David Frydrych, ‘The Case Against the Theories of Rights’

There is a long-standing debate about how best to explain rights, one dominated by two rivals, the Interest and Will theories. This article nonetheless argues that, not only is each theory irredeemably flawed, the entire theories of rights debate ought to be abandoned. It proceeds as follows. Section II explains the debate and its constituent theories as a dispute over the criteria for the concept of a right. Section III argues that each theory suffers fatal idiosyncratic defects – ones that mostly differ from the canonical criticisms found throughout the debate literature. Section IV then argues that both theories suffer from common defects. For one thing, their criteria are unmotivated, unjustified, and of questionable accuracy. For another, rights theorists’ own commitments to (1) different kinds of accounts of rights (ie, ‘models’) and (2) theories of law (e.g., legal positivism) shows why any theory of rights of this sort is unnecessary.

Frydrych, David, The Case Against the Theories of Rights (2019).

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