On the Nature of Legal Rights*
by Matthew H. Kramer**
Cite as : (2003) 4 SCC (Jour) 44
For many years, two major philosophical theories-in a number of variations-have competed with each other in the enterprise of pinning down the essential nature of legal rights. The Interest Theory, which I have defended elsewhere in a long essay,1 can be tersely and approximately summarized in the following two theses:
(1) Necessary but insufficient for the actual holding of a legal right by X is that the right, when actual, protects one or more of X's interests.
(2) The mere fact that X is competent and authorised to demand or waive the enforcement of a legal right will be neither sufficient nor necessary for X's holding of that right.
For the Interest Theory, then, the essence of a right consists in the normative protection of some aspect(s) of the right-holder's well-being. The two principal tenets of the Interest Theory are squarely rejected by the proponents of the Will Theory, which can be roughly summarised in the following two theses:
(1A) A legal right's potential to protect an interest of X is not necessary (as well as not sufficient) for X's holding of the right.
(2A) X's competence and authorisation to demand/waive the enforcement of a legal right are separately necessary and jointly sufficient for X's holding of that right.
For the Will Theory, the essence of a right consists in opportunities for the right-holder to make normatively significant choices relating to the behaviour of someone else.
My earlier essay sought to elucidate and develop the basic claims of these two theories, in an effort to establish the superiority of the Interest Theory. The present piece continues that task by taking up several issues which my earlier defence of the Interest Theory did not sustainedly address. Some of the points presented here are clarificatory or elaborative, in that they deal with facets of the Interest Theory which have attracted far too little attention (both from the theory's proponents and from its detractors). Other points are defensive, in that they parry objections to the Interest Theory or to the general analytical framework-an analytical framework deriving from the writings of the American jurist Wesley Hohfeld ("RWT," 7-22)-which has informed my own version of that theory.
II. RIGHTS AND POWERS
As should be apparent from the encapsulations of the Interest Theory and the Will Theory above, the prime point of controversy between those two doctrines is connected with the holding and exercise of legal powers. According to the Interest Theory, anybody X, can hold a legal right irrespective of whether he holds any legal power to enforce/waive the duty that is correlative to the right. According to the Will Theory, by contrast, X holds a legal right if and only if he holds the legal power of enforcing/waiving the correlative duty.
To hold a genuine legal power (such as the power of enforcement and waiver), X must be legally and factually competent to exercise it; moreover, his holding of the power must derive directly or indirectly from some legal norm(s) or decision(s). What, then, is a legal power? It consists in the ability to expand or reduce or alter some legal entitlements (rights, liberties, powers, and immunities) through some volitional act or forbearance-regardless of whether the entitlements under the sway of the power are held only by other people or also by oneself. Both the content of a power and the range of people to whom it pertains are determined by the legal norm or decision that has given rise to it.2
Some legal powers and the exercise thereof will be undesirable from the perspective of legal officials or from the perspective of the power-holders or from both perspectives. For instance, everyone holds numerous legal powers to modify his or her own entitlements (and the entitlements of certain public officials) by violating criminal-law norms. Though acting in ways that transgress such norms may well be desirable for many people, the concomitant loss of certain immunities and rights and liberties will be far from gratifying for those people. Likewise, of course, their exercising of their sundry legal powers-to-eliminate-the-aforementioned-entitlements-that is, their criminal behaviour-will hardly be to the liking of the officials who run the legal system wherein the criminal conduct occurs.
As has been stated above, the exercise of a genuine legal power always occurs through a volitional act or forbearance of some sort. However, the act or forbearance involved will not perforce be voluntary in the sense of having been chosen freely (i.e., chosen without the pressures of severe constraints). In many circumstances-though by no means in all circumstances-any number of distasteful acts or forbearances elected faute de mieux can serve as exercises of legal powers. Furthermore, a power-exerting action or abstention will not necessarily be deliberate in the sense of bringing about legal consequences or other consequences that are envisaged by the person who engages in the action or abstention. For example, someone whose careless driving leads him to collide with somebody else will have altered his legal position for the worse vis-…-vis that other person. He has exercised a legal power which he plainly did not wish to exercise. (Both the present paragraph and the preceding paragraph have revealed some important similarities between legal powers and physical powers. Though those two types of powers are divergent in a variety of respects, they are alike in that someone wielding a power of either type might thereby produce results which he does not want and did not foresee. Just as somebody may not know his own physical strength and may therefore volitionally but inadvertently commit deeds of destruction which he himself deplores, so too he might not have a firm understanding of his legal position and might therefore volitionally but inadvertently exert legal powers with consequences which he himself views as shuddersome.)
Some but not all of the complexities just broached are applicable to the legal powers of enforcement/waiver which the Will Theorists perceive as integral components of legal rights. On the one hand, the exercise of a power of enforcement/waiver by a right-holder can prove to be highly disadvantageous for him and perhaps also for other people. Likewise, the exercise of such a power will not necessarily be deliberate in the sense delineated above. So long as some volitional act or forbearance on the part of the right-holder is involved, and so long as the right-holder is legally and factually competent to reach decisions about his entitlements, the exertion of a power to waive/enforce a right can (sometimes) occur regardless of whether the right-holder is able to foresee the consequences of his action/inaction. On the other hand, the exercise of a Will Theory power of enforcement/waiver is always legally permissible. Proponents of the Will Theory take as given that X's possession of a legal right consists not only in X's possession of a legal claim to protection (against interference or uncooperativeness) and a legal power of enforcing/waiving that claim, but also in X's possession of a legal liberty to exert the aforesaid power and a legal liberty to refrain from exerting it. Hence, we need not concern ourselves here with exercises of powers that are violations of criminal-law norms or other legal norms. For the Will Theory, a right-holder's decision to demand or waive the enforcement of a duty is always a legally authorised decision.
A. Situations of Powerlessness
Having taken account of a few characteristics of legal powers (with particular attention to legal powers of demanding/waiving the effectuation of duties), we should now ponder two points that received little or no attention in my earlier essay on rights. The first of these points has gained salience in some remarks by one of the foremost champions of the Will Theory, Nigel Simmonds. When seeking to establish the superiority of the Will Theory over the Interest Theory, Simmonds argues as follows:
The modern Will Theory ... builds the notion of "a right" firmly upon the twin ideas of choice and peremptory force. Where rights exist, the enforcement of duties is not a matter for the State in pursuit of collective policies, but a matter for the choice of private individuals.... We might well regard the private enforcement of such peremptory demands as an essential hallmark of the Rechtsstaat. All versions of the Interest Theory, by contrast, would be compatible with a state of affairs where all powers of enforcement and waiver are monopolized by the State and its officials. There is surely a good deal of force in the Will Theory's claim that, in such circumstances, citizens would have no rights at all, regardless of how effectively their interests might be catered for in the State's policies and enactments.3
Although Interest Theorists and Will Theorists agree that all genuine legal rights (as opposed to purely nominal legal rights) are enforceable, the Interest Theorists contend that the power of enforcement/waiver for any particular right will not necessarily be held by the person or creature who possesses the right. Thus, for instance, a minimum-wage law might confer rights on workers while vesting all powers of enforcement/waiver in one or more public agencies. Because the Interest Theory leaves open the possibility that the legal power of enforcement/waiver for any of X's legal rights is not held by X himself, it leaves open the possibility of a situation like the one which Simmonds describes-a situation in which all the legal powers of enforcement/waiver for all the legal rights of individuals are held by public agencies rather than by the individuals themselves. A more realistic possibility is that all the legal powers of enforcement/waiver for all the legal rights of some individuals (e.g., comatose or mentally incapacitated individuals) are held by people or agencies other than those individuals themselves. Should Interest Theorists feel uneasy about these circumstances? Should we blench from attributing legal rights to anybody who is totally devoid of legal powers for enforcing/waiving the various duties that are correlative to the rights?
The answer to the first of these questions is of course affirmative, but the reasons for the answer have no bearing on the soundness of the Interest Theory. Proponents of that theory can and do recognise that when an individual is capable of reaching decisions about the effectuation of her own legal rights she ought ordinarily to be endowed with legal powers to make just such decisions in a legally determinative manner. Nothing in the Interest Theory suggests that the possibility of divergences between the location of some legal right r and the location of the legal power for demanding/waiving the effectuation of r is tantamount to the desirability of such divergences. On the contrary, all or most Interest Theorists readily accept that autonomy is generally a key interest of each mentally competent human adult, and they perfectly well grasp that that interest is typically furthered if each such adult holds powers to enforce/waive the duties that are correlative to his own rights.4 To be sure, the interest in self-determination is sometimes outweighed by other considerations. For example, the sustainability of a minimum-wage scheme may well require the vesting of powers of enforcement/waiver in a public agency rather than in the individuals whose remuneration is governed by the scheme. Nevertheless, for most mentally competent adults in most circumstances, the possession by them of legal powers to enforce/waive their own legal rights is both normal and appropriate-because the consequent enhancement of their autonomy is not outweighed by any factors that cut against their possession of those powers. Accordingly, every Interest Theorist or virtually every Interest Theorist would be deeply troubled by the sort of society which Simmonds describes. A state of affairs wherein public officials hold all legal powers of enforcement/waiver would grievously distress anyone who values individual latitude and initiative. Interest Theorists can acknowledge as much and indeed can insist as much. Their doctrine is fully compatible with their esteem for the ideal of individual autonomy, since their doctrine pertains only to the classifiability of certain legal entitlements as rights. It does not seek to prescribe in any way the substance or distribution of people's legal entitlements.
