Legal Theory Seminar 1 PDF

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Legal Theory Seminar 1 Reading 1 Notes (Quong): There is no actual consensus on what rights are and how they work. 1. The Framework of Rights Hohfeld (1919) distinguished rights into 4 types or incidents. Rights are usually claims which correlate with duties which count as wrongs when breached. A lack of a claim is called a noclaim. Rights which confer no duty are liberties or privileges. They often travel in conjunction with claims (such as the right to free speech). Both of these are first-order, referring to the duties people have or don’t have against us. Second-order rights are powers, conferring the ability to alter claims and liberties, such as someone having the power to control who enters their house. A lack of these is a disability, the other person having immunity (lack of immunity is liability). The Hohfeldian framework provides conceptual tools which enable us to see exactly what the contents of each right are. 2. The Function of Rights Why does a claim automatically confer a duty to the claim-holder? Will/choice theory (Hart, Steiner): A normative proposition becomes a rights if its holder can uniquely make decisions about others’ duties regarding something. Right-holder holds unextinguished second-order powers with regard to the duties imposed by a claim.  Can waive compliance  Can demand compliance  Waive compensation for breaches  Demand compensation for breaches  Waive enforcement  Demand enforcement This is coherent with our beliefs on property rights and the view that rights are compossible; duties they convey must be capable of being fulfilled without conflict. It also matches with Kantian justice, giving all rights-holders a big sphere of freedom measured by their domain of control. However, it necessarily identifies a single rights-holder and therefore leaves room for only one person to control how/ if etc duties are fulfilled. This in turn would make law enforcement officials rather than victims of crimes rights-holders as they are the ones who control punishment. This is simply incorrect. It also bars those who can’t make rational choices from having rights (rights-holders=choosers). This is morally wrong and illogical. Finally, it bars the concept of inalienable rights by saying that for every right you have, someone can waive it. Interest theory (Kramer, Lyons, MacCormick, Raz): For someone to be a right-holder, the right must serve their interest; it’s identified by who benefits from it, not by who holds it. This is coherent with ordinary beliefs about rights, doesn’t require you to be a chooser to have a right and explains rights in criminal law as you don’t need to be a right waiver. There is however the issue of third-party beneficiaries; simply because a third party benefits, doesn’t automatically confer upon them a right to the original right-holder’s claim. Also, sometimes having a right to something can actually be an inconvenience. This also doesn’t explain why public officials possess rights. 3. Theories of Rights: Conceptual or Normative? The debate above is conceptual, trying to uncover the concept which explains rights, but in seeking a singular function explanation they are both flawed as rights are too complex. A multi-function theory is more in line with ordinary language (Wenar). However, seeing the variation in language systems this could also be very flawed, providing little normative guidance. Should we therefore instead focus on what normative role rights should play in both justice and morality?

Will theory: rights should mark domain of freedom within which one has normative authority  Interest theory: rights should protect interests sufficiently important to impose a duty on someone else for this purpose Substantive questions however such as animal rights are normative and left unanswered and a rights theory should cohere with our answers to these. By moving between extremes of each answer to each question we should find a satisfying equilibrium between all theories. The problem here will be the existence of normative disagreements. Consensus: Rights are moral constraints on actions grounded in the fact that rights-holders have their own aims and interests distinct from those of others. This may be incompatible with a more collective political system however. More specific but important questions are left unanswered by this constraint view. Rights should constrain behaviour by entering our deliberations on actions and giving us reasons not to do certain things. They therefore only apply when actions arise voluntarily. Claims can only correlate with duties voluntarily performed. Rights can conflict with one another. 

Reading 2 Notes (Wenar 237-52): A. Theories of the Functions of Rights Wenar suggests the existence of an any-incident theory and single-function theories as well as will and interest. Will theory (Kant)- Only incidents which give holders certain choices are rights. Interest theory (Bentham)- Rights are limited to those incidents which benefit the holder. Author believes each theory is too restrictive so a better alternative is found in the severalfunctions theory of rights. He claims it captures the essence of the two above but doesn’t have their constraints as doesn’t require all rights to have a general function, hence being the best explanation of what rights exist and their significance. B. The Will Theory The single function of a right is to give the rightholder discretion over the duty of another eg. the power to waive someone’s duty or benefit, demand specific performance etc; ‘The individual who has the right is a small scale sovereign to whom the duty is owed’ (Hart). It reserves rights for securing dominion over spheres of action, serving the freedom of those who hold them: rights=freedom. It constrains rights to those which include a paired power to (not) create, waive or annul someone’s claim. Potential rightholders are restricted to those who have capacities to exercise powers to alter the duties of others; v narrow theory which excludes things which obviously rights like that against being enslaved as you have no power to waive or annul your claim against it. The counterargument to the narrowness is restricting the theory to a context; Hart says it is satisfactory ‘only at the level of the lawyer concerned with the working of the ‘ordinary’ law’, inadequate to handle constitutional law rights. Will theorists also try to extend rights to people who do have discretion so that someone is always the one in control eg. government officials. However, this makes it the officials’ right, not yours, so again the theory falls. A further limitation is that it can’t account for the rights of the incompetent as they can’t exercise powers rationally. This doesn’t match the ordinary understanding of rights and even seems rather immoral in many cases. C. The Interest Theory The dingle function of rights is to further their holders’ interests. Rights are those incidents whose purpose is to promote well-being of the rightsholder. ‘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). It does however take account of the fact that some rights may in fact be inconvenient to the holder such as some inheritances. It turns on interests rather than choices so unwaivable claims like right against torture are included. The incompetent can also be rightholders. It embraces for Hohfeldian incidents and most interests in the Will Theory since often the ability to make choice is often

