Choice and interest theories of rights both seek to clarify our intuitions and use of the term ‘rights’, by offering differing clarifications of its meaning. In so doing, both theories favour certain aspects of the intuitive picture, while neglecting others. This essay will provide an exposition of both theories, outlining the major points of disagreement and argument. It will argue that the discourse does not resolve itself either way. Both theories fail to clearly satisfy certain fundamental aspects of our intuitive understanding of the nature of rights. I will conclude with the suggestion that a revisionist methodology should not be necessarily determinative for theories of rights.

Hart offers the argument that ‘if there are any moral rights at all, it follows that there is at least one natural right, the equal right of all men to be free.’ This is the central thesis of what has come to be known as his choice theory of rights. Human rights, on Hart’s view, are as a concept specifically limited to the determination of the extent of human freedom. This is in opposition to an interest theory of rights which offers justification of a right on the basis of the interests of the subject. Hart, on the other hand, asserts that it is not enough that the subject have interests. He must be capable of choice.

In arguing against the interest theory, Hart says:

More important for our purpose is the question whether for all moral duties there are correlative moral rights, because those who have given an affirmative answer to this question have usually assumed with out adequate scrutiny that to have a right is simply to be capable of benefiting by the performance of a duty; whereas in fact this is not a sufficient condition

The key here is that for Hart it is not sufficient that a person benefit from a duty. To demonstrate this, he advances an instance where the person who benefits from the duty is intuitively not the rights holder. This is the case where a person promises to another to look after their mother. Surely, Hart argues, while it is the mother who benefits from the duty, it is the progeny who can claim the associated right. From this Hart concludes:

It is important for the whole logic of rights that, while the person who stands to benefit by the performance of a duty is discovered by considering what will happen if the duty is not performed, the person who has a right (to whom performance is owed or due) is discovered by examining the transaction or antecedent situation or relations of the parties out of which the ‘duty’ arises.

The point here is that there can be no right unless there exists an ‘antecedent situation or relation.’ This is because for Hart the notion of a right serves the distribution of freedom, whether that is a freedom from or a freedom to, e.g. “you have no right to do this’ or ‘I have a right to do that’.

One result of this theory is that those entities which are not considered to have autonomy, or the ability to make choices, are not considered by Hart to be in possession of rights. This does not mean that there is not some other moral principle which protects such interests – just that those other moral principles cannot justifiably be called ‘rights’.

Choice theory has a descriptive and justificatory dimension . The descriptive dimension provides the outline for what a right is, that is, what conditions would have to obtain for the fulfilment of a moral principle to be counted as a right that someone possesses. This is certainly the dimension that Hart emphasises. His aim is to identify a set of moral principles that can be distinguished by their particular character by the term ‘right’. If a clear discrimination is not made, Hart says, it will result in the ‘idle use of the expression ‘a right’, which will confuse the situation with other different moral situations where the expression ‘a right’ has a specific force and cannot be replaced by the other moral expressions which I have mentioned.’

It also has a justificatory dimension as well, insofar as the notion of choice, or autonomy of the individual, is the one which serves as the justification of the right. At the level of justification choice theory can be seen as a more specific kind of interest theory insofar as it delimits as rights holders a subset of those with interests – namely, the autonomous ones. But if choice theory also denies ‘that any interest other than that in exercising autonomy is capable of justifying the assignment of rights’ then we are left to face the conclusion that entities like babies and the mentally handicapped also do not have rights and that our moral duties toward them must be specified by some other notion.

A criticism of choice theory is that this leaves non-autonomous people like babies insufficiently protected – the moral duties shown toward babies not withstanding. The problem is that by ‘rights’, some argue, it is meant that a degree of protection is afforded that is not afforded by other moral duties. They argue that the interests motivating the protection of a baby could be negotiated away in favour of other interests and hence a baby is not equally protected as it would be if it had rights.

