Interest and Will Theory Debate PDF

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In Hart’s version of the will theory the focus is on the recognition of the right holder’s will or ‘choice’. A right invests the right holder with a choice to uphold and enforce the subject matter of the right, such as by way of court proceedings or action falling short of that (for instance, instructing a ‘lawyer’s letter’); or by making a conscious decision not to enforce or to assert the right, such as by waiving or extinguishing it. Conscious inaction – effectively doing nothing – is in fact another way of expressing the relevant choice. Hart claims in relation to a variety of rights – taking in liberty-rights, rights as powers, and rights correlative to obligations – that there are considerations leading him to conclude that: ... in each of these three types of case one who has a right has a choice respected by the law. On this view there would be only one sense of legal right – a legally respected choice – though it would be one with different exemplifications, depending on the kind of act or act-in-the-law which there is liberty to do (Hart, 1982: 188–189). It can be seen that, in placing emphasis on choice, Hart by implication or extension underlines the importance of individual autonomy. This is coupled with an onslaught against an interpretation of the interest theory which maintains that a right holder is merely a kind of ‘beneficiary’ of an obligation due to him or her by another person – for example, the duty bearer in a relationship. Inevitably, in Hart’s view, that impels the interest theory towards a narrowly Hohfeldian view of rights (Hohfeld, 1919) which places Hohfeld’s ‘correlativity thesis’ at the centre of the analysis,8 at the same time threatening to eliminate the very use of rightslanguage. This is Hart’s so-called charge of redundancy (Hart, 1982: 182): if to have a legal right means no more than to have the benefit of (or the interest represented by) performance of a legal duty on the part of someone other than the right holder then the language of rights – possibly, indeed, the very idea of a right – becomes redundant. In short, why use the expression legal ‘right’ at all when in principle a statement framed in terms of the more fundamental concept of legal ‘duty’ could always be substituted in its place and would say the same as the rights statement? The principal advocates of benefit or ‘interest’ theories of rights correlative to obligations have shown themselves sensitive to the criticism that, if to say that an individual has such a right means no more than that he is the intended beneficiary of a duty, then ‘a right’ in this sense may be an unnecessary, and perhaps confusing, term in the description of the law; since all that can be said in a terminology of such rights can be and indeed is, best said in the indispensable terminology of duty (Hart, 1982: 181–182).

Hart makes clear that the idea of choice inherent in the will theory ensures that, unlike the interest theory, the will theory is not subverted by the charge of redundancy. The will theory recognises the element of choice that the right holder has over and above what the interest theory would, at least according to Hart, allow for – i.e. nothing more than the benefit of, or the interest in, performance of a legal duty by a duty bearer. In other words, if the interest theory acknowledges that the content of a legal right is precisely equivalent to, and no more than, the content of a legal duty, the theory (so the argument goes) offers little more than a reduction of rights and rights-language to the arguably more fundamental idea of duties and duty-language, leaving no room for the essential additional element of right holder’s choice. It is all too easy, considering the weight that Hart, and indeed commentators on Hart, give to the element of right holder’s choice, to overlook that, integral to key formulations of his version of the will theory is a conception of the position of the ‘other’ against whom a right may be enforced (and the resultant position of the right holder), echoing the very element said to be essential to the interest theory that Hart goes to some effort to minimise – Hohfeld’s ‘correlativity thesis’. The analysis of a right correlative to obligation which is suggested by the foregoing criticisms of the benefit theory is that for such a right to exist it is neither sufficient nor necessary for the person who had the right to be the beneficiary of the obligation; what is sufficient and necessary is that he should have at least some measure of the control, described above, over the correlative obligation (Hart, 1982: 187–188). It would not be correct to say that Hart believes that a right holder merely has a ‘choice’, period. Choices do not exist in a vacuum. They have to be made in relation to something. If a law confers a right the right holder, according to Hart, is in a position to make a choice in a way that is calculated ultimately to prevail over the will of another. Hart uses expressions such as: ‘exclusive con- trol’ (Hart, 1982: 183), ‘legal powers ... over a correlative obligation’ (Hart, 1982: 184) and ‘legal powers of control ... over [an] ... obligation’ (Hart, 1982: 188). By this account a right holder could be seen not only to have a choice over, or control of, his or her own actions in terms of whether he or she takes steps to enforce a right, waive it, or to leave it unenforced, but by extension an ability, conferred by the right, to control the acts of others, for example, a duty bearer. The key notion of choice – and the centring of the will theory on the choices of the right holder – can easily mask the recognition that Hart’s version of the will theory is critically dependent not on some detached notion of choice, but on the idea of choice coupled with the element of control of self and others.

