Two competing answers to a fundamental question about rights are doing the rounds: why do we need rights anyway? There’s an interest theory of rights which gives one answer, and then there’s a will theory of rights which gives another, incompatible answer. (There are other theories but most of the discussion is between these two). Very, very simplistically, the answers are these:
- Will theory (WT), otherwise known as choice theory, argues that the purpose of rights is to protect and foster individual autonomy. An individual who has rights is a small-scale sovereign. WT attempts to establish the validity of human rights based on the unique human capacity for freedom. Rights help to protect and realize this capacity. This implies that the rights holder has the moral power to waive or annul his or her rights. All rights are derived from the essential right of all human beings to be free.
- Interest theory (IT) argues that the principal function of human rights is to protect and promote certain essential human interests. This is another way of saying that rights protect what is beneficial to individuals:
Necessary though insufficient for the holding of a legal right by X is that the duty correlative to the right, when actual, normatively protects some aspect of X’s situation that on balance is typically beneficial for a being like X. (source)
Both theories have appealing and somewhat less appealing features. One appealing aspect of WT is that it wants to offer equal freedom to all. People want things, face choices – good and bad – and need opportunities to do things. Rights offer the ability to make preferred choices and provide the opportunities to do things. The understanding that most rights are alienable is also positive, in my view.
However, more problematic – and some say fatal – is the fact that WT rules out the holding of rights by animals, dead people, future persons, infants, comatose people, severely mentally disabled people, senile people and fetuses. In WT, people only have rights when they are competent to claim rights, and members of the cited groups can’t typically claim rights. If they don’t have rights, we can do whatever we want to them. Not a good conclusion.
Personally, I think the most appealing feature of IT is that it more or less corresponds to my own value theory of rights (which I argued for here). Also not to be frowned upon is the fact that IT avoids the problem of the rights of non-autonomous beings.
One problem with IT is the vagueness of the term “interests”. What is an interest? Should it be the case that an individual understands an interest as an interest (in other words, should an interest be a felt interest)? Or is it enough that the interest is objectively a human interest? In the former case, IT replicates the problem of the comatose and others who can’t be said to understand their interests. In the latter case, we’ll quickly end up with paternalism and we’ll also have to enter the treacherous domain of human nature.
Another problem is that most versions of IT don’t define which specific interests we’re talking about, and which interests create rights. Consequently, IT also remains vague about the exact rights people have. In one sense, that may be positive. Rights have to evolve. But I think that the vagueness here is to be deplored.
Also, rights don’t only exist to benefit the rights holder. Your freedom of speech is in my interest as well (more on that here). Again, IT can’t deal with this very well.
To conclude, if we have to choose between IT and WT, I guess the problems faced by IT are less deep. The exclusion of large groups of beings in WT is very hard to solve. Compared to that, one can at least see some possible solutions to the problems raised by IT.
More posts in this series are here.