Oxford Journal of Legal Studies

Oxford Journal of Legal Studies Advance Access originally published online on December 20, 2005
Oxford Journal of Legal Studies 2007 27(2):281-310; doi:10.1093/ojls/gqi039

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Theories of Rights: Is There a Third Way?

Matthew H. Kramer^* and Hillel Steiner^**

* Professor of Legal & Political Philosophy, Cambridge University, email: mhk11{at}hermes.cam.ac.uk.
** Professor of Political Philosophy, University of Manchester, email: hillel.steiner{at}man.ac.uk.

	Abstract

Top Abstract 1. Wenar on the... 2. Sreenivasan and the... 3. Conclusions Notes

 
Some important recent articles, including one in this journal, have sought to devise theories of rights that can transcend the longstanding debate between the Interest Theory and the Will Theory. The present essay argues that those efforts fail and that the Interest Theory and the Will Theory withstand the criticisms that have been levelled against them. To be sure, the criticisms have been valuable in that they have prompted the amplification and clarification of the two dominant theories of rights; but their upshot has been to reveal the need for the improvement, rather than the abandonment, of those theories.

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In some recent articles (one of which was published in this journal), Leif Wenar and Gopal Sreenivasan have separately undertaken sophisticated and piquant attempts to resolve a long-standing debate over the essential features of rights.¹ Wenar rejects both the Interest Theory and the Will Theory of rights in favour of what he labels as the Several-Functions Theory, while Sreenivasan opts for a hybrid theory. Each of them claims that his new account avoids the weaknesses of the two older theories while partaking of some distinctive strengths. In this reply, we will raise certain objections to these new analyses of rights, and we will in effect defend the Interest Theory and the Will Theory. However, we shall not be presupposing the correctness of either of the latter two theories.² Rather, we shall simply be aiming to show that both Wenar and Sreenivasan have underestimated the resourcefulness of those theories, and that their own philosophical explications of rights are open to challenge in a number of respects.

In the first and longer half of this article, we focus on Wenar. We shall begin by contesting his assertion that his Several-Functions Theory has innovatively ferreted out a characteristic function for each Hohfeldian entitlement (or combination of Hohfeldian entitlements) that is commonly designated as a ‘right’. We query in particular his discussions of liberties and powers. In our second main subsection, we argue that the Several-Functions Theory is a version—a detailed but simplistic version—of the Interest Theory. Though Wenar believes that he has advanced beyond the Interest/Will dichotomy, his perception of significant differences between his own account of rights and the Interest Theory is based on a faulty grasp of that latter theory's contentions. In our third principal subsection, we affirm that the Interest/Will dispute should be regarded as a controversy over the proper analysis of Hohfeldian claim-rights. Wenar goes astray in maintaining that an equation of rights with claims (which are thereby singled out from the other Hohfeldian entitlements) is an arbitrary departure from ordinary discourse. We will question both his representation of ordinary discourse and his over-reliance on it.

In the second half of this article, we concentrate on Sreenivasan. After defending the Interest Theory against some of his specific criticisms, we will endeavour to cast doubt on the attractiveness of his alternative theory. We show that, instead of amounting to a hybrid of the Interest Theory and the Will Theory, his account of rights generates some unacceptable conclusions that would be rejected by Will Theorists and Interest Theorists alike.

	1. Wenar on the Nature of Rights

Top Abstract 1. Wenar on the... 2. Sreenivasan and the... 3. Conclusions Notes

 
Our three sets of criticisms of Wenar will unfold in a natural sequence. We will first be arguing that the supposedly distinctive strengths of his new theory are illusory. We will then be contending that his theory is not really new but is instead a version of the Interest Theory. Finally, we will submit that the best version of either the Interest Theory or the Will Theory is more restricted in scope than Wenar envisages. The restrictions, which are based on sound reasons, enable greater precision and illumination than is possible in their absence.

A. Liberties, Powers and Functions
(i) Single and paired liberties
Wenar presumes that, to every entitlement or combination of entitlements that is ordinarily classified as a right, we can ascribe a characteristic function. On this point, his discussion of liberties draws quite a sharp distinction between single liberties and paired liberties. His ‘single’/‘paired’ terminology is extremely misleading—as is his whole discussion of liberties—for it suggests that he has in mind the distinction drawn by H.L.A. Hart between unilateral liberties and bilateral liberties.³ That is, it smacks of a contrast between (i) any liberty to j that is unaccompanied by a liberty to abstain from j-ing and (ii) any liberty to j that is accompanied by a liberty to abstain from j-ing. Only in a last-minute footnote does Wenar indicate that he is seeking to draw a somewhat different distinction.⁴ Under his approach as clarified by that footnote, every paired liberty to j is indeed coupled with a liberty to abstain from j-ing, but a single liberty to j can likewise be coupled with a liberty to abstain from j-ing. In other words, a single liberty can also be a paired liberty.

Despite his terminology, then, Wenar is posing a distinction between certain functions of liberties much more than between certain types of liberties themselves. He explains that the function of a single liberty-right is that of exempting somebody from a general duty to which all or most people are initially subject. If somebody has a single liberty-right to j, he or she is exempted from a duty-not-to-j that is initially borne by everyone else. By contrast, the distinctive function of a paired liberty-right is to endow a person with discretion. If somebody has a paired liberty to j, he or she is also at liberty to abstain from j-ing, and consequently he or she enjoys the discretion to choose between j-ing and not j-ing. These two functions—the exemptive function and the discretion-conferring function—can be combined in any particular right, but each of them can likewise be fulfilled in the absence of the other.

A major difficulty besets such an analysis: many unpaired liberties do not perform the exemptive function which Wenar assigns to them. For example, John's liberty to abstain from killing Mary unprovokedly is not an exemption from a general duty borne by other people (a duty to kill Mary unprovokedly). Nor is his liberty to abstain from running his car through her front door an exemption from a general duty borne by other people (a duty to run one's car through her front door). And so forth.

Wenar may seem to have a ready riposte to what has just been said. He makes clear that, when he ascribes an exemptive function to single liberties, he is doing so only for those single liberties that would be designated as ‘rights’ within ordinary discourse. In his view, any single liberty will be so designated if and only if it fulfils an exemptive function. He thus denies that liberties of the sort recounted in our last paragraph are ordinarily classified as ‘rights’:

Each of us has no legal duty to assault other people on the street. We each therefore have a single legal liberty not to assault others on the street. But we would balk at saying that each of us has a legal right not to assault others on the street. The reason we balk is because this single liberty does not exempt us from a general duty. This single liberty does not perform the function that all single liberty-rights perform.⁵

When Wenar refers to what ‘we’ would balk at saying, he is presumably referring to what ordinary speakers would balk at saying. Now, an unsubstantiated empirical assertion about ordinary speakers is perfectly suitable if the relevant point of usage is obvious; we ourselves shall be making some such assertions. However, the point of usage pressed here by Wenar is far from obvious. Indeed, it is quite evident that ordinary speakers would be inclined to deny the proposition that John does not have any right to abstain from assaulting Mary on the street. Yet, if they are inclined to gainsay that proposition while accepting that John exists, then they are presupposing that he has just such a right.⁶

Another example tells even more forcefully against Wenar. Suppose that nobody has a duty to contribute any portion of his or her income to some charity to which donations are forbidden. (We can assume that donations are forbidden because the ostensible charity is a front for the Mafia or for some terrorist organization.) John's neighbours, who know that donations are outlawed but who feel that John should contribute anyway, now complain that John has not yet given anything to the charity in question. It would be entirely idiomatic for him to retort by proclaiming that he has a right not to donate anything to that ersatz charity. Yet Wenar's account of the function of single liberty-rights would disallow any such rejoinder. In short, instead of being admirably in accordance with ordinary usage, his account is at odds with it. Contrary to what Wenar maintains, many single liberties that would ordinarily be classified as rights do not play the exemptive role which he attributes to them.

(ii) The complexities of powers
Like Hohfeld (and like us), Wenar takes legal powers to be abilities to effect changes in other people's legal positions and one's own legal positions. He distinguishes between single powers and paired powers. In his view, a power to produce some change X is a single power if it is unaccompanied by any power not to produce X. He submits that ‘[r]ights that are single powers confer non-discretionary authority’, and he offers as an example the power of a judge to sentence a criminal under a mandatory-sentencing statute:

For example, a judge's right to sentence a convicted criminal under mandatory sentencing laws is a single power. The judge's right authorizes her to annul the criminal's right to free movement. Yet this is a single power because the judge has no discretion under the sentencing laws: she must use her authority to sentence the criminal to a specified term of years.⁷

Having delineated the nature and distinctive function of single powers, Wenar goes on to describe paired powers. According to him, a power to achieve some change X is paired if it is accompanied by a power not to achieve X. He explains that a ‘right that is a paired power confers discretionary authority’. He elaborates: ‘For example, you have the power to waive, and the power not to waive, the waiter's duty to serve you a sample of wine [in a restaurant where such a duty obtains]. Rights that are paired powers, like rights that are paired liberties, endow their bearers with discretion concerning some action. Rights that are paired powers are thus both authorizing and discretionary’.⁸

Bemusingly, Wenar in a footnote endorses quite a different way of thinking about paired powers. He accepts that the analysis just quoted is ‘a simple representation of a more complex structure of [Hohfeldian entitlements]’, and he declares that a ‘paired power represents a paired liberty (not) to exercise a single power’. He nevertheless stands by his original approach, on the ground that ‘here we simply "push" the paired liberty into the power’.⁹

The situation concerning powers is much more complex than Wenar suggests. Both his understanding of single powers and his understanding of paired powers are open to challenge. The former understanding is dubious because of his insistence that single powers are non-discretionary. Some are, but many are not. On the one hand, as Wenar indicates, a judge is sometimes required not only to pass sentence on a criminal but also to pronounce a sentence of a precisely prescribed length. On the other hand, however, a judge much more often is required to pass sentence on a criminal while having ample discretion to fix the length of the sentence appropriately. Wenar's sharp and tidy dichotomy between non-discretionary single powers and discretionary paired powers is unable to accommodate this elementary feature of judicial practice.

