 For a discussion of these compromise theories see Carl Wellman, Welfare Rights (Rowman and Littlefield, 1982), pp. 14-19; Joseph Raz, "On the Nature of Rights", Mind 93 (1984): 194-214; Neil MacCormick, "Rights in Legislation", in P.M.S. Hacker and J. Raz, eds., Law, Morality and Society (Oxford: Clarendon, 1977); Neil MacCormick, "Rights, Claims and Remedies", Law and Philosophy 1 (1982): 337-58.

3 Wesley Hohfeld, in W.W. Cook, ed., Fundamental Legal Conceptions as Applied in Judicial Reasoning (Yale University Press, 1923), chapters 1 and 2. The four Hohfeldian forms can be defined as follows. To have a liberty is to be

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there is anything more than mere linguistic convention in referring to all these forms as "rights", and whether it would matter if the answer were "no". Hohfeld, as a legal theorist, clearly thought that the answer was "no", for the operation of rights in the legal system required analysis rather than synthesis; Hohfeld was concerned to demystify rights through categorization rather than systematization. Hohfeld was not interested in "theories of rights". And it may be asked whether political theorists ought not simply to follow Hohfeld and accept the diversity of rights.

The problem is that if you are interested in "wider" ethico- political issues, such as the justification of private property, then Hohfeld's conclusion is unsatisfactory, for private property involves the bundling together of various Hohfeldian forms. Everybody possesses a power-right to acquire property, and in exercising that power a person comes to acquire a claim-right in a particular piece of property, while in excluding others from the use of that property one enjoys a privilege-right. Whatever ethical defence is advanced for property these Hohfeldian forms are inextricably bound together. 4 Consequently, political theory cannot stop at analysis.

A theory of rights attempts to reconstruct rights into a system by finding some "core concept" that can unify the various Hohfeldian forms. The "traditional" candidates for this core concept are "benefit" and "will". Benefit theory states that to have a right is to benefit from the performance of an enforced duty, 5 or on revised accounts, to be

free from an obligation to do something, while having a claim involves another person(s) being under a duty to perform an action that is intended to benefit you. To have a power is to be in the position to change the legal position of yourself in relation to other agents, and to have an immunity is for your legal position to be insulated from change.

4 Some theorists might dispute that a property right contains both a power-right and a claim-right. Jeremy Waldron, for example, makes much of the distinction between "general rights" and "special rights" (this distinction corresponds to my power/claim distinction). Waldron suggests that Lockean property-rights are based on special rights held in rein against the world. The right of a Lockean farmer to the field he has enclosed and cultivated "arises out of a particular contingent event in which he was involved" and not everyone gets to labour on that field. But it seems to me that the farmer's special right is the product of a general (moral) right to mix one's labour with the earth. See Jeremy Waldron, The Right to Private Property (Oxford: Clarendon Press, 1988), p. 108.

5 My understanding of benefit theory is taken in large part from Hart's reconstruction of Bentham's version of the theory. See H.L.A. Hart, Essays on Bentham (Oxford: Clarendon Press, 1982), chapter 7. While Hart is critical of benefit theory,

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intended to benefit. 6 Will theory states that having a right involves being in the position to control the performance of a duty. 7

As I shall argue, both theories are problematic in that they attempt to squeeze all four Hohfeldian forms into a single structure; they try to find some common "structural" denominator between a claim, privilege, power, and immunity. I do not think that this can be achieved since the structure of each form is too different from the others. A claim, for example, correlates to a duty over which the rightholder has no control. A power correlates to a liability, and the person liable to have his or her position changed is not required to perform any duty. Claims and powers are, therefore, fundamentally different in structure. It follows that a theory of rights must either reject some of the Hohfeldian forms or else advance a core concept that is so banal as to be useless, such as saying that rights are "advantages" or rights "promote well-being".

My view is that a theory of rights should not seek to find a common structural denominator but rather should order the forms in a hierarchy. One of the Hohfeldian forms is singled out as a primary form, and the other forms are derived from it. On this account, benefit theory would single out claim-rights and attempt to show how powers, say, are the consequence of the imposition of a duty. Will theory, on the other hand, would single out powers and maintain that claim-rights are the product of the exercise of powers. As I shall argue, difficulties for will theory have arisen because the wrong Hohfeldian form has been singled out as the primary form.

II. WILL THEORY AND POWERS

To possess a claim is to stand in a position legitimately to demand something from another, and the other is under a duty to perform the demanded action. A power, on the other hand, is one's ability to control one's legal relationships. To be on the "receiving end" of a power is to be liable to have one's legal position changed.

his reconstruction is, I believe, fair, and given the difficulties of piecing together Bentham's argument from his disparate references, it is also invaluable.

