Rights, Harming and Wronging: A Restatement of the Interest Theory
Oxford Journal of Legal Studies, Advance Article 2018, Open Access, doi: 10.1093/ojls/gqy005
21 Pages Posted: 10 May 2018
Date Written: April 2, 2018
This article introduces a new formulation of the interest theory of rights. The focus is on ‘Bentham’s test’, which was devised by Matthew Kramer to limit the expansiveness of the interest theory. According to the test, a party holds a right correlative to a duty only if that party stands to undergo a development that is typically detrimental if the duty is breached. The article shows how the entire interest theory can be reformulated in terms of the test. The article then focuses on a further strength of the interest theory, brought to the fore by the new formulation. In any Western legal system, the tortious maltreatment of a child or a mentally disabled individual results in a compensatory duty. The interest theory can account for such duties in a simple and elegant way. The will theory, on the other hand, struggles to explain such compensatory duties unless it abandons some of its main tenets.
Keywords: rights, legal philosophy, private law, legal theory, tort
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