Perhaps Wenar would contend that what appears to be the discretionary power of a judge to set the length of a sentence is a vast array of paired powers rather than a single discretionary power. That is, he might maintain that a judge has a power to pass a sentence of 365 days and a power not to pass a sentence of 365 days, a power to pass a sentence of 366 days and a power not to pass a sentence of 366 days, and so on. One shortcoming of such an analysis is that it would rely on Wenar's account of paired powers, which we shall presently impugn. For the moment, we can simply point to a different and more evident shortcoming. Wenar professes to be providing an analysis of rights that tallies with the patterns of ordinary discourse. Yet no typical person would be inclined to say that a judge has a huge array of rights to sentence some criminal to imprisonment. Rather, a typical characterization would be that a judge has a right to sentence the criminal to imprisonment for a period which the judge deems apposite within the constraints of any sentencing guidelines. Such an idiomatic characterization is at odds with Wenar's insistence on the non-discretionary nature of single powers.

The inadequacies in Wenar's account of paired powers are even more serious. The notion of paired powers is not completely unsustainable, but it is considerably less straightforward than Wenar envisages. To see as much, we need to distinguish here between two general types of default rules that can obtain in a legal system: (1) a default rule under which the non-exercise of a power-of-enforcement in the aftermath of a violation of a duty will result in the non-effectuation of the duty; and (2) a default rule under which the non-exercise of a power-of-waiver in the aftermath of a violation of a duty will result in the effectuation of the duty.¹⁰ For any duty imposed by a legal system, one or the other of these two default rules will be operative.¹¹ Suppose that John breaches a duty which he owes to Mary. Mary does nothing that would count as the exercise of a power of enforcement. Now, either the duty will be enforced or it will be unenforced. There is no intermediate upshot whereby the duty is neither enforced nor unenforced. If it is enforced, then the applicable default rule is of the second type mentioned above. If the duty is instead left unenforced, then the applicable default rule is of the first type mentioned above. (Of course, a legal system need not rely solely on one type of default rule to the exclusion of the other. It can employ different default rules for various categories of duties. For every duty, however, there must be operative some default rule—perhaps not knowable beforehand—concerning what will happen if the duty is breached and if the person empowered to waive or seek enforcement of the duty does not do anything that would count as an exercise of his power of waiver or enforcement.)

With the distinction between the two default rules in hand, we can explore the phenomenon of paired powers adequately. Let us begin with the situation under a default rule of the first kind. Suppose that, as a result of breaching a duty owed to Mary, John is now liable to be sued successfully by her. That is, he has acquired what Hohfeld designated as a liability. Suppose initially that Mary has two years within which she can exercise her power to sue John in order to enforce the duty which he has breached. If she exercises that power, she will alter his current legal positions. If she does not exercise her power of enforcement within the two-year period, John's liability to be successfully sued will cease to exist. In such circumstances, the non-exercise of the power of enforcement is an exercise of a power of waiver at the point when sufficient time for the exercise of the power of enforcement has run out. Moreover, Mary might hold a power of waiver whereby she can remove John's liability before the expiration of the two years. If so, she holds a power of enforcement and a power of waiver until she exercises one of them (either before the two-year period has elapsed or as it elapses). We can fittingly characterize those powers as paired.

Of particular importance is whether John's liability to be successfully sued is of a limited duration or not. In the unlikely event that the liability is not temporally limited, the non-exercise of Mary's power of enforcement will—for an indefinite period—not alter anyone's legal positions. Given as much, her non-exercise of her power of enforcement is not itself an exercise of a power of waiver. (In Wenar's terminology, it is not an exercise of a power not to enforce.) Any exercise of a power has to involve a change in someone's legal positions, yet the non-exercise of Mary's power of enforcement does not produce any such change when John's liability is of an unlimited duration. In such circumstances, her power of enforcement is not accompanied by any power of waiver (or a power not to enforce). To talk about a power of waiver is to talk about something that does not exist in such circumstances. Of course, even when John's liability is not temporally limited, Mary might hold a separate power of waiver that enables her to terminate the liability at her choosing. Unless she does possess an independent power of that sort, however, her power of enforcement will be single rather than paired. All the same, that single power is discretionary, for she is at liberty to exercise it and at liberty to leave it unexercised.

Let us now investigate the situation under a default rule of the second kind, which prescribes that a violated duty is to be enforced unless a relevant power of waiver has been exercised. Suppose once again that John has breached some duty which he has owed to Mary. Given the existence of the specified default rule, Mary does not hold any power of enforcement, since the enforcement of the duty will proceed automatically unless she exercises her power of waiver. Wenar's notion of a power-not-to-waive that accompanies her power of waiver is chimerical in such a situation, since a putative power is no power at all if it does not make any difference to anyone's legal positions. Under the second default rule, John has rendered himself liable to undergo enforcement proceedings as a result of his breach of duty. Mary can terminate his liability by exercising her power of waiver, but otherwise the officials who operate the enforcement mechanisms of the state will exercise their powers to impose compensatory or punitive or restitutionary duties on John. The transformation of his liability into duties is undertaken by them rather than by her. If she does not alter his legal status by waiving his liability, then she herself does not alter his legal status at all. Her non-exercise of her power of waiver is not the exercise of a power (a power of enforcement or a Wenarian power-not-to-waive), because that non-exercise leaves John in precisely the position in which he has placed himself: namely, under a liability to undergo enforcement proceedings. A Hohfeldian power is an ability to effect changes in legal relations, rather than an ability to leave legal relations as they are. Contrary to what Wenar's analysis suggests, Mary's ability to leave John's legal posture unmodified is no Hohfeldian legal power at all. Accordingly, whenever the duty breached by John is governed by the second default rule, the power of waiver possessed by Mary is single rather than paired. Yet that power is plainly discretionary—since Mary is at liberty to exercise it and at liberty to forgo the exercise of it.

Note that a default rule of the second type is also usually applicable, mutatis mutandis, to duties before they have been breached. In that application, the default rule prescribes that a duty will remain in force unless someone holding a power to waive it has exercised that power. Under the sway of such a default rule, no one has a legal power to retain this or that duty; as has been stated, a Hohfeldian legal power is an ability to change some legal position(s), rather than an ability to keep the position(s) unchanged. An ability to keep things as they are is an immunity rather than a power. Thus, when a default rule of the second kind is applicable to unviolated duties (as is usually the case), a power to waive any such duty is single rather than paired. Nevertheless, a power of that sort is normally discretionary, since the person holding it will normally be at liberty to exercise it and at liberty to refrain from exercising it.

In short, Wenar does not offer a satisfactory account of either single powers or paired powers. He does not correctly specify the extension or intension of the single/paired distinction, and he errs in insisting that all single powers which are ordinarily designated as ‘rights’ are non-discretionary. Some single powers that are ordinarily designated as ‘rights’ are indeed non-discretionary, but many are discretionary in either or both of the respects that have been highlighted here. That is, some single powers (such as the power of a judge to sentence a criminal) can each be exercised in a number of different ways, and some single powers (such as the powers discussed in the last couple of paragraphs) are held by people who are at liberty to exercise them and also at liberty to abstain from exercising them. Once again, then, Wenar has failed to come up with an accurate assignment of functions to rights. Like his analysis of liberties, his analysis of powers oversimplifies the anfractuous matters on which it is brought to bear. His Several-Functions Theory of rights, though thought-provoking, is in need of considerable refinement.

B. No Escape from the Interest/Will Debate
As was noted at the outset of this article, Wenar presents his account of rights as an alternative to the Interest Theory and the Will Theory that have figured so prominently in philosophical discussions of the topic. However, far from transcending the Interest/Will controversy, his Several-Functions Theory has squarely joined it. Wenar remains within that controversy because his exposition of rights is a version of the Interest Theory—albeit a version that pertains to all the Hohfeldian entitlements that are commonly designated as ‘rights’, rather than only to claim-rights.

Like Hohfeld, Wenar observes that not only claims but also liberties, powers, and immunities are frequently designated as ‘rights’ in the everyday discourse of jurists and laypeople. Unlike Hohfeld, however, Wenar does not submit that philosophers and legal theorists should confine their use of the term ‘rights’ to claims. He seeks to vindicate everyday patterns of usage, instead of endeavoring to sharpen and regiment them for philosophical theorizing. In the course of so doing, he recognizes that not every instance of a Hohfeldian entitlement would ordinarily be classified as a ‘right’. He thus recognizes that he has to distinguish between those instances that would be so classified and those that would not. He believes that his attributions of functions to various rights enable him to draw the requisite distinctions.

We have already challenged some of Wenar's ascriptions of functions to rights. Here we shall not be further oppugning those ascriptions themselves; instead, we will argue that they do not take Wenar beyond the Interest Theory of rights at all. Whenever he differentiates between a Hohfeldian entitlement that would commonly be regarded as a right and a Hohfeldian entitlement that would not, his verdict is fully in accordance with the Interest Theory. Wenar himself thinks otherwise, but he is mistaken in so thinking.

