The Case Against the Theories of Rights

40(2) Oxford Journal of Legal Studies 320-346 (2020)

38 Pages Posted: 8 Nov 2019 Last revised: 12 Nov 2020

See all articles by David Frydrych

David Frydrych

Monash University - Faculty of Law

Date Written: 2019

Abstract

There is a long-standing debate about how best to explain rights – one dominated by two rivals, the Interest and Will theories. This article argues that, not only is each theory irredeemably flawed, the entire debate ought to be abandoned. Section two explains the debate and its constituent theories as a dispute over the criteria for the concept of a right, or for some subset of rights. Section three argues that each theory contains fatal idiosyncratic defects – ones that mostly differ from the canonical criticisms found throughout the literature. Section four then argues that the theories also suffer from graver common defects that have hitherto gone undetected. First, their criteria are unmotivated, unjustified, and of questionable accuracy. Secondly, rights theorists’ own commitments to different kinds of accounts of rights (i.e., models) and theories of law (e.g., legal positivism) show why any theory of this sort is unnecessary for understanding rights.

Keywords: Theories of Rights, Rights, Will Theory, Interest Theory, Jurisprudence, Legal Theory, Legal Philosophy, Philosophy of Rights

Suggested Citation

Frydrych, David, The Case Against the Theories of Rights (2019). 40(2) Oxford Journal of Legal Studies 320-346 (2020), Available at SSRN: https://ssrn.com/abstract=3476945 or http://dx.doi.org/10.2139/ssrn.3476945

David Frydrych (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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