6 See David Lyons, "Rights, Claimants and Beneficiaries", American Philo- sophical Quarterly 6 (1969): 173-85.

7 Hart, Essays on Bentham, p. 168.


I believe that will theory is best characterized as involving powers to create and destroy claim-rights. So, for example, if I buy a flight- ticket then I have entered into a contract with an airline to provide a seat on a particular flight and the airline is under a duty to provide it, but in order to acquire a claim-right in that seat I must have p o w e r s

to buy a seat. This, I believe, comes close to what Hart meant when he said that to have a right was to be in the position to release a duty-bearer from his or her duty or else insist on the performance of the duty. 8

On this interpretation a system of rights is composed of first- order claim-rights and second-order powers to change those claim- rights. This means that claim-rights are the product of the exercise of powers. This relationship of power to claim is most apparent in "contractual" rights such as those of property and marriage. In such relationships there exist general powers to enter into contracts, and particular claims to specific goods, persons, or personal relationships.

It will, of course, be objected that most claim-rights are not the product of powers, and I shall deal with this objection shortly (section IV), but at this stage I want to clarify my interpretation by contrasting it with a common alternative interpretation. Jeremy Waldron, in his book The Right to Private Property, suggests that will theory is "essentially connected" to a "certain distribution of freedom". 9 Waldron begins by arguing, I think correctly, that will theory is about the capacity of an agent to control the duty of another, l° but then he suggests that the theory is about choice, and rights involve the protection of choice.~ 1

What Waldron does is to run together two of Hart's (quite sepa- rate) theses, one concerned with positive rights (will theory) and the other concerned with the possibility of natural rights. 12 I am not interested in considering at length Hart's natural rights thesis, but in outline Hart maintained that if there are any natural rights

8 Hart, Essays on Bentham, pp. 183-84. 9 Waldron, The Right to Private Property, p. 96.

10 Waldron, The Right to Private Property, p. 95. 11 Waldron, The Right to Private Property, p. 98. ~2 The "natural rights thesis" is developed in H.L.A. Hart "Are There any

Natural Rights?", in J. Waldron, ed., Theories of Rights (Oxford: Oxford University Press, 1984).

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there must be at least one: the natural right to equal freedom. Hart's argument is based on an observation of the practice of positive rights, namely, that positive rights are interferences in the liberty of those individuals obliged to perform a claim-correlative duty (or disadvantaged in some other way), but at the same time a right must be a justi f ied interference. 13 If the interference in liberty requires a justification, then the duty-holder must have a prior right not to be interfered with, that is, a right to liberty. 14 Waldron argues that there is a connection between this natural right to equal liberty and the idea of choice to be found in will theory. 15

It should be said that Hart does imply that positive rights are about choice, or the protection of choice. This is evidenced in Hart's "garden fence" example. Hart argues that a person (I shall call her A) has the right to look over her fence at her neighbour (I will call him B). 16 If we follow Hohfeld's scheme (but ignoring immunities)17 we could interpret this example in three different ways:

(i) A is free to look at B because A has no duty not to look at B. A has a liberty-right.

(ii) A is free to look at B because B has a duty not to interfere in A's actions. A has a claim-right against B.

(iii) A has a right to look at B and B has a duty not to interfere in A's actions, but it is a duty that A could waive. A has a power.

If the example is to be consistent with my view of will theory, then I believe that (iii) is the correct interpretation: A has a power. As an observation, however, on the legal right "to look at your neighbour" this is obviously wrong, for A is not in a position to relieve B of his duty. This suggests that one of the other interpretations is better. Both interpretations (i) and (ii) seem to support Waldron's "choice" interpretation. Yet both (i) and (ii) entail a serious difficulty, which

13 Hart, "Are There any Natural Rights?", pp. 81-83. 14 Hart, "Are There any Natural Rights?", pp. 77-78. 15 Waldron, The Right to Private Property, p. 95. It must be said that Hart

himself makes a connection between his natural rights thesis and will theory, see Hart, "Are There any Natural Rights?", p. 82. But regardless of the textual support provided by Hart I believe that Waldron is substantively wrong to connect the two theses.

16 Hart, Essays on Bentham, pp. 167, 188. 17 Immunities are important in will theory but not appropriate to this example.

See section IV.


I believe can only be avoided if we accept the power-interpretation. Let's consider this difficulty in more detail.

