Jurisprudence
Will Theory versus Interest Theory of Rights
At a Glance ▪ What does a right protect? The will (choice) theory says: the holder's control over another's duty. The interest (benefit) theory says: the holder's interest. The full theories are in Note 29; this note is the head-to-head comparison. ▪ Will theorists: Kant (roots), Savigny, Windscheid, Holland, and above all Hart, for whom the right-holder is a 'small-scale sovereign'. ▪ Interest theorists: Bentham, Jhering (founder), Salmond, and modern writers Raz, MacCormick and Kramer. ▪ The test cases: children and incompetents, unwaivable rights, third-party beneficiaries, the criminal law, animals, the dead and future generations. ▪ Indian constitutional law leans to the interest side (fundamental rights cannot be waived: Basheshar Nath, 1959) while protecting choice where autonomy is at stake (Suchita Srivastava, 2009). |
Imagine two keys. One is the key to a locker that only you can open or leave open for a friend: what matters is that you control it. The other is a key held by a guardian who must use it for your benefit, whether or not you are able to ask. The will theory says a right is the first kind of key: a power of choice. The interest theory says it is the second: a legal protection of your good. Both keys exist in law, which is why the debate has never been settled.
1. The Will Theory
The will theory has its roots in Kant's idea of freedom and was developed by Savigny and Windscheid, who described a right as a power or dominion of the will conferred by the legal order. In English jurisprudence Holland's definition is a will-theory definition. Its modern champion is H.L.A. Hart, in his essays on Bentham. For Hart, the holder of a right has the fullest measure of control over another's duty: he may waive or extinguish it, enforce it or leave it unenforced after breach, and waive the resulting obligation to pay compensation. In that sense the right-holder is a small-scale sovereign. In Hohfeld's terms (Note 72), a will-theory right is a claim coupled with a power over that claim.
The theory's consequence is often misstated. It does not say that duties exist without anyone benefiting; it says that where no one controls a duty there is no right-holder. Most of the criminal law is of this kind: the victim of an assault cannot waive the State's prosecution, so on the will theory the duty not to assault, as a criminal duty, correlates with no one's right. Hart himself conceded that the will theory cannot explain constitutional immunities, such as fundamental rights that protect individuals against the legislature, or the duties of the criminal law, and he accepted that a different account was needed for them. Modern defenders, notably Simmonds and Steiner, accept the narrowness as a price worth paying: they say the theory captures what is distinctive about rights, the moral priority of the holder's freedom, and that children and animals are protected by duties even if they do not hold rights in the strict sense.
2. The Interest Theory
Bentham explained rights as benefits conferred by duties: a person has a right when he is the intended beneficiary of another's duty. On this view the criminal law does confer rights, because potential victims are the intended beneficiaries of the duties it imposes, the very point on which the will theory says there is no right-holder. Jhering (also spelt Ihering) gave the theory its classic form: rights are legally protected interests, with a substantial element (the interest) and a formal element (legal protection by action). Salmond defined a right as an interest recognised and protected by a rule of right, that is, by law; respect for it is a duty and disregard of it a wrong. Gray objected that Jhering confused the right with its object: the interest is what the right protects, not the right itself; the right is the means of protection.
Modern interest theorists sharpened the idea. Joseph Raz, in The Morality of Freedom (1986), argued, in paraphrase, that X has a right if an aspect of X's well-being is a sufficient reason for holding another person to be under a duty. The words 'sufficient reason' answer the charge of over-inclusion: a person who merely benefits incidentally from a duty has no right, because his benefit is not the reason for the duty. Neil MacCormick, in a 1976 essay, used children's rights as a test case: children plainly have rights to care and nurture that exist before and apart from any choice, so the will theory must be incomplete. The contemporary debate is set out in Kramer, Simmonds and Steiner, A Debate over Rights (1998), with Kramer defending the interest theory and Simmonds and Steiner the will theory.
Classic Definitions ▪ Holland (Elements of Jurisprudence) (will theory): a legal right is 'a capacity residing in one man of controlling, with the assent and assistance of the State, the actions of others'. ▪ Windscheid (paraphrase) (will theory): a right is a power or dominion of the will conferred by the legal order. ▪ Hart (Essays on Bentham, paraphrase) (will theory): the right-holder is a small-scale sovereign over the duty of another. ▪ Jhering (interest theory): rights are legally protected interests. ▪ Salmond (interest theory): a right is an interest recognised and protected by a rule of right; respect for it is a duty and disregard of it a wrong. ▪ Raz (The Morality of Freedom, 1986, paraphrase): X has a right if an aspect of X's well-being is a sufficient reason for holding another to be under a duty. |
3. Head to Head
Basis | Will (choice) theory | Interest (benefit) theory |
|---|---|---|
What a right protects | The holder's choice or control | The holder's interest or well-being |
Right-holder | The person who controls the duty | The person whose interest grounds the duty |
Hohfeldian form | Claim plus power to waive or enforce | Claim grounded in a protected interest |
Fits best | Property, contract, powers of waiver | Protective rights: bodily security, children's rights |
Weakness | Too narrow: excludes those who cannot choose | Too wide: every beneficiary of a duty may seem to have a right |
Value it expresses | Autonomy and freedom of choice | Well-being and protection |
Leading jurists | Kant, Savigny, Windscheid, Holland, Hart; Simmonds, Steiner | Bentham, Jhering, Salmond, Raz, MacCormick, Kramer |
4. The Hard Cases
Hard case | Will theory | Interest theory |
|---|---|---|
Children and incompetents | No right unless a representative exercises control; the representative, not the child, looks like the holder | Have rights because their interests ground duties (MacCormick) |
Unwaivable rights | Cannot be rights, since the holder has no power to waive | Rights; the interest remains protected even without control |
Third-party beneficiaries | Only the promisee, who controls the duty, has the right | Risk of over-inclusion; Raz's 'sufficient reason' test limits it to intended beneficiaries |
Criminal law | No individual right-holder; the State controls prosecution | The protected persons hold rights |
Animals | Cannot hold rights | Can hold rights if their interests are protected |
The dead and future generations | Cannot hold rights | Arguable, since their interests can ground present duties |
Many modern writers treat the two theories as capturing two different features of rights. A fully developed right usually protects an interest and gives its holder some control. Choice fits rights whose point is autonomy, such as the freedom to contract or to refuse treatment; interest fits rights whose point is protection, such as the rights of a child or of an unconscious patient.