beneficial. It is appealing due to the wide range of rights it considers as well as the fact that it matches the idea that rights make life better. However, many rights still exist which don’t have the purpose of benefitting the holder eg. judge has power to sentence but this doesn’t benefit him.The rights is ascribed to benefit third parties (the community); the interest theory is too narrow. Response 1 to this: the existence of rights turns not on the purpose of right’s ascription, but on the sufficiency of the holder’s interests in justifying the right’s normative impact (Raz). This still isn’t enough to justify the normative effects of a judge exercising their right and trying to justify it by linking it to enforcement of public interests only highlights the fact that the judge’s interest in itself is insufficient to ground his right. Role-bearers often do not have interests in their rights sufficient to justify having those rights. When they do not, they cannot have rights (incl Raz justification). Response 2: Kramer denies role-defining rights are rights at all eg. judge has no right to sentence. This saves the interest theory but only if we withdraw ‘rights’ from their ordinary understood meaning in language. D. Any-Incident Theory Each Hohfeldian incident and their combination is a right. It includes all of those identified by the will and interest theories; incidents conferring choices and promoting interests and more. This inclusiveness makes the theory closer to the usual understanding of rights but is in fact too inclusive, counting some incidents as rights when it shouldn’t. In the Hohfeldian framework, rights can have 6 functions: exemption, discretion, authorization, protection, provision and performance. However, not all the Hohfeldian incidents actually perform one or a mixture of these. Some single privileges for example, perform no specific function and don’t confer any exemptions, similarly to some immunities. It is when we refer to these that the any-incident theory fails. Hart provides examples of these; All have no legal duty to assault people therefore single privilege not to assault others. However, we wouldn’t say this privilege is a right as single privilege doesn’t exempt us from a general duty, thus not performing any of the 6 functions. E. Several-functions Theory Any incident is a right as long as it performs one of the 6 prescribed functions: exemption, discretion, or authorization, or entitle their holders to protection, provision, or performance. This eliminates the superfluous incidents which clearly aren’t rights (any incident theory). It includes all rights included in the single-function theories (will and interest), hence resolving their standoff, as well as recognising rights beyond these. It therefore better captures the general understanding society has of rights. It accepts there is no one thing rights do for rightholders, no fundamental normative purpose. Instead, it says rights play different roles. As long as people use the right language to base their understanding of Hohfeldian incidents, then this theory won’t be met with a language-based looseness it can’t overcome. It will therefore remain most consistent with our normal understanding of rights, the main criterion over which there is debate. The debate is on the functions of rights adf to settle the dispute we must find a primary standard of what rights are and what roles they play in our lives. By not restricting rights to just a single one, this theory succeeds in this as well as eliminating counter-intuitive results. Finally, it avoids what has in fact become more of a normative debate between other theorists; whether rights should be distributed to create equal domains of freedom (Kant and Steiner) or that the point of them is a more moral one of well being (Raz). They preempt objections to the preferred normative theory which will then convince more people that the conceptual basis which underlies it is correct. A strong normative argument is more likely to withstand criticism. Conclusion The congruence of the several functions of theory with our normal understanding of rights is what makes it preferable but a fuller theory is always desired.  Why is it these 6 functions that make a right?  Why no others?  Why must they characterise rights?

The concept of a right changes with history, first looking at religion, then bureaucracy, then empowerment. We have inherited a constantly remoulded concept, hence it will always be overly complex to reduce to a single theory. Still, we will continue to search for one unity all rights share.  All rights are Hohfeldian incidents.  All Hohfeldian incidents are rights if they perform one of the 6 functions.  Rights are therefore Hohfeldian incidents which perform 1+ of the 6 specific functions. Preparation for this week’s seminar: If the theoretical tools discussed in these extracts are correct, then they should work for any right we can think of. In this week’s seminar, we will be testing this claim. Think of two legal rights: one that you currently possess and value greatly, and another that you do not currently possess but believe that you should. Right to a fair trial It could be seen as an immunity; the government can’t take away this right. It could also be a claim. It requires a judicial system which will support this right as well as potentially requiring the other side not to submit certain evidence and behave in accordance with other court rules. It also confers certain liberties in terms of lawyer choice etc. It can be justified by the interest theory but not so much the will theory. Right to personal liberty (can link to right to life/ abortion/ organ sales etc depending on jurisdiction and how the law sees body ownership) We can’t be forced to commit certain acts. It is however more difficult to make a positive claim. Property rights Confer powers in the seller/ lessor etc. In these transactions, you are changing the legal status in relation to the property of the others involved. Right to abortion/ euthanasia- Should right to euthanasia be seen as an immunity or a power? Power: the ability to make a written statement saying that someone will help you die and shouldn’t be punished as this is your will, changing their legal status so they’re not seen as a criminal. Right to die can be justified by both the will and the interest theory. Right to mother nature (Ecuador): Liberty; make choices as to how/ which resources are used Claim; refrain from polluting etc, create policies which will enforce sustainability and environmental protection and education on these It is easier to justify the rights which you already have. (1) Explain these rights in Hohfeldian terms. (2) How would a will or interest theorist justify these rights? (3) Which right is easier to justify, the right that you already possess or the right that you believe that you should possess? Which of these theoretical tasks do you believe that rights discourse is better suited to? We will discuss your answers to these questions in class.

