Jurisprudence
The Theories of Legal Rights
At a Glance ▪ Two main theories explain what a right does. The will (choice) theory: a right protects the holder's choice. The interest (benefit) theory: a right protects the holder's interest. ▪ Will theory: Kant, Savigny, Windscheid, Hegel (as grouped in Indian textbooks) and, in modern form, H.L.A. Hart, for whom the right-holder is a 'small-scale sovereign' over another's duty. ▪ Interest theory: Bentham's benefit theory came first; Jhering made it classic (a right is a legally protected interest); Salmond, Raz and MacCormick developed it. ▪ The hard cases (children, unwaivable rights, third-party beneficiaries, criminal law, animals) test each theory. Most favour the interest theory; Hart himself conceded some ground in 1982. ▪ Other views: Kelsen (rights as reflexes of duties), Duguit (no rights, only social functions), Pound (interests), Dworkin (rights as trumps). |
Think of two things a parent might give a child. One is a remote control: the child decides whether the television is on or off. The other is a seat belt: it protects the child whether or not the child wants it, and the child cannot take it off. Is a legal right more like the remote control or the seat belt? The will theory says a right is a remote control: it puts another person's duty under the holder's control. The interest theory says a right is a seat belt: it protects something good for the holder, whether or not he chooses. Most real rights have both features, which is why the debate has lasted two centuries. Note 28 explained what a right is made of; this note explains why the law recognises rights at all, and which theory best fits the rights we actually have.
1. The Question the Theories Answer
Salmond defined a right as an interest recognised and protected by a rule of right, respect for which is a duty and disregard of which is a wrong (Note 28). That definition already takes a side: it is an interest definition. Holland's definition, a capacity of controlling the actions of others with the assent and assistance of the State, takes the other side: it is a will definition. The theories of rights ask what is the function of a right. Is it to give the holder a kind of sovereignty over another's conduct, or to protect a benefit to him? The answer matters. It decides who holds a right (the child or the guardian? the promisee or the third-party beneficiary?), whether rights can be waived, and whether animals or future generations can have rights at all.
2. The Will or Choice Theory
On the will theory, a right is a legally protected choice. The holder is given a sphere in which his will is decisive: he may demand performance of the duty or release it, sue on the right or let it go. The theory grew out of German idealist philosophy and Roman law scholarship.
The will theorists ▪ Kant. Right (Recht) is the sum of conditions under which the free choice of one person can coexist with the free choice of others under a universal law of freedom. Rights mark out spheres of external freedom. ▪ Savigny. A right is a power belonging to an individual, a domain in which his will reigns with the consent of all. (Savigny also stands behind the fiction theory of corporate personality: Note 33.) ▪ Windscheid. In his Pandects, a right is a power or dominion of the will conferred by the legal order. Critics at once asked how an infant or a person of unsound mind, who has no legally effective will, could then hold rights. ▪ Hegel. Grouped with the will theorists in Indian textbooks: right is the existence of the free will; property and contract are the embodiments of the person's will (see Note 32). ▪ Hart. The modern champion. In 'Bentham on Legal Rights' (1973), reprinted in Essays on Bentham (1982), the right-holder is a 'small-scale sovereign' over the correlative duty. |
Hart's version
Hart gave the will theory its sharpest form. To have a right is to have control over another's duty, and that control has three parts: the holder may waive or extinguish the duty or leave it in existence; after a breach he may enforce it by suing or leave it unenforced; and he may waive or extinguish the obligation to pay compensation that the breach creates. On this view a creditor has a right because he can forgive the debt, sue for it, or release the damages. Hart linked rights to freedom: rights exist to protect individual choice.
Hart was honest about the limits. In Essays on Bentham (1982) he conceded that the choice theory cannot explain constitutional immunities (a citizen cannot waive the legislature's disability to abridge his freedom of speech) or the protections of the criminal law (the victim of assault cannot release the assailant from the duty or stop the State prosecuting). For such cases, Hart accepted, a different account based on the individual's basic needs or benefits is required. This concession is a favourite point in answers: the leading will theorist admitted that his theory does not cover all rights.
3. The Interest or Benefit Theory
On the interest theory, a right is a legally protected interest. What matters is not whether the holder can choose, but whether the law imposes duties on others for his benefit.
