Are Legal Positivism and the Interest Theory of Rights Compatible?
21 Pages Posted: 28 May 2019
Date Written: April 26, 2019
The Whanganui River has recently been declared a legal person and a right-holder according to New Zealand legislation. However, many theorists propounding the interest theory of rights, such as Matthew Kramer and Joseph Raz, would deny that rivers can hold rights. Their denial is based on moral considerations: rivers are not morally ultimately valuable and therefore not capable of holding rights. Both Kramer and Raz are also legal positivists, subscribing to the separability of law and morality. How can they at the same time insist on this separability and deny legal rights to rivers on moral grounds? The essay analyses this tension between legal positivism and the interest theory, focusing on Kramer's views. It concludes that, though the alliance is not completely unproblematic, it is ultimately sustainable.
Keywords: legal theory, interest theory, legal positivism
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