The gist of the central tenet of the Interest Theory of legal rights is that any legal right, if actual, protects some aspect of the right-holder's situation that is normally to the benefit of a human being or a collectivity or a non-human creature.¹² Wenar contends that ‘the interest theory is ... inadequate to our ordinary understanding of rights. There are many rights the purpose of which is not to further the well-being of the rightholder, even in the general case’.¹³ In an effort to substantiate this assertion, he offers several examples—examples which, he believes, are handled incorrectly by the Interest Theory but appropriately by his own Several-Functions Theory.

Most of Wenar's examples involve the ‘rights that define occupational roles’.¹⁴ His first three instances of such rights are as follows:

A judge has a (power) right to sentence criminals, but this right is not designed to benefit the judge. Rather, judges are ascribed this right as part of a system of justice that protects the members of the community. A traffic warden has a (power) right to issue parking tickets; but the point of this right is to improve the lives of motorists, not the life of the warden. Similarly, an army captain may have the (power) right to order units, including his own, into battle; yet the specific aim of the rule that confers this right is not to further the captain's well-being.¹⁵

These examples reveal that Wenar has underestimated the resilience of the Interest Theory of legal rights in two closely connected respects. First, he too sweepingly imputes to Interest Theorists the view that the point or purpose or underlying justification of a legal norm has a determinative bearing on the question whether the norm confers a right upon some person(s). Such a view has admittedly been embraced by some proponents of the Interest Theory, but it is not integral to all versions of that theory. On the contrary, the Interest Theory is best elaborated with a focus not on purposes or justifications but on effects.¹⁶ Under the Interest Theory, that is, the basic test for right-holding is as follows. Let ‘Q’ designate some person or collectivity or non-human creature. If the terms of a duty-imposing norm or decision are such that the fulfilment of them necessarily involves the protection of some aspect of Q's situation that is generally beneficial for any typical human being or collectivity or non-human creature, then Q is a right-holder under the norm or decision. Quite immaterial is whether or not the underlying purpose of the norm or decision is to promote the interests of Q and other relevantly similar parties. Regardless of the answer to that question about purposes or justifications, Q holds a right under the norm or decision if the basic test for right-holding that has just been articulated is satisfied.

Now, when the Interest Theory is extended to cover all the Hohfeldian entitlements that are commonly designated as ‘rights’ (rather than only claim-rights), the basic test for right-holding has to be modified as follows. If a norm or decision bestows a Hohfeldian entitlement on Q, and if the possession of that entitlement would usually be beneficial for someone in Q's situation, then Q is a right-holder under the norm or decision. Hence, in regard to Wenar's examples, we should not be asking whether the laws broached there are aimed at benefiting judges or traffic wardens or army captains. In most circumstances, the aims or justifications that underlie laws are beside the point. Instead, we should be asking whether the power conferred by each of the laws in the examples is such that the possession of it would usually be advantageous for someone in the position of a judge or a traffic warden or an army captain.

Wenar's second misstep lies in his assumption that an Interest Theorist will answer negatively the question that has just been formulated. His assumption on that point is quite mysterious. If we are asking whether a judge is typically better off when he possesses the power of sentencing than when he does not, the answer is straightforwardly affirmative. Devoid of such a power, he will be markedly less effective in his performance of the duties of his judicial role. His interest in being able to carry out his judicial responsibilities with smoothness and efficiency will be gravely impaired if the power of sentencing is removed or withheld from him. Much the same will be true in connection with a traffic warden's power to impose penalties through the issuance of tickets (or through some other suitable means). If the warden lacks that power, she will have to rely on someone else who can fulfil her responsibilities by imposing penalties for her. Such a state of dependence is generally less advantageous than a posture of self-sufficient capability in the execution of one's tasks. The interest of a warden in being able to discharge the obligations of her role effectively will be furthered if she is endowed with the power to levy penalties in response to the offences which she detects. Even more obviously, an army captain will typically be far more capable in the performance of his office if he enjoys rather than lacks the power to obligate units of soldiers to enter into battle. If he possesses no such power, his prosecution of his responsibilities will depend on the issuance of the relevant orders by some other officer(s). His possession of the specified power will promote his interest in being able to do what he is legally duty-bound to do, and also his normal interest in occupying an office whose contours bespeak ample respect for his military judgment (rather than an office whose contours bespeak distrust of his judgment).

In short, the Interest Theory easily accommodates every one of Wenar's examples relating to powers associated with occupational roles. Every such case involves someone who will (usually) have an interest in being able to discharge a set of obligations proficiently—and who will therefore (usually) have an interest in being possessed of a legal power that indispensably facilitates the proficient fulfilment of those obligations. When a person takes on an array of responsibilities that partly constitute an occupational role, the vesting of her with entitlements which enable the satisfactory performance of those responsibilities is something that will almost always redound to her benefit. Contrary to what Wenar appears to think, people generally have vital interests in being able to pursue their occupations adroitly. Indeed, the falsity of his position on this matter could be underscored with countless additional examples: the power of a judge to require people to testify, through the issuance of subpoenas; the power of the headmaster of a school to exclude obstreperous students from classes; the power of the chief purchasing officer in a hospital to enter into contracts with firms for the provision of supplies; and so on. In every one of these scenarios, somebody is much better able to carry out his professional duties by dint of being endowed with a crucial power. Any occupant of a professional role will (usually) have an interest in being possessed of all requisite abilities to perform the obligations of that role efficaciously.

A broadly similar point applies, mutatis mutandis, to the other examples that Wenar adduces. Those other examples involve the paired liberty of a citizen to restrain an attacker of a third party; the paired liberty of a parent to punish a miscreant child; and the single liberty of a policeman to detain a suspect whom he has been ordered to detain.¹⁷ Let us take these examples in reverse order. If the policeman were not endowed with a single liberty to detain a suspect, he would be under a duty to abstain from detaining her while also being under a duty to detain her. In such circumstances, he would be subject to penalties irrespective of how he might choose to behave. It is evident that the situation of the policeman would be improved if he were to acquire the single liberty to detain the suspect. He could then fulfil his duty to detain her, without exposing himself to penalties for so doing. His possession of that liberty would manifestly make him better off. Far from highlighting an entitlement that would not be classified as a right by the Interest Theory (when that theory is extended to all the Hohfeldian entitlements rather than only to claims), the scenario of the policeman recounts an entitlement that would unequivocally be classified in that fashion by Interest Theorists.

Much the same is true of a parent's paired liberty to discipline a recalcitrant child. It is not clear from Wenar's text what the implicit contrast within this example is. Is the possession of a liberty-to-punish and a liberty-to-abstain-from-punishment here contrasted with the possession of only the latter liberty, or with the possession of neither of those liberties? Whichever of those two comparisons may be intended, the normally beneficial character of the possession of the liberty-to-punish is palpable. If a parent does not hold that liberty, she is under a duty to abstain from disciplining her child, and she will consequently be rendering herself liable to undergo penalties whenever she does resort to disciplinary measures. As a general matter, her situation will plainly be improved if she enjoys rather than lacks the liberty-to-punish. In virtually all credible circumstances, she will be better off if she does not have to worry about being penalized for taking steps which she reasonably deems necessary for the effective performance of her role as a parent. When we apply the basic test for right-holding associated with the expansive version of the Interest Theory (that is, the version extending to all Hohfeldian entitlements rather than only to claims), the parent's liberty-to-punish is unproblematically to be designated as a ‘right’.

A similar conclusion is warranted for a citizen's paired liberty to restrain somebody who is attacking a third party. Once again, the implicit contrast within Wenar's example is not entirely clear. Let us assume that the intended contrast is between the presence of the liberty-to-restrain and the absence of that particular liberty. A citizen who lacks that liberty will be subjecting himself to penalties whenever he does seek to grapple a violent wrongdoer. Since the undergoing of punitive measures is normally detrimental for a human being, a citizen will normally be better off if he possesses the liberty-to-restrain than if he does not possess it. His general interest in avoiding legal sanctions will thereby be furthered.

To be sure, there are some circumstances (not wholly outlandish) in which a citizen might on balance be worse off as a result of being endowed with a legal liberty to restrain anybody who is unprovokedly attacking a third party. Suppose that, when and only when John is possessed of such a liberty, he will feel morally bound and personally inclined to intervene if he espies an assault against an innocent third party. He will then be exposing himself to dangers to which he would not have exposed himself in the absence of his legal liberty to apprehend the assailant. His retention of that liberty might thus on balance conceivably make him worse off, as the benefit of penalty-free latitude might be outweighed by the detriment of the risks that he will be hazarding. In response to this possibility, we should make a couple of observations.

First, as Wenar himself is well aware, Interest Theorists do not submit that every entitlement classifiable as a right is invariably promotive of the interests of someone who holds it. Those theorists’ basic test for right-holding inquires about entitlements that are generally rather than always beneficial for their holders. Given as much, the Interest Theory can easily accommodate a citizen's liberty-to-restrain. Although such a liberty will be more detrimental than valuable for its holder in the circumstances delineated in the preceding paragraph, those circumstances will almost certainly be exceptional—indeed, extremely rare—rather than typical. Consequently, a proponent of the expansive version of the Interest Theory should readily characterize the liberty-to-restrain as a right. Of course, our assertion about the rareness of the pattern of motivations sketched in the preceding paragraph is ultimately an empirical thesis that cannot be definitively substantiated without empirical investigations. All the same, even before any such investigations, that assertion is highly credible. Any denial of it would lack credibility.

Second, however, there may be a few other liberties in regard to which the empirical issues are not as clear-cut. For instance, suppose that the legal liberty of each terminally ill person to end his or her life is something that causes many terminally ill people to feel pressured to exercise that liberty. Although such an empirical hypothesis is probably incorrect, it is not so obviously incorrect as to be in no need of empirical disconfirmation. If it is indeed true, then a typical person who is terminally ill might on balance be worse off as a result of being endowed with the aforementioned liberty. How would an advocate of the expansive version of the Interest Theory analyse such a state of affairs?