Part of the motivation underlying this sort of response is a reaction against Hart’s revision of the term ‘right’. The argument is that not only is the revision of the term in such a fashion artificial, but it is also an inaccurate and does not reflect our actual use of the term . In the argument above, then, part of our use of the term right, suggests its higher status which affords its protection against other interests. The choice theorist can’t appeal to other moral duties to satisfy our intuitions concerning the degree of protection we feel babies need. The account seems to leave out of the picture the idea of the inalienability of rights.

The choice theorist can respond that this is not necessarily a problem concerning how the term ‘rights’ is revised , rather it is a problem concerning the issue of to what extent rights are absolute. This is not an issue that just the choice theory has to face, but all theories of rights. To assert that there is some clear intuitive answer for one case is to assert that our intuitions are sufficiently clear enough in all cases. We can, however, offer plenty of examples where our intuitions are not clear cut. Take any case, for example where two rights are in conflict with one another. An interest theory such as Raz’s, we shall see below, has to accept that rights conflict and find some scope for dealing with the problem. Nevertheless, should it be concluded that rights are inalienable then choice theory would certainly have a problem insofar as part of its definition of a right is such that it is something that the right holder can choose to divest himself.

Another approach for the choice theorist is to assert that particular moral duties are inalienable – the ones that we otherwise would think to be inalienable rights, such as the right of a baby to adequate care and protection. So instead, the choice theorist would offer that the duty owed to the infant cannot be divested, even though the baby has no rights as such. But again, this approach seems to offend the idea that this use doesn’t capture what we ordinarily mean by ‘right’ – that this is a devaluing of the idea of right if it is to say that rights can be divested but not other moral duties. Rights were always meant to be over and above other duties in some important sense.

A good way into an understanding of interest theories is to consider Bentham’s infamous model of human rights. Like the choice theory it is revisionary in the sense that it seeks to limit usage for the term ‘right’. Particularly, he wanted to limit the usage of the term ‘right’ from applying to any sort of obligation which existed outside the political dimension. Those that were claimed to exist were labelled by Bentham as fictions. As he says concerning the term:

To the substantive word are frequently prefixed, as adjuncts and attributives, not only the word political, but the word natural and the word moral: and thus rights are distinguished in natural, moral, and political…. The only one of the three cases in which the word ‘right’ has any determinate and intelligible meaning is that in which it has the adjunct political attached to it: in this case, when a man is said to have a right, the existence of a certain matter of fact is asserted: namely, of a disposition on the part ofthsoe by whom the powers of government are exercised, to cause him to possess and so far as depends upon them to have the faculty of enjoying the benefit to which he has a right.

There are two keys ideas in this passage. The first is that Bentham wants to attach the notion of ‘rights’ to uncontroversial matters of fact – and these, for him, are obligations sanctioned by the existing political forces, namely a government. Without the threat of sanctions a right has no corresponding power or force and hence, for Bentham, has no reality. Secondly, it makes no sense to speak of a right unless a benefit is being conferred upon the right holder by the person who owes the obligation. This is the subjective element of the legal right which Bentham offers.

We saw that in Hart’s choice theory, there was a place a for a limited conception for naturals rights, those vested by antecedent relations between autonomous human beings; but in Bentham’s theory there is no such thing as a natural right. They are fictions. He was generally motivated by this approach because of his distaste of the principles of natural rights advocated in the French Declaration. He observed in the first place that if there are natural rights, our conception of them must surely be limited, since the Declaration itself underwent a number of changes. The introduction of the idea of natural rights, Bentham says, was a result of emotions and weakness of understanding – not knowledge, as he says:

It is the weakness of the understanding which has given birth to these pretended natural rights: it is the force of the passion which has led to their adoption, when, desirous of leading men to pursue a certain line of conduct which general utility does not furnish sufficient motives to induce them to pursue, or when, having such motives, a man knows not how to produce or develop them, yet wishes that there were laws to constrain men to pursue this conduct, or what comes to the same thing, that they would believe that there were such laws – it has been found the shortest and easiest method to imagine laws to this effect.

This passage represents a fairly sceptical view of the abilities of people to distinguish their emotional desires from their reasoning capabilities. He goes on to claim that two passions have led to the declaration of rights: tyranny and vanity – which reads as a pretty damning indictment of the motivations of those who assert the existence of natural rights.