Not as disconcerting are the more realistic situations in which all the powers of enforcement/waiver for all the rights of some individuals are held by people other than those individuals themselves. Because infants and mentally incapacitated people and animals and dead people are not competent to demand or waive the enforcement of their entitlements, their holding of genuine legal rights cannot involve their own holding of the legal powers to demand/waive the effectuation of those rights. There is no alternative to placing such powers in the hands of others (parents, guardians, public officials, and so forth), if infants and mentally incapacitated people and animals and dead people are to have any genuine legal rights at all. Hence, given that there is no alternative, and given that the conferral of genuine legal rights on the aforementioned people and creatures is highly desirable, the fact that other people exert the powers to enforce/waive those rights is not a cause for keen consternation. (All the same, we ought perhaps to feel a bit of unease or squeamishness even in regard to these right-holders. On the one hand, to be sure, we should very willingly avouch that nobody can hold any genuine legal powers of enforcement/waiver if he or she is devoid of the capacity for autonomous decisions relating to exercises of those powers. On the other hand, the absence of feasible alternatives does not render the sole feasible state of affairs entirely palatable. For instance, although decisions about medical treatment for any mentally incapacitated person M cannot be made by M himself, and although we therefore have to face the fact that the right-waiving consent to such treatment for M must come from someone else, the unavoidable absence of consent directly from M should occasion in us some sense of mild disquiet.5 After all, given that M resembles paradigmatic right-holders sufficiently to be properly classifiable as a right-holder himself-in other words, given that M is properly classifiable as a subject for whom legal protections are maintained, rather than merely as an object in application to which the aims of the protections are pursued-the inevitability of his being treated as a creature devoid of self-determining discretion is not something about which we should feel completely comfortable.)
Confronted with a society like the one which Simmonds envisages, then, the Interest Theorists would object strongly on moral and political grounds. What must now be considered is whether Simmonds is correct in suggesting that Interest Theorists are nonetheless unable to characterize the envisaged society adequately. According to him, a situation S wherein public officials hold all powers of enforcing/waiving legal rights is a situation wherein ordinary citizens are bereft of such rights. This description-cum-condemnation follows from the Will Theory but-obviously-not from the Interest Theory. Though Simmonds is far from dogmatic in articulating his position, he quite plainly thinks that the Interest Theorists cannot manage to convey the sheer dismalness of the plight of the citizens in S. By the reckoning of the Interest Theory, each citizen in S does hold legal rights insofar as various instances of harm to his or her interests are sufficient to constitute violations of legal norms or legal rulings; consequently, Simmonds implies, the champions of that theory are unable to come up with analyses that capture the objectionableness of S. In other words, by having committed themselves logically to the conclusion that each citizen in S holds numerous legal rights (since the interests of each citizen are integrally protected by legal norms in numerous respects, ex hypothesi), the Interest Theorists cannot sufficiently distinguish S from the much more commendable situations wherein ordinary citizens hold legal powers of enforcement/waiver along with legal rights. So runs the accusation by Simmonds.
In fact, the Interest Theorists can provide perfectly apt denunciations of S that reflect their own understanding of the distribution of entitlements among the citizens. They can and should describe the legal condition of each citizen in S as one of utter powerlessness or disempowerment. Although each citizen C enjoys an array of legal rights against interference and uncooperativeness, she is arrantly powerless to pursue any of those rights (or to set aside any of those rights) in a legally determinative manner. C occupies an essentially passive role, with protections but not with choices. Albeit many of her interests are legally shielded by her rights, her interest in arriving at autonomous decisions about the effectuation of those rights has received woefully inadequate recognition. Notwithstanding that that very interest may actually be protected in a number of ways by some of her legal rights, it has been totally stifled because it has been given no room to unfold. Even if C does possess some legal rights against interference by her fellow citizens with her making of enforcement/waiver choices about the legal duties that are owed to her, she in fact is disabled from making such choices. In these circumstances, she would be roughly akin to people who have undergone the complete amputation of their legs (by public officials) but who hold legal rights against interference with their running in cross-country races. In much the same way that those people are physically powerless to engage in long-distance running, C is legally powerless to reach determinative decisions concerning the implementation of her entitlements. Her normative debilitation parallels the physical debilitation of the amputees, as the law shields her from others' meddling with her exertion of legal powers that are entirely withheld from her.
In short, Interest Theorists can forcefully characterize in suitably pejorative terms the legal posture of each citizen within S. To describe every citizen as thoroughly powerless or disempowered is to make clear that the condition of the people in S is grim indeed. We should not follow the Will Theorists in denying that those powerless people hold legal rights, since we can amply convey the bleakness of their plight without resorting to such a denial (a denial that will come across as irredeemably misconceived in any event to someone who favours the Interest Theory over the Will Theory).
Moreover, not only is the Will Theorists' approach to this matter superfluous; in addition, it is less precise and subtle than the approach advocated here. If the Will Theorists examine a society S and declare flatly that the ordinary citizens therein hold few or no legal rights, we do not yet know exactly what is being asserted. Perhaps the citizens of S enjoy very few legal protections against various kinds of harmful treatment at the hands of one another, even though the few protections which they do enjoy are enforceable or waivable at their discretion. Or perhaps the citizens do enjoy abundant legal protections for most of their interests, yet nearly all of those protections are enforceable and waivable only at the discretion of public officials. Or perhaps the situation in S involves a blending of these two possibilities, whereby the citizens enjoy very few legal protections and no legal powers to demand or waive the enforcement of those meagre protections. A Will Theorist's assertion about the dearth or absence of legal rights within S does not discriminate among these possibilities. By contrast, the Interest Theory's account of the situation in S is more nuanced-regardless of which of the foregoing possibilities has actually materialised.
Let us first suppose that S is a society of the type which Simmonds adumbrates. As has already been indicated, an Interest Theorist will take the view that the citizens of S hold myriad legal rights even though they are utterly powerless to choose in a legally determinative fashion between asserting and relaxing any of their rights. Let us now suppose that S is instead a society wherein the citizens enjoy hardly any legal protections against the harmful acts of one another, and that each citizen nonetheless has legal powers to demand or waive the enforcement of each of his few rights. Proponents of the Interest Theory will maintain that the citizens are endowed with hardly any legal rights, and that each citizen nevertheless holds legal powers to waive/enforce the scanty legal rights which he or she does hold. Let us now assume that very few legal norms in S safeguard the well-being of the citizens, and that furthermore the citizens have no legal powers to demand or waive the effectuation of those norms. An Interest Theorist will conclude that the citizens have hardly any legal rights and no legal powers of enforcement/waiver; their state of unprotectedness is combined with their state of disempoweredness. In sum, unlike the Will Theorists, the Interest Theorists can wield Hohfeldian terminology to describe the legal positions of S's citizens in ways that discriminate among the ghastly variants of S.
Thus, far from exposing any shortcomings in the Interest Theory, Simmonds' scenario has helped to illuminate that theory's strengths. Just as vividly and trenchantly as the Will Theorists, the Interest Theorists can deplore the kind of society which Simmonds portrays. What is more, they can frame their denunciations in Hohfeldian language with a much more precise focus than can the Will Theorists. For purposes of political criticism, the Interest Theory is at least as serviceable as the Will Theory; and for the attainment of analytical exactitude, the former theory is superior to the latter.
B. When Duties are Unenforced
My earlier essay on rights distinguished more than once between genuine and nominal legal entitlements. Specifically with regard to rights and their correlative duties, as we shall see, the genuine/nominal distinction hinges on the enforceability or unenforceability of the particular duties. What my earlier essay did not highlight, however, is a distinction between two broad types of unenforced legal duties: duties that are unenforced because the power of waiving them is invariably or almost invariably exercised, and duties that are unenforced because they are unenforceable (i.e., because no power of demanding the effectuation of them exists). To apprehend clearly this latter distinction along with the genuine/nominal distinction, we should first very briefly look at the difference between enforced and unenforced rights-that is, the difference between legal rights that are operative and legal rights that are inoperative.
If a legal right r is an operative legal right, then one of the following two conditions obtains: violations of the legal duty correlative to r are regularly punished or remedied; or the violations would be regularly punished or remedied if they ever occurred. Perhaps measures of rectification are taken on all occasions when the duty is breached, or perhaps only on most such occasions. At any rate, regardless of whether the rectification takes place invariably or only usually, it has to take place regularly (insofar as circumstances warrant) if an operative legal right is to exist. If instances of non-compliance with some legal duty d seldom or never trigger any punitive/rectificatory responses, then the legal right correlative to d is an inoperative right. Much the same can be true even in circumstances where no instances of non-compliance with d have arisen. If no punitive or rectificatory responses would be triggered in the event that infractions of d were ever actually to occur, then the legal right correlative to d is not an operative entitlement. In short, the operativeness of a legal right r consists in a strong connection between the violations of the duty-correlative-to-r and the imposition of punishments or remedies-irrespective of whether those violations (and the resultant punishments or remedies) are actual or purely hypothetical.