Principally, an Interest Theorist can and should distinguish between the integral and the incidental. What is integral to a legal norm that confers the liberty-to-end-one's-life-when-terminally-ill is that a dying person and his or her estate will not be subject to any penalties if he or she commits suicide. That central feature of the norm is ordinarily of great benefit to such a person, and is sufficient to justify the designation of the liberty as a ‘right’ in everyday parlance. By contrast, the possible effect hypothesized in the last paragraph is strictly incidental to the bestowal of the liberty in question. It is of course a seriously regrettable consequence if it occurs, but its occurrence is by no means essential under the terms of the norm. Quite the contrary. Distinguishing between intrinsic effects and extrinsic effects in this manner,¹⁸ an Interest Theorist should look only to the former when determining whether an entitlement is to count as a right.

An Interest Theorist can also have recourse to the intention or aim of the relevant legal norm. Although it is not true that the Interest Theory classifies people as right-holders under various legal norms only if those norms are intended to benefit such people, there is an ancillary role for intentions in the interpretation of laws. One's ascertainment of those intentions can sometimes influence one's specification of the distinction between the integral and the incidental. An Interest Theorist can point out that the legal norm which establishes the liberty of each terminally ill person to commit suicide is almost certainly aimed at furthering the interests of dying people, rather than at harming them. Thus, even if that norm turns out to generate consequences that are on balance injurious for many such people, the liberty conferred by it is classifiable as a right in ordinary discourse and in the expansive version of the Interest Theory. Contrariwise, if there were convincing evidence of the legislature's intention to push fatally ill people into killing themselves by granting them the liberty to do so, and if that intended effect were indeed brought about on a large scale, then both ordinary speakers and Interest Theorists might well recoil from designating that liberty as a ‘right’. Fortunately, such a malign intention will very seldom underlie the bestowal of a liberty with that content. Hence, in almost all contexts, both ordinary speakers and the proponents of an expansive version of the Interest Theory will not hesitate to characterize as a ‘right’ the liberty of any dying person to commit suicide.

In sum, the expansive version of the Interest Theory accommodates every one of Wenar's examples without difficulty. In application to every such example—each of which was supposed to reveal a divergence between the Interest Theory and the Several-Functions Theory—the Interest Theory is in accord with the Several-Functions Theory and with ordinary usage. Wenar has aspired to transcend the Interest Theory, but he has in fact recapitulated it. When we examine the functions attributed by him to Hohfeldian entitlements that are commonly designated as ‘rights’, we find that every one of them is usually beneficial for the holder of an entitlement: exemption, discretion, authorization, protection, secured provision, secured performance. Each type of function is a species of the general class of things that are normally promotive of the interests of a human being or collectivity or non-human animal.¹⁹ Thus, even if the Several-Functions Theory were not problematic in the ways recounted by the first third of our critique of Wenar, it would not constitute a departure from the Interest/Will dispute. It amounts to a detailed rendering of the Interest Theory. Given as much, and given that the Several-Functions Theory is in fact problematically simplistic in spite of its detail, Interest Theorists have no reason to feel threatened by Wenar's challenge.

C. The Scope of a Theory
In the preceding section, we have found that Wenar's alternative to the Interest Theory is actually an elaboration thereof. To reach our conclusion on that point, we have joined Wenar in presupposing that the Interest Theory extends to all Hohfeldian entitlements and combinations of Hohfeldian entitlements that are ordinarily designated as ‘rights’. In this section, we retract that presupposition. Although the capacious version of the Interest Theory may well be worthy of development, both the Interest Theory and the Will Theory are best understood as confined to claim-rights (accompanied by immunities, as will be explained presently). There are good reasons for restricting the scope of each theory in that manner,²⁰ and Wenar's arguments against such a restriction are unpersuasive.

The principal objection by Wenar to a contraction of the scope of any theory of rights is that the contraction runs against ordinary usage.²¹ He correctly observes that people in everyday discourse would be inclined to say that a judge has a right to sentence a criminal, a traffic warden has a right to impose penalties for traffic and parking violations, and an army captain has a right to order his men to take certain actions. In light of these patterns of ordinary speech and writing, he contends that the narrowing of the scope of an account of rights would have the effect of ‘withdrawing [the account] from ordinary language’. The cabined account would therefore be ‘incorrect for "rights" as commonly understood’.²² Consequently, such an approach would fail to satisfy Wenar's criterion for theoretical success: ‘The test of a theory of the functions of rights is how well it captures our ordinary understanding of what rights there are’.²³

One obvious drawback of Wenar's extremely heavy reliance on ordinary usage is that there does not exist any single ‘ordinary understanding of what rights there are’. Instead, there are multiple ordinary understandings, which conflict with one another in a number of respects. As Hohfeld disclosed with a myriad of quotations, even professional jurists employ the language of ‘rights’ in confusedly inconsistent ways. Wenar readily acknowledges that the ordinary terminology of ‘rights’ is ‘systematically ambiguous’, and he further acknowledges that ordinary speakers are frequently led into non sequiturs as a result.²⁴ However, he repeatedly endeavors to defuse such observations with assurances along the following lines: ‘Ordinary rights-talk can be entirely rigorous and error-free, provided that speakers understand how assertions of rights map onto the Hohfeldian incidents’.²⁵

Wenar's assurances are rather strange, given that each of them carries a patently unsatisfied proviso. Such affirmations are not much more informative and illuminating than a statement of the following sort: ‘Any laws against murder in this country can safely be eliminated entirely, provided that nobody in this country will try henceforth to commit a murder’. Indeed, Wenar's provisos attached to his commendations of ordinary rights-talk can pertinently be countered with an alternative proviso: ‘Ordinary rights-talk can be entirely rigorous and error-free, provided that speakers restrict the term "rights" to Hohfeldian claims’. When Hohfeldian theorists frown upon the looseness of the terminology of ‘rights’ in quotidian discourse, they are distancing themselves from the ways in which laypeople and professional jurists do discuss various legal entitlements. How those laypeople and jurists would discuss legal entitlements in a world free of confusion is neither here nor there. The point is that the indiscriminate use of the term ‘right’ to cover each of the Hohfeldian entitlements is strongly conducive to muddled thinking and argumentation. Muddles do not follow perforce, but they do follow easily and frequently. Hohfeld's extensive investigations into the paralogisms committed by jurists were meant to demonstrate as much.

At any rate, Hohfeldian theorists are not seeking to lay down terminological prescriptions for everyday communications and contexts. Any such prescriptions would be futile and misconceived. Rather, Hohfeldian theorists have striven to devise an intricately precise vocabulary with which philosophical disputes about the basic nature of rights can be conducted rigorously and perspicuously. On the one hand, ordinary usage is an essential point of departure for the development of that specialized philosophical parlance. If the terms used by Hohfeldian theorists were not rooted in day-to-day discourse about rights and other entitlements, they would be obfuscatory rather than illuminating. All the major Hohfeldian terms for entitlements (‘right’, ‘liberty’, ‘power’, ‘immunity’) are in fact so rooted. For example, ‘A judge has the legal power to sentence a criminal’ is at least as smoothly idiomatic as ‘A judge has the legal right to sentence a criminal’. On the other hand, although ordinary usage is indispensable as an initial point of reference, it is only an initial point of reference. Some regimentation is inevitable if the requisite degree of precision for philosophical disputation is to be attained. Contrary to what Wenar intimates with his proviso-laden assurances, ordinary discourse includes the missteps into which people are led when their modes of expression are insufficiently discriminating. Philosophers who hope to eschew those missteps, and who hope to keep in view subtle distinctions that are largely or entirely obscured in everyday exchanges, will be very well advised to opt for a more discriminating vocabulary. Indeed, Wenar himself with his provisos is engaging obliquely in a regimentation of quotidian patterns of speech and writing. He is acknowledging—however reluctantly—that a philosophical theory cannot take those patterns on board without purification.

Given the need for some regimentation, the restriction of the term ‘rights’ to claim-rights (accompanied by immunities) is amply warranted. Indeed, the foremost reason for adopting such a tack is itself grounded in the presuppositions of ordinary usage. As Hohfeld's investigations tended to reveal, an assumption ordinarily underlying the invocation of the term ‘right’ is that the holder of an entitlement denoted by that term is owed a duty with some specified content by somebody else. An assumption to that effect will be fully apt when the entitlement under consideration is a claim-right—since every claim-right is correlative to a duty—but will otherwise be prone to be false. Hence, reserving the term ‘rights’ for claim-rights is singularly appropriate. Such a limitation departs from the prevailing regularities of juristic discourse in a superficial respect, but it pays heed to them in a deeper respect.

A chief factor behind the tendency of ordinary speakers and professional jurists to refer to Hohfeldian powers and liberties as ‘rights’ is that nearly all such entitlements in any civilized society are accompanied by claim-rights against many forms of interference with the exercise thereof. No liberty or power would ordinarily be designated as a ‘right’ if it were wholly unaccompanied by claim-rights against interference with the exercise of it. For example, a liberty to walk down the street, completely unaccompanied by any claim-rights against interference with the exercise of that liberty, would not ordinarily be characterized as a right to walk down the street. If John is legally at liberty to walk down Grange Road, but does not have any legal claim-rights against being assaulted or murdered or obstructed while undertaking such a journey, few people would be inclined to say that he has a right to walk down Grange Road. Only when his legal liberty to proceed along Grange Road is combined with legal claim-rights against many of the means by which his exercise of that liberty could be precluded, will most ordinary speakers be disposed to allow that John has a legal right to proceed. What is carrying the burden of earning the label ‘right’ among those speakers is the protective ambit of his claim-rights, rather than the liberty in itself. By contrast, a claim-right does not need such supplementation to be ordinarily classifiable as a right. It is itself an instance of legal protection against interference or uncooperativeness, and it is itself thus correctly regarded as a right by ordinary speakers and Hohfeldian theorists alike.

