This course addresses the debate in legal philosophy over whether the nature of rights should be viewed as free choices or as interests protected by law.
Since the modern era, the emphasis on individual rights has led to an ongoing debate in legal philosophy over whether the fundamental nature of rights should be viewed in terms of legally respected free choices or legally protected interests. The two positions, known as the volitional and the beneficence theories, respectively, differ in their views of what rights are.
The basic position of the intentionality theory is that when a person has a right to something, it is legally recognized that the person’s choice with respect to that something is superior to the choice of another person in the legal relationship. Hart, a proponent of the intentionality theory, viewed rights as having corresponding duties. He argued that the right holder’s choice to control whether or not a duty is performed is an essential element of a right, and that a person cannot be said to have a right if the law does not give him or her the power to control whether or not another person performs a duty.
The problem with the intention theory is that a person cannot be a right holder unless he or she has the power to choose whether or not to fulfill the obligation. For example, even if a person has a duty to protect animals, it is difficult to say that animals have rights because animals are not rational beings. Pseudo-legalism is criticized for limiting the subjects of rights. Pseudo-legalism also faces a situation in which a person with immunity must recognize the right to place himself under the power of another person by giving up his immunity, i.e., to place himself in a slave-like state. This is difficult to recognize in modern times. Despite these difficulties, the theory of intentionality still holds an important place in modern legal philosophy, which emphasizes individual choice and autonomy.
The basic position of the beneficence theory is that rights are benefits, and that anyone who benefits from the obligations of others imposed by law has rights. Therefore, if there is no benefit from the fulfillment of another’s obligation, there is no right. Raz, who advocates the benefit theory, believes that rights and duties are not only logically corresponding to each other like two sides of the same coin, but also that rights justify duties. In other words, he supports the view that rights are the basis for the existence of duties. Therefore, only when someone’s interest is important enough to impose an obligation on another, that interest is recognized as a right. In Hoffeldian terms, the law protects the interests of individuals in the form of claims, liberties, powers, or immunities, depending on their importance or nature.
A difficulty with the benefit theory is contracts for the benefit of third parties. For example, let’s say Gak contracts with Eun to deliver flowers to Byeong. The beneficiary is Byeon, but the right holder is K, who entered into the contract. In other words, it is Guk who has the power to fulfill Eun’s obligation, not Eun. Therefore, it is criticized that it is difficult to explain cases where there is a right holder who is not a beneficiary of the benefit. Also, it is not easy to measure which benefit prevails when it is necessary to compare the benefit that the right seeks to realize with the conflicting benefit. While the interest theory argues that the realization of interests is the essence of rights, the criteria for prioritizing these interests can be ambiguous.
This debate about the nature of rights is not just a theoretical issue; it has important implications for the application of the law in practice. For example, even in contemporary rights issues such as environmental rights or animal rights, the intentionality and interest perspectives can lead to different legal approaches. The intentionality theory emphasizes the autonomy and choice of the rights holder, so human choice is often prioritized. On the other hand, the interests to be protected are the most important factor, so the interests of non-human beings and the natural environment may also be important considerations.
In the end, the definition of what rights are remains an important issue in legal philosophy, and each approach has its own strengths and weaknesses. In order to understand the role and function of law in modern society and to build a fair and just legal system, it is necessary to deepen our understanding of these debates and to seek a balanced legal approach. These debates are not just academic discussions, but will have a significant impact on the development of practical legal policies and institutions.
