A complete Assignment

On
Will Theory And Interest
Theory

Submitted by: Submitted to: Parbishi Mishra

Name: Retina Ulak Faculty of General

Roll no:81 ‘A’ Concept of Law

(B.A.L.L.B )
Table of Contents:
1. INTRODUCTION
2. PROPOUNDER
3. CRITICISMS
4. DIFFERENCE BETWEEN THE TWO
5. BIBILIOGRAPHY
INTRODUCTION
1.Introduction to Rights and Duties
Rights are legal,social,or ethical principles of freedom or entitleme
nt; that is, rights are the fundamental normative rules about what
is allowed of people or owed to people, according to some legal
system, social convention, or ethical theory. Rights are of
essential importance in such disciplines as law and ethics,
especially theories of justice and deontology. A duty is a
commitment or expectation to perform some action in general or if
certain circumstances arise. A duty may arise from a system
of ethics or morality, especially in an honor culture. Many duties
are created by law, sometimes including a codified punishment
or liability for non-performance. Performing one's duty may
require some sacrifice of self-interest. Rights may exist as a moral
or a legal matter. The right of a student in a college is to able to
attend classes , read in the college, use bench and desk and
other facilities after getting admission while his duty is not to
misuse any resources of the college, not to hurt anybody’s
feelings etc. For another instance the right of a citizen is to live in
a society with certain freedoms while his duty is to limit his/her
interest and behaviors according to the rules of the society and
country otherwise he may face legal punishments too.

2. Introduction to Will Theory and Interest Theory

There are two main theories of legal right. They are will theory
and interest theory.
  Will theory
Freedom is the most basic right, according to will theory. It is a
moral right. All other rights, moral or legal, are specific protected
freedoms. The will theory, also known as the “choice theory,”
allows rights-holders free choice to insist upon their rights, or to
waive them. The will theory says that the purpose of law is to
grant the individual i.e. self expression or positive declaration.
Therefore right emerges from the human will.  The definition of
right given by Austin and Holland,“ that the will is the main
elements of a right.” Pollock says, that right in term of will.Will
theory means Your having a right to something means that you
have control over others’ free will in regard to it; otherwise, they
can do as they please. Someone violates your right by acting
contrary to your will in regard to your right’s object. The will
theory, also known as the “choice theory,” allows rights-holders
free choice to insist upon their rights, or to waive them. Example:
your right to some land is your freedom to do with it as you wish.
Everyone is wrong to interfere with your freedom unless they
have a right. If someone uses your land without having a right,
you are free to allow it, or to choose to prevent it by claiming the
protection of your right to legal authorities. Animals cannot have
rights on the will theory. They have no conception of a basic right
of freedom, and cannot understand the idea of limiting of rights;
nor would they be capable of claiming or waiving rights.

 Interest theory
Interest is the basis of right. A great german jurists defines about
the legal right as, “ A legally protected Interest.” According to him
the basis of right is “Interest” and not  “will”. Interest Theory
means your having a right to something means that it is in your
interest, or is to your benefit, and someone else has a duty to
provide it. Someone violates your right by not doing his or her
duty to provide the thing that is in your interest. For example X
has a right if and only if X can have rights, and other things being
equal, an aspect of X’s well-being (his interest) is a sufficient
reason for holding some other person(s) to be under a duty.”
Animals could have interest-based rights (moral or legal),
provided their interests are “sufficient reasons” for holding
someone to be under a duty. It has to be specified what “sufficient
reasons” means here.

Propounder
Will Theory
Herbert L.A. Hart (1907-92), a British legal scholar, is credited
with developing the will theory of rights. He cited Kant as inspiring
his thinking about the importance of human freedom, or liberty.
Freedom is the most basic right, according to will theory. It is a
moral (or natural) right. All other rights, moral or legal, are specific
protected freedoms. Limiting anyone’s freedom always requires
the authorization of others’ rights; and the subjects of rights
remain free to “claim” them or not.

Interest theory
Jeremy Bentham (1748-1832) initiated the interest theory. As a
utilitarian, he was critical of the idea of moral rights, but conceded
that the rights could be useful in legal systems. Someone would
have a right to something (x), against a second person, if that
person had a legal duty to provide the first person with x. For
example, on Bentham’s interest theory, you have a right to vote if
someone is legally required to provide you with the opportunity to
vote, and count your ballot, and so on. More recent philosophers
developing the interest theory, also known as the “benefit theory,”
think that basic moral duties to respect others’ essential interests,
such life and liberty, serve as the basis of moral rights.
 Criticisms
Interest Theory
1. Limiting interests: Specifying the set of interests that are
sufficient reasons for rights is nearly impossible. The proliferation
of interestbased rights continues: welfare rights; healthcare rights;
women’s rights; animal rights; etc.

2. Third-party interests: If you promise to tend a neighbor’s child,

you have a duty, and the child has an interest in your doing your
duty; so the interest theory says the child has a right to your care.
But only the neighbor has the right.