To be sure, a claim must be accompanied by immunities against most types of divestiture if it is to count as a genuine right at all. If John supposedly has a legal claim against being obstructed or assaulted while he walks down Grange Road, and if anyone can divest him of that claim by a host of elementary means (by looking at him, by saying at least one word to him, by laughing at him, by walking within ten feet of him, and by any number of other means), then his claim is only a nominal right rather than a genuine right. However, the lesson to be drawn here is not so much that concomitant immunities against divestiture are necessary for a claim's status as a genuine right; instead, the presence of such immunities is necessary for a claim's status as a genuine entitlement or legal position of any sort. Any entitlement that is wholly unaccompanied by immunities against termination will be purely nominal rather than genuine. If for example somebody is at liberty to walk down Grange Road, and if her liberty is susceptible to termination as easily as John's claim-right against assaults (mentioned above), then her liberty is nominal just as evidently as is his claim-right. In sum, the distinctive role of immunities in this area is to keep any legal position from being emptily nominal. The distinctive role of claim-rights in this area is different. When powers and liberties consort with claims that protect the power-holders’ and liberty-holders’ abilities to exercise their respective entitlements, the presence of those claims is what commonly elicits the application of the term ‘rights’ to the powers and liberties. Because claims are unique in performing that particular function, the singling out of them as rights is hardly an arbitrary stipulation.

In as much as the Interest Theory and the Will Theory are indeed restricted in scope as we envisage, the key issue between them is somewhat curiously set aside by Wenar. Writing about a situation in which A has a right that B perform some action, he remarks: ‘Notice here that B's duty is not simply to perform the action ... It is a duty that is owed to or directed toward A. Explaining the "direction" of duties is not simple, and I put this issue to one side here’.²⁶ As will become plain in the second half of this article, the matter left aside by Wenar is in fact at the heart of the Interest/Will debate. By setting forth the necessary and sufficient conditions for the holding of a right, each theory in that debate is specifying to whom any duty is owed. The Will Theorists maintain that the direction of any duty is determined by the location of the authorization to waive or seek enforcement of the duty, whereas the Interest Theorists contend that the direction of any duty is determined by the location of the generally beneficial effects that are intrinsic to the fulfilment of the duty. These rival contentions generate the sundry points of controversy over which the Interest Theorists and Will Theorists have long quarrelled: points such as the status of certain persons (children, senile people, comatose people, and so forth) as potential right-holders; the status of individuals as right-holders under the criminal law; the distribution of rights under third-party-beneficiary contracts; the possibility of collective rights or animals’ rights; and the conferral of rights by statutes such as minimum-wage laws. These and other related controversies lie at the centre of the division between Interest Theorists and Will Theorists. These are the matters which the two sets of theorists address when they joust with one another. Wenar himself addresses some of the aforementioned matters when he rejects the Will Theory as an account of rights, but he seems not to apprehend that those preoccupations of Interest Theorists and Will Theorists derive from their divergent answers to the puzzle of the directionality of duties. Having pretermitted that puzzle, Wenar obscures the central impetus of the debates which he purports to resolve and leave behind.²⁷ That impetus returns to view when we recognize that the rival theories are focused on claim-rights (accompanied by immunities), which are always the correlates of duties. Far from being an arid stipulation, our insistence that the theories are so focused is crucial for making full sense of the philosophical wrangling in which Wenar and we are participants.

D. A Brief Conspectus
Wenar's recent article is an admirably stimulating contribution to the philosophical literature on rights, but in the end it falls short in three major respects. It lands in confusion by oversimplifying the involutions of the Hohfeldian legal relations; it turns out to be an elaboration (an unnecessarily detailed elaboration) of the Interest Theory of rights, which it presumes to dismiss; and it misses the main point of the altercations between Interest Theorists and Will Theorists. Wenar is nonetheless to be commended for mounting a spirited challenge that has forced us to clarify and amplify some of the positions which we have espoused previously. Although his Several-Functions Theory is not a veritable alternative to the Interest Theory and Will Theory, it is a valuable addition to the many variants of those two theories. It stands in need of some significant refinements and some scaling down of its ambitions, but it will undoubtedly then receive plaudits as a highly illuminating exposition of the roles of the Hohfeldian entitlements.

	2. Sreenivasan and the Hybrid Theory

Top Abstract 1. Wenar on the... 2. Sreenivasan and the... 3. Conclusions Notes

 
Sreenivasan, in his very impressive article, addresses himself sustainedly to the chief issue which Wenar neglects: the directionality of duties. In that respect, and in his focus exclusively on claim-rights, his position is closer to ours than to Wenar's. Nonetheless, he is at one with Wenar in aspiring to transcend the Interest/Will debate. We shall defend the Interest Theory against a couple of his strictures, and we shall then critically examine the hybrid theory which he presents as an alternative to the Interest/Will dichotomy.

For two main reasons, our ripostes to Sreenivasan are less extensive than our ripostes to Wenar. First, although Sreenivasan's theory relies pivotally on the notion of justification—since, as will be seen, his explication of the nature of a right is focused on the justification for a right-holder's measure of control over someone else's duty—that central notion remains underdeveloped. Sreenivasan does not distinguish between moral entitlements and legal entitlements. In regard to legal entitlements, however, the concept of justification is crucially ambiguous unless it is adequately elucidated. That concept can be either objective or subjective in its orientation; that is, it can pertain to considerations that form an actually sufficient basis for the conferral of some entitlement, or it can pertain to considerations that are believed to form such a basis. A subjective justification consists in the factors that have motivated legal officials to bestow some entitlement on some person(s). Though objective justifications and subjective justifications are by no means always divergent, they are not always convergent, either. In the closing several pages of his article, Sreenivasan quite clearly seems to be concentrating on objective justifications. By contrast, the definitive formulation of his test for right-holding—which initiates those closing pages—strongly suggests that he has subjective justifications in mind. As we shall observe presently, that formulation includes the words ‘by design’. We are thus genuinely uncertain about the type of justification to which Sreenivasan intends to refer. Given that our queries about the closing pages of his article will be affected by a clarification of that point, we forbear here from broaching any of those queries.

Second, some of our reservations about Sreenivasan's article are technical objections to his application of the Hohfeldian analysis. Since those objections do not have any significant bearing on the cardinal points of contention concerning the Interest Theory and Will Theory, we shall refrain from pursuing them. We here present only one terse example of our technical objections, before moving on to our principal rejoinders.

Quite early in his article, Sreenivasan states that each person enjoys a ‘claim-right not to be operated upon without informed consent’.²⁸ In a footnote, however, he seeks to analyse the matter more precisely. He writes that the ‘claim-right here, to be precise, is the claim-right to receive a standard disclosure prior to consenting (to an operation or other medical treatment)’.²⁹ Instead of improving the original statement—which was not in need of improvement—this new formulation goes astray. Although the new formulation may tally with the ways in which these matters are discussed among journalists and laypeople, Sreenivasan as a sophisticated proponent of the Hohfeldian analysis of entitlements should not acquiesce in their terminology. A patient does not have a claim-right to be given a disclosure, nor of course does a doctor bear a correlative duty to provide it. Rather, the provision of a standard disclosure is in some jurisdictions a necessary step in a doctor's exercise of a legal power: his legal power to invest a patient with the legal power to remove the doctor's legal duty of non-interference with the patient's body. If the doctor fails to carry out such a disclosure, he will have failed to exercise the power just mentioned. Consequently, even if the patient in those circumstances has consented to an operation or some other medical treatment, she retains her claim-right against his invasion of her body (through that operation or other treatment). Thus, should the doctor go ahead with the procedure to which the patient has consented, he will have left himself vulnerable to a lawsuit for battery. If he is sued, however, he will be sued for the battery rather than for the non-disclosure. His failure to disclose is not itself a legal wrong; it is not itself a violation of a legal duty, for there is no duty to disclose.

In short, Sreenivasan has neglected to distinguish between two ways in which a standard disclosure can be required. It can be required tout court (in which case there is a duty to provide it), or it can be required as a key element of the exercise of a legal power. Insofar as standard disclosures are currently required, they are required in the latter sense rather than in the former. The omission of an adequate disclosure is not itself a tort, but it can have the effect of leaving a doctor under a legal duty to abstain from any invasion of a patient's body. For the removal of that duty, the provision of an adequate disclosure is in some jurisdictions an indispensable step; in that respect, and only in that respect, such a disclosure is required of a doctor.

