Rights Without Trimmings To participate in an intellectual dispute, one must explicitly or implicitly defn its terms; and, by defining te terms ofthe dispute, ‘one will already have begun one's participation therein, This essay, ‘which ois the debate betweea the Will Theory (or ‘Choice Theory) and the Interest Theory (or ‘Benshit Theory’) of tights, wil sek 9 define the terms ofthat debate precisely and expressly. In doing 80, the esay will prepare the way fr its verdict that the Tterst The- oryin a somewhat modified form—is superior to che Will Theory. fe endeavouring to set forth dretly the points of contention between the Interest Theory and the Will Tacory, this essay dis- cusses at length the analytical framework of jal relations that was ‘evised by the American legal theorist Wesley Hobfld, Hohfea’s work has recsived wide attetion since the second decade of the twentieth century, butt has oe met with mieguided eitcisms and incorrect applications. We ae therefore well advited to take a care- fal ook at his analytical scheme. Though Hohfeld’s work is not entirely beyond reproach, itofers a matrix of conceptual ditine- tions that is elegant, rigorous, and subtle. His dstintions are invaluable for anyone trying t9 make an informed assessment of the Interest ThearyWil Theory debate, While Hobields analytical Iamework i stcly neutral in that debate (or reasons which will later become apparent, it enables the contenders ithe debate to achieve exactitude when stating thee difeencs. Isa Tramework that significantly informs each ofthe essays in this book 1 Setting the Hobfldian Table Hohfldditngushed four sts of egal relations, comprising eight ‘egal positions." is basi table of relations, slighlly mode, i follows "Thema ey by Hob on wich La dnvng i Some dane ep ‘cones Appel Renee nhs adn Lapel Cop8 Matthew H. Kramer Right Liberty Power Immunity Duiy Nowight Liability Disnbilty ‘Each ofthe coumadin the tthe const of par of ural coreat= ay two legal postions that entiteach oer By contrast, ie pts te fis two cokumas (righ 'o-righ! end ire praterty) and he agonal pairs in the Mast (wo clans errata and iby unity) each consis of Sl Creer nie' namely, two legal postions that negate each ober a meae abou egal reiasons, a8 opposed to srl moral relene. Hance, ny exposition below wil concentrate ci) 05 TET utiements and wil make few etrence to sartly men) cera ements, None the less virtually every aspect of Hohfeld's saa scheme apolit a wel, mus maands ote oe Bae UP oral tlaonehips. (nly wo difereness are wor 9 ing of moreytion bere. Fest, the distioetion between genuine ct dr a am gy ome ye ne Nera a) ps TS Senn 0 gpd neil Revie PEG 14 spl on pom of ema. ee | ee th fe yng ee ate ote FE. oe atte cata” ot nego! fr orp "Esha ben Seca ae ra Gamelan ahs Can pe er at omy a a a aor eae om 9 200 rs we of ‘oppo’ doe at nd me wenn he ITA ees te se Se netedn Ass Halpin, HOMES ge 5 (ES foe ce Sie cee he ot ef tia Smet Re 2 Oe tl hme el ym. ee eee aan Radeon Loge Norns es R$ Pas hpi ie eel ‘peat hh ao bt m ‘in a ae opi SPAeRY SDSL ra Opes 1 one 18 ‘oa weenie Rights Without Trimmings 7 niloments and nominal enienients—a distinction that wil r- Fanner unctues in this essays oF uncertain aplication ip face erg of morality Second, the potential for coufies between ane ora ar unconroverialy demonstrable in the domain of ‘Toray asin the domain of av.) ‘An Bxposiin of the ural Relations Fing endowed with ga ight (hich Hobfld ao bled 9 Beng ein bong zal protected asiost someong ce Seeean Fant ners ee’ wiholing of saan, ear to cota acon of an. ® ree rane fue to abstain rom irene ot cso emneration is under a duy to Bebave saan ath pl poston crested NOUR Te OY Taos Pam aemeone se a pron has 2 ight ob et ing of erence wy a peson wih Xs roc hen Yas frm yin neering wath convey f Yas a aty dy neering wih 2, hen Xana igh te fe rom tiny such interference 8 nc ee or cai ie eforcebl (Une a purely mort ns tuo enforceable in certain ways genie lel chim nhc ols through te mobizng of governmental coe. Sa eray) Nowe i a5 wil become cere erty the | Setar sxk eforsoment docs not aecessy rere ee parson who has the lim. Soong 38 ition of Pes ae genine Hohekian claim is unaeted cxfreebi pation of the power to sek enforcement BAL POWEE by he lr, or aye Bld by someone, Oe ay on ano he cameos, aay Bee / ya doversmental agency a or cla held by a specie person or group of pense Bit eother apse person or goup of wens, How, Pe et can excl pall any oumber of oer ht eld Semen sn nga to these ator tat of ars” osname gna tcl ‘Dovey, -8 For colour sh tl on