Part One – A Framework of Rights Quong begins by offering a short overview of Hohfeld’s analysis of the form of rights. ‘First, and most centrally, rights can refer to claims...Claims thus always correlate with duties —whenever one person has a claim, at least one other person owes a duty to the claimholder.’ (618) ‘To be under no duty not to perform some action, X, is to have a liberty or privilege to do X.’ (618) ‘Although claims and liberties often travel together, it’s important not to confuse them.’ (618) Question for consideration: (1) Using Quong’s boxing example, explain the difference between a liberty-right and a claim-right to punch an opponent. Liberties and Claims are often blended together in our everyday thinking to form complicated ‘molecular’ rights. ‘We thus often apply the term “right” in ordinary discourse to what is in fact a cluster or conjunction of Hohfeldian claims and liberties.’ (619) ‘Claims and liberties cover “first order” assertions of rights—they account for the cases where our rights talk refers to what duties individuals are, or are not, under with regard to other individuals’ claims. But there is also a “second order” of rights discourse: assertions about how we can alter our first order claims and liberties.’ (619) ‘...Betty possesses what Hohfeld calls a power—the authority to alter the claims or liberties of others, in this case, the liberty of others to enter Betty’s apartment.’ (619) ‘When someone lacks the power to alter some other person’s claims or liberties, then the latter has what Hohfeld calls an immunity.’ (619) Questions for consideration:   

(2) Using an original example, explain the difference between first-order and secondorder rights. First order: claims and liberties which allow us to do something Second order: powers which allow us to alter someone’s 1st order rights

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(3) Can you think of a legal right that you enjoy that does not fit into Hohfeld’s analysis?

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(4) What benefit does Hohfeld’s analysis bring to rights discourse? It brings about a more systematic way of defining rights, one which allows us to break them down to see what their actual content is.

Part Two – The Function of Rights

In this section, Quong explains the features of different justifications of how rights function. ‘Many philosophers believe that there is single account of the connection between claims and duties—a single explanation of exactly what makes it the case that a duty-bearer owes his duty to the claim-holder, and not to some other person.’ (620) Historically, there have been two main theories of the function of rights – the Will and Interest theories of rights. ‘The will or choice theory of rights...identifies the right-holder as the person who holds all the unextinguished second-order powers with regard to the duties correlated with a given claim.’ (620) ‘The will theory, as a general account of rights, has a number of virtues...Despite these attractive features, the will theory also faces several serious objections.’ (620) Question for consideration: (5) Briefly explain the virtues and flaws of the Will Theory of Rights. This is coherent with our beliefs on property rights and the view that rights are compossible; duties they convey must be capable of being fulfilled without conflict. It also matches with Kantian justice, giving all rights-holders a big sphere of freedom measured by their domain of control. However, it necessarily identifies a single rights-holder and therefore leaves room for only one person to control how/ if etc duties are fulfilled. This in turn would make law enforcement officials rather than victims of crimes rights-holders as they are the ones who control punishment. This is simply incorrect. It also bars those who can’t make rational choices from having rights (rights-holders=choosers). This is morally wrong and illogical. Finally, it bars the concept of inalienable rights by saying that for every right you have, someone can waive it. ‘The will theory’s main rival is the interest theory of rights. According to the interest theory, a necessary condition for one person being a right-holder is that the alleged right serve some interest of the person in question. Rights are thus not identified by determining who holds the power to waive or demand enforcement of a claim, but rather by determining who benefits from the existence of the right.’ (621) Questions for consideration: (6) What are the virtues and flaws of the Interest Theory of Rights? For someone to be a right-holder, the right must serve their interest; it’s identified by who benefits from it, not by who holds it. This is coherent with ordinary beliefs about rights, doesn’t require you to be a chooser to have a right and explains rights in criminal law as you don’t need to be a right waiver. There is however the issue of third-party beneficiaries; simply because a third party benefits, doesn’t automatically confer upon them a right to the original right-holder’s claim. Also, sometimes having a right to something can actually be an inconvenience. This also doesn’t explain why public officials possess rights. (7) How do they compare to those of the Will Theory of Rights? ‘Of course, will and interest theorists believe the objections to their respective theories can be met. But in light of the difficulties faced by both theories, some philosophers have chosen instead to search for a third theory of rights, one that either fuses the interest and will theories or eschews both views by abandoning the search for a single-function theory of rights.’ (622)

Part Three – Theories of Rights: Conceptual or N...