The difficult thing about Bentham is in trying to discern whether he sees this as an actual argument against the existence of natural rights – for it seems pretty clear that its not. It’s one thing to claim of your opponents that they have no clear epistemological criterion for discerning a natural right – it’s another to claim that they don’t exist. To demonstrate the former is not to make the case for the latter. Nor is particularly compelling to assert that those who have asserted their existence have motivations beyond a rigid desire for scientific truth – they can have all the varied motivations they like, this doesn’t make them necessarily wrong.

Bentham’s clearest premise is his assertion of what does have the status as a matter of fact – and that is the legal sanctions which enforce an obligation as well as the fact of the subject benefiting from that obligation. Those asserting the existence of a natural right will in effect have to deny this premise that these are the only matters of fact relevant to the determination of rights. In effect, believers in natural rights have to assert the existence of matters of fact that go beyond the legally sanction obligations and the benefits conferred by these obligations.

This is what Hart does when he argues for the existence of natural rights – but in the process of so doing he denies that interest is one of the determiners of rights. Hart simultaneously denies both components of Bentham’s premise. He asserts the existence of a fact above and beyond legal obligations, namely, the individual autonomony involved in making choices; and asserts that it is this autonomy, not interest, which determines the existence of a right. As he says:

I have two reasons for describing the equal rights of all men to be free as a natural right; both of them were always emphasised by the classical theorists of natural rights. 1) This right is one which all men have if they are capable of choice: they have it qua men and not only if they are members of some society or stand in some special relation to each other. 2) This right is not created or conferred by men’s voluntary action; other moral rights are.

We can see more clearly now how the choice theory, as offered by Hart, was very much directed against interest theories like Bentham’s because we can see it as a denial of a key premise of interest theories. As we shall see, the component that asserted the existence of legal rights only, was one that did not prove to be essential to interest theories. Interest theories developed an assertion of the existence of natural rights while holding to the key principle of ‘benefit’.

The main charge that the interest theory has to meet against the choice theory is that articulated by Hart to the effect that rights are a redundant concept if they express the benefits that are protected by moral duties. We could just use our other moral concepts to express what we mean by ‘rights’. Joseph Raz answers this charge by insisting that ‘a person may be said to have a right if and only if some aspect of his well-being (some interest of his) is sufficiently important in itself to justify holding some other person or persons to be under a duty.’ As such the focus is shifted from the benefit itself to the rationale that justifies the benefit as being sufficiently important to warrant the implied right.

This kind of interest theory is distinguished from Bentham’s theory further by the fact that the latter was a utilitarian theory. Raz’s theory is not. The utilitarian measure the benefit conferred by a duty on the basis of a calculus that the subject employs to determine the degree of benefit. It is always considered in relation to the other desires and benefits the subject may concurrently seek. As Bentham says:

Of the two masses of evil – intensity, duration, certainty, all included – which appears to be the greatest, that to which one believes one’s self exposed from continued obedience, or that to which one believes one’s self exposed by its discontinuance? It is an affair of calculation: and this calculation each one must make for himself according to circumstance. It is also a calculation that no one can fail to make, either ill or well, whatever may be the language he employs, or whosoever he may be.

Raz’s theory, on the other hand, confers significance upon the moral right on the basis of the sufficient reason that establishes its importance as a right. No calculus is entered into which balances its importance against other possible benefits.

This might be seen to create a difficulty for this version of the interest theory. As Waldron points out, it suggests a picture where we may have a set of rights which conflict with one another. It won’t happen by necessity, he says, but it is highly unlikely that it is not to happen at all. Waldron points out that this should provoke unease not only because we should use a lack of conflict within a theory of rights as a ‘good heuristic,’ but because a large motivation for the theory was in its rejection of the utilitarian calculus which solved the problem of conflict through trade offs. If the idea of conflict of rights is plausible then we are returned to a similar situation and we are once again applying some rule or calculus adjudicate – but this was one the things most unpalatable with the utilitarian theory.

