Written in an essay form the collection engages in a lively debate over the fundamental characteristics of legal and moral rights. Each author considers whether rights essentially protect individual interests or whether they instead essentially enable individuals to make choices. Those interested in the basic nature of rights and other entitlements will profit greatly from reading this book.
Some of the central questions addressed in the book are: What are the necessary and sufficient conditions for the existence of a right? To what extent can the task of singling out those conditions be purely analytical rather than normative? What is the connection between the existence and the enforcement of a right (ie, between rights and remedies)? What are the basic values which rights protect? To what extent can rights be in conflict? In regard to the conferral of rights, is there any fundamental divide between the criminal law and the civil law?
The debate revolves around the long-standing division between the "Interest Theory" and the "Will Theory" of rights. Roughly stated, the Interest Theory maintains that all rights consist in the protection of individual or corporate interests. By contrast, the Will Theory (roughly stated) maintains that all rights consist in the enjoyment of opportunities for individual or corporate choices.
The book would be particularly interesting and useful to Indian jurists, legal writers, academics and students who challenge the "rights-based jurisprudence" of "western origin" upon the basis of which the Indian legal system rests and the framework within which all legal adjudication in Indian courts takes place. This book with its emphasis on analytical clarity, can illuminatingly clarify that the debate in modern Indian jurisprudence is not so much about an emphasis on "rights" or "duties", for one correlates with the other, but rather who the right ought to vest in, or, taken the other way round, whom the duty ought to be owed to ? the individual or the community.
The book is highly relevant for the Jurisprudence course for the LL.B. programme, prescribed in the latest UGC Model Curriculum, valid from July 2002: especially for a discussion of the 'Right-Duty correlation'; and it would seem that the book was specially written for the 'Theories of Rights' course in the LL.M. programme, prescribed in the latest UGC Model Curriculum, valid from July 2002.
Matthew H. Kramer
Rights Without Trimmings 7
Matthew H. Kramer
1 Setting the Hohfeldian Table 7
2 Rights Without Trimmings 60
Appendix: Getting Hohfeld Right 101
Rights at the Cutting Edge 113
N. E. Simmonds
1 Background 115
2 The Fundamental Issues 134
3 Hohfeld and the Fragmentation of Rights 146
4 Hohfeld and the Kantians 176
5 The Interest Theory of Rights 195
6 The Modern Will Theory 211
Working Rights 233
1 Preliminary Intuitions about Rights 235
2 From Hohfeld to Hart: The Modern Will Theory Explored 239
3 Some Apparent Problems with the Will Theory 248
4 From Hart to Kant: The Classical Will Theory (Partly)
5 Some Real Problems with the Interest Theory 283