The interest theorists ▪ Bentham (the benefit theory). Bentham came first. A person has a right when he is the intended beneficiary of another's legal duty. Rights are the fruit of duties: the law imposes a duty, and the person meant to benefit has a right. Bentham despised natural rights, calling them 'nonsense upon stilts'. ▪ Jhering (also spelt Ihering). Rights are legally protected interests. A right has two elements: a substantial element, the interest or benefit which is its practical purpose, and a formal element, the legal protection, above all the action at law, which secures it. The interest is the kernel; the protection is the shell. ▪ Salmond. His definition (an interest recognised and protected by a rule of right) made the interest theory standard in Commonwealth teaching. ▪ Raz (The Morality of Freedom, 1986). In substance: a person has a right when an aspect of his well-being, his interest, is a sufficient reason for holding some other person to be under a duty. The interest grounds the duty; the right is the intermediate conclusion between them. ▪ MacCormick ('Children's Rights: A Test-Case', 1976). Children have rights to care and nurture, yet cannot waive or enforce them. It would be absurd to say the right really belongs to the guardian who can waive it. So the will theory fails the test case; the interest theory passes. ▪ Kramer. In A Debate over Rights (1998), written with Simmonds and Steiner, Kramer defended the interest theory while Simmonds and Steiner defended the will theory. It is the leading modern exchange. |
The interest theory also explains the dynamic character of rights stressed by Raz and MacCormick. Because the right is the ground of the duty rather than its mere shadow, one right can generate new duties as circumstances change. A child's right to education, for example, has produced duties on parents, schools and the State that no one listed when the right was first recognised. On the will theory, by contrast, the right is fixed by the duty it controls.
4. The Objections
Against the interest theory
Gray made the classic objection: a right is not the interest itself but the means by which the enjoyment of the interest is secured. Interests exist before and apart from law; what the law adds is the right. Two further objections are common. The interest theory is over-inclusive: many people benefit from a duty without having a right to its performance (if A owes B money, B's own creditors benefit when A pays, yet they have no right against A). And it is under-inclusive in the other direction: some rights do not serve the holder's interest at all, such as a trustee's rights, which exist for the beneficiary, or an official's powers, held for the public. Raz answers that rights may protect the holder's interest as part of a wider public good (a journalist's right to free speech serves the public too).
Against the will theory
The will theory is under-inclusive. It cannot easily find rights in those who cannot choose (infants, the unconscious, persons of unsound mind), in rights that cannot be waived (fundamental rights, the right not to be enslaved), or in the criminal law. It must say that the guardian, the court or the State holds these rights, which contradicts ordinary legal language. Its defenders reply that such protections are real, but are better called immunities or protected statuses than rights in the strict sense; the dispute is then partly verbal.
5. The Hard Cases
Hard case | Will theory says | Interest theory says |
|---|---|---|
Children and incompetents | No rights of their own; rights are exercised by, or belong to, the guardian | They hold rights, since they have interests; a guardian merely exercises them (MacCormick) |
Unwaivable rights (fundamental rights, freedom from slavery) | Not true rights, since the holder cannot waive; better called immunities | True rights: the interest is protected whether or not the holder consents |
Third-party beneficiaries (A contracts with B to pay C) | The right is B's, since only B can enforce or release it | C may have a right as intended beneficiary (Bentham); critics call this over-inclusive |
Criminal law | No individual right: the victim cannot waive the duty or stop the prosecution | Each person's interest in bodily safety grounds rights correlative to criminal duties |
Animals | Cannot hold rights, since they cannot choose | Can hold rights, since they have interests the law can protect |
Indian law has taken positions on several of these. The contract rule of privity means that a stranger to a contract generally cannot sue on it, which fits the will theory, though Indian courts allow exceptions such as trusts and family arrangements. Fundamental rights cannot be waived, which fits the interest theory. And the Supreme Court has spoken of the rights of animals, which only the interest theory can accommodate.
6. The Other Theories
Beyond will and interest ▪ Kelsen: rights as reflexes. A right is only the reflex of a duty: the same norm seen from the other side. The only right with independent meaning is the legal power to set the sanction in motion by suing. Kelsen thus dissolves the debate into the analysis of duty (Note 12). ▪ Duguit: the denial of rights. There are no subjective rights, only social functions. Every person has a duty to perform his function in the interest of social solidarity, and the law protects acts done in performance of it (Note 69). ▪ Pound: rights and interests. Law secures individual, public and social interests; a legal right is one device by which a recognised interest is secured, alongside privileges, powers and liberties (Note 14). ▪ Dworkin: rights as trumps. In Taking Rights Seriously (1977), rights are trumps held by individuals against collective goals. A right means the government may not deny the individual something even if the general welfare would gain. Dworkin's account concerns the force of rights rather than their function (Note 19). ▪ Allen: the synthesis. A right is neither interest alone nor power alone, but the legally guaranteed power to realise an interest (Note 28). |
7. The Two Theories Compared
Basis | Will (choice) theory | Interest (benefit) theory |
|---|---|---|
What a right protects | The holder's choice or will | The holder's interest or well-being |
Test of a right-holder | Who can waive or enforce the duty? | Whose interest is the duty meant to serve? |
Classical exponents | Kant, Savigny, Windscheid, Hegel | Bentham, Jhering, Salmond |
Modern exponents | Hart, Simmonds, Steiner | Raz, MacCormick, Kramer |
Value served | Freedom and autonomy | Welfare and protection |
Main strength | Explains waiver and enforcement | Explains rights of children, animals, unwaivable rights |
Main weakness | Under-inclusive | Over-inclusive; confuses interest with its protection (Gray) |
8. The Indian Perspective
Indian constitutional law leans towards the interest theory on waiver and on the rights of the vulnerable, while using the vocabulary of choice and autonomy for personal liberty.
