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The Unavoidability of Evaluation for Interest Theories of Rights

Published online by Cambridge University Press:  25 June 2020

Mark McBride
Mark McBride*
Affiliation:
Mark McBride, Assistant Professor, National University of Singapore Faculty of Law. [email protected]
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Extract

In debates over rights, as much as, or perhaps more than, in any philosophical debate, it is important to see the wood from the trees. A little while ago, new life was breathed into debates over rights, as a new candidate theory emerged to rival the extant options. More specifically, Gopal Sreenivasan’s hybrid theory of (claim-) rights emerged to rival both will theory and interest theory. This new hybrid theory underwent a series of skirmishes with the interest theory. Moving from the wood, one principal ground over which battle ensued is the so-called third party beneficiary issue. And, more specifically still, descending into the trees, a particular problem within the foregoing third party beneficiary debate centred on what I shall dub Gopal’s Granny, a case wielded by Gopal Sreenivasan, particularly against one of the foremost defenders of the interest theory, Matthew Kramer.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 33 , Issue 2 , August 2020 , pp. 293 - 315
Copyright
© The Author(s) 2020

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Footnotes

Thanks to Patrick Emerton, Andrew Halpin, and Matthew Kramer for stimulating discussion, and to an anonymous referee at CJLJ for helpful comments.

References

1. See Gopal Sreenivasan, “A Hybrid Theory of Claim-Rights” (2005) 25:2 Oxford J Legal Stud 257.

2. See MH Kramer & Hillel Steiner, “Theories of Rights: Is there a Third Way?” (2007) 27:2 Oxford J Legal Stud 281; Gopal Sreenivasan, “Public Goods, Individual Rights, and Third Party Benefits” in M McBride, ed, New Essays on the Nature of Rights (Hart, 2017).

3. Myself, I am not an interest theorist, but rather a hybrid theorist of a special kind, developed in Mark McBride, “The Tracking Theory of Rights” in Mark McBride, ed, New Essays on the Nature of Rights (Hart, 2017) and “The Tracking Theory of Claim-Rights” (ms). My interest here is simply to accurately represent the state of play of the interest theory in light of the Granny Attack.

4. See Visa Kurki, “Rights, Harming, and Wronging: A Restatement of the Interest Theory” (2018) 38:2 Oxford J Legal Stud 430.

5. See Mark McBride, “Preserving the Interest Theory of Rights” [forthcoming in Legal Theory] upon which section 1.A in particular draws.

6. HLA Hart, “Are There Any Natural Rights?” (1955) 64 Philosophical Rev at 81.

7. Matthew Kramer, “In Defence of the Interest Theory of Right-Holding: Rejoinders to Leif Wenar on Rights” in M McBride, ed, New Essays on the Nature of Rights (Hart, 2017) at 49. (IT-1) has undergone minor refinements over the course of several papers, but this is its latest iteration, and none of the refinements is critical for our purposes. Kramer, in personal correspondence, has indicated to me that he will henceforth, in a new formulation of the interest theory, be formulating that theory in terms of necessary and sufficient conditions (which presuppose the existence of a duty). We must await that formulation.

8. See Matthew Kramer, “Rights Without Trimmings” in Matthew Kramer, NE Simmonds & Hillel Steiner, eds, A Debate Over Rights (Oxford, 1998) 80.

9. ‘Act’ is here, and in what follows, used broadly to include omissions. That is, we are more broadly referring to conduct in general.

10. See McBride, supra note 5; Kurki, supra note 4. At most, then, (IT-1) provides an extra gloss on certain elements of Bentham’s test.

11. Matthew Kramer, “Refining the Interest Theory of Rights” (2010) 55:1 Am J of Juris 31 at 36-37.

12. Ibid at 37.

13. Truthfully, the application of it to the central figure of X, the promisee, is laden with complications; however, in a sense, they only emerge upon invocation of Gopal’s Granny. As such, I defer their introduction until then.

14. Kramer, supra note 2 at 302.

15. Here, and elsewhere where relevant, one must read in certain background facts, such as the fact that the contract has not been waived by the parties, to obtain minimal sufficiency. The important point, as I make clear later, is that this is not the interest theorist holding fixed, by diktat, the existence of the duty across all accessible possible worlds; it is merely to posit its existence in the actual case, and to affirm that its absence counterfactually means there can be no breach of contract.

16. Sreenivasan, supra note 1 at 265 [internal footnote omitted].

17. And Z’s GM, but I omit her for present purposes.

18. Sreenivasan, supra note 2 at 22-23.

19. Cf Leif Wenar, “The Nature of Claim-Rights” (2013) 123 Ethics at 202, 222: ‘[T]racking uncertainty is not a failure in a conceptual analysis so much as an advertisement for it.’ To complete the picture, the will theory straightforwardly, and in a fairly value-neutral manner, ascribes a right only to X in our example, on account of X alone (ex hypothesi) possessing the relevant control over the duty in question. Likewise, but for slightly different reasons, any hybrid theory will decree the same result.

20. I have added the material in square brackets, given that I take Sreenivasan to be attempting to pinpoint two discrete prohibited normatively loaded descriptions.

21. I focus on such arguments which are not—need not be rendered as—formally valid, as Sreenivasan’s claims involving application of Bentham’s test are of this type. Circularity in the realm of formally valid arguments raises a host of other issues.

