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University of Toronto St. George
Mark Schranz

PHL370 Jan 14 th Lecture #3 Exit Slips 1. (a) What does it mean to ‘make a claim’? (b) How does this differ from exercising a power? (c) Is there a difference between a claim and a claim-right? - A: This qst. does not make sense on H’s theory - B: ‘pressing a claim’ one form of power exercise; claim holder may not be able to do this. ‘Wrong’ vs. ‘Harm’ - C: not really 2. Babysitter: how could it be that the mother’s right is violated but the baby’s right isn’t? - If Will Theory is correct, baby is harmed but right not violated 3. Is it possible to have a claim without a duty (or vice-versa)? If so, is Hohfeld’s correlativity thesis threatened? - If Will Theory is correct, baby is harmed but right not violated 4. Why are privileges and no-claims correlatives? Why don’t relations of correlativity hold between liberties and duties (or claims and no-claims)? Paper #1 Your task in this paper is to provide a critical summary of the debate between the Will Theory and the Interest Theory. This will require you to accomplish two main subtasks: In the first place, the bulk of the paper should provide an exposition of the debate between the two theories, including a brief exposition of each of the major objections faced by each theory; essentially, the first part of the paper should demonstrate that you have an excellent grasp of what is at stake in the debate between these theories and what the major problems are that each theory faces. In the second place, the remainder of the paper should concentrate on one of the major objections faced either by the Will Theory or by the Interest Theory, and should briefly try to defend that theory from this objection to the best of your ability. The first part of the paper should take between 3 and 3.5 pages; the second part should take between 1.5 and 2 pages. Essay Length: 4-5 Pages; No additional sources required. Generality and Analyticity - recall (and keep in mind) that IT and WT are, as we’re examining them here, GENERAL theories of rights - they aim to describe both criminal law rights and civil law rights - more importantly, these theories are primarily analytic theories of rights in the law, not normative ones - as analytic, they aim to give accounts of what rights are that correspond to the way the law actually is / works - so the law, as it is, is the first court of appeals for evaluating these theories - they don’t primarily aim to say what rights we ought to have Interest Theory - rights protects individuals’ interests – things that are good/bad - any beings that have interests can have rights – children/comatose people/animals, etc. o problem: gives too many rights - beings (ought to) have rights (are right-holders) whenever they have a sufficiently important interest - the minimum necessary for a right is a claim - the person to whom the duty is owed (and who is thus the right holder) is the person whose relevant interests are furthered by the duty o lets not ignore the connection between benefits and duty o whoever benefits is the one you owe the duty to o anyone who benefits from the action is a right holder – third party beneficiary problem o Will Theory - rights protects individuals’ choices/autonomy - only individuals capable of choices can have
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