Inoperative legal rights, by contrast, are those rights which are conferred under the terms of some legal norms or decisions but which are not regularly enforced. If the terms of a legal norm or decision impose a duty on somebody X in furtherance of the interests of somebody else Y, and if the duty borne by X is seldom or never enforced when he breaches it, then Y's legal right is inoperative. Likewise, if the duty borne by X would not be enforced if he were to breach it (even though he has never in fact done so), then again the right held by Y is inoperative. In sum, when a legal right r is inoperative, there is a strong probability that any violation of the duty-correlative-to-r will trigger no punishments or remedies.
Having briskly explored the inoperative/operative dichotomy, we should now consider the two distinct ways in which a legal right can prove to be inoperative. On the one hand, such a right r may be unenforced because it is unenforceable. That is, the reason for the hollowness of r can be simply that the legal norms or decisions which create r have not also created a power of enforcing/waiving it. Not only does each right-holder in such circumstances lack any legal power to demand or waive the enforcement of the duty that is owed to him as the correlative of r; in addition, everyone else similarly lacks such a power over that duty. Neither the individual who holds r nor anybody else can institute legal proceedings that will get r implemented.
For example, suppose that the terms of a statute impose on every school system a duty to take certain precautionary measures that will safeguard students from certain types of harm.6 Let us assume as well that the statute does not provide for the imposition of any penalties on schools in the event of non-compliance; no public agency or minister is legally empowered to introduce such penalties. Now suppose that a school fails to carry out its duty and that a student is harmed as a result. Although the courts might well decide that the injured student is empowered to bring private-law proceedings against the school in order to gain a remedy for the school's failure to fulfil the duty that was owed to him, such a ruling is by no means preordained. Perhaps because of public-policy considerations, the courts might decide that no proceedings by a private plaintiff should go ahead. If such a decision is indeed handed down, then neither public-law penalties nor private-law remedies will be associated with the duty that is imposed on each school system by the terms of the relevant statute. In the absence of all such penalties and remedies, that legal duty is purely nominal. It is not backed up by any measures of punishment or rectification, because no one has any legal power to take or induce such measures.
In the foregoing scenario, the school's breach of duty goes unremedied not because the student or anyone else has waived his claim against the school. Rather, the absence of any penalty or remedy is due to the fact that no one holds any legal power to waive or pursue a claim. Far from having opted for inaction while being empowered to choose in a legally determinative manner between inaction and action, the student and any monitoring officials have been powerless to make legally determinative choices in the matter. This state of unenforceability is what characterizes a purely nominal legal duty-and is thus what characterizes a purely nominal legal right. Inoperativeness ensues from the lack of any opportunities for enforcement, rather than from decisions by the right-holder (or anyone else) against availing himself of such opportunities.
A nominal legal duty, as has just been affirmed, is unenforceable and not merely unenforced. Hence, a situation involving such a duty differs importantly from a situation in which a legal duty d goes persistently unenforced because of the exercise of a legal power to waive d. In circumstances of this latter sort, someone-the right-holder or someone else-does have a legal power to activate measures of punishment or rectification if d has been unfulfilled. If the holder of that power chooses not to exercise it, he has thereby exercised a power of waiver. If he opts to exert the power of waiver on every occasion or nearly every occasion when d is breached, then d is an inoperative duty. The inoperativeness of d stems precisely from the repeated exercises of that power of waiver; it does not stem from the absence of a power-to-demand-the-effectuation-of-d, for such a power is in fact present. A situation along these lines, then, will be marked by enforceability without enforcement.
Once again an example may help to elucidate the abstract discussion. Suppose that the local Government in a town has enacted some legal norms which forbid jaywalking on all or most of the town's streets. Suppose further that people in the town commit numerous acts of jaywalking and are never or almost never punished for doing so. Although each of them owes a legal duty to the local Government (and perhaps also to one another) to desist from jaywalking, the frequent transgressions of the duty go unrectified. (One can equally well describe the situation, of course, with a focus on the Government's legal entitlement to obedience. Although the Government has a legal right to compliance by each person with its anti-jaywalking mandates, the frequent disregard of that right does not trigger any penalties.) Why is the legal duty-to-desist-from-jaywalking an inoperative duty? Is it unenforceable or merely unenforced?
The situation is not entirely straightforward, since some violations of the anti-jaywalking ordinance are probably undetectable even in an authoritarian society and especially in a liberal democratic society. When a person crosses a sleepy street (a street with no crosswalks) in order to visit a neighbour, his infraction of the anti-jaywalking directive may well lie beyond the monitoring capacity of any Government that does not have virtually unlimited resources for policing. If there are myriad such infractions on the town's various sleepy streets in the course of a day, then it is virtually certain that some of them will lie beyond the local Government's monitoring capacity. In regard to those undetectable violations, then, the Government is in largely the same position as an individual who ostensibly holds a legal power without being competent to exercise it. Although the local Government on many occasions will be capable of exercising its overarching legal power to enforce/waive the legal duties of obedience that are owed to it, it will be wholly incapable of exercising that power on certain other occasions-because even an intrusively authoritarian regime will fail to espy some violations of its mandates. When the Government takes no disciplinary measures against the violations which it cannot realistically discover, the inaction is not due to the exercise of a power of waiver. Instead the inaction is by default, just as a legal power of enforcement/waiver vested in an infant or animal will remain unexercised by default. Now, since the enforceability of a legal duty rests on the fact that someone is competent as well as authorised to exercise a legal power of enforcing/waiving the duty, and since the local Government will sometimes be incapable of exercising its overarching power to enforce/waive each person's legal duty-to-abstain-from-jaywalking, that duty is sometimes purely nominal. In other words, it is sometimes unenforceable because the power of enforcing it is sometimes otiose.
On numerous occasions, however, the local Government can perfectly well manage to detect violations of its anti-jaywalking directive. All the same, ex hypothesi, the violations do not trigger any penalties or warnings. In these circumstances, there is enforceability without enforcement. Perhaps explicitly or more likely implicitly, the local Government continually waives each person's legal duty-to-refrain-from-jaywalking. There is no doubt that the Government holds a legal power to enforce that duty by imposing fines or other punishments; but, for whatever reasons, it persistently opts (probably often very wisely) not to exert that power. It thereby persistently exerts its legal power to waive the anti-jaywalking duty. Thus, although that duty is inoperative in these circumstances, it is genuine rather than purely nominal. It exists in combination with a legal power of enforcement-an unused legal power of enforcement-rather than without any such power.
Because some inoperative legal duties and rights are genuine, the Will Theorists are not logically committed to the view that all legal duties and rights are regularly given effect. Whereas the great nineteenth-century jurisprudential positivist John Austin sought to explicate the concept of legal duty by reference to the probability of punishment, the Will Theorists need not similarly insist that a very small likelihood of punitive measures is inconsistent with the existence of a legal obligation. Although their theory cannot make sense of the idea of a nominal legal duty (viz., a legal duty in respect of which nobody is competent and authorised to gain enforcement), they can happily acknowledge the existence of legal duties that are inoperative but enforceable. So long as a legal claim is accompanied by a legal power of enforcement/waiver in the hands of a competent claim-holder, the juncture of the two entitlements will get classified as a legal right by the Will Theory-regardless of whether the right-holder opts for enforcement or for waiver. Though someone who counts as a right-holder under the Will Theory might continually refrain from doing anything about breaches of the duty d that is correlative to his right, his persistent exercise of his legal power of waiver does not negate the determinative control which he enjoys over d. That element of control, rather than the specific direction in which the control has been wielded, is what the Will Theory singles out as an essential characteristic of every legal right. The Will Theorists are not retreating from their doctrine at all when they allow for the existence of enforceable legal rights that are chronically unenforced.
By contrast, the Will Theory obliges its proponents to deny the existence of any unenforceable legal rights. If the terms of a statute impose a duty on every school system to supply a free and nutritious lunch daily to each of its students, and if the statute fails to provide for any means of enforcing the duty through public-law channels, and if the courts (when faced with lawsuits against schools by famished students) decide against the availability of private-law remedies, then the Will Theorists have to conclude that the statute has not in fact conferred any legal rights on the students at all. Despite the terms of the statute, no student has any legal right whatsoever to be given a free and nutritious lunch-since a purely nominal legal right to a lunch is no right at all, as far as the Will Theorists are concerned. Those theorists are committed by their doctrine to basically the same conclusion when pondering the occasions on which a municipal Government cannot detect people's breaches of its anti-jaywalking laws. On each of those occasions, when the local Government is incapable of either enforcing or waiving the duty of each person to forgo jaywalking, the Government does not have any legal right to compliance with its anti-jaywalking mandates. Hence, a person who engages in the jaywalking on such an occasion does not breach any legal duty whatsoever, since he is not then under any legal duty to eschew his crossing of the street at an unauthorised point. Only when the prohibitions on jaywalking are enforceable, do they impose any legal duties (on individuals) and confer any legal rights (on the municipal Government). In settings where those prohibitions are unenforceable because some instances of jaywalking are undetectable, the legal duties and rights fall away. So the Will Theory would have us think.
