David Frydrych (National University of Singapore (NUS) - Faculty of Law) has posted The Theories of Rights Debate on SSRN. Here is the abstract:
This is the first comprehensive explanation and survey of the Interest-Will theories of rights debate. Section II elucidates its traditional understanding as being a dispute over how best to explain A RIGHT and clarifies the theories' competing criteria for that concept. (The short version of the story is that the theories dispute whether the existence of enforcement powers is necessary to A RIGHT and what that means for right-holders). Section III argues that, under any understanding of what the debate is really about, the Interest and Will theories' famous reductio arguments are unsuccessful. This is because the arguments either ignore more robust or versatile versions of the target theory, or (relatedly) they fail to account for how rights theories interact with theories of law.
The rest of the article then shows why certain recent developments are either problematic or simply fail to actually advance the debate. First, it is erroneous, as some theorists have done, to frame the entire debate in terms of competing explanations of the direction of 'directed' duties. This is because the theories' respective answers to that issue are themselves dependent upon their respective conceptions of A RIGHT - ones that do not even necessitate the identification of different directions for such duties. Second, all of the new would-be alternative or hybrid theories are shown to be mere versions of the Interest theory. Third, recent efforts to cabin off the debate to 'normative' theorisation (i.e., to morally or politically evaluative accounts) are misguided.
