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Rights, Harming and Wronging: A Restatement of the Interest Theory

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Abstract

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.
Original languageEnglish
JournalOxford Journal of Legal Studies
Volume38
Issue number3
Pages (from-to)430–450
Number of pages21
ISSN0143-6503
DOIs
Publication statusPublished - 2 Apr 2018
Externally publishedYes
MoE publication typeA1 Journal article-refereed

Fields of Science

  • 513 Law
  • rights
  • legal philosophy
  • private law
  • legal theory
  • tort

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