The Functions of Rights

On the basis of a Hohfeldian analysis of rights, Leif Wenar explains how rights perform six distinct functions. He then argues that his several function theory is preferable to the single function will and interest theories of rights. But in his description of the theories of H. L. A. Hart and Neil...

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Bibliographic Details
Published in:Archiv für Rechts- und Sozialphilosophie 2011-01, Vol.97 (2), p.169-177
Main Author: Wellman, Carl
Format: Article
Language:English
Subjects:
Ambiguity
ARSP 2011, 169
Immunity
Jurisprudence
Legal immunity
Legal rights
Moral principles
Morality
Normativity
Philosophical analysis
Philosophy
Philosophy of history. Social and political philosophy. Philosophy of law
Philosophy of law
Theory of values and moral philosophy
Theory of values and moral philosophy. Philosophy of action
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Summary:On the basis of a Hohfeldian analysis of rights, Leif Wenar explains how rights perform six distinct functions. He then argues that his several function theory is preferable to the single function will and interest theories of rights. But in his description of the theories of H. L. A. Hart and Neil MacCormick, he fails to distinguish between essential and non-essential functions. When these are considered, neither is a single function theory. And an ambiguity in Wenar’s descriptions of the functions of rights suggests the distinction between inherent and instrumental functions. This distinction reveals an additional complexity in the theories of Hart, MacCormick, Feinberg and Raz, among others. Therefore, any adequate theory of the functions of rights must recognize the currently ignored distinctions between essential and nonessential functions and between inherent and instrumental functions.
ISSN:0001-2343
2363-5606