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The Nature of Rights

Wenar, Leif (2005) The Nature of Rights. Philosophy and Public Affairs, 33 (3). pp. 223-253. ISSN 1088-4963

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The twentieth century saw a vigorous debate over the nature of rights. Will theorists argued that the function of rights is to allocate domains of freedom. Interest theorists portrayed rights as defenders of well-being. Each side declared its conceptual analysis to be closer to an ordinary understanding of what rights there are, and to an ordinary understanding of what rights do for rightholders. Neither side could win a decisive victory, and the debate ended in a standoff.

This article offers a new analysis of rights. The first half of the article sets out an analytical framework adequate for explicating all assertions of rights. This framework is an elaboration of Hohfeld’s, designed around a template for displaying the often complex internal structures of rights. Those unfamiliar with Hohfeld’s work should find that the exposition here presumes no prior knowledge of it. Those who know Hohfeld will find innovations in how the system is defined and presented. Any theorist wishing to specify precisely what is at stake within a controversy over some particular right may find this framework useful.

The analytical framework is then deployed in the second half of the article to resolve the dispute between the will and interest theories. Despite the appeal of freedom and well-being as organizing ideas, each of these theories is clearly too narrow. We accept rights, which do not (as the will theory holds) define domains of freedom; and we affirm rights whose aim is not (as the interest theory claims) to further the interests of the rightholder. A third theory, introduced here, is superior in describing the functions of rights as they are commonly understood.

Item Type: Article
Copyright, Publisher and Additional Information: © 2005 by Blackwell Publishing, Inc. This is an electronic version of an article published in Philosophy and Public Affairs: complete citation information for the final version of the paper, as published in the print edition of [name of journal], is available on the Blackwell Synergy online delivery service, accessible via the journal's website at http://www.blackwell-synergy.com/doi/abs/10.1111/j.1088-4963.2005.00032.x
Institution: The University of Sheffield
Academic Units: The University of Sheffield > Faculty of Arts and Humanities (Sheffield) > Department of Philosophy (Sheffield)
Depositing User: Leif Wenar
Date Deposited: 26 Oct 2006
Last Modified: 04 Jun 2014 08:59
Published Version: http://www.blackwell-synergy.com/doi/abs/10.1111/j...
Status: Published
Publisher: Blackwell Publishing
Refereed: Yes
Identification Number: 10.1111/j.1088-4963.2005.00032.x
Related URLs:
URI: http://eprints.whiterose.ac.uk/id/eprint/1619

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