III. THE INCOHERENCE OBJECTION

If we follow interpretation (i) then A's right to look at B is the result of A not being under a duty to B not to look at him. This is clearly problematic, for will theory involves A having control over B's duty, and yet B appears to have no duty to A, since A's liberty means nothing more than she has no duty to B to refrain from looking at him. Just because A is under no duty not to look at B it doesn't follow that B must respect A's freedom to look at him. Will theory depends upon the existence of duties but in a world where liberties are the primary-form there would be, by definition, no duties, for a liberty entails no duty, and a liberty is incapable of creating any other rights, such as claim-rights, that would entail duties.

If we reject interpretation (i) then (ii) may still be a possibility: B has a duty to A not to interfere in her actions, and A has a correlative claim-right. Unlike the case of liberties, there clearly exists a duty here. But the difficulty is that the duty is too strong, for the existence of A's right is dependent upon the performance of the duty: the right is simply the "reflex" of that performance. Consequently, A has no control over the duty. This would, in effect, collapse will theory into benefit theory, since benefit theory states that to have a right is to be the beneficiary of a duty imposed on another. It is irrelevant that what the claim-right protects is the freedom to act, for liberty does not define the structure of the right, but merely the content, that is, the good that is secured by the right.

Given that liberties entail no duties, while claims involve nothing but a duty, it may be argued that will theory should locate "rights" midway between liberties and claims. By this I mean that to have a right is not simply to stand to benefit from the performance of a duty, but to stand to benefit from the performance of a duty that you control. This would support the common intuition that rights are opposed to paternalism: to have a right is to choose to benefit, not merely to benefit. The problem is that the attempt to combine both elements of benefit and choice into a single right generates a serious incoherence.

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To have a right there must be a potential benefit, which in the garden-fence example is the freedom to look, or not to look, at your neighbour. If no such benefit were at stake there would be no right, but a will theorist must insist that there also be discretion over the delivery of the benefit, and this implies that we attach value or significance to the capacity to choose whether or not to benefit. Now, the problem is that many rights are concerned to protect this capacity for choice, and so the benefit that those rights provide is either some kind of liberty - for example, freedom of movement - or else some good that will contribute to the capacity for choice, as is the case with a child's right to education. Given this, it seems profoundly contradictory to say that a person has a right to reject those goods that contribute to his or her capacity for choice. 18

It may be countered that if powers were our only basic rights then the same situation would arise, for powers involve choice and that includes the choice to alienate those claim-rights that protect the capacity for choice. But the incoherence objection does not hold for powers. To have a power is to be in the position to create and destroy claim-rights but what defines the power is not choice but control, such that I can never alienate my powers - I could never, as it were, sell myself into slavery. And it is quite consistent to argue that a person has powers whether or not he or she chooses to have them, since choice does not define powers. Yet a person cannot have inalienable liberty-rights without turning will theory into benefit

theory. Now, while will theory interpreted in terms of powers is internally

coherent, it is not "externally" coherent - that is, it does not cohere with the social and legal practice of rights, for there are some claim- rights that are simply inalienable. The next objection that will theory must then deal with is that of "narrowness": how are we to show that all non-power rights are derived from the exercise of powers?

IV. THE NARROWNESS OBJECTION

Most claim-rights cannot be destroyed, and consequently there is a substantial body of claim-rights that are not the product of second- order powers. These include the basic rights to personal freedom,

Is N.D. MacCormick, "Rights in Legislation", p. 196.


such as freedom of speech and belief, as well as the "civic rights" to vote, to form associations, and to have a fair trail. Such inalienable claim-rights also include certain rights to welfare, such as a child's right to education. Indeed, it appears as if the only claim-rights that are alienable are rights that are the product of contractual relations, such as property-rights.

That the rightholder lacks control over most of his or her claim- rights appears to invalidate will theory. We could, however, make a distinction between benefitting from powers and exercising powers. As Hillel Steiner argues:

. . . the judicial position of an ordinary citizen can readily be described as that of a third party beneficiary of criminal law duties and . . . choice theory rights, correlative to those duties, can straightforwardly be located in state officials. 19

As Steiner admits, however, it appears that the powers of state officials are limited. Where there exists a constitution the state will be disabled from exercising its powers to alter certain criminal law duties, such as the duty not to steal or murder, z° Consequently, it appears as if nobody has powers to alter the basic claim-rights of the criminal law, and the narrowness objection stands.