It’s also a significant problem because the choice theory of rights was similarly criticised. The choice theory, we remember, supplanted duties for rights in the case of the non-autonomous. As they didn’t afford the same protection as rights, it was argued, it left infants and similarly non-autonomous people exposed. The response was that all theories had to deal with this problem in some way or another. It was a question of the conflict between right and duties – not anything specific to the choice theory. Bentham’s utilitarian theory bites the bullet and accepts that rights are not absolute – if Raz’s modified interest theory can’t find a way around the problem, then it can’t claim to be an advance over the utilitarian or the choice theories in this particular respect.

In reply, Waldron emphasises that a conflict between different rights might not imply a trade off of rights, but rather ‘a decision not to do what is required by a particular duty associated with the right’ He backs up this idea with the claim that rights don’t necessarily stand in a one to one relation with duties. As he says:

The are many ways in which a given interest can be served or disserved, and we should not expect to find that only one of those ways is singled out and made the subject matter of a duty.

To understand better the relationship between rights and duties that is being asserted by the interest theory of rights we need to go backward and look more closely at the relationship between duties and rights as they have been asserted in different theories. In Bentham we saw that he only supported the existence of a legal right – and a duty was the simple correlate of that right. It was a very specific, one to one relationship. Wesley Newcomb Hohfeld, on the other hand, gave reasons why this analysis was too simplistic. Edmundson explains his example of the trustee who holds legal title to an estate for the benefit of another. The trustee, then, is thought to have a duty to the beneficiary, and the beneficiary is thought to have a right in respect to the benefit they receive from the services of the trustee. The question is then posed – if the trustree divests part of the estate for less than its worth and thereby does a disservice to the beneficiary, what would be the outcome? From a legal perspective, the sale would be upheld, thereby validating the right of the trustee to make the sale, and yet the trustee really had no right to do it. We seem to have a clear case of conflict between rights.

Hohfeld argued that this sort of conflict is apparent only and is caused by a confusion between distinct notions: right, privilege, power and immunity. Corresponding with each of these were their correlative notions of obligation: duty, duty not to, liability and disability. To use these notions to explain the example: the trustee could be said to have a duty not to sell the estate, but at the same time possessed the power to do so. Hence the apparent conflict between rights is explained away.

Through this distinction Hohfeld narrowed the range of what acceptably could be thought of as legal rights – that is, in the strict sense of being the correlate of a duty. Importantly, however, Hohfeld maintained the direct relationship between the right and the correlate duty that Bentham originally believed. As Edmundson explains:

To say that a claim-right is directly correlated with a duty is simply to say that if X has a right, with respect to Y, to perform the action P, that fact entails that Y has a duty to X not to interfere with X’s Ping.

The key word there is ‘entails’. For Hohfeld the duty is a logical consequence of the right.

Returning to the interest theory of Raz: – that the duty is a logical consequence of the right is something explicitly denied by Raz. Rather, he believed that the duty was justified by the right, as opposed to being logically implied. It is this element that opens the door to the idea that rights and duties don’t stand in a one to one relationship. If duties aren’t logically implied, but justified by the right, then there is no reason why a right can’t be the justification for a multiplicity of duties.

Waldron expands on this dynamic between rights and duties by saying that rights generate ‘waves of duties’. There are, he said, complex networks of duties emanating out of a right such that one duty reinforces the need for another and so on. As he says:

Once we accept that each right is to be thought of as generating not just one duty but succesuve waves of duty, then the whole language of trade-offs… with its resonance of callous amorality, may begin to seem less drastic. Rights conflicts arise when a duty generated by one right is not compossible with a duty generated by another… This means that even while we are “trading off??? one duty generated by A’s right against one duty generated by B;s, we may nevertheless be perfectly well able to fulfil other duties owed to A in regard to that right.

If all this is convincing then it seems that the interest theory has to some extent avoided the charge, levelled at it from the choice theory side of the fence, that it has a similar problem dealing with conflicts between rights – just as the choice theory did.