SF por ot ma Bark Pon lout iw Yor: Cans Fuca 0) 9, Far ‘a Liew, i Ba eh poson ne Pais Desay FAI10 Mathew H. Kramer ‘Suppose, for example, that X isa typical landowner, He il not ‘only ave aright tobe Free from any enereachment on his land by YY but wil also have a right to be Tree from any encrozchments by every other person to whote presence he fas not consented, (Inthe arsenal of 1s legal entitlements, some of his other rights might not be accompani by indefinitely numeroue paral rights or indeed ‘by any parallel eights. Por instance, i ¥ has formes a contract with Y and has not formed a sinlar contri: with anyone ele then Xs contractual right against Y is sul generis in the assemblage of is legal entitlements) "To have a liberty to engage ina certain action isto be fre from any duty to eschew the action; likewise to have a liberty fo abstain from a certain action Is to be fre fons any duty to undertake the action. Like any right, cach liberty is held by a specie person of ‘sroup of persons against another specific person or group of per- sons. The person against whom the liberty is beld has a noight concering the activity of sate of aflairs to which the liberty pertains. None the les, although that person has no right to the halting ofthe activity of state of ars, he himself may well havea Uherty to interfere. He cannot successfully have recourse (0 the ‘mechanisms of public governance, but be can have recourse to his ‘own devices (within the confines imposed by the ibery-holder’s right). 16 Oar f ep Sati 1, 0-5 1386: Chiteber as Pr ECO af Rope Rh ‘elma Conti Bone i Ye pet ey, tee vo nl chao Hoi eee i dance inst nt at End ate the expnton a ye ran ipo arb en brn molt Ssh Rae Tie Coney Lp! Sen (Oco Chenon rs 14) nd say i None thet {toh whaaoces tw ek Hones Stent cece he wath he pe ob se Siew not aus ager tote ween Hoh, Dag a iy somite on ‘Saqsertaon omc ght as Sandie Ti sare a lor a al ate Intgines fet uer. Hoktel i dag ety teen hme fo tnte Ser Mat Ran, '& Reto of Holl 31 Hanae La Tiss cna, Rights Without Trimings " Consider an example, Suppose that Z enjoys a ibery, aginst ¥, to express opinions about various public matter. Y therefore ‘cannot correctly maintain that his rights are violated by Zs pro- rouncements on those matters. AS a consoguence, there will not ‘warrentedly oceur any governmental intervention forthe purpoteof| upholding Ys rights by suppressing Z's spesch. Ye, although Y cannot rely onthe coorive mechanisms of government to stop Z for speaking, he can permissbly do his utmost met to intefere ‘with 2's voicing of opinions, so long ashe doesnot violate any of| 2's sights (such as the eight to be free from physical asaults Pethaps Y will contort his face in ways that eause Z to laugh help- lesly and thus to stop speaking. Or perhaps Y wil make so much noise that he drowns out 2's words and thereby caus the Ird- strated Z to desist fom further pronouncements, Whatever be the exact methods of interference, 7 himself enjoys a libery—within the constraints imposed on Y by 2's righls—to impede the activity of speaking which Zia iberty to undertake. (Ofcourse if Zhas & righ tobe fee fom any such obstructive behavior by ¥, then Y will (ve Z a duty to refain fom that behavior and wil accordingly not enjoy a berty to engage init) ‘As the example inthe lst paragraph suggest, acts or omissions that are based on liberties canbe protected quite extensively even though the bers donot themselves place restrictions on anyone Not ealy will liberty-to-do-g combine somtimes with a rightto: beftee-tominterference-vithhe-doing-o-p. specifically, but. it ‘often combines with other rghis—such the right to be free from piysicalassaults—which effectively shield the doing of & albeit perhaps imperiety. Though Z's liberty to consume ber dinner doesnot itself requte ¥ to abstain from impeding her oa. ‘sumption, her right to be fee from bodily attacks and her right to be fee from the tet of her belongings (and also her righ o be free from severe emotional distress) wil very likely mate the impeding ‘ofher consumption quite dificult, Much the same can be sid about Zo liveriy to donate some of her money toa charity. Yi fre to ty to dissuade Z from handing over the money, but the laws against, left and assault and defamation confer rights on Z and on the chant which substantially limits feedom to prevent the tana ‘of funds. tn these examples and in countless other posible sits tion, one’s actions or inations erounded i ibertis are eestively rotected-—to a considerable extent—by rights that do not pertain