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On the Nature of Legal Rights

Published online by Cambridge University Press:  08 January 2001

Matthew H. Kramer
Matthew H. Kramer*
Affiliation:
Churchill College, Cambridge, University of Cambridge
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Abstract

This article seeks to uphold the Interest Theory of legal rights by arguing that such a theory can withstand objections and handle difficulties that are often posed against it. Building on the author’s previous defences of the Interest Theory, the present article also seeks to expose some serious shortcomings in competing theories. Among the topics covered are the role of legal powers of enforcing or waiving legal rights; the possibility of rights to be mistreated; and the status of inoperative rights. In each case, so the article argues, the complexities of the issues involved can best be handled by a theory which maintains that the essential function of legal rights is the protection of various aspects of people’s well-being.

Type
Articles
Information
The Cambridge Law Journal , Volume 59 , Issue 3 , 16 November 2000 , pp. 473 - 508
Copyright
Copyright © Cambridge Law Journal and Contributors 2000

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References

1 Kramer, Matthew H., “Rights Without Trimmings,” in Kramer, Matthew H., Simmonds, N.E., and Steiner, Hillel, A Debate Over Rights (Oxford: Oxford University Press, 1998), 7, 60101Google Scholar. 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.”

2 For a more detailed exposition of legal powers, overlapping to a very limited degree with my present exposition, see “RWT,” 20-21, 102-06.

3 Simmonds, N.E., “Rights at the Cutting Edge,” in Kramer, Matthew H., Simmonds, N.E. & Steiner, Hillel, A Debate Over Rights (Oxford: Oxford University Press), 113, 225Google Scholar [hereinafter cited as “RCE”].

4 See, e.g., MacCormick, Neil, “Children's Rights: A Test-Case for Theories of Right,” in Legal Right and Social Democracy (Oxford: Clarendon Press, 1982), 154, 164-66Google Scholar.

5 I especially have in mind here the English case of Re F, (Mental Patient: Sterilisation) [1990] A.C. 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.

6 My example here is loosely based on Reffell v. Surrey County Council [1964] 1 All E.R. 743— although in Reffell the plaintiff prevailed.

7 If the simultaneous nonfulfillment 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.

8 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.

9 To avoid unwieldy prose, I here omit any mention of legal rights held by groups or nonhuman individuals.

10 The ostensible counter-example is loosely based on the facts of R. v Brown [1993] 2 All ER 75.

11 My own view of their substantive claims would be largely the same as that in Hart, H.L.A., Law, Liberty, and Morality (Oxford: Oxford University Press, 1963), 3034Google Scholar.

12 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), 133-34Google Scholar n. 9.