Steiner's response to this problem involves an appeal to the logic of Hohfeld's concept of an immunity, rather than an observation of the practice of criminal law. He argues that if a subordinate official is disabled from changing a criminal duty than there must be a superior official who holds the correlative immunity and cannot himself be disabled from altering that duty, because one cannot have both an immunity and a disability with regard to the same action. And if that official is not disabled from changing the law then he must have the power to change the law. zl

The problem is that Steiner's argument relies solely on the logic of Hohfeld's scheme, rather than any observation of the legal system. Steiner thinks that because somebody is disabled from destroying a claim-right then somebody else in the legal system must have an immunity. Since citizens themselves cannot alienate their claim- rights they cannot hold the immunities, and therefore the immunities

19 Hillel Steiner, An Essay on Rights (Oxford: Basil Blackwell, 1994), p. 66 (Steiner's emphasis). By "choice theory rights" I take Steiner to mean "powers".

2o Steiner, An Essay on Rights, p. 70. 21 Steiner, An Essay on Rights, pp. 71-73.

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must be vested in (higher) state officials who themselves cannot be disabled. Yet it appears, contra Steiner, that there are some claim- rights which everybody is disabled from changing.

Despite the inadequacy of Steiner's argument I do think he is right to insist that disabilities imply immunities somewhere in the legal system, and the existence of immunities suggest powers (though those powers need not reside in the legal system). But I believe that in order to overcome the narrowness objection we have to go outside the legal system and appeal to a moral theory. I maintain that this m o r n theory must be contractarianism. We imagine a moral choice situation, such as that envisioned by John Rawls, in which ideal agents - that is, fully rational agents - together construct a set of principles that will govern their relationships outside of the moral choice situation. The agents have unlimited powers to agree to any contract they might choose, although we also assume that there are moral constraints placed on their choice. 22 The main point is that there are no inalienable claim-rights in the moral choice situation, and hence any claim-rights that exist are derived from powers.

We can ask what principles ideally rational agents would choose in the moral choice situation. The answer will be, in part, determined by background considerations, such as what kind of and how much information the agents have about themselves and their conditions. 23 But let us assume that ideal agents know that they represent non- ideal agents, even if they do not know the identities of their particular counterparts. Ideal agents recognize that non-ideal agents suffer from weaknesses in reasoning, which are particularly acute in the case of children and the infirm. Non-ideal agents may also be subject to coercion, given the inequality of power outside the moral choice situation. Consequently, ideal agents will frame legal and political principles that not only allow for agency but also for the protection of agency.

22 My argument does not assume that powers are natural rights. All I am arguing is that powers are the first type of right that would be agreed to in the moral choice situation, and all other rights are secondary and derived from powers.

23 These will vary depending on which kind of contractarianism one endorses. Rawls proposes strong constraints on information, whereas, say, David Gauthier advocates relatively weak constraints. See John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1972), pp. 136-42; David Gauthier, Morals by Agreement (Oxford: Clarendon Press, 1986), chapter 1. My defence of will is neutral between different contractarian theories.


In the moral choice situation under conditions of fairness, ideal agents would institute a structure of rights that would ensure that non-ideal agents are not taken advantage of. Consequently, they would grant the state powers to create inalienable claim-rights, such as the basic "liberal" and "democratic" rights. Ideal agents would not trust non-ideal agents with discretion over these basic rights, for given discretion weak agents would be coerced into entering unfair contracts.

It is not only the case, however, that non-ideal agents must be protected from other agents, they must also be protected from the state. Through the contract the state is endowed with Hohfeldian powers to create and destroy claim-rights, and if we follow the Hobbesian model of the contract, this is a consequence of transferring our individual precontractual powers to the sovereign. But unless we adopt an e x t r e m e Hobbesian view of the contract, ideal agents would not effect a simple transfer, for they would seek guarantees that the state will protect their interests, and this requires placing limitations on the state. Ideal agents will turn some of their powers into immunities rather than simply handing those powers over to the sovereign.

It may be thought that the appeal to a contractarian moral theory undermines will theory, and on two counts. First, it affects the use- fulness of will theory as an explanation of legal rights. Second, it militates against a moral justification of rights, for it presupposes that which is supposed to be the object of justification.

The first criticism can be accepted if it is meant that will theory should be an explanation of how rights operate within a legal system. But I have made clear that my interest is in justification from the standpoint of political theory rather than explanation from the standpoint of legal theory. Obviously, we need an idea of what a right is, but that idea can involve the use of non-legal concepts, such as a hypothetical choice situation.