Now, although the position of the Will Theorists on this matter is not guilty of any outright errors, it is guilty of strangeness and relative unsubtlety. The strangeness of the position should be apparent even in connection with the example of the school that has been discussed above. If the terms of a statute clearly require each school system to introduce some specified precautionary devices or arrangements for the benefit of its students, then the absence of any public-law penalties and private-law remedies is hardly a compelling ground for denying that the statutory requirements are legal duties to which each school system is subject. To be sure, those duties are wholly inoperative; however, as has been observed, the Will Theorists readily accept that some wholly inoperative duties are indeed legal duties. The key point here in the eyes of those theorists is that the statute just mentioned has laid down a mandate which is unenforceable rather than merely unenforced at all times. For anyone not thoroughly enamoured of the Will Theory, such a distinction will seem quite a curious basis for asserting that clear-cut statutory requirements are not legal duties.
Even more odd is the Will Theory's position as applied to the example of the anti-jaywalking directives. As has been argued, the Will Theorists are logically committed to the view that the imposition of legal duties and the bestowal of legal rights by the aforesaid directives will have ceased (or, rather, will have become suspended) whenever violations of the directives are undetectable. Although such a view might not appear utterly outlandish in connection specifically with infractions of the anti-jaywalking mandates-given that the undetectability of those infractions is very likely associated with the harmlessness and triviality of them-the bizarreness of the Will Theorists' view becomes plain when that view is applied more broadly. After all, when the stance of the Will Theorists on this topic is generalised, a corollary thereof is that criminals and tortfeasors who are especially adept at committing misdeeds with furtiveness can thereby relieve themselves of the legal duties that would otherwise lie upon them. So long as the perpetrators of crimes and torts are sufficiently clever to ensure that their carrying out of their misconduct will not be discovered through even the utmost endeavours of monitoring by their fellow citizens and the police, they will have avoided any breaches of legal duties. Their avoidance of such breaches stems from their having done away (temporarily) with the legal duties which they appear to be violating. In sum, the more adroit a criminal or tortfeasor is at dissimulation when engaging in his misbehaviour, the less likely it is that he is failing to abide by any legal obligations. Such is the bizarre conclusion to which the Will Theory leads, as a result of insisting that unenforceable legal duties are no legal duties at all. To be sure, some proponents of the Will Theory such as Nigel Simmonds contend that right-duty correlations are restricted to the domain of private law ("RCE," 141-144). For those proponents, then, the occasional unenforceability of the duty-to-abstain-from-jaywalking-an occasional unenforceability that is inconsistent with the local Government's steady holding of a legal right to each person's compliance with the anti-jaywalking directives-will not perforce yield the results described here. The absence of the Government's legal right on the occasions of unenforceability will not entail the absence of each citizen's legal duty. However, as my present paragraph has sought to make clear, its criticism of the Will Theory extends to the domain of private law as well as to situations involving duties owed principally or exclusively to the general public. Simmonds and other Will Theorists who confine right-duty correlations to private-law interaction are not able to escape the disconcerting implications of the Will Theory that have been highlighted here. Such theorists are still logically committed to the view that, when a tortfeasor is clever enough to keep himself from being identifiable as the person who has caused harm to someone else, he thereby frees himself from the duty which he otherwise would have owed to his victim. Not only has he managed to escape compensatory or indemnificatory burdens; but also, we are asked to think, he has managed to release himself altogether from the legal obligation in connection with which those burdens would have been levied.
In addition to generating some preposterous corollaries, the Will Theory's treatment of unenforceable legal duties is not as illuminatingly nuanced as the Interest Theory's approach to the matter. We have already found that the Interest Theory offers greater subtlety than the Will Theory in its analysis of societies wherein people do not hold any legal powers of enforcement/waiver; a comparable advantage in subtlety is present here. As has been seen, the Will Theory commits its advocates to the thesis that unenforceable legal duties and rights are not legal duties and rights at all. A Will Theorist can take account of inoperative legal duties and rights, but only insofar as they are genuine rather than merely nominal. Thus, for the purpose of answering the question whether each school system has been placed under a legal duty to provide every one of its students with a free and nutritious lunch, the Will Theory cannot distinguish between the following two possibilities: a situation where the legislature has passed a free-lunch statute like the one described three paragraphs ago, and a situation where the legislature has passed no statute whatsoever on the issue. Interest Theorists analyse this matter more discriminatingly. Like the Will Theorists, they of course distinguish between inoperative and operative duties. Again like the Will Theorists, the champions of the Interest Theory fully recognise that some genuine legal duties are never or virtually never enforced. Enforceability can consort with unenforcedness. Unlike the advocates of the Will Theory, however, Interest Theorists are able to underscore the distinctiveness of nominal duties and rights. Instead of lumping together nominal legal rights and no legal rights, the Interest Theorist can explain both how nominal legal rights differ from no legal rights and how they differ from other legal rights.
On the one hand, a nominal legal right serves to protect one or more interests of the right-holder, insofar as the right is given effect through the heeding of it by the addressee(s) of the legal norm or decision that has created it. (People may well choose to heed a right, of course, notwithstanding the unavailability of remedies for non-compliance.) In this respect, a nominal legal right differs markedly from an absence of legal rights; an absence of rights cannot serve to advance the interests of a right-holder through compliance by the addressees of legal norms, any more than through enforcement by the addressors of such norms. On the other hand, a nominal legal right plainly differs from any genuine legal right by being not only unenforced but also unenforceable. It exists only as a position of protectedness ordained by an authoritative specification of a required mode of behaviour (a specification laid down by the terms of a legal norm or decision). It does not exist as a safeguard that can be forcibly given effect in the event of transgressive conduct. By designating such an entitlement as a "nominal legal right", the Interest Theorists capture both the similarities and the differences between it and a genuine legal right. It is a legal right because of its connection with the upholding of people's interests through the law's setting of standards and requirements, and it is only nominal because the implementation of it by judicial and executive officials cannot go beyond the mere restating of the relevant legal norm or decision. Whereas this subtle combination of resemblances and dissimilarities is obscured by the Will Theory, it can be highlighted by the Interest Theory.
II. CONTRADICTIONS: REAL AND APPARENT
As has already been observed, my earlier essay on rights defended the Interest Theory with the assistance of categories developed by Hohfeld for the analysis of entitlements generally. In this second main section of the current essay, we shall explore a few aspects of Hohfeld's categories that might appear to be problematic. Each of the chief points to be covered will relate to real or apparent contradictions, and will pertain especially to the holding of rights and the shouldering of duties. The first of these points is linked to the operative/inoperative distinction which we have just been investigating.
A. Talking about Round Squares
My earlier essay took pains to distinguish between conflicts and contradictions. A conflict between two legal duties obtains when the fulfilment of one duty excludes the fulfilment of the other and vice versa (and when the two cannot be simultaneously unfulfilled).7 Any person's conformity with a duty-to-do-(-at-time-t entails his or her nonconformity with a duty-to-abstain-from-doing-(-at-time-t, and vice versa. Nevertheless, although the two duties cannot be jointly satisfied, they can perfectly coherently coexist as legal duties. A person can be under both of those duties, and can thus be in a situation where he or she will inevitably breach one of them. Though the imposition of conflicting duties on a person may be undesirable as a moral or political matter, there is nothing logically suspect about it.
Contradictions are quite different. If two legal postures are contradictory, then they cannot possibly coexist; one and only one of them will obtain at any given time, as the existence of either entails the non-existence of the other, and as the non-existence of either entails the existence of the other. For example, if a person is under a legal duty-to-do-(-at-time-t (duty D), then he or she cannot have a legal liberty-to-abstain-from-doing-(-at-time-t (liberty L). Conversely, of course, if a person holds L, then she cannot be under D. Likewise, so long as a person bears a legal duty-to-abstain-from-doing-(-at-time-t (D2), he or she cannot hold a legal liberty-to-do-(-at-time-t (L2), and vice versa. There is no possible legal system in which anybody can shoulder D2 and posses L2 at the same time. As a strict matter of logic, rather than as a mere matter of policy, the coexistence of those contradictory legal postures is out of the question.
Everything said in my last paragraph has presumed that both of the legal positions in each contradictory pair are operative rather than purely nominal or otherwise inoperative. We should now take notice, however, of the possibility that one of the jural positions in an ostensibly contradictory pair is merely nominal or otherwise inoperative. If that possibility is indeed actual, then the contradiction under scrutiny is only apparent rather than real. The existence of an inoperative legal duty-to-do-(-at-time-t does not clash with the existence of an operative legal liberty-to-abstain-from-doing-(-at-time-t. Although the coexistence of those two jural elements may be confusing and therefore undesirable, it is not logically absurd.
To clarify this point, we should perhaps think first about somebody S who announces both that he will hold exactly one apple in his left hand at time t and that he will not hold exactly one apple in his left hand at time t. His announcements can occur in tandem without any difficulties, despite the fact that one (and only one) of them will turn out to be false.8 There are no logical barriers to S's making both of his announcements, though of course there are insurmountable logical barriers to the joint truth of those announcements. In other words, the situation here is one of conflict rather than of contradiction. Like conflicting legal duties, S's two announcements cannot both be fulfilled (and cannot both be unfulfilled); yet again like conflicting legal duties, S's two announcements can perfectly well occur alongside each other. Whereas the contents of S's announcements are indeed in contradiction, the announcements themselves are not. Though nobody can ever draw a round square, anybody can talk at length (without illustrations!) about drawing one.