A. In Defence of the Interest Theory
Before elaborating his hybrid theory of rights, Sreenivasan seeks to expose fatal weaknesses in the Will Theory and the Interest Theory. We shall confine ourselves in this section to his critiques of the Interest Theory. Specifically, we shall confine ourselves to his critiques of Kramer's version of the Interest Theory; we shall not endeavour to defend the markedly different version of the Interest Theory espoused by Joseph Raz.³⁰

(i) The interests that underlie rights
Sreenivasan expresses two perceptive worries about Kramer's theory. In the first of his objections, he raises a concern which we ourselves have fleetingly addressed in footnote 19 above. That is, he contends that the Interest Theory's criterion for the attribution of rights is too expansive. He focuses his query on the situation engendered by a third-party-beneficiary contract that has been formed when—in return for some consideration—a person X promises her brother to pay her sister £100. According to Kramer's version of the Interest Theory, the brother and the sister each hold a right to the fulfilment of the promise. Sreenivasan complains that Kramer, malgré lui, may have to ascribe a right-holding status to certain other people as well:

To begin with, we should ask how, on Kramer's test [for right-holding], X's brother— the promisee—qualifies as a claim-right holder. Presumably, it is because of his interest in seeing his wishes fulfilled ... The idea is that proof of X's brother's detriment of not seeing his sister get her £100 will suffice to establish a breach of X's duty. But it is not clear that this will do the trick. Imagine that X's grandmother has an interest in seeing her grandchildren behave themselves, get benefits, and so on. Will proof of the detriment to her—of not seeing her granddaughter get her £100—suffice to establish a breach of X's duty? If so, X's grandmother will also hold a correlative claim-right.³¹

As will become clear, we are not merely caviling if we begin our response to this passage by rejecting Sreenivasan's suggestion that the interest of X's brother is ‘in seeing his wishes fulfilled’. Sreenivasan's way of putting the matter is adequate for many purposes, but in the present context it is too loose. Greater precision is needed. The interest of the brother is in the preservation of the dignity of his status as a moral agent. Given that a promise has been made to him, the realization of that interest will be advanced through the fulfilment of the promise (except in special circumstances that are not relevant here). Conversely, that interest will have been set back if the promise is not kept.

We are now ready to consider the position of the grandmother. Sreenivasan refers to her interest in ‘seeing her granddaughter get her £100’. We need not decide here whether the term ‘seeing’ is to be taken in a strictly literal sense or whether it should be construed more broadly to refer to the grandmother's awareness of the granddaughter's receipt of the money (however that awareness may have come about). In either case, the non-satisfaction of the specified interest is plainly not sufficient to constitute a breach of X's duty: even if X has paid the money to the sister with promptitude, the grandmother may be wholly unaware of the fact. She may have been misinformed, or she may have misunderstood the information that has been imparted to her. Her ignorance of the sister's receipt of the money could be due to any number of factors. Hence, to establish that the grandmother has not seen her granddaughter get the £100—in the narrower or the broader sense of ‘seen’—is not per se to establish that there has been a breach of X's duty. Consequently, Kramer's version of the Interest Theory will not classify the grandmother as a right-holder under the terms of X's promise.

Perhaps, however, Sreenivasan—despite his wording—has not intended to advert to the grandmother's awareness at all. Maybe he believes that the grandmother's interest in the granddaughter's receipt of the money is entirely independent of the grandmother's knowledge of the situation. Just as the brother's interest in being respected as a moral agent can be promoted or set back without his awareness of the fact, so too (Sreenivasan might argue) the grandmother's interest in the granddaughter's receipt of the money can be realized or set back without any knowledge of the situation on the part of the grandmother. If Sreenivasan pursues this tack, he will have to explain what the grandmother's interest is. Her standing as a moral agent, unlike the brother's standing as a moral agent, is not at stake in X's keeping or breaking of the promise. What else could be the nature of her interest in the granddaughter's receipt of the money? Sreenivasan might be suggesting that the grandmother's interest in that outcome stems from the sheer fact that the granddaughter is a close relative of hers. Purely because of that close relationship, the grandmother will benefit if the granddaughter is paid and will incur a detriment if the granddaughter is not paid. Her awareness of the payment is irrelevant.

If Sreenivasan is indeed making the argument just outlined, he is misconstruing the Interest Theory. His argument is important and salutary, however, since it will here elicit a clarification of that theory. The clarification concerns the nature of the interests that are the bases for attributions of rights. Under Kramer's version of the Interest Theory, a necessary though insufficient condition for the holding of a legal right by some potential right-holder R is that the right, when actual, protects some aspect of R's situation that is normally in the interest of a human being or collectivity or non-human animal. What should be made explicit here is that an interest of the requisite sort cannot be wholly vicarious. That is, it cannot reside wholly in the furtherance of somebody else's interests. The mere fact that somebody else will benefit from the fulfilment of a certain duty d, coupled with the fact that that other person is a close relative or friend of R's, is not sufficient to endow R with any non-vicarious interest in the fulfilment of d. If R is to hold a right correlative to d, his interest in the fulfilment of d must go beyond the fact that somebody else—even one of his close friends or relatives—will have gained from it.

Of course, to say as much is not to say that R's stake in the fulfilment of d must be selfish in any way. A variant of Sreenivasan's scenario will serve to underscore this point. Suppose that X has promised her brother not only to pay her sister £100 but also to inform their grandmother that the payment has been made. X owes her brother two duties: a duty to make the payment (d1), and a duty to inform the grandmother of the payment (d2). The grandmother does not hold a right correlative to a duty with the content of d1, since she does not have any non-vicarious interest in the fulfilment of it. She does, however, hold a right correlative to a duty with the content of d2. She has a direct interest in the fulfilment of that duty, since it is normally beneficial for a human being to receive true information about a benefit undergone by a close relative. In this situation, nonetheless, her stake in the matter may very well be entirely altruistic. It is probable that she will expect no financial gain for herself whatsoever and that the only ultimate benefit accruing to her is the gratification derived from the knowledge that her granddaughter has fared well. All the same, an altruistic stake in the matter is a personal stake of the sort required. It is not a purely vicarious interest, for it goes beyond the sheer fact that the granddaughter will have been made better off by the receipt of the money. The grandmother herself will have been made better off through the fulfilment of d2, notwithstanding that the ultimate improvement in her situation will probably consist solely in altruistic gratification. (Quite immaterial for our present purposes, incidentally, is the fact that d2 cannot be fulfilled unless d1 is fulfilled. We could easily alter the scenario in order to eliminate that feature of it. For example, we could suppose that X promises her brother to inform their grandmother of any improvement in their ailing sister's health.)

Might Sreenivasan contend that, in this defense of the Interest Theory, we are guilty of an arbitrary stipulation when we insist that purely vicarious interests cannot underlie rights? He is hardly likely to issue such a misguided retort, since we are here drawing on broadly the same insight about rights on which he draws in his critique of Raz. He maintains that Raz's account of rights ‘fails to take the status of right-holder seriously enough’, and he proclaims: ‘Assignments of this status—that is, the vesting of an individual with a given claim-right—should reflect nothing apart from the intrinsic standing of the individual who is to possess it’.³² Although Raz's and Sreenivasan's theories of rights are focused much more on matters of justification than is Kramer's theory, this point about the integral connection between the ascribability of rights and the intrinsic standing of an individual or a collectivity or a non-human animal is central to Kramer's theory as well. When an Interest Theorist ascribes to R a right correlative to some duty d, she is presupposing that one or more of R's own interests (perhaps one of his altruistically oriented interests) will stand to be advanced by the fulfilment of d. She is not presupposing, or is not merely presupposing, that one or more of the interests of someone else will stand to be advanced. An interest that underlies R's status as a right-holder—which might be an altrustically oriented interest, of course—has to be R's own interest rather than someone else's interest.

On the one hand, we can grant that there is a sense of the word ‘interest’ such that a benefit conferred on some close relative or friend of R's is in R's interest simply by dint of the benefit's occurrence (and thus independently of R's ever learning of the benefit or ever gaining from it in any other way). On the other hand, we deny that an interest of that sort is ever sufficient to constitute the basis for the ascription of a right. We are not here making a linguistic claim about the word ‘interest’. Rather, we are making a substantive claim about the distinctiveness of rights. As Sreenivasan has insisted in his rejoinder to Raz, any felicitous attribution of a right to R will regard R as more than merely an extension of someone else. An ascription of a right to R considers him in his own right, so to speak. We agree with Sreenivasan on this point, and we therefore conclude that his scenario of the grandmother and the promise does not pose any genuine difficulties for Kramer's version of the Interest Theory. The sole interest imputable to the grandmother that will be realized by the keeping of the promise itself is an interest imputable to her only as an extension of her granddaughter. Accordingly, that interest does not constitute any basis for the attribution of a right to the grandmother.

(ii) Missing duties
Sreenivasan's second main criticism of Kramer's version of the Interest Theory is focused on the test which that theory applies for the attribution of rights. Kramer's test asks, of any potential right-holder R, whether a demonstration of some detriment to R is sufficient to establish that someone else has breached a duty. (More precisely, it asks whether a demonstration of some change in R's situation that would normally be detrimental for a human being or collectivity or non-human animal is sufficient to establish that someone else has breached a duty.) If the answer to that question is affirmative, then R holds a right correlative to the specified duty.

Concentrating still on the scenario of the third-party-beneficiary contract that ensues from X's promise, Sreenivasan argues as follows:

Furthermore, if we examine the notion of what ‘suffices to establish’ a breach a little more closely, a different sort of trouble soon emerges. Consider the special case where X's brother waives X's duty to pay X's sister. In this case, X's sister's detriment is not ‘sufficient to establish’ a breach of X's duty. Having once seen this, we should then recognize that her detriment does not suffice even when X's brother does not waive X's duty, since he might have done. In fact, even X's brother's ... detriment does not really suffice to establish X's breach, since detriment on his part does not, strictly speaking, entail that he did not waive X's duty. Kramer's test therefore fails to vest the one uncontroversial claim-right holder—the promisee—with a claim-right against X.³³

We should first address situations in which duties have been waived and then address situations in which they have not. Like Sreenivasan's own criterion for the attribution of rights (which we shall examine presently), Kramer's criterion is a standard for identifying the holders of the rights that are correlative to specified duties. Like Sreenivasan's criterion, then, Kramer's criterion is applicable only when some specified duty exists. If a specified duty has ceased to exist—because it has been waived—then neither Kramer's test nor Sreenivasan's test is applicable. In other words, what each of those tests presupposes is that a duty with some particular content is in existence. If the presupposition relating to the duty's existence is in fact not satisfied, then neither of the tests can be used to tell us who holds the right correlative to that duty. There is no such duty, and there is no such right. A question about the actual identity of the right-holder in those circumstances simply does not arise. Thus, the fact that Kramer's criterion provides no answer to such a question is not even slightly troubling. (Of course, a question with a purely counter-factual orientation can be asked in those circumstances: ‘Who would have held the right correlative to that duty if it had still existed?’ Either Kramer's criterion or Sreenivasan's criterion can address that counter-factual question.)