The second criticism is more serious, since by positing the existence of rights in the moral choice situation it appears as if I am presupposing that rights are morally justified. But I think that this objection is misplaced, for we can, as it were, lay out the structure of a theory without being committed to accepting its validity. Clearly, my interpretation of will theory is rendered coherent at the price of

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reliance upon a particular moral theory, and so the stress shifts from showing, as Steiner tries to do, that will theory can account for all legal rights, to showing how contractarianism is justified.

V. THE REDUNDANCY OBJECTION

The third objection that might be advanced against will theory as I have interpreted it is that it doesn't really enable us to distinguish will theory from benefit theory, because the second-order relationship of powers to claims doesn't hold. The objector could argue that to have a power is to have a duty against officials to bring it about that one's will is given effect. So if, for example, I exercise my power to marry, then state officials have a duty to see to it that I am married, such that my power is, in effect, simply a claim against state officials.

This objection, if valid, would undermine will theory, because it would reduce powers to claim-rights, albeit quite complex claim- rights. The power to marry would be, in fact, a claim-protected- liberty, in that one has a claim against the state (and other people) to marry the person of one's choice and those others have a duty not to interfere with that choice. But I do not think that it is accurate to describe the power to marry as a claim-right. Compare two people - A and B - both of whom have the power to marry, but A is unmarried while B is married. Now, the fact that they both have the power to marry does not mean that they both have claim-rights to be married. A has no claim-right to be married because she has not entered into a contract, while B does have a claim-right: a claim-right against the state and everybody else to be married to the particular person he is married to. It might be suggested that A does have a claim-right - a claim-right against the state and all others not to interfere in her decision not to get married. This is clearly not a claim-right, however, but a liberty, for A is under no duty to get married.

It is true that in exercising one's powers to marry, one has claims against state officials to see to it that one's will is given effect, and in that sense powers are dependent upon claims. But the kind of dependency entailed in the power-holder/official relationship is not one that threatens to collapse will theory into benefit theory. This is because powers are dependent upon institutions, and by "institution" I mean a complex of rules and officials; powers are animated through


the institution of a contract. In order to exercise my powers the institution must exist, but the powers are only operative when I choose to make them operative, and so the duties of officials are only activated by my will; I am not the passive recipient of unsolicited benefits. Consequently, the officials' duties are dependent upon my actions even though my actions- the effective exercise of my powers - are only made possible because officials fulfil certain duties. I would conclude, therefore, that will theory as I have presented it, is defensible against the charge of redundancy.

VI. CONCLUDING REMARKS

I have argued that will theory, if correctly understood, can be defended against certain standard objections, but is it preferable to benefit theory? I want to conclude this article with some brief comments on why will theory is preferable.

First, it might be argued that one advantage that benefit theory has over will theory - at least as I have defended it - is that it doesn't rely upon an extra-legal, moral theory in order to explain what it means to have a right. Certainly, in Bentham's version of benefit theory rights are the product of the imposition by the sovereign of duties upon subjects, and this was a purely legal process. Bentham was famously hostile to the concept of moral rights. However, benefit theory cannot be grounded in a command theory of law and at the same time account for the full range of legal rights. As I argued in section V, p o w e r s are not the consequence of the imposition of a duty by the sovereign, for it is the actions of the power-holder that give rise to any duty; as Hart argued the right-holder is a "small-scale sovereign".24

It may be objected that I am not doing benefit theory justice by tying it into Bentham's command theory of law. It could be argued that a different conception of law, such as one which takes as authoritative certain rules of change, can overcome this problem. Rights would still be the consequence of the performance of a legal duty, but the legal duty would be performed not because the sovereign has imposed it, but because the power-holder has created it, and the duty-bearer performs the duty out of respect for the institution that the

24 Hart, Essays on Bentham, p. 183.

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power-holder used in order to create the duty, that is, the institution of the contract. The difficulty, however, lies in explaining the respect that the duty-bearer has for that institution in a way that does not presuppose the idea of a moral duty to respect legal institutions.

My second point is that benefit theory cannot provide a conceptual distinction between duties correlative to rights and duties based on non-rights principles. A common objection to benefit theory is that it allows for an expansion of the right-holding class to the point where right-holding becomes seriously disvalued. So, anybody or anything capable of having an interest can be the logical bearer of rights under benefit theory. It may be, of course, that once we have defined what interests are to be protected through rights, then we can limit the application of rights to a smaller set of entities. My point, however, is that benefit theory provides no conceptual guidance on the question of application; who or what has rights is dependent upon how you define an interest and that requires some other kind of theory.

My conclusion, then, is that will theory provides a coherent and defensible understanding of what rights are, and may indeed provide the best understanding.

The will theory of rights: A defence

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