Let us now assume that a legal system contains some norms-perhaps some divergent unrepealed statutes or perhaps some divergent clauses within a single statute-which establish both that each person has a legal duty-to-do-( and that each person enjoys a legal liberty-to-abstain-from-doing-(. There is plainly no point in contending that these clashing legal norms cannot coexist; after all, we are assuming that they do coexist, and in any event they manifestly can coexist. Nonetheless, to grant the possibility of their coexistence is most certainly not to grant the possibility that they can be simultaneously operative. Two operative legal norms along the lines just specified would indeed be mutually exclusive. One and only one of them would exist at any particular juncture. Very different is the situation, however, if one of the two legal norms is purely nominal or otherwise inoperative.
Let us suppose, for instance, that the duty-to-do-( is never enforced (either because it is wholly unenforceable or because it is constantly waived). In that event, the legal norm N which purports to establish a liberty-to-abstain-from-doing-( does indeed correspond to the reality of the situation and does indeed provide an operative liberty of the sort which it declares. Of course, given that the legal duty-to-do-( (duty D) is either unenforceable or always waived, an operative legal liberty-to-abstain-from-doing-( will ipso facto exist regardless of whether N obtains. All the same, the judicial decisions against granting anyone a power of enforcing/waiving D or the administrative decisions against ever seeking enforcement of D may have been based specifically on an awareness of N's existence. If so, then N itself has been the sine qua non of the operative legal liberty which it correctly purports to create. At any rate, irrespective of whether that operative liberty ensues from D's inoperativeness or the other way around, the chief point here is that N can smoothly coexist with the legal norm that creates D-so long as one or the other of those norms is thoroughly inoperative. When one of those norms is indeed inoperative, the situation is that of a conflict rather than a contradiction. Although the content of N and the content of the D-creating norm are in contradiction, the two norms themselves in such circumstances are not. Those norms cannot be jointly effective, but they can be jointly existent.
Of course, in a legal system where divergent norms declare both a duty-to-do-( and a liberty-to-abstain-from-doing-(, the courts are apt to deal with the problem by deeming one or the other of those norms to be nugatory. For example, if the divergent norms are contained in different statutes, the more recent enactment will probably be deemed to have repealed all or some portions of the older enactment. Such an approach, which handles any pair of contradictory legal norms by eliminating one of the norms altogether, is eminently sensible in most contexts. Nothing said herein is meant in any way to discount that option. Rather, the point of the present discussion has been to explore what the situation in a legal system will be if the option of downright nugatoriness is not taken. If we encounter a legal system wherein one norm imposes a duty-to-do-( while another norm bestows a liberty-to-abstain-from-doing-(, and if neither of those norms is deemed to be an out-and-out nullity that does not belong to the system, what can we know that must be true of the norms? As this section of my essay has argued, we can know first that such a situation is possible. There are no logical barriers to the coexistence of the two aforementioned legal norms. We furthermore know that the possibility of the coexistence of those norms hinges on the inoperativeness of one or the other of them. That is, we know that one of the following three states of affairs must obtain: the duty-to-do-( is thoroughly inoperative, or the liberty-to-abstain-from-doing-( is thoroughly inoperative, or the duty is inoperative on some occasions and the liberty is inoperative on all other occasions. Were it not for the actuality of one of these three states of affairs, the simultaneous existence of the contradictory duty and liberty would be ruled out.
Thus, an alertness to the inoperative/operative and nominal/genuine distinctions enables us to grasp how a legal system can contain norms with contents that are in contradiction. Within such a system, an eventuality of that kind will not perforce result in the formal voiding or repealing of either of the norms in any contradictory pair. Instead, one or the other norm can exist as a formally valid but inoperative component of the scheme of legal governance in which it appears. The significance of this observation should be evident from the remarks in the previous section of this essay on the differences between nominal legal obligations and non-existent legal obligations. Let us briefly recall those differences.
A straightforward absence of legal obligations on some matter cannot offer the slightest guidance to anybody concerning what is to be done in connection with that matter. It therefore cannot be given effect through the compliance of any addressees, since there are no addressees and there is nothing with which anyone might comply. The only message of a wholesale absence of legal obligations on some matter M is that nothing at all is legally required in connection with M. A nominal legal duty is importantly different. (A fortiori, an inoperative but genuine legal duty is different.) Legal norms that lay down nominal obligations do indeed pose their demands to addressees, who may well opt to comply with those demands in spite of the utter unenforceability thereof. Those legal norms can thus channel and direct people's conduct, in ways that are not attainable by non-existent legal norms. Though the effects of channelling through enforcement are not available, the effects of channelling through the eliciting of conformance are. Instead of conveying the message that nothing is mandatory in connection with some particular matter, a norm imposing a nominal legal duty puts forth a requirement or set of requirements-notwithstanding that the requirement or set of requirements receives no backing at all from any means of enforcement.
Therefore, if a legal system contains norms that establish both a duty-to-do-( and a liberty-to-abstain-from-doing-(, the way in which the system handles the situation will quite likely carry some practical significance. As has been stated, very often the best way for the courts (or other governmental institutions) to deal with the problem is to eliminate one of the norms altogether as a nullity. Let us assume that the duty-imposing law is so eliminated. As a consequence, the possible compliance-eliciting effects of a nominal legal obligation-or an otherwise inoperative legal obligation-will have been forgone, whether deliberately or inadvertently. By contrast, if the duty-imposing law is retained and is simply treated as an inoperative legal mandate, the possible compliance-eliciting effects of such a mandate may well ensue.
Suppose, for example, that a legislature in some society S has enacted two statutes, one of which requires each school in S to supply every student with lunch, and the other of which confers a liberty on each school to serve or withhold lunch as it sees fit. Suppose as well that the legislature has not indicated that either statute repeals the other. (We may assume, for instance, that the two statutes were passed simultaneously or almost simultaneously.) In these circumstances, the courts in S will probably react by pronouncing some portions of one or the other statute to be devoid of legal validity. If the courts invalidate the statutory provisions that confer on every student a right to lunch, they will do away with any guidance and beckoning which those provisions can yield even when completely unenforced. Alternatively, the courts might opt to retain the right-conferring/duty-imposing statute intact as a legally valid norm, and might simply treat it as unenforceable. In that event, they will have handled the contradiction between the two school-lunch laws not by nullifying one law or the other, but by assigning the laws to the separate planes of the nominal and the operative. S's system of governance can thereby take advantage of the difference between nominal legal obligations and no legal obligations. That is, the possible compliance-inducing effects of a nominal legal duty might then materialise in S-even while the operative liberty-conferring statute establishes that no penalties will ever be inflicted for non-compliance.
Finally, one might wonder whether the channelling and directing force of a nominal legal obligation is essentially the same as the aspirational force of a set of voluntary guidelines. A full answer to such a query would doubtless have to take up empirical matters of individual and social psychology that cannot be addressed herein; the verdict could well be that there is very little difference between a set of guidelines and a nominal duty at the level of practical results. However, we should here take note of one key distinction between voluntary guidelines and any nominal legal duties. As formal speech-acts, the legal norms which lay down the guidelines are clearly divergent from those which lay down the duties. Whereas the norms that set the voluntary guidelines are exhortations which implicitly or explicitly disclaim the mandatoriness of what they prescribe, the norms that impose the nominal legal obligations do indeed present themselves as mandates which disallow routes that are incompatible with what the norms require. To be sure, a purely nominal legal mandate does not include any means of backing up its requirements with penalties for violations. (The absence of any such means is precisely what renders that mandate nominal, of course.) Nevertheless, the lack of coercive effectuation does not alter the basic character of the speech-act that has been performed. As a consequence, the content of a norm imposing a nominal legal obligation-to-do-(unlike the content of a guideline which counsels its addressees to do (is indeed in contradiction with the content of a norm bestowing an operative legal liberty-to-abstain-from-doing-(. Hence, only the nominal status of that obligation is what allows it to coexist with the operative liberty. Whereas an operative set of voluntary guidelines can obtain and function harmoniously in conjunction with an operative law creating a legal liberty-to-refrain-from-whatever-actions-the-guidelines-recommend, an operative norm creating a legal duty can never exist in conjunction with an operative norm creating a legal liberty-to-refrain-from-whatever-actions-the-duty-requires. The latter combination, in contrast with the former, is contradictory. If that contradiction between jural elements is not to be resolved through the outright removal of one of those elements, it has to be resolved through the reduction of one of them to a nominal posture.
B. Divided Against Oneself
This essay will close by investigating some situations that may initially appear problematic for the Interest Theory of legal rights and especially for a version of the Interest Theory that draws on Hohfeld's analysis of legal entitlements. According to the proponents of that theory, any legal right is a form of protection-perhaps an ineffectual form of protection-for some aspect of the right-holder's life or circumstances that is usually a facet of a person's well-being.9 On the one hand, as my previous essay on rights has sought to emphasize ("RWT," 93-96), the feature or condition protected by a legal right will not necessarily be advantageous for every person in every set of circumstances. Though the Interest Theorists do maintain that every legal right is a (possibly ineffectual) safeguard pertaining to some element of the right-holder's situation that is normally desirable for a person, they do not contend that the shielded element is perforce desirable for everyone in all contexts. In some anomalous settings, the protective effects of this or that legal right can work to the detriment of a right-holder. On the other hand, although the occurrence or state of affairs secured by a legal right can prove detrimental to a right-holder in exceptional circumstances, those circumstances must indeed be exceptional rather than typical-if the ostensible right-holder is to count as a right-holder at all. Unless an occurrence or event is beneficial for most people in most contexts, it is not something that can be safeguarded for a right-holder by a legal right. Thus, for example, no one can have a legal right to be involuntarily tortured or betrayed.