Basheshar Nath v Commissioner of Income Tax Supreme Court of India, 1959 (5 judges) A taxpayer who had agreed to a settlement under a special tax procedure later challenged it. The Court held that he could not waive the protection of Art. 14, which rests on public policy; some judges went further and held that no fundamental right can be waived. A right the holder cannot release is hard to square with the will theory. |
Olga Tellis v Bombay Municipal Corporation Supreme Court of India, 1985 (5 judges) Pavement dwellers had earlier conceded in the High Court that they would not claim protection against eviction. The Court held there can be no estoppel against the Constitution: a concession cannot take away a fundamental right. It also read the right to livelihood into Art. 21, an interest-based reading of liberty. |
Animal Welfare Board of India v A. Nagaraja Supreme Court of India, 2014 Banning jallikattu and bullock-cart races, the Court read the Prevention of Cruelty to Animals Act 1960 with Art. 51A(g) and (h) and spoke of the rights of animals, including the five freedoms (from hunger, discomfort, pain, fear and distress, and to express normal behaviour). Animals cannot choose, so only the interest theory explains such rights. (A 2023 Constitution Bench later upheld State amendments permitting regulated jallikattu.) |
Common Cause v Union of India Supreme Court of India, 2018 (5 judges) Recognising the right to die with dignity and giving legal force to advance directives (living wills), the Court grounded the decision in autonomy and self-determination: the patient's choice to refuse treatment governs. This is the language of the will theory, applied within Art. 21. |
In K.S. Puttaswamy v Union of India (Supreme Court of India, 2017, 9 judges), privacy was held to include decisional autonomy, the freedom to make intimate personal choices. Indian rights law thus uses both theories: interest where the holder is vulnerable or the right is unwaivable, choice where personal liberty is at stake.
9. Evaluation
Neither theory explains every right. The will theory captures the freedom that rights secure and explains waiver and enforcement, but fails for those who cannot choose. The interest theory covers the vulnerable and the unwaivable, but risks making every beneficiary a right-holder and, as Gray said, confuses the interest with its protection. Hart's own concession, MacCormick's test case and Allen's synthesis all point to the same conclusion: a legal right usually protects an interest by giving someone a legally guaranteed power, and different rights place the weight differently. For the short comparative treatment, see Note 71.
Memory Aid ▪ Analogy: the will theory's right is a remote control (the holder decides); the interest theory's right is a seat belt (it protects you whether you like it or not). ▪ Will team: 'Kings Summon With Heavy Hands'. Kant, Savigny, Windscheid, Hegel, Hart. Kings command, like Hart's small-scale sovereign. ▪ Interest team: 'Babies Just Seek Real Milk'. Bentham, Jhering, Salmond, Raz, MacCormick. Babies cannot choose, but they have interests: the interest theory's test case. ▪ Hart = choice; Raz = interest. Pupil and teacher took opposite sides: Raz studied under Hart at Oxford. |
Exam Corner: Likely Questions ▪ Critically examine the will and interest theories of legal rights. Which is more satisfactory? ▪ 'A right is a legally protected interest.' Discuss with reference to Jhering, Salmond and Gray. ▪ Explain Hart's choice theory. What concessions did Hart make? ▪ Can children and animals have legal rights? Discuss with Indian cases. |
Exam Corner: MCQ Traps ▪ Hart is a will (choice) theorist; Raz is an interest theorist. ▪ Savigny appears twice: in the will theory of rights and in the fiction theory of corporations. ▪ Bentham's benefit theory precedes Jhering's interest theory. ▪ 'The right is the means of protecting the interest, not the interest itself' is Gray's objection. ▪ 'Rights as trumps' is Dworkin (Taking Rights Seriously, 1977). |
10. Frequently Asked Questions
Q. Which theory better explains the rights of children?
A. The interest theory. Children have interests the law protects, though they cannot waive or enforce their rights. MacCormick (1976) used children's rights as the test case against the will theory.
Q. What did Hart concede about the will theory?
A. In Essays on Bentham (1982) he accepted that the choice theory cannot explain constitutional immunities or the protections of the criminal law, and that such cases need an account based on individual needs or benefits.
Q. Can fundamental rights be waived in India?
A. No. Basheshar Nath v CIT (1959) held that the protection of Art. 14 cannot be waived, and Olga Tellis (1985) held there is no estoppel against the Constitution. This supports the interest theory.
See also: Note 12 (Kelsen), Note 14 (Pound and interests), Note 19 (Dworkin), Note 28 (rights and duties), Note 33 (legal personality), Note 71 (will v interest theory), Note 77 (legal v moral rights), Note 78 (natural v legal rights).
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