There are two broad theories about the nature of rights: choice theories (a.k.a will theories) and benefit theories (a.k.a. interest theories).
Hart advanced a choice theory. He believes that the essential function of rights are to give those who have them control over the duties of others. It is the right holder’s choice whether to insist on performance of the other party’s duty or to waive it, for example.
In today’s reading, MacCormick will criticize Hart’s choice theory and put forward his own benefit theory. This holds that, “The essential feature of rules which confer rights is that they have as a specific aim the protection or advancement of individual interests or goods” (MacCormick 1977, 192).
As a terminological note, MacCormick uses the label “will theories” for what I have been calling “choice theories” and the label “interest theories” for what I have been calling “benefit theories.” I apologize for the confusion; if I had planned more carefully, I would have used his words.
As for the reading, I would start with section II, on page 192. I do not understand the importance of what he said in the first section, so I will not talk about it.
Section II (pp. 192-195) lays out what MacCormick takes to be Hart’s will theory of rights. Note that he is drawing on some of Hart’s essays that we did not read. So if you are wondering whether you missed something, chances are good that he is describing the contents of a different essay.
MacCormick thinks that, for Hart, there are three classes of rights.
Rights with correlative duties. If A has a duty and A’s duty is conditional on B’s choice, then B has a right against A.
Liberty rights (a.k.a. “privileges” in Hohfeld) and power rights. Liberty rights protect, well, liberty. And powers give individuals the ability to make legally effective choices (think of the power to make a contract or the power to make a law).
Immunities. To have an immunity means someone else cannot change your legal rights. MacCormick says that Hart has trouble incorporating these into his theory and so suggests that they are outside the ordinary interests of the lawyer and belong more to political or moral theory because they are about Constitutional provisions rather than the ordinary law. E.g. the First Amendment makes me immune from Congress passing a law abridging my freedom of speech. MacCormick has already suggested that Hart is wrong with this example: the law may make me immune from being fired from my job because of, say, age. Age discrimination laws are squarely in the ordinary part of the law. (194)
In sum, Hart believes that what gives the concept ‘right’ its particular function in the law is that it draws attention to rules that confer special recognition on the will of a particular individual.
This is in section III.
On the face of it, Hart should not have problems incorporating immunities into his theory. He could just say that an immunity is a right if the party who has the immunity can waive it, giving someone else the ability to change his or her rights.
However, MacCormick believes, that would be inadequate because there is such a thing as inalienable rights. Here are some examples.
Why do these examples pose a challenge to a will (aka choice) theory like Hart’s?
There are two particularly important objections to interest (aka benefit) theories of rights.
Redundancy. If the interest theory is correct, rights do not add anything to duties; you could dispense with them and just talk about duties. But, the objection goes, rights do add something to duties. What they add is choice and control (according to the will theory).
Third party beneficiaries. If the interest theory is correct, then a third party who benefits from the performance of a contract has a right to the performance of the contract. But, the objection goes, only the contracting party has that right.
MacCormick tries to answer these objections in the fourth section and endnote, respectively.
Before I had even finished presenting the view, Dominic raised a very good point that is worth recording. The view is that legal rights are conferred to the intended beneficiaries of laws. To quote MacCormick, “The essential feature of rules which confer rights is that they have as a specific aim the protection or advancement of individual interests or goods” (MacCormick 1977, 192).
The defense budget is intended to benefit me. Does that mean I have a right to the military? That sounds strange.
This gets right to the heart of things and I wish I had thought of it.
I think that the answer to the objection would lean heavily on the terms “specific aim” or “intended.” That is, a right is created when legislation aims at or intends to benefit individuals.
That said, I am not sure how that would go. The most immediate thought I have is that, as a citizen of the United States, surely I am an intended beneficiary of the military. Who else is it for?
I am sure that the clever people who support the benefit/interest theory have an answer to that. But the burden is on them to show that this initial reaction is misleading.