Let us now consider a few scenarios that may seem to pose some difficulties for the Interest Theory's stance. We may begin with a relatively straightforward problem. Consider the jural position of a child in a Western country where he or she has a legal right to be educated up to a certain age, and where he or she likewise is legally required to undergo schooling up to that age (or perhaps up to a slightly lower age). As should be plain to almost everyone, access to the programs of instruction in the primary and secondary educational institutions of any Western country W is an immensely valuable desideratum that normally redounds to the benefit of anybody who enjoys such access. Yet, as virtually anyone who is even noddingly acquainted with children will attest, many youngsters regard as highly disagreeable the duty of attending school and participating in lessons. For present purposes, we may assume (probably counterfactually) that most children harbour such a jaundiced attitude toward the compulsory regimen of their studies. Hence, there may appear to lurk a tension or inconsistency that renders doubtful the Interest Theorist's ascription of a legal right-to-be-educated to each child in W. Given that the Interest Theorist is committed to the view that a child's possession of a legal right-to-be-educated is promotive of some aspect(s) of the child's well-being, and given that most children frown upon the state of affairs which that right secures for them, the posited facts of the situation might seem to be at odds with the Interest Theorist's account of those facts.
Two responses to this initial scenario are pertinent. First, even if most children strongly dislike the process of education to which they are entitled, their assessments are hardly dispositive. Whether or not children apprehend the myriad benefits that are associated with an education, those benefits do indeed obtain. For the vast majority of people, a state of individual educatedness enables (and partly constitutes) a higher level of well-being than a state of individual ignorance. Thus, regardless of children's unhappiness about being required to pursue their studies, their right to be given instruction in those studies is an entitlement to something that furthers their interests. In other words, when an Interest Theorist gauges the circumstances of children, the conception of well-being to which he adheres is not rigidly tied to the children's own perceptions of those circumstances. If all or most of the members of a certain class of people lack the mature and informed judgment that is needed for an accurate appraisal of their own fortunes, then the fact that most of them view a particular practice as undesirable is not determinative of the way in which that practice should be construed. To whatever extent is appropriate, the Interest Theorist's conception of well-being or interests is objective rather than accommodatingly subjective. Although someone cleaving to that conception will typically defer to the evaluative judgments that are reached by most people in most contexts, he will depart therefrom if he has good grounds for thinking that those judgments are misguided or myopic. Such grounds may oft-times be present when the relevant group of right-holders-and thus the relevant group of people whose evaluative judgments are under scrutiny-is made up entirely of children. (The point advanced in this paragraph will be even more patently applicable to situations in which the right-holders under examination are non-human creatures.)
Equally important is a second shortcoming in the scenario of the schoolchildren. Any attempt to use that scenario as a basis for impugning the Interest Theory does not sufficiently distinguish between the two principal legal relationships in which the children are positioned. On the one hand, each child C has a legal right-to-be-educated which he or she holds vis-…-vis the local school system; on the other hand, C has a legal obligation-to-undergo-schooling which he or she owes to the general community. What the legal right does (if effectual) is to ensure access for C to a process of education that will almost certainly prove beneficial for him or her on the whole. What the legal obligation does (if effectual) is to remove from C the option of declining to participate in the educational process.
To be sure, the imposition of that obligation on each child is undoubtedly advisable, both as a matter of individual interests and as a matter of general societal welfare. Because the undergoing of primary and secondary schooling is mandatory, no child is allowed to neglect his or her long-term interests out of short-sighted lackadaisicalness or misplaced priorities. Likewise, the compulsoriness of primary and secondary instruction tends to secure for a society the desideratum of a well-educated populace. Nevertheless, the imposition of the duty-to-undergo-schooling does divest C of something which most people (most adults as well as children) quite correctly regard as valuable: the legal liberty to choose not to engage in a certain activity. However strong the reasons in favour of depriving C of that liberty, and however clearly those reasons ought to prevail in any all-things-considered judgment, the deprivation of liberty manifestly takes away from C a feature of his or her life that is generally desirable. The removal of that desirable feature is an objective loss for C-albeit a loss far outweighed by countervailing gains-and is felt as an irritating loss by many children, who object more to the mandatoriness of education than to the process of education itself. Yet such a loss does not arise at all from the legal right-to-be-educated which each student possesses. Rather, it derives exclusively from the legal duty-to-undergo-schooling which accompanies that right. Hence, if any opponents of the Interest Theory suggest that the aforementioned right will have secured for each schoolchild a state of affairs which most schoolchildren deplore, those opponents are probably conflating the effects of C's legal right and the effects of C's legal duty. (Of course, the legislature has imposed the duty d in order to ensure that the salutary role of the right r is not thwarted by the indifference of r's beneficiaries. In that respect, and only in that respect, the effects of d are associated with each child's holding of r. However, such a connection between r and the liberty-constricting impact of d-an entirely contingent connection based on moral/political concerns-is perfectly compatible with what has been argued here. My aim has been merely to affirm that the liberty-narrowing force of d and the access-securing force of r are distinct; there has been no suggestion that the latter is uncombinable with the former.)
Let us now tackle a scenario that poses more complicated problems. As has been noted in the opening remarks of this discussion, the Interest Theory maintains that we cannot normally speak intelligibly of a right-to-be-tortured or a right-to-be-betrayed. Because any legal right protects some aspect of a right-holder's life or circumstances that is generally of positive value for a person, and because subjection to torture or betrayal is not generally of such value, the ascription to someone of a right-to-be-tortured or a right-to-be-betrayed is straightforwardly out of place. An opponent of the Interest Theory, however, could easily come up with an apparent counter-example.10 Suppose that some sexual deviants enjoy being tortured or even murdered by one another (and perhaps by ordinary people as well). If their activities along these lines are obstructed by officials who enforce legal norms that proscribe various sorts of harms, the deviants may well contend that certain civil-liberties guarantees in their country's constitution have endowed them with legal rights to be tortured or murdered (or mistreated in any number of other ways). That is, each of them presumes to possess a legal right-to-be-tortured or a legal right-to-be-murdered or a legal right-to-be-otherwise-seriously-mistreated. Now, although the stance of these deviants on this matter will strike most people as perverse and indeed as repellent, it is not unintelligible. It poses a problem which the Interest Theory of legal rights must address.
The first main step in dealing with the scenario of the sexual deviants is to clarify precisely which entitlements they purport to possess when they assert their legal rights-to-be-harmed. For ease of exposition, we shall concentrate here only on the legal right-to-be-tortured. When a deviant D declares that he holds a legal right-to-be-tortured, what exactly is he seeking? Perhaps he is not really claiming to hold a legal right at all, and is instead insisting that his fellow deviants are legally at liberty to torture him if he has given his consent. With the misleading terminology of "rights", in other words, he will be advancing two closely linked contentions: (1) the proposition that he himself is endowed with a legal power to relieve his fellow deviants of their legal duties-to-refrain-from-torturing-him; and (2) the proposition that his comrades are no longer under those duties, now that he has exercised his legal power by indicating his consent. His cardinal aim in alleging these two points is to establish that the friends who torture him with his consent should not incur any criminal-law or tort-law penalties for having done so. Instead of announcing that he himself holds some legal rights, and thus instead of announcing that other people owe legal duties to him (duties that are correlative to his rights), D is contending that his friends do not owe him any duties-to-abstain-from-consensual-torture. Such, at least, is one plausible construction of his remarks. Insofar as D is indeed confusedly using the language of "rights" to make assertions about legal entitlements of other types, those assertions pose no difficulties whatsoever for the Interest Theory. After all, the Interest Theory offers an account of legal rights rather than of legal powers or liberties.
Perhaps, however, D is attempting to convey a different meaning-probably in addition to the meaning just outlined, or maybe in lieu of it. He might be proclaiming that the civil-liberties guarantees in his country's constitution have bestowed some legal rights on him against other people's interference with his undergoing of consensual torture. If D is indeed endeavouring to express this proposition, then his focus very likely lies primarily on potential interference by governmental officials. He is contending that those officials are under legal duties to abstain from preventing or impeding his consensual subjection to torture by his friends. Understood in this way, his view is that the officials are prohibited from obstructing the friends' exercise of their legal liberties and his exercise of his own legal power to engender those liberties. Save in circumstances where obstruction on the part of the officials is excused by the presence of some extenuating factors, their attempts to thwart the activities of D and his comrades will amount to breaches of legal duties. In short, when D insists that he possesses a legal right-to-be-consensually-tortured, he may well be avouching that he holds a legal right against officials' efforts to stop or avert the torture. (If D does intend to articulate such a message, he doubtless also intends to suggest that he holds legal immunities against any measures by the officials that would deprive him of his legal liberty-to-engage-in-consensual-torture. According to him, that is, the officials are disabled from interfering with his legal entitlements, just as they are duty-bound to refrain from interfering with his physical actions. Still, we shall not here explore this further strand of D's pronouncements. We shall be training our attention exclusively on legal rights and duties, rather than on legal immunities and disabilities or any other legal positions.)