Hart apparently downplays the importance of Hohfeld’s ‘correlativity thesis’, which turns so decisively on the indivisibility of the relational dimension of legal rights, where (taking Hohfeldian claim rights as an instance) a right implies a duty and the same duty implies the same right. Hart is doubtless driven to make light of the ‘correlativity thesis’ precisely because it plays such a pivotal role within the interest theory as Hart depicts it. Hart’s account of the will theory – reliant as it is upon the extended element of control of others – in fact suggests a similarly pressing need to position the ‘correlativity thesis’ at the centre of that theory. And by giving prominence to concepts such as ‘con- trol’ and ‘legal powers of control’, Hart’s will theory has resonances of theories that view rights as powers: for example, sociological analyses of legal rights as a form of social power. Turning to the fundamentals of the interest theory as MacCormick portrays it, the focus remains on the right holder but, in contrast to the will theory, there is a shift away from the right holder’s choice or power of control to his or her interests. If a law confers a right upon someone it ensures the protection of an interest of – or conferment of a benefit upon – that person by imposing constraints on the acts of others in relation to the object of the interest. As MacCormick puts it: The ‘interest theory’ ... contends that what is essential to the constitution of a right is the legal (or moral) protection or promotion of one person’s interests as against some other person or the world at large, by the imposition on the latter of duties, disabilities, or liabilities in respect of the party favoured. ... The essential feature of rules which confer rights is that they have as a specific aim the protection or advancement of individual interests or goods (MacCormick, 1977: 192). Using a critique of Hartian will theory as a means of arguing for his version of the rival interest theory, MacCormick contends that his primary objection to Hart’s version of the will theory centres on the idea that the possession of a right is entirely dependent on the control (or choice) which the right holder has in relation to enforcing the right, waiving it or leaving it unenforced. For MacCormick the key difficulty is that the concept of a right, when seen in terms of Hart’s will theory, is definitionally dependent on this idea. Hart makes himself peculiarly vulnerable to MacCormick’s critique when he asserts that: ‘...what is sufficient and necessary [for a right to exist] is that [the right holder] ... should have at least some measure of the control, described above, over the correlative obligation’ (Hart, 1982: 188). Hart further argues that

we may substitute for the utilitarian idea of a benefit a different ‘ defining feature of a right correlative to obligation’, namely ‘the individual’s legal powers of control, full or partial, over that obligation’ (p. 188; emphasis added). It would appear that for Hart, for an individual to be in possession of a right, it is not merely necessary for there to be the relevant power of control, it is sufficient. Looking at this more closely, the absence of a feature deemed ‘merely’ necessary to a particular conception would ordinarily, at least, imperil that conception unless it could be conceded, for instance, that in certain exceptional cases the required feature may be absent. However, if it can be argued that in certain relatively standard instances a feature deemed ‘sufficient’ to the conception – indeed as Hart puts it, both necessary and sufficient – is clearly absent, that is surely fatal to the conception. An absent ‘necessary and sufficient’ feature is an absent exhaustive feature – not only does it need to be there but it is all that needs to be there. Without it, the conception itself vanishes. This is effectively the line that MacCormick pursues. MacCormick cites a number of instances where the law clearly denies the right holder any power or choice in the matter of exercising (or not exercising) a right – as discussed further below – and concludes: If there be no power to waive or assert the immunity, the claim, or whatever, upon some matter, upon that matter there is, by definition, no right either (MacCormick, 1977: 196). It goes without saying that the interest theory as MacCormick depicts it is not similarly dependent upon a single feature whose absence, in given standard instances, threatens to undermine the validity of the entire theory. What is especially remarkable for purposes of the present discussion, however, is the ways in which certain characteristics of children’s rights identified by MacCormick appear to have posed significant challenges for the will theory, arguably rendering untenable (certainly in MacCormick’s opinion) key elements of one of the most prominent formulations of that theory – H. L. A. Hart’s.

Challenges to the Will Theory As we have seen, MacCormick argues that Hart’s particular version of the will theory leads to a single inescapable conclusion: if there be no power of control in relation to the exercise or nonexercise of (what might ordinarily be claimed to be) a right in a given case there is by definition no right, and this has wider repercussions for a theory of rights that appears to insist on the element of power of control and attendant choices as being constitutive of rights. MacCormick, of course, concedes that in a majority of cases a right holder will be invested with the relevant power of control and attendant choices; and clearly this would tend to uphold the will theory. [T]he central point which the [will] theory stresses is one which should not be denied. It is certainly true that apart from such cases as those of children or the mentally incapacitated, the holder of a legal right is normally permitted and empowered in law to choose whether or not on any given occasion he should avail himself of his right by insisting on performance by another party of the relevant duty. ... But while conceding the truth, and the practical importance, of these points, I would strongly contend that powers of waiver or enforcement are essentially ancillary to, not constitutive of, rights (whether primary rights or remedial rights) (MacCormick, 1982: 164).

MacCormick outlines at least three broad areas of discussion rele- vant to children’s rights which underpin his offensive against Hartian will the- ory. The first two areas are intimately linked, whilst all three are in compelling ways interlinked. In the first place MacCormick makes a powerful moral asser- tion of the rights of the child. Secondly, and deriving in part from the announced moral status of children’s rights, MacCormick argues that (at least some) chil- dren’s rights are ‘inalienable’ in a special sense. Finally, MacCormick contends that (young) children are often not the best judges of what is good for them. Indeed they may not have the volitional capacity or maturity to exercise pow- ers and make relevant choices attending such rights as they may be said to possess....