Dialectical Deadlock and the Function of Legal Rights

Abstract

My goal in this article is nothing less than to end the long-standing debate over the function of legal rights. The two main sides in this debate have historically been, and still are, the Interest Theory (IT) and the Will Theory (WT). Recent contributors to the debate have pursued one of three strategies: (1) arguing on behalf of either IT or WT against the other theory; (2) arguing that neither IT nor WT can provide an adequate account of the function of rights, and that the two theories must be combined into a new integrated whole that preserves their strengths but avoids their shortcomings; or (3) arguing that the inability of IT and WT to provide an adequate account points to some deep problem shared by both theories, and that an entirely new theory is needed. The argument I make does not fall into any of these camps. I argue, instead, that it is possible to formulate versions of both IT and WT that are superior to those offered so far by the theories’ respective proponents. These superior versions are capable of dealing with almost all the challenges that have been raised against IT and WT, respectively. In fact, we will see that in the end only one problem remains to divide the two theories: the problem of the possibility of rights to be harmed, or to non-interference with one’s being harmed. WT must allow for the possibility of such (admittedly strange) rights, while IT must reject that possibility; and here the two theories are simply deadlocked. But it is not at all clear whether either theory enjoys an advantage over the other on this front, because it is not clear whether admitting this possibility is more or less desirable in a theory of rights than rejecting it. This lack of clarity results from the fact that the deadlock between the theories results from a clash between their most basic theoretical commitments. In the absence of other problems for the opponents of each theory to point to, problems which can be recognized as such by all sides in the debate, there is no external pressure for either side to abandon its basic commitment. I aim to end the debate, then, not by showing how it can be resolved once and for all, but by showing that it reduces to a bare conflict of equally plausible basic theoretical commitments.(Final Draft)