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Published online by Cambridge University Press: 29 November 2021
In two recent papers, Mark McBride has attacked the interest theory of rights, both introducing new arguments and claiming that interest theorists have not successfully deflected Gopal Sreenivasan's earlier arguments. This essay replies to all of McBride's criticisms, showing them to be mistaken.
I would like to thank Matthew Kramer for very useful comments on a draft of this paper. This paper was written as part of my Academy of Finland Postdoctoral Fellowship (decision number 325302).
1. Some of Kramer's most important publications regarding rights are Matthew H. Kramer, Rights Without Trimmings, in A Debate over Rights: Philosophical Enquiries 7–112 (Matthew H. Kramer, N. E. Simmonds & Hillel Steiner eds., 1998) [hereinafter Kramer, Rights Without Trimmings]; Kramer, Matthew H., Do Animals and Dead People Have Legal Rights?, 14 Can. J. L. & Juris. 29 (2001)CrossRefGoogle Scholar; Kramer, Matthew H., Some Doubts About Alternatives to the Interest Theory of Rights, 123 Ethics 245 (2013)CrossRefGoogle Scholar; Kramer, Matthew H., Refining the Interest Theory of Rights, 55 Am. J. Juris. 31 (2010)CrossRefGoogle Scholar [hereinafter Kramer, Refining the Interest Theory of Rights].
2. Sreenivasan, Gopal, A Hybrid Theory of Claim-Rights, 25 Oxford J. Legal Stud. 257 (2005)CrossRefGoogle Scholar.
3. Kurki, Visa A.J., Rights, Harming and Wronging: A Restatement of the Interest Theory, 38 Oxford J. Legal Stud. 430 (2018)CrossRefGoogle Scholar.
4. McBride, Mark, The Unavoidability of Evaluation for Interest Theories of Rights, 23 Can. J. L. & Juris. 293 (2020)CrossRefGoogle Scholar. The distinction between vicarious and nonvicarious interests may of course be relevant elsewhere, but not in this context.
5. McBride, Mark, Preserving the Interest Theory of Rights, 26 Legal Theory 3 (2020)CrossRefGoogle Scholar. See Sreenivasan, supra note 2.
6. See Gerhard Wagner, Rudolph von Jherings Theorie des subjektiven Rechts und der berechtigenden Reflexwirkungen, in Archiv für die civilistische Praxis 319 (1993); H.L.A. Hart, Essays on Bentham: Jurisprudence and Political Theory (1982), at 187–188.
7. See Sreenivasan, supra note 2, at 264.
8. It is McBride who uses X, Y, Z, and so on to denote the parties, and since this is a reply to him, I will employ his nomenclature.
9. Matthew Kramer & Hillel Steiner, Theories of Rights: Is There a Third Way?, 27 Oxford J. Legal Stud. 281 (2007).
10. McBride, supra note 4, at 13.
11. Kurki, supra note 3, at 438. This is a “negative” formulation, focusing on the conditions of breach. However, a positive formulation is also possible:
X holds a right correlative to currently existing duty D if and only if
(i) X can hold rights and
(ii-b) a set of facts minimally sufficient to establish the fulfillment or noncontravention of duty D includes a fact that affects X's situation in a way typically beneficial for beings such as X.
See id. at 439.
12. Kramer, Refining the Interest Theory of Rights, supra note 1, at 37.
13. Kurki, supra note 3, at 441–442 (cited in McBride, supra note 4, at 306). The parts in brackets are McBride's. I had used first names, rather than capital letters, as the labels of the relevant parties.
14. McBride, supra note 4, at 306.
15. Id. at 307 (references removed, emphases in original).
16. Id. at 308.
17. Id. at 308.
18. Id. at 315 (emphasis in original).
19. McBride, supra note 4, at 315.
20. Id. at 315.
21. Id. at 313.
22. Id. at 313f. I haven't claimed that the fact “Y has not paid the agreed-upon money to Z” is minimally sufficient to conclude that Y has contravened his duty. Rather, I have claimed that this fact is part of a set of facts minimally sufficient for that conclusion. That set will contain a number of facts.
23. Id. at 313f.
24. Kramer, Rights Without Trimmings, supra note 1, at 91.
25. I have no common law legal education, so I offer no assurances about the accuracy of this account of jury trials.
26. Evaluative considerations may be directly relevant for the minimal-sufficiency test, if such considerations figure in the content of a duty. For instance, if an animal cruelty provision obligates X not to treat animals cruelly, then evaluative considerations may be required to determine whether X has contravened his duty.
27. A sidenote: McBride has voiced his doubts about whether what Kramer presents as “efforts to tease out what was really there all along” are in fact “substantive shifts.” McBride, supra note 5, at 16–17. Similarly, one may of course ask whether what I have offered here should be classified as clarifications, or rather as refinements or even changes to the interest theory. It is, however, quite clear that they are indeed only clarifications. For instance, the notion of a thin evaluative stance has been around since 1998, when Kramer first presented his theory in “Rights Without Trimmings.” See Kramer, Rights Without Trimmings, supra note 1, at 91–101.
28. McBride, supra note 4, at 306. This is McBride's paraphrasing of my defense, with brackets removed.
29. Id. at 307.
30. Id. at 307 (emphasis removed).
31. Kramer offered this reply at the Workshop in Honour of Matthew Kramer, organized at Churchill College, Cambridge, on July 1–3, 2019.
32. Matthew H. Kramer, Getting Rights Right, in Rights, Wrongs and Responsibilities 86 (Matthew H. Kramer ed., 2001).
33. Id. at 88–89.
34. However, under Bentham's test, facts should be described in a manner that preserves the sufficiency of the set without containing anything redundant. The latter part of the description, starting with “notwithstanding,” would likely not pass muster.
35. On the role of de dicto statements in the interest theory, see Kurki, supra note 3, at 441.
36. Kurki, supra note 3, at 442. As Kramer noted to me in private correspondence, a generally applicable formulation of clause b would be “Y's duty has not been waived by anyone empowered to waive that duty.”
37. One could ask if this feature brings the interest theory somewhat closer to a hybrid theory. However, detriment at breach is still required, so the interest theory is not actually transformed into a hybrid theory.
38. McBride, supra note 5, at 26. The addition in brackets is McBride's.
39. Id. at 29 (emphasis in original).
40. Id. at 26 (parentheses removed for readability).
41. Again (as above—see note 27, supra), one might ask if this amounts to a “change” of the interest theory, or rather just a clarification. As regards my formulation, it begins: “X holds a right correlative to currently existing duty D if and only if . . . .” Kurki, supra note 3, at 438 (emphasis added). For reasons of style, I have included the existence requirement on the left-hand side of the biconditional, but this requirement could also follow as a third prong on the right-hand side of the biconditional. In a formalization, the existence requirement would need to be on the right-hand side of the biconditional. As regards Kramer's formulation, McBride is relying on a passage that—though offering both the necessary and sufficient conditions for right-holding—is regardless presented in the context of refining Bentham's test, rather than as an overall account of right-holding.
42. McBride, supra note 5, at 27.
43. McBride, supra note 4, at 307f.
