According to Hohfeld rights are defined in terms of correlatives and opposites. For example, the main case of rights, which he refers to as “claims” are defined as having correlative duties. What is a duty? It is the correlative of a right and the opposite of a no-right.
You might well think that this is not very useful. Hart added that it is missing something because it renders rights redundant with duties. You could dispense with rights and just talk about duties without changing anything. He thinks that is wrong and that rights add something that is not captured by a comprehensive list of duties.
What is this additional thing that rights add? Hart thought it was choice. The person who has a right has control over another person’s duties. For example, the right holder is capable of choosing whether to waive the duties or not.
Some implications of this view include:
Hart developed his view in contrast with the benefit theory, which he described as holding that “to have a right is simply to be capable of benefiting by the performance of a “duty”” (Hart 1955, 180).
Since these are the wrong answers, in Hart’s opinion, the benefit theory is inferior to the choice theory.
The aim of Raz’s essay is to defend a version of the benefit theory.
Here is Jeremy Bentham’s version of the Benefit theory.
A law commanding or forbidding an act … creates a duty or obligation. A right is another fictitious entity, a kind of secondary fictitious entity, resulting out of a duty. Let any given duty be proposed; either somebody is the better for it or nobody. If nobody, no such duty ought to be created: neither is there any right that corresponds to it. If somebody, this somebody is either the party bound, or some other. If it be he himself, then the duty, if such it may be called, is a duty he owes to himself: neither in this case is there any right that corresponds to it. If it be any other party, then is it a duty owing to some other party: and then that other party has at any rate a right: a right to have this duty performed: perhaps also a power: a power to compel the performance of such duty. (Bentham [1780] 2010, Appendix E, 316-17)
In the last sentence, the fact that another party would benefit from the performance of a duty is sufficient to establish that this party has a right. Rights are basically the shadow of duties for Bentham.
Raz is going to try to cut that down, avoiding or answering the objections that Hart raises.
Definition: ‘x has a right’ if and only if x can have rights, and other things being equal, an aspect of x’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty.
The Principle of Capacity to have Rights: An individual is capable of having rights if and only if either his well-being is of ultimate value or he is an ‘artificial person’ (e.g. a corporation). (Raz 1984, 195)
There are two limits on the class of beings that benefit from the performance of a duty.
There is a separate condition about who or what can have rights. Simply benefitting is not going to be enough to establish that a thing has rights.
Rights are not simply shadows of duties. They have to do something, namely, justify duties.
Raz’s answer to the point about babies and non-human animals is in section 6, titled “Capacity for Rights,” pp. 204-207.
His answer to the third party beneficiary objection is in section 7, “Rights and Interests,” pp. 210-212. This is subtle: he does not actually say that he is answering the objection or even acknowledge it. See if you can figure it out!
What about section 8, “Rights and Duties”? That raises a different point against Hohfeld’s project. For Hohfeld, a right is identified by its correlative duties. If you change the duties, you change the right. Raz, by contrast, contends that rights have what he calls a “dynamic character” (Raz 1984, 212). This means that one right could have a variety of different duties corresponding to it, depending on the circumstances. It would be the same right regardless of exactly what the duties are, in other words.