Before we ponder the foregoing interpretation of D's statements, we should consider yet another possible construction of them-a construction which is almost certainly inapposite but which is illuminating as a contrast. When D proclaims that he has a legal right-to-be-tortured, he might conceivably mean that someone is under a legal duty to torture him and that a failure to engage in the torture will therefore constitute a violation of that duty. Perhaps, for example, D has formed a contract with one of his fellow deviants, who has agreed to perform for D the service of torturing him in return for a payment. If the payment has been tendered, and if the other deviant has declined to carry out the agreed-upon task, then D might bring a lawsuit for breach of contract. In so doing, D might have to argue that the civil-liberties guarantees or equal-protection guarantees in his country's constitution militate in favour of the enforceability of the contract. In any event, the key element of D's position so construed is that somebody else is under a legal duty to engage in the practice of consensual torture. Instead of submitting merely that his fellow deviants are not under legal duties to forbear from participating in such a practice, and instead of submitting merely that officials and other third parties are under legal duties to forbear from obstructing such a practice, D is now contending that some other deviant is under a legal duty to inflict torture on him. His legal right-to-be-tortured is quite literally a right to the perpetration of torture against him by someone else.
A sexual deviant who professes to hold a legal right-to-be-tortured will seldom if ever be seeking to convey the bizarre sort of message that has just been delineated. Rather, if he is not simply putting forward assertions about legal liberties and powers, he is very likely seeking to convey the sort of message that has been delineated in the penultimate paragraph above. That is, he will be purporting to hold legal rights against interference with his perverse activities. Nonetheless, we should ponder not only the interpretation outlined two paragraphs ago, but also the weirder interpretation outlined in my last paragraph. Under either of those interpretations, statements affirming a legal right-to-be-tortured will be strange but not starkly unintelligible. Do such statements cast doubt on the Interest Theory's account of legal rights, then?
An Interest Theorist can best deal with this problem in two principal ways, neither of which excludes the other. First, such a theorist can aptly observe that intelligible statements about highly unorthodox legal rights have to be understood in context-specific ways. In other words, those statements have to be understood by reference to the circumstances that enable them to be uttered intelligibly. When someone declares that he or she holds a legal right-to-be-tortured or a legal right-to-be-badly-harmed-in-some-other-way, and when the declaration is comprehensible as a serious statement (albeit a distasteful statement) rather than as a ridiculous bit of persiflage, its import must be grasped against a very special background of unusual behaviour and desires. To make sense of such a declaration, we have to recognize it as a product of a small group of people whose happiness can be enhanced through their undergoing of torture or other severe mistreatment. If those people are adults of sound mind-as opposed to lunatics or children-then we are amply warranted in adopting a subjective conception of interests, for the limited purpose of understanding those people's assertions of rights as they were meant to be understood. For that limited purpose, we should gauge interests not by reference to human beings generally but by reference to the few human beings whose welfare is promoted through the infliction of torture on them. Having taken into account those people's anomalous preferences sufficiently to understand their assertions of legal rights as such, we shall not thereby have obliged ourselves to grant that their assertions are correct. We can treat their right-affirming statements as serious and intelligible without accepting that they accurately reflect the deviants' legal positions.
In short, though the experience of becoming a victim of torture is highly undesirable for human beings generally, it is perceived as desirable by some sexual deviants; because legal rights-to-be-tortured would tend to secure certain conditions or events which those deviants regard as valuable, they can sincerely profess to hold such rights. Insofar as we deem their assertions of rights to be non-frivolous and intelligible (albeit morally unsavoury and perhaps legally inaccurate), we are partly accommodating their own distasteful views about where their interests lie. Because ex hypothesi they are sane adults, we ought to accommodate their views to this extent. In other words, for the sake of grasping the intended meanings of sincere utterances about rights by such adults, we ought to adapt our conception of human interests to the peculiarities of the specific context and the specific group of people who shape that context. Nevertheless, while showing enough flexibility to make sense of those people's rights-affirming statements, we may well decide to go no further. We may well submit that the constitutional civil-liberties and equal-protection guarantees do not bestow on the deviants any legal rights against interference with their infliction of torture on one another. We are even more likely to submit that the aforementioned guarantees do not call for the enforceability of contracts under which the deviants are required to inflict torture on one another. At any rate, whatever might be the specific determinations that are reached in connection with the deviants' demands, it is plain that the degree of accommodatingness involved in our apprehending those demands as such is not sufficient to lead perforce to our satisfying of them. While endeavouring to make sense of a person's statements, one need not endorse them. As a consequence, we should not feel any unease about embracing a context-specific conception of interests for the confined purpose of understanding on their own terms the deviants' utterances about rights-to-be-tortured. We shall not be committing ourselves at all to the conclusion that the deviants actually hold any of the legal rights which they purport to hold.11
A second chief tack by which the Interest Theorist can come to grips with the scenario of the sexual deviants is to recharacterise the contents of the legal rights which the deviants claim to possess. Each deviant purports to hold a legal right-to-be-tortured, but an Interest Theorist does not have to adopt an exactly similar description of that right's content. As was readily acknowledged in my earlier essay on rights,12 there is no canonical way of individuating or specifying the contents of any Hohfeldian entitlements. Some specifications are accurate, and some are inaccurate; but none is uniquely accurate. Although the nature of each of the four Hohfeldian entitlements (rights, liberties, powers, and immunities) can be formulated precisely, and although the four types of entitlements can be distinguished from one another rigorously, any instance of each entitlement can be redescribed or redivided in sundry ways through variations in one's approach to characterizing its content-i.e., through variations in one's approach to characterizing the occurrence or the state of affairs to which the particular entitlement pertains.
Thus, for example, a legal right to the occurrence of A, B, C, and D can be expounded correctly as a right with that very content. Alternatively, it can be expounded as four or three or two rights, each of which will pertain to one or more of the four occurrences that are covered by the original description. Exactly how we ought to individuate legal rights by individuating their contents is something that shifts with the purposes of our arguments and inquiries. It is not something which we can pin down on the basis of the formal features of entitlements that are encapsulated in Hohfeld's analytical framework. Those features cannot in themselves determine whether the legal right to the occurrence of A should indeed be construed as a separate right or should instead be construed as a component of the legal right to the occurrence of A, B, C, and D.
Hence, one main source of the potential for redescriptions of legal rights is the fact that many such rights are classifiable as components of other such rights (because the contents of the former are components of the contents of the latter). There is no talismanic way of demarcating the more inclusive and less inclusive rights in a uniquely correct pattern; instead, the appropriateness of any given scheme of demarcation will hinge on the focus and concerns of one's investigation. Perhaps of even greater relevance to my current discussion, however, is a second major reason for our ability to recharacterise the contents of legal rights. Even if we stay at a single level of inclusiveness in recounting the content of this or that legal right, we can alter our descriptions to highlight certain aspects of the content while de-emphasising other such aspects. By so doing, we can modify the favourableness or unfavourableness with which the content is portrayed-which means that we can modify the perceived attractiveness or unattractiveness of the right. Once again, there is no canonical way of proceeding. So long as one remains within the constraints of accuracy, one's choice between relatively commendatory and relatively pejorative accounts of any legal right's content will properly be determined by the setting and aims of one's discourse.
We may take as an example here the very right on which this discussion has concentrated: the legal right-to-be-tortured which the sexual deviants profess to hold. When that right is characterized in just such a manner, any reference to it will sound so deeply counter-intuitive as to seem ludicrous. To be sure (as we have seen), if we opt for a context-specific understanding of the interests of the people who seek such an entitlement, we can make sense of the bizarre "right-to-be-tortured" label. Alternatively, however, we can recharacterise the right. To explore this point, we should consider in turn the two species of the legal right-to-be-tortured-the legal right against interference with one's voluntary subjection to torture, and the legal right to the perpetration of torture against oneself. Each of those rights should be pondered against a background of broadly similar rights pertaining to more desirable states of affairs. Such a background can alert us to a pertinent reconstrual of the content of each right.
When a sexual deviant D claims to be endowed with a legal right against officials' or citizens' interference with his voluntary subjection to torture, he is professing to hold a legal right that is fundamentally akin to many other such rights held by him and his fellow citizens. More specifically, he is insisting that he ought to enjoy legal protection against being prevented from pursuing an activity that does not inflict any non-trivial harm on people other than himself. Although his undergoing of torture might offend the sensibilities of knowledgeable third parties, D warrantedly declares that mere offence is not an adequate basis for the preclusion or obstruction of an otherwise innocuous pastime. He therefore contends that the civil-liberties provisions and equal-protection guarantees in his country's constitution engird him with legal protection against such obstruction. Just as he has a legal right against being stopped by officials from participating in an innocent game of chess, so he has a legal right against being stopped by them from allowing himself to be tortured. Such, in any event, is what D maintains. Now, given the background to his assertions about his legal position, we can aptly and non-distortively recharacterise the content of the legal right which he claims to possess. Instead of designating it in a gratuitously jolting and rather misleading fashion as a "right-to-be-tortured," we can and should designate it as a "right-to-be-unimpeded-in-pursuing-a-voluntary-and-harmless-activity-even-if-that-activity-of-submitting-oneself-to-being-tortured-is-repugnant-to-most-people". Such a label may be quite ungainly, but it accurately expresses the content of the legal right which D presumes to hold. It does so, moreover, in a considerably less misleading way than the terser label (so long as the word "harmless" is clearly understood not to encompass the effects of the activity of torture on D himself). Most important, it conveys why D's ostensible right is unproblematically classifiable as a legal right by the Interest Theory. Even if we decline to adopt a straightforwardly context-specific conception of interests, we can recognize that each person generally has an interest in not being obstructed from embarking on freely chosen project-irrespective of whether those projects strike other people as repellent. When the content of D's sought-for right is reportrayed along these lines in order to highlight the aspects of it that are desirable even for a normal person, we see why Interest Theorists should readily acknowledge that that right can indeed be regarded as a legal right. Of course, whether that right exists as such is a matter determined by the prevailing legal system. However, whether (if existent) it qualifies as a legal right under the Interest Theory is a matter that can be settled affirmatively once the content of the right has been suitably formulated.