Will Theory
1. No inalienable rights: The freedom protected by rights includes
the freedom to waive any right, including freedom to accept
payment for waiving rights. Rights-holders could bargain away
any of their rights.
2. Right-holders’ cognitive capacities: having a right requires
understanding how to claim or waive it, which infants cannot
understand, nor can mentally incapacitated adults; so, like
animals, they cannot have rights.

Differences between two:

When comparing the two theories, it can be acknowledged that
both have a descriptive and justificatory dimension. However, the
theories offer an opposing account on the function and nature of
rights. Firstly, the descriptive dimension of the Will theory
presents the outline of what is considered a ‘right’, and what
circumstances need to be achieved in order for the fulfilment of a
moral principle to be counted as a ‘right’ in which someone can
possess. Will theorists argue “…an idle use of the expression ‘a
right’ will confuse the situation with other moral situations where
the term ‘a right’ has a specific force”6 . Furthermore, it can be
highlighted that nothing counts as a ‘right’ unless it has an
assignable right-holder. The Will theory also has a justificatory
dimension, insofar that the autonomy of the individual serves as
the justification of the right. Moreover, no-one counts as a right-
holder unless they hold the option of enforcing or waiving the duty
correlative to the right. This idea was emphasized in H.L.A Hart’s
seminal work entitled ‘Are There Any Natural Rights?’, whereby
he argues that “If there are any moral rights at all, it follows that
there is at least one natural right; the equal right of all men to be
free…”7 . The Will theory as a justificatory analysis has come
under serious scrutiny in recent years – with many academic
scholars, such as Joseph Raz and Neil MacCormick, deeming it
an implausible theoretical approach to adopt. Will theorists claim
that rights must be under the control of the right-holder, and
hence a necessary condition of holding a ‘right’ is having the
adequate competence and capacity to waive or annul that right.
However, this leaves non-autonomous human beings, whom we
necessarily attribute moral rights to, inadequately protected. For
instance, Hillel Steiner, in his work ‘An Essay on Rights’, states,
“…foetuses, minors, the comatose, the mentally disabled…to say
nothing of the members of virtually all known species – must lack
all Will Theory rights” . Essentially, Will theorists argue that non-
autonomous human beings lack the sufficient powers of
comprehension to appreciate the significance of what they do. In
the defence of Will theory, Carl Wellman, in ‘Real Rights’, argues,
“…non-autonomous human beings are the beneficiaries of a
stringent set of moral duties borne by all members of the
community of autonomous agents”9 . However, even this claim,
which has been critically assessed, can be seen as implausible.
For example, Joseph Raz argues, “It is simply false to say that
non-autonomous human beings without moral rights are
nonetheless beneficiaries of moral duties that accord them just as
much moral protection as rights could give them”10. In agreement
with Raz, Nicholas Vrousalis, disputes, “It is insensitive to the
interests of the unempowerable, whose lives are thereby treated
as not meriting direct normative consideration on grounds of
justice”11 . The fragilities within the Will theory make it an
implausible approach to adopt when attempting to generate a
theory to coincide with the modern day interpretation of rights. As
stated, the Interest theory also has a descriptive and justificatory
dimension. Conversely, it offers a contrasting account to the
function and nature of rights. The descriptive dimension of the
Interest theory outlines and authorises debate about interests and
their importance. The theory itself does not identify or distinguish
among interests. Furthermore, it does not tell us what interests
are, or whether all are important enough to be considered duties.
James G.S Wilson, in ‘Rights’¸ states, “…it does not prejudge too
much about what rights there are and what kinds of entities can
be right-holders…”12. It can be argued that the Interest theory
exists to focus on the function that rights have of protecting the
right-holder’s interest, rather than interests generally. It essentially
marks the distinction between an objective and subjective right.
This can be seen as a plausible theoretical approach to rights.
The descriptive dimension of the theory centres on the idea that
rights are justified by the interests of the right-holder; that is their
“raison d’être”. The justificatory dimension of the Interest theory is
that only beings capable of having interests are candidates to be
a right-holder. As expressed by Joseph Raz, “…a person may be
said to have a right if and only if some aspect of his well-being
(some interest of his) is sufficiently important in itself to justify
holding some other person or persons to be under a duty”13. Of
course, one can criticise this section of the Interest theory. The
Interest theory itself does not adequately accommodate and
respect the rights of others. The kernel of the idea is to further the
interests of the right-holder’s; irrespective of everybody else. It
can be seen how the Interest theory has been considered a
selfish theoretical account of rights. In addition, some Marxist
theorists argue that interest-based rights serve to further facilitate
huge gaps in wealth and power. The fact that a certain act will
protect the interests of any individual can never provide a
generally significant reason in favour of it.

Bibliography
Herbert Lionel Adolphus Hart (1982), ‘Essays on Bentham’, Oxford, Oxford University Press, p.183
Edmundson, William A (2004)‘An Introduction to Rights’, Cambridge University Press, Cambridge
Steiner, Hillel (1994) ‘An Essay on Rights’, Blackwell Publishers, Oxford.
Theories of right http://core.ecu.edu/phil/mccartyr/1175docs/TheoriesofRights.pdf