Sreenivasan himself would probably not disagree with what has been said in the preceding paragraph. His main concern appears to be not with situations in which duties have been waived but with situations in which they have been left unwaived. His worry is that no demonstration of a detriment to the brother (the promisee) or the sister (the third-party beneficiary) could ever really suffice to establish a breach of X's duty, since such a demonstration ‘does not, strictly speaking, entail that [the brother] did not waive X's duty’. Consequently, he maintains, no one can ever be identified as a right-holder under Kramer's test.

Sreenivasan's objection exposes the need for an amplification of the Interest Theory. To show what precisely is required, we should begin by distinguishing two junctures: the point at which a right is ascribed, and the point at which the duty correlative to that right is to be fulfilled or breached. There are many duties, such as one's duty to abstain from murdering anyone else, for which this distinction cannot be meaningfully drawn. In connection with any duty of that sort, the point of fulfilment or breach is not temporally indexed. Every such duty is of ongoing effect. In other words, the time for the fulfilment or breach of such a duty is any time. In connection with other duties, however, the juncture for the fulfilment or breach of each of them is temporally indexed (with greater or lesser specificity). Consider, for example, a duty to sing in an opera on a certain date. Sreenivasan's complaint applies solely to duties of this latter type, and we shall therefore train our scrutiny here only on such duties.

Suppose that X has promised her brother to pay £100 to her sister by 5pm on a specified date (a juncture that we shall designate as ‘t2’). X is under a duty to make the payment. Prior to t2, someone inquires about the identity of the person(s) to whom X's duty is owed. Let us designate the time of the inquiry as ‘t1’. An Interest Theorist at t1 observes that, if the sister has not received any payment of £100 from X by t2, then X will have breached her duty. Such a theorist will therefore conclude that the sister holds a right correlative to X's duty (and will draw a parallel conclusion about the brother with reference to the brother's status as a moral agent to whom a promise has been made). Sreenivasan will now pounce. He will point out that the Interest Theorist is advancing an assertion about a future contingency. Pinning down the truth-values of statements about future contingencies is a vexed matter within metaphysics and philosophical logic and the philosophy of language, but the best view is that a prediction of the occurrence or non-occurrence of some event is endowed with the same truth-value at the time of its utterance as at the time of the event's occurrence or non-occurrence.³⁴ Given as much, the conditional statement ‘If the sister has not received any payment of £100 from X by t2, then X will have breached her duty’ has the same truth-value at t1 as at t2. Yet, since that statement might well be false at t2 (if the brother has waived the duty owed by X, for example), it might well be false at t1. Any proof of X's being under a duty at t1 to pay the sister £100 at t2 will not suffice to establish the truth of the aforementioned conditional statement, since the truth or falsity of that statement will hinge on what happens between t1 and t2. Thus, Sreenivasan will conclude, Kramer's criterion for the attribution of rights is untenable. Someone can have grounds for being certain about the truth of the statement ‘X is under a duty at t1 to pay her sister £100 at t2’, without having grounds for being certain about the truth of the conditional statement ‘If the sister has not received any payment of £100 from X by t2, then X will have breached her duty’.

Sreenivasan's objection, as we have elaborated it, reveals that Kramer's test for the identification of the holders of rights has to be amplified to take account of duties for which the distinction between the time of ascription and the time of fulfilment or breach can meaningfully be drawn. A simple conditional statement of the sort formulated in the preceding paragraph is not adequate when an Interest Theorist is asked at t1 to identify the holder of a right that is correlative to an existent duty for which the time of fulfilment or breach is t2. In application to the scenario of the promise made by X to her brother, the Interest Theorist should opt instead for the following complex conditional statement: ‘If the duty owed by X at t1 to pay her sister £100 at t2 is still owed by her at t2, and if the sister has not received any payment of £100 from X by t2, then X will have breached her duty’. Such a conditional statement identifies the sister as a right-holder at t1 (though not necessarily at t2). The following complex conditional statement identifies the brother as a right-holder at t1 (though not necessarily at t2): ‘If the duty owed by X at t1 to keep her promise to her brother by paying her sister £100 at t2 is still owed by her at t2, and if the promise has gone unkept because the sister has not received any payment of £100 from X by t2, then X will have breached her duty.’ When the additional clause is inserted into the antecedent portion of each conditional statement, Sreenivasan's criticism falls away. If anyone has grounds for being certain about the truth of the statement ‘X is under a duty at t1 to fulfil her promise to her brother by paying her sister £100 at t2’, he or she also has grounds for being certain that each of the foregoing complex conditionals is true.

A cognate clause should be inserted into the antecedent portion of any conditional formulation of Kramer's test for the identification of right-holders, whenever that test is brought to bear on a duty for which the time of fulfilment or breach has not yet arrived. Does the insertion of such a clause amount to an ad-hoc manoeuvre that detracts from the Interest Theory? For two reasons, the answer to this question is negative. First, the clause about the continuation of a duty does not in any way derogate from the orientation of the Interest Theory. That clause simply takes account of the contingencies that may occur with the passage of time, while leaving the focus of Kramer's test on the interests of potential right-holders. Second, every rival theory of rights—such as the Will Theory and Sreenivasan's hybrid theory—will have to include some corresponding means of dealing with the problems posed by the passage of time. We do not have the space to substantiate this latter point fully here, but we shall say a few words about Sreenivasan's own theory. That theory, as will shortly become apparent, relies on the notion of a measure of control over a duty. Any proponent of the theory will therefore have to indicate what counts as the existence of a measure of control. Some measures of control will be of ongoing effect in the sense outlined above; that is, they will be exercisable at any time. Other measures of control, however, will be exercisable only in the future. If a person's being endowed with a measure of control of the latter type (exercisable at t2) is the basis for the ascription of a right to that person at t1 under Sreenivasan's hybrid theory, then the proponent of such a theory will have to include some formulation that takes account of the myriad contingencies that might eventuate in the non-existence of the specified measure of control at t2.

B. Doubts About the Hybrid Theory
Like Wenar, Sreenivasan propounds a theory which he regards as a preferable alternative to the Interest Theory and Will Theory. We accept that Sreenivasan's theory—unlike Wenar's—is a genuine alternative to those two dominant theories. However, we will question whether it is preferable.

Sreenivasan's basic tenet undergoes a succession of reformulations in the course of his article. Its definitive rendering, the Complex Hybrid (CH) thesis, is as follows:

(CH) Suppose X is duty-bound to j. Y has a claim-right against X that X j just in case:

Y's measure (and, if Y has a surrogate Z, Z's measure) of control over a duty of X's to j matches (by design) the measure of control that advances Y's interests on balance.³⁵

Some of the gnarls in this rather daunting formulation can be put aside here. For example, we shall not pay any attention to the reference to the surrogate Z. Likewise, having expressed our queries about the words ‘by design’ near the outset of our discussion of Sreenivasan, we shall not dwell further on the difficulties engendered by those words. Our discussion here will bridge the divide between objective and subjective justifications.

By designating his theory as a ‘hybrid’, Sreenivasan implies that it combines the strengths of the Interest Theory and the Will Theory. In fact, however, his Complex Hybrid thesis generates unacceptable conclusions that would not be endorsed by either of those theories. To show as much, we should initially note that the measure of control mentioned in that thesis can consist in no degree of control whatsoever. Indeed, the fact that the relevant measure of control can be no control at all is crucial for Sreenivasan's effort to dissociate his theory from what he discountenances as the principal shortcomings of the Will Theory. One of those shortcomings in his eyes is the refusal of Will Theorists to attribute claim-rights to senile people or comatose people, who are not mentally competent to exercise any control over other people's duties; equally objectionable, in his view, is the refusal of such theorists to recognize the existence of inalienable claim-rights. In order to overcome these inadequacies, Sreenivasan deliberately allows for situations in which people hold claim-rights while not being endowed with any control over the duties correlative to those rights. Though this point is retained in every formulation of his central tenet—including of course the definitive CH version—it is especially evident in his initial Simple Hybrid (SH) formulation:

(SH) Suppose X has a duty to j. Y has a claim-right against X that X j just in case:

either Y has the power to waive X's duty to j

or Y has no power to waive X's duty to j, but (that is because) Y's disability advances Y's interests on balance.³⁶

Let us now ponder the following scenario. Suppose that John is obligated to pay Ken £100. Tony does not have any power to waive John's duty. His not having any power of that sort is very much in his interests, since Ken (who is far stronger) would be violently furious if Tony were ever to exercise such a power. We may reasonably presume that the furtherance of Tony's interests in that fashion is a sufficient justification for his not being vested with the power to waive John's obligation. We may likewise presume that the legal official whose directive has placed John under a duty to pay Ken was focused on Tony's interests when determining whether the duty should be waivable by Tony. The official reasoned as follows: ‘I know that Ken is extravagantly selfish and that he will not waive John's duty even in circumstances where the fulfilment of it would render John destitute. Given that Tony is such a humane person, I’d really like to endow him with a power to waive the duty. However, for his own good, I had better withhold any such power from him. If Tony were ever to exercise such a power—however wisely and justifiably—Ken would be irate and would vent his wrath by pummelling or even killing Tony. Thus, although it would be good for John and good for the general decency of this society if I were to equip Tony with a power to waive John's duty, I feel that I have to concentrate instead on the interests of Tony. As a consequence, I will not confer any such power upon him’. Tony's lack of any control over John's duty is justified both objectively and subjectively, then, by reference to Tony's own interests. His measure of control—no control at all—is precisely the measure that advances his interests on balance.

