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This introductory chapter briefly introduces the Hohfeldian analysis of legal positions and the debates between Interest Theorists and Will Theorists over the nature of legal rights. The Hohfeldian analysis and the Interest/Will controversy are the foci for the rest of the book.

This chapter presents a detailed exposition of the Hohfeldian analysis of legal positions (rights, duties, liberties, no-rights, powers, liabilities, immunities, and disabilities). It then presents an overview of the debates between the Interest Theory and the Will Theory of legal rights, after which it champions the Interest Theory at length. Among the questions considered is whether a theory of legal rights must rely on certain ethical assumptions or not.

This chapter explores the Kantian historical background of the present-day debates between Interest Theorists and Will Theorists of legal rights. It goes on to expound the Hohfeldian analysis that has been independently presented Chapter 1, and advocates the Will Theory of legal rights in preference to the Interest Theory. One of the chief concerns of the chapter is to argue, against Hillel Steiner, that any adequate theory of rights must be grounded on ethical premises.

This chapter advocates a version of the Will Theory of rights, whilst also maintaining (in opposition to the previous chapter) that an account of rights can be based entirely or almost entirely on formal considerations with no reliance or virtually no reliance on substantive ethical premises. It explores in some detail the Kantian conception of morality, in order to bolster his view that the delimitation of rights can be effected on the basis of purely formal criteria.

This chapter looks at the debate between the Interest Theory and the Will Theory of rights. Most proponents of the Interest Theory believe that it allows for ascriptions of rights to the dead. It argues that any such ascriptions are untenable on the Interest Theory's own terms.

This chapter focuses on the Will Theory. The Will Theory had a measure of intellectual coherence that the Common law wholly lacked, though this coherence had been to some extent bought at the expense of practical common sense. But its greatest demerit was that it was imposed on the Common law from the outside rather generated from within.

This chapter discusses the decline of the Will Theory. Continental and transatlantic scholars took the lead the gradual erosion of confidence in the Will Theory and doctrines derived from it. As an intellectual structure the Will Theory was too brittle to bear the weight placed on it, it did not fit easily with commercial practice, and its fundamental idea of party autonomy clashed with widely held principles of social justice. Despite tentative attacks, the main doctrines associated with the Will Theory survived; but they were overlaid with new principles, most importantly those generated by considerations of fairness and justice, and in places the older ideas were reinterpreted in the light of the new.

This chapter considers various factors that may have led Hart to dissociate himself from his renowned 1955 essay on natural rights. It concludes that neither Hart's subsequent doubts about the Will Theory of rights nor the difficulties of deriving certain rights from the one natural right championed in the 1955 essay can account for Hart's apparent repudiation of that essay.

This chapter argues that neither of the two principal theories of rights — the Interest Theory and the Will Theory — can adequately account for all rights. It proposes instead a theory that ascribes multiple functions to rights.

The chapter suggests a new role for authority and interest in the theory of right: Rights can be explicated as sets of prohibitions, permissions and commands, and they must be justified by interests. The chapter argues as follows: (1) The two dominant theories of right—“Will Theory” and “Interest Theory”—have certain standard problems. (2) These problems are systematic: Will Theory’s criterion of the ability to enforce a duty is either false or empty outside of its original legal context, whereas Interest Theory includes in the definition of a right what actually belongs to the justification of the practice within which that right is assigned. (3) The chapter recasts the connection between authority, interests, and rights in a way that avoids each theory’s standard problem. (4) The resulting theory also has three further advantages: It analyzes rights in terms of very basic and familiar concepts, it mirrors the understanding of rights in actual public discourse, and it is compatible with a wide selection of moral theories. Since its core is about a specific use of modal auxiliary verbs, this new theory is called the “Modal Theory of Right.”

Chapter 3 examines the relation between rights and the powers typically borne by right-holders: powers to waive duties, demand their fulfilment, enforce them, resent them, forgive them. It argues that there are impersonal parallels, performable by third parties, for all the powers that one might think can only be performed by the person to whom a duty is owed. We therefore cannot identify to whom a duty is owed by asking who can exercise the relevant powers. Instead we need to ask, circularly, who can exercise these powers as right-holder to whom the duty is owed. This reasoning is used to criticize the Will Theory of Rights (as found in Hart and Steiner), and other problems are found with Sreenivasan’s Hybrid Theory and Feinberg’s demand-based approach.

This chapter explores the moral foundation of rights. Both the Interest Theory of Rights, rooted in consequentialism, and the Will Theory of Rights, based on the moral status of agents, have difficulty in accounting for the dynamic nature of rights—the fact that allocations of rights and duties can change over time through processes of forfeiture and liability arising from the responsible action of individual agents. The Reciprocity Account of Rights can explain the dynamic nature of rights and has several other important advantages compared with the Interest and Will Theories. However, the account has difficulty in explaining the rights of future generations since it is not clear how current and future persons can stand in a relationship of normative reciprocity. It also has difficulty in explaining the right to engage in harmful defensive action aimed at protecting third parties. This chapter will examine these problems and explore the resources that the Reciprocity Theory to address them.