22. Sreenivasan, supra note 2 at 139, reprising supra note 1 at sec: 3.

23. On this limb, where both X and Z’s GM are right-holders, to preserve the constitutive, one-act element of the relevant benefit/detriment, we would not construe the benefit/detriment accruing to Z’s GM conditionally upon an act of literally seeing Z receive the benefit/detriment. The same can be said mutatis mutandis for X. I take it that, if only implicitly, such a conception of well-being is the operative one amongst participants in these debates. Any conception of well-being making the relevant benefit/detriment to Z’s GM’s interests conditional on literally seeing Z receive the benefit/detriment would need to—could—be mirrored, mutatis mutandis, in describing X’s situation.

24. Sreenivasan, supra note 2 at 138 [internal footnote omitted].

25. Kramer, supra note 2 at 303.

26. Ibid at 304.

27. Ibid at 303.

28. Sreenivasan, supra note 2 at 140-42.

29. See Kramer, supra note 8 with the terminology mimicking John Rawls.

30. See Matthew Kramer, “Do Animals and Dead People Have Legal Rights?” (2001) 14:1 Can JL & Jur 29.

31. It may be worth contrasting the (necessary) evaluative ladenness of interest theories with two other theories of rights. The will theory, with its focus on the relevant party controlling the duty in question, is (paradigmatically) evaluatively neutral, in our sense. Moreover, my own hybrid theory of (claim-) rights, the tracking theory, eschews evaluative matters in a radical way by determining right-holders on the basis of the holding (or not) of a set of bare modal relations between an agent’s interest (or not) in controlling a duty and having (or not) control of the said duty.

32. Kurki, supra note 4 at 441-42. Kurki takes reliance on minimal sufficiency alone to also handle Sreenivasan’s other objection to Bentham’s test—what I have elsewhere labelled the might have waived objection. In McBride, supra note 5, I explain why such bare reliance (cf supra note 15) is not the key to handling this other objection; however, invocation of a modal scope distinction in applying Bentham’s test (with its contained notion of minimal sufficiency), and nothing distinctively evaluative, is all that is required. These two objections of Sreenivasan are distinct, yet related, and shortly we shall see some points at which they overlap.

33. It is perhaps worth noting, Kurki is not a die-hard, card-carrying interest theorist (yet), so this defence from Sreenivasan’s objection is principally merely on behalf of interest theorists wanting to wield Bentham’s test.

34. Kramer, personal correspondence. As we shall come to see in section 5, Kramer’s endorsement is most fervent at a general level—at the level, that is, of believing invocation of minimal sufficiency alone can handle Sreenivasan’s Granny Attack. In section 5, again building on personal correspondence, I consider an alternative specific means, endorsed by Kramer, of prosecuting the general minimal sufficiency strategy.

35. Technically, (b*) should read: X’s interests as a promisee are set back because (a). That is, the ‘of’ in (b*) should be omitted; however, to preserve tight connection with Kurki, I include the ‘of’.

36. This line of reply draws upon suggestive material found in Kurki, supra note 4; supra note 35; Visa Kurki, “Are Legal Positivism and the Interest Theory of Rights Compatible?” (Helsinki Legal Studies Research Paper No 56 presented at the Workshop in Honour of Matthew Kramer, at Churchill College, Cambridge, July 1-3 2019) [unpublished, available at SSRN: http://dx.doi.org/10.2139/ssrn.3393798], alongside conversations with Kurki himself, and perceptive questioning from Patrick Emerton and David Tan.

37. So this is an important sense in which Sreenivasan’s two objections to Bentham’s test, while distinct, are related (cf supra note 32).

38. I think it is important for this response to focus on the very close possibility of X’s deontic non-existence as promisee. A parroting, with respect to X, of the close possibility of physical non-existence of Z’s GM would be misguided. The relevant close possibility with respect to X is the pinpointed deontic one. Of course, waiver will extinguish X’s deontic status alongside that of others—including Z’s GM. Meanwhile, the physical non-existence of Z’s GM has no such implications. But this is by the by.

39. The exactly parallel sentence here, to the one in the previous paragraph discussing Z’s GM, would read: And if such a waiver occurs, X’s detriment qua promisee might be said to become redundant (a modal notion), and not, thus, minimally sufficient for breach of the contract. I hesitate to write this sentence, as it is potentially misleading in suggesting that the possibility of waiver ipso facto rules out X, the promisee, as a right-holder. This last claim is much stronger than I need here, and indeed something I have argued against elsewhere (McBride, supra note 5).

40. This is a common feature of Kramer’s and Sreenivasan’s (and my) formulations of (claim-) right-holding (cf Raz). But of course, for one thing, the presupposed duty’s directionality is very much a live issue between these disputants.

41. Matthew Kramer, personal correspondence, which I continue to draw upon in section 5.B.

42. In order to mirror Kurki exactly, it rested there on:

  1. (a)

    (a) Y has not paid the agreed-upon money to Z.

  2. (b*)

    (b*) X’s interests as a promisee are set back because of (a).

But we can see that my presentation of (b*) in the main text here just is (b*) as originally presented. It only presentationally differs in virtue of, here, more fully, substituting (a) explicitly in to (b*).

43. For the sake of completeness, to repeat, more fully:

  1. (b)

    (b) Z’s grandmother’s interests as a grandmother are set back because of Y’s non-payment of the agreed-upon money to Z.

44. (a*) is effectively an instantiation of detriment in breach of the promise, a type of detriment which we saw in section 1.C above fails to clearly exhibit any vacuity or circularity.

45. This is the reverse of the substituting in move made previously; we are here, if you like, substituting (minimally sufficient) out of (a*).

46. But surely the same case could be made with respect to (a) itself, viz: Y has not paid the agreed-upon money to Z. And (a) is the very proposition which Kurki’s original effort relied upon as indubitably minimally sufficient in the required sense. Problems abound for the interest theorist.