However, I think an argument could be made that this solution by Waldron would in practice expose an infant in same way as the choice theory. We remember that the problem for choice theory was that if it relegated the protection for infants to other moral duties besides rights then fear was that those moral duties could be traded off under trying circumstances, where other duties were deemed more pressing. Waldron’s solution is such that a right is never traded off – it’s just that some duties justified by the right go unfulfilled in the case of conflict with duties justified by other rights. Consider a practical example by Waldron:

Consider a conflict between putative rights to medical care held by A and B. A shortage of medical resources may mean that A’s primary needs go untreated for a while. But his right to medical care continues to impose other duties. It places constraints on the sorts of production and trading decisions we may make in the economy.

But this doesn’t seem to underpin the strength of the intuition that rallied us in horror against the account provided by choice theory. It’s not that we feel that governments should pass laws and implement economic policies that prevent people from starving and deciding to eat their babies – it’s the horror we feel at the thought of the act itself. Babies just shouldn’t be eaten! We feel equal horror at the thought of starvation just as much. But it seems irrelevant to say the baby still has a right just as that right is being violated. Waldron’s view seems to fail to account for our intuition of a right as a fundamental protection just as much as the choice theorist’s.

There are other considerations which seem to reinforce this sense of stalemate between the two views. If choice theory draws the line too narrowly to merely those with full autonomy, the charge has been levelled that interest theory doesn’t draw the line narrowly enough. For if a right justifies a duty on the basis of an interest then what is to prevent us according rights to any entity which can be reasonably said to have interests? This consideration seems to lead us to idea that not just human beings have rights, but animals, plants, bacteria etc. The conclusion is considered absurd because the whole edifice of life depends upon the exploitation of life forms by other life forms. Each side has those willing to bite their respective bullets.

Perhaps it’s helpful to step back from the issue here a little by returning to the issue of revisionism. Both the interest theory and the choice theory are revisionist in the sense that they attempt to revise the intuitive concept by giving it a more precise formulation. It should be little surprise then that each theory fails to match our intuitions concerning the unrevised concept. It’s fairly common in all areas of philosophy that our pre-theoretic intuitions should turn out to be self-contradictory in some way. In matters of logic, reasoning and semantics the impetus to clear up our fuzzy intuitions has a greater urgency insofar as we are dealing with the tool of reason itself, and we should want that to have internal consistency. But with certain ethical matters it has not been demonstrated that the discourse is benefited in the same way by revisionary procedures.

Bentham may well have been right when he said that the outcome of the discourse concerning human rights was driven by emotion. His theory was perhaps the most honest result of rational and scientific methodology when applied to ethics. But this doesn’t make it the best theory. The possibility has to be considered that such a methodology is not appropriate when applied to this sort of subject.

Choice theories and interest theories, as much as they wish to distance themselves from Bentham, share his essential, revisionist methodology. But by choosing interests or choice as their starting points, they weight the conclusion toward one side of the intuitive picture. This process is not without value if it helps us better understand the contradictions in our intuitions – but if they use the existence of such contradictions as a rationale for discarding them, or some aspect of them, then we are so much the worse for the process.

For myself, I am willing to accept that our instincts for kindness and compassion are without a logically consistent or rational basis – and that such a revisionist project may never satisfy our intuitions. Such acceptance does not sideline philosophical inquiry; it’s just a recognition that this may be one case where the rejection of the right (rational) answers in advance of their discovery might be the more appropriate methodological starting point. Of course, if someone can figure out a way for us to have our cake and eat it too, then so much the better for us all.

Bibliography:

Hart, H.L.A. “Are There Any Natural Rights???? in Philosophical Review, Vol 64, 1955

Bentham, Jeremy, “A Bentham Reader??? ed. Mary Peter Nack, Pegasus, New York 1969

Waldron, Jeremy, “Liberal Rights: Collected Papers, 1981-1991???, Cambridge University Press, Cambridge, 1993

Cruft, Rowan, “Rights: Beyond Interest Theory and Will Theory???? in Law and Philosophy, Vol 23, 2004

Penner, J.E. “The Analysis of Rights??? in Ratio Juris, Vol 10 No 3, 1997

Edmundson, William A “An Introduction to Rights??? Cambridge University Press, Cambridge, 2004