Sreenivasan's theory of rights unequivocally leads to the conclusion that Tony has a right to John's paying £100 to Ken. In other words, it leads to the conclusion that John's duty (to pay £100 to Ken) is owed not only to Ken but also to Tony. Tony has no measure of control over John's duty, and he does not stand to benefit in any way from the fulfilment of that duty. Nonetheless, according to Sreenivasan, Tony holds a claim-right to the fulfilment of John's duty. We submit that such a conclusion is preposterous. It would be dismissed both by advocates of the Interest Theory and by advocates of the Will Theory. Far from being a hybrid position that blends the strengths of those two theories, Sreenivasan's account of rights is replete with implications which those two theories are united in rejecting. In a situation where Tony is not involved in any way in John's bearing of a duty or performance of a duty to pay £100 to Ken—and where Tony has deliberately been kept uninvolved—no tenable theory of rights will generate the verdict that Tony has a right to Ken's being paid £100 by John. Since Sreenivasan's theory does generate that verdict, his theory is unsustainable.

	3. Conclusions

Top Abstract 1. Wenar on the... 2. Sreenivasan and the... 3. Conclusions Notes

 
As should be evident, Sreenivasan's criticisms of the Interest Theory of rights are valuable. Though the Interest Theory can be vindicated in the face of those criticisms, the vindication requires elaboration and clarification. Sreenivasan is to be commended for having occasioned the strengthening of the Interest Theory in those respects. His own theory of rights, however, is less commendable. To be sure, unlike Wenar, he does come up with a veritable alternative to the Interest Theory and the Will Theory. All the same, his alternative account of rights will have yielded outlandish results in certain circumstances. His account constitutes a path between the Interest Theory and the Will Theory, but that path is decidedly unenticing.

We are therefore inclined to answer negatively the question contained in the subtitle of our article. There are alternatives to the Interest Theory and the Will Theory, but there is not a credible and attractive third way. Wenar's exposition of rights is not a genuine alternative at all, and Sreenivasan's approach is irredeemably problematic. Instead of searching for a third way, analysts of rights are best advised to develop ever more refined versions of the Interest Theory or the Will Theory. Wenar has in effect already been engaging in such a project, and Sreenivasan will do well to follow suit. His animadversions on the existing theories have underscored the need for their improvement rather than for their abandonment.

	Notes

Top Abstract 1. Wenar on the... 2. Sreenivasan and the... 3. Conclusions Notes

 
¹ L. Wenar, ‘The Nature of Rights’ (2005) 33 Philosophy and Public Affairs 223; G. Sreenivasan, ‘A Hybrid Theory of Claim-Rights’ (2005) 25 OJLS 257. In our reply, we take for granted a basic familiarity with the analysis of legal entitlements devised by the American jurist Wesley Hohfeld. That analysis is recounted in Wenar's article, and is expounded at length in Kramer, ‘Rights without Trimmings’, in M. Kramer, N. Simmonds and H. Steiner, A Debate over Rights (1998) [hereinafter Debate] at 7–60. Hohfeld distinguished four types of entitlements: claims or rights, liberties, powers, and immunities. Like Hohfeld, but unlike most contemporary writers, Wenar uses the term ‘privileges’ in lieu of ‘liberties’. We have opted for the latter term and have silently altered his wording in our quotations. An early version of the first half of this essay was presented at a workshop on rights at the University of Edinburgh in February 2005. We are very grateful to the organizers of that workshop, Antony Hatzistavrou and Rowan Cruft. We are likewise grateful to Antony Duff, John Eekelaar, Neil MacCormick, Sandra Marshall, Saladin Meckled-Garcia, Victor Tadros, Leif Wenar and an anonymous OJLS reader for their illuminating comments. We owe special thanks to Wenar for making his work readily available to us before it was published.

² After all, one of us (Kramer) is an Interest Theorist, while the other one of us (Steiner) is a Will Theorist.

³ H.L.A. Hart, ‘Legal Rights’ in Essays on Bentham (1982) 162 at 166–67.

⁴ Wenar, above n 1 at 228 n 6.

⁵ Ibid at 246.

⁶ We include the words ‘while accepting that John exists’ simply in order to forestall any technical quibbles.

⁷ Wenar, above n 1 at 231.

⁸ Ibid.

⁹ Ibid at 231 n 9.

¹⁰ A legal duty D is effectuated if either of the following conditions is met: (1) violations of D are averted through preventative steps taken by legal officials; or (2) although D is violated, the violation is subsequently rectified through the application of some remedial measure(s) such as punishment, compensation, or restitution. The effectuation of legal duties occurs more frequently via the second of these two routes than via the first.

¹¹ Although one or the other of the two default rules must be operative in application to each duty within any legal system, it is not perforce true that one or the other of the default rules will have been consciously adopted as such beforehand by legal officials (or by anyone else). The operativeness of the applicable default rule might become apparent only after a duty has been breached.

¹² For a full exposition of the Interest Theory, see Kramer, above n 1 at 60–101.

¹³ Wenar, above n 1 at 241.

¹⁴ Ibid.

¹⁵ Ibid at 241–42.

¹⁶ Kramer, above n 1 at 85–88.

¹⁷ Wenar, above n 1 at 248.

¹⁸ Note that the intrinsic effect in question is not the benefiting of any terminally ill person (even pro tanto). Instead, it is the absence of penalties for any terminally ill person who commits or seeks to commit suicide. Of course, under any credible empirical assumptions, the absence of penalties will per se almost always be beneficial for a terminally ill person; but, strictly speaking, the intrinsic effect of the relevant legal norm is the lack of penalties rather than the pro-tanto benefit derived therefrom.

¹⁹ As we shall see in the second half of this article, the Interest Theory is sometimes criticized for being too far-reaching in its classification of people as right-holders. For example, suppose that two corporations have formed a legally binding agreement on the terms of a merger. Suppose further that the shareholders in each corporation will stand to benefit from the occurrence of the merger. According to the Interest Theory, then, each shareholder has a legal claim-right (vis-à-vis each corporation) to the consummation of the merger—even though each shareholder very likely does not have a legal power to seek or waive the enforcement of the duty correlative to that right. We do not feel that this classification of every shareholder as a right-holder is problematic for the Interest Theory. Perhaps, however, Wenar does view it as problematic. Even so, he will have left himself vulnerable to a ‘tu quoque’ retort. If there is nothing internal to the notion of a benefit or an interest that will curb the wide-rangingness of the Interest Theory's criterion for the attribution of rights, there is likewise nothing internal to the notion of protection or secured provision or secured performance—the distinctive functions of claim-rights, according to Wenar—that will curb the wide-rangingness of any criterion for the attribution of claim-rights that emerges from his Several-Functions Theory. If Wenar is inclined to avail himself of an extraneous limitation that will rein in his criterion, an Interest Theorist can equally legitimately do the same (though, as we have indicated, we believe that an Interest Theorist should not in fact take such a route). Hence, once again Wenar's theory turns out to be on a par with the Interest Theory. The former is a version of the latter.

²⁰ Of course, we do not mean to suggest that every rendering of each theory is so restricted. For some capacious versions of the Will Theory, see Hart, above n 3 at 188–89; H.L.A. Hart, ‘Definition and Theory in Jurisprudence’ in Essays in Jurisprudence and Philosophy (1983) 21 at 35–36, n 15; Simmonds, ‘Rights at the Cutting Edge’ in Debate, above n 1 at 211–25. For a recent capacious version of the Interest Theory, see R. Cruft, ‘Rights: Beyond Interest Theory and Will Theory?’ (2004) 23 Law and Philosophy 347.

²¹ Wenar, above n 1 at 243.

²² Ibid.

²³ Ibid at 238.

²⁴ Ibid at 236.

²⁵ Ibid at 237.

²⁶ Ibid at 229, n 7.

²⁷ Wenar puzzlingly suggests that the Interest/Will division is derivative of the disputes between welfarists and Kantians within moral and political philosophy (ibid at 224, 250–51). His suggestion along these lines is puzzling because, although some Will Theorists have indeed been Kantians, hardly anyone among the main exponents of the Interest Theory is a welfarist. Wenar's position would make it very difficult to understand, for example, why John Finnis is both a champion of the Interest Theory and a scathing critic of welfarism.

²⁸ Sreenivasan, above n 1 at 259, emphasis deleted.

²⁹ Ibid at 259, n 9.

³⁰ Raz's main analyses of rights are in his ‘Legal Rights’ (1984) 4 OJLS 1; and The Morality of Freedom (1986), 165–92.

³¹ Sreenivasan, above n 1 at 263–64. Purely for stylistic reasons, we have substituted ‘X's’ for ‘your’ throughout this passage and our other quotations from Sreenivasan.

³² Ibid at 266, emphases in original. Wenar agrees with Sreenivasan (and us) on this point; see Wenar, above n 1 at 242.

³³ Sreenivasan, above n 1 at 264, emphases in original, footnotes omitted.

³⁴ Such a view underlies the analysis of freedom and time in Matthew H. Kramer, The Quality of Freedom (2003) at 76–91.

³⁵ Sreenivasan, above n 1 at 271.

³⁶ Ibid at 267, emphases in original

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