5. Indian Illustrations
Indian courts have not formally adopted either theory. These cases are illustrations of which side the law's structure favours.
Basheshar Nath v Commissioner of Income Tax Supreme Court of India, 1959 The Court held that a fundamental right under Art. 14 cannot be waived. Fundamental rights are not merely for individual benefit but rest on public policy. Illustration: supports the interest theory. A right the holder cannot waive is inexplicable on a pure will theory. |
Olga Tellis v Bombay Municipal Corporation Supreme Court of India, 1985 The right to livelihood is part of the right to life under Art. 21. Pavement dwellers who had conceded in earlier proceedings that they would not claim protection were not bound: there can be no estoppel against the Constitution. Illustration: protection of interest overrides the holder's own choice. |
Animal Welfare Board of India v A. Nagaraja Supreme Court of India, 2014 Reading the Prevention of Cruelty to Animals Act with Art. 51A(g), the Court held that jallikattu and bullock-cart races as conducted violated the Act and spoke of animals' rights to live without unnecessary pain and suffering. Illustration: rights for beings that cannot choose, possible only on the interest theory. |
Suchita Srivastava v Chandigarh Administration Supreme Court of India, 2009 A woman's right to make reproductive choices is a dimension of personal liberty under Art. 21; her consent was required for the termination of pregnancy. Illustration: the will side, where the point of the right is the holder's own choice. |
Aruna Shanbaug v Union of India and Common Cause v Union of India Supreme Court of India, 2011 and 2018 In Aruna Shanbaug the Court allowed passive euthanasia for a patient unable to decide only through a best interests test, subject to High Court approval. In Common Cause it recognised the living will, by which a competent person chooses in advance to refuse life-prolonging treatment. Illustration: the two theories side by side: interest governs the incompetent patient, choice governs the competent one. |
Mohd. Salim v State of Uttarakhand Uttarakhand High Court, 2017 The High Court declared the Ganga and Yamuna to be legal persons. The Supreme Court stayed the order. Illustration: the outer edge of the interest theory, raising the question whether rights can protect entities with no will at all. |
Memory Aid ▪ Analogy: the will theory's right is the locker key in your own hand; the interest theory's right is the key a guardian must use for your good. ▪ Mnemonic 'Will = Wield; Interest = Insulate'. A will-right lets you wield control; an interest-right insulates your good. ▪ Names: will = Hart, Holland, Windscheid, Savigny ('HHWS'); interest = Jhering, Bentham, Salmond, Raz, MacCormick ('JBS-RM'). ▪ Test with a baby: if the theory struggles to give a newborn a right to care, it is the will theory. |
Exam Corner: Likely Questions ▪ Critically compare the will theory and the interest theory of legal rights. ▪ Can children and animals have rights? Discuss with reference to the rival theories of rights. ▪ 'The right-holder is a small-scale sovereign.' Examine Hart's view and its limits. |
Exam Corner: MCQ Traps ▪ 'Small-scale sovereign' is Hart. ▪ Holland's definition ('capacity ... of controlling') is a will theory definition, not Austin's. ▪ Jhering founded the interest theory; Gray criticised it. ▪ The Morality of Freedom (1986) is Raz; the children's rights test case (1976) is MacCormick. ▪ A Debate over Rights (1998): Kramer for interest, Simmonds and Steiner for will. |
6. Frequently Asked Questions
Q. What is the core difference between the two theories?
A. The will theory says a right protects the holder's control over another's duty; the interest theory says it protects the holder's interest, whether or not the holder controls the duty.
Q. Does the will theory deny that the criminal law protects anyone?
A. No. It accepts that the criminal law benefits potential victims, but says that because no individual controls those duties, there is no individual right-holder. Hart conceded that this is a limit of the theory.
Q. How does Raz stop the interest theory from giving rights to everyone who benefits?
A. By requiring that the person's well-being be a sufficient reason for imposing the duty. Someone who benefits only incidentally from another's duty has no right.
Q. Which theory does Indian law favour?
A. Neither formally. Unwaivable fundamental rights (Basheshar Nath, Olga Tellis) and animal welfare (Nagaraja) fit the interest theory; reproductive autonomy (Suchita Srivastava) and living wills (Common Cause) fit the will theory.
See also: Note 29 (theories of legal rights), Note 28 (rights and duties), Note 33 (legal personality), Note 68 (Savigny versus Jhering), Note 72 (right versus duty).
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