Let us now ponder the other variant of the legal right-to-be-tortured, the legal right to the perpetration of torture by somebody else against oneself. Because the prospect of being subjected to torture is so deeply rebarbative to the vast majority of people, a "right" of the type just mentioned will not be properly classifiable as a legal right at all unless it has arisen through some sort of voluntary undertaking (as opposed to a statute or some other involuntary imposition). Hence, we may confine our attention here to an enthusiastic deviant D who seeks the enforcement of a contract whereunder someone else has agreed to torture D in return for a payment which D has subsequently made. D insists that he has a legal right to the carrying out of torture against himself by his contractual partner, who is therefore under a legal duty to inflict the torture on D. Now, admittedly, the "right-to-be-tortured" label is much more accurate or much less misleading in these circumstances than in connection with the legal right against interference by officials and citizens. As has been seen, we can make perfectly good sense of that label in these circumstances if we adopt a context-specific conception of people's interests. An equally effective approach, however, is to recharacterise the content of the right which D purports to hold. Instead of denominating that legal right as a "right-to-be-tortured," we should denominate it as a "right-to-the-fulfillment-of-an-undertaking-which-one-has-gained-through-a-voluntary-exchange-notwithstanding-that-that undertaking-for-the-commission-of-torture-against-oneself-would-strike-most-people-as-repulsive". Though far too cumbersome to be serviceable in a slogan, this designation for D's envisaged legal entitlement is highly serviceable in enabling us to discern why that entitlement should indeed be classified as a legal right. Like my redescription of the right-against-being-obstructed-from-undergoing-torture, this redescription of the right-to-somebody-else's-infliction-of-torture-upon-oneself is phrased to highlight the voluntariness of the activity to which the right pertains. Whereas people generally do not have interests in being tortured, they do generally have interests in the fulfilment of promises that have been made to them, and especially in the fulfilment of promises which they themselves have keenly elicited. Once we characterize the content of D's apparent legal right in a manner aimed at underscoring those aspects of the content that are generally promotive of ordinary people's well-being, we can perceive why that right is indeed properly construable as a legal right. (Of course, whether D actually holds a legal right with that content is an entirely separate question.) When we appropriately recount the state of affairs that is covered by the legal right which D seeks, we find that Interest Theorists can happily acquiesce in the classification of that right as such.
In sum, Interest Theorists can make sense of D's assertions-without necessarily endorsing them, of course-in either of two ways, each of which serves to take account of the decidedly unusual circumstances of D's utterances. First, by embracing a context-specific conception of human interests out of deference to D's status as a sane adult, we discover that a legal right-to-be-tortured can indeed help to secure his interests. We thereby discover that that strange right can perform a context-specific variant of the basic role which the Interest Theory attributes to every legal right. Second, by germanely redescribing D's right so as to highlight its furtherance of aspects of his well-being that are also aspects of most people's well-being, we reveal his right's straightforward connection with general human interests that are easily acknowledged as such by the Interest Theory. Because those interests are implicated in the weird projects which D pursues, the protection of those projects by his right-to-be-tortured is an instance of what the Interest Theory singles out as the central function of any legal right. Thus, although a legal right-to-be-tortured is in many respects outlandish, the possibility of it is not something which the Interest Theory must altogether disallow. The notion of such a right in ordinary circumstances would be ridiculously nonsensical, but in certain abnormal circumstances it is intelligible.
Although the principal arguments of this essay have been diverse, they have all aimed to bolster the Interest Theory by showing that it can withstand criticisms and handle difficulties that might be posed against it. In the first main section of this essay, we have examined some complexities surrounding the relationship between legal powers and legal rights. As has been argued, the champions of the Interest Theory can respond tellingly to the scenario conjured up by Nigel Simmonds-a scenario wherein the citizens of a society S do not hold any legal powers to enforce/waive their legal rights. Not only can the Interest Theorists describe S in vividly condemnatory language; in addition, they can achieve greater exactitude than the Will Theorists in pinning down what is wrong with such a society. After replying to Simmonds' argument, this essay's discussion of legal powers of enforcement/waiver has focused on the distinction between operative and inoperative legal rights, and especially on the distinction between genuine and nominal legal rights. As we have observed, the Will Theorists' inability to take account of the existence of nominal legal rights will have committed those theorists to some exceedingly strange conclusions. Moreover, the Will Theorists' stance on this matter has once again rendered their doctrine less subtly precise than that of the Interest Theorists.
In the opening portion of the second major section of this essay, which treats of some apparent conflicts or contradictions that must be addressed by the Interest Theory, we have explored further the distinction between genuine and nominal legal entitlements. We have investigated a number of complicated points relating to the coexistence of seemingly contradictory legal enactments. By placing special emphasis on the roles of nominal legal rights and duties, my discussion has implicitly accentuated the superiority of the Interest Theory over the Will Theory; after all, because the Will Theory must deny the possibility of such legal rights and duties, it remains unattuned to the complex and valuable roles which they can play.
This essay's final substantive discussion has grappled with some legal rights that might appear to be at odds with the Interest Theory's conception of the basic role of such rights. In some settings, the ostensibly suspect entitlements prove amenable to the Interest Theory's analysis when we define human interests objectively rather than subjectively; such an approach is singularly advisable when we confront situations involving children or mentally infirm people. In other settings, where the right-holders are sane human adults, two alternative tacks are available. An Interest Theorist can adopt a context-specific understanding of human interests, or he can recharacterise the tenor of a strange legal right in order to disclose its connections to human interests that are context-transcendent. Whatever might be the best method, the Interest Theorist can chart the intricacies of legal rights more adeptly and meticulously than the Will Theorist.
- Matthew H. Kramer, "Rights Without Trimmings," in Matthew H. Kramer, N.E. Simmonds, and Hillel Steiner, A Debate Over Rights (Oxford: Oxford University Press, 1998; 1st Indian Edition, 2003, OUP India, exclusively marketed by Eastern Book Company), 7, 60-101. Hereinafter, my earlier essay will be cited as "RWT." I should note at the outset two points of terminology. First, throughout the present essay I use the terms "obligation" and "duty" interchangeably. Second, I likewise use "person" and "human being" interchangeably; I do not confine "person" to human beings who are capable of exercising moral agency. That is, I use "person" as the singular of "people" rather than as the singular of "persons".
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- For a more detailed exposition of legal powers, overlapping to a very limited degree with my present exposition, see "RWT," 20-21, 102-06.
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- N.E. Simmonds, "Rights at the Cutting Edge," in Matthew H. Kramer, N.E. Simmonds & Hillel Steiner, A Debate Over Rights (Oxford: Oxford University Press), 113, 225 (hereinafter cited as "RCE").
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- See, e.g., Neil MacCormick, "Children's Rights: A Test-Case for Theories of Right," in Legal Right and Social Democracy (Oxford: Clarendon Press, 1982), 154, 164-66.
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- I especially have in mind here the English case of Re F, (Mental Patient: Sterilisation), (1990) 2 AC 1. Therein the House of Lords held that doctors could lawfully sterilise a mentally retarded woman (who had begun to engage in sexual relations with another mental hospital patient), so long as the doctors had reasonably determined that such a procedure would be in the best interests of the woman. Anyone who supports the Lords' decision-as I do-should nonetheless feel some unease over the fact that the woman herself was mentally unable to give or withhold consent to the sterilisation.
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- My example here is loosely based on Reffell v. Surrey County Council, (1964) 1 All ER 743 -although in Reffell the plaintiff prevailed.
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- If the simultaneous non-fulfilment of the two duties is possible, then the relationship between them is one of contrariety or inconsistency rather than outright conflict. The difference between contrarieties and conflicts is of no relevance to my present discussion.
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- Of course, if it turns out that S does not have a left hand at time t, then his announcements lack determinate truth-values. I leave aside this additional complication.
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- To avoid unwieldy prose, I here omit any mention of legal rights held by groups or non-human individuals.
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- The ostensible counter-example is loosely based on the facts of R. v. Brown, (1993) 2 All ER 75.
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- My own view of their substantive claims would be largely the same as that in H.L.A. Hart, Law, Liberty, and Morality (Oxford: Oxford University Press, 1963), 30-34.
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- See "RWT," 17 n. 6. I have even more strongly emphasised this point elsewhere. See my In the Realm of Legal and Moral Philosophy (Basingstoke: Macmillan, 1999), 133-34 n. 9.
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