Rights’ Elusive Relation to Powers

2019 ◽  
pp. 32-43
Author(s):  
Rowan Cruft
Keyword(s):  
Third Parties ◽  
The Will ◽  
Will Theory ◽  
Hybrid Theory

Chapter 3 examines the relation between rights and the powers typically borne by right-holders: powers to waive duties, demand their fulfilment, enforce them, resent them, forgive them. It argues that there are impersonal parallels, performable by third parties, for all the powers that one might think can only be performed by the person to whom a duty is owed. We therefore cannot identify to whom a duty is owed by asking who can exercise the relevant powers. Instead we need to ask, circularly, who can exercise these powers as right-holder to whom the duty is owed. This reasoning is used to criticize the Will Theory of Rights (as found in Hart and Steiner), and other problems are found with Sreenivasan’s Hybrid Theory and Feinberg’s demand-based approach.

What Is the Will Theory of Rights?

Ratio Juris ◽  
2019 ◽  
Vol 32 (4) ◽  
pp. 455-472
Author(s):  
David Frydrych
Keyword(s):  
The Will ◽  
Will Theory

scholarly journals Deconstruction of the legal personhood of artificial intelligence

2021 ◽  
Vol 2 (2) ◽  
pp. 14-30
Author(s):  
S. K. Stepanov
Keyword(s):  
Artificial Intelligence ◽  
Flexible Approach ◽  
Historical Method ◽  
Legal Personhood ◽  
Legal Structures ◽  
The Will ◽  
Will Theory ◽  
Definition Of ◽  
Evolution Of Ideas

Calls to rethink the content of “legal personhood” are increasingly being heard at the present time: to recognize animals, artificial intelligence, etc. as a subject. There are several explanations for this: firstly, a change in ideas about a person and their position in society, and secondly, attempts to rethink the traditional categories of law. Throughout long periods of history, the definition of legal personhood depended on the definition of subjective right; the subjective right was associated with the legally significant will of the person. Consequently, a change in views on the will theory of subjective right inevitably lead to a revision of the content of the person. The main purpose of this article is to determine the essence of the legal personhood. To do this, using the historical method, the evolution of ideas about the legal personhood is revealed. It is argued that Hohfeld’s approach to understanding subjective-legal structures made it possible to look differently at the content of the category of legal personhood: it became possible to recognize animals or artificial intelligence as the owners of various subjective-legal categories. Nevertheless, the logic of modern commentators, as well as supporters of such a flexible approach to the definition of legal personhood, is not free from shortcomings. Using the method of analytical jurisprudence, the author demonstrates the emerging problems.

The Unavoidability of Evaluation for Interest Theories of Rights

2020 ◽  
Vol 33 (2) ◽  
pp. 293-315 ◽  
Author(s):  
Mark McBride
Keyword(s):  
Third Party ◽  
Philosophical Debate ◽  
Interest Theory ◽  
Will Theory ◽  
Hybrid Theory

In debates over rights, as much as, or perhaps more than, in any philosophical debate, it is important to see the wood from the trees. A little while ago, new life was breathed into debates over rights, as a new candidate theory emerged to rival the extant options. More specifically, Gopal Sreenivasan’s hybrid theory of (claim-) rights emerged to rival both will theory and interest theory. This new hybrid theory underwent a series of skirmishes with the interest theory. Moving from the wood, one principal ground over which battle ensued is the so-called third party beneficiary issue. And, more specifically still, descending into the trees, a particular problem within the foregoing third party beneficiary debate centred on what I shall dub Gopal’s Granny, a case wielded by Gopal Sreenivasan, particularly against one of the foremost defenders of the interest theory, Matthew Kramer.

Grotius’s Impact on the Scandinavian Theory of Contract Law

Grotiana ◽  
2020 ◽  
Vol 41 (1) ◽  
pp. 59-87
Author(s):  
Sören Koch
Keyword(s):  
Eighteenth Century ◽  
Case Law ◽  
Contract Law ◽  
Legal Literature ◽  
The Will ◽  
Will Theory ◽  
The Impact ◽  
Negative Conclusion ◽  
Contractual Agreement

This article discusses to what extent the widely accepted hypotheses of Hugo Grotius’s crucial impact on the theory of contract law – also in Scandinavia – may be maintained or even positively confirmed. Although few direct references to the works of Grotius can be found in Scandinavian legal literature of the seventeenth and eighteenth century, it would be premature to draw a negative conclusion. An impact of Grotius’s thoughts may rather be demonstrated by thoroughly analysing patterns of argumentation concerning specific contractual topics both in legal literature and case law. The article provides the reader with necessary information on the institutional and intellectual preconditions for the reception of Grotius in the Scandinavian legal orders before discussing the impact of the ‘will-theory’ on the requirements of a legally binding contractual agreement in the works of selected influential legal scholars and in case law in more detail. The analysis confirms that Grotius’s work contributed substantially to shaping the intellectual framework in which the first contract law doctrines in Scandinavia evolved.

Managing Civil Wars from the Perspective of Their Development

2018 ◽  
Author(s):  
Jaroslav Tir ◽  
Johannes Karreth
Keyword(s):  
Civil War ◽  
Civil Wars ◽  
Armed Conflict ◽  
Third Parties ◽  
Full Scale ◽  
Third Party ◽  
Intergovernmental Organizations ◽  
The Will ◽  
Management Approaches

After surveying the literature on the causes, consequences, and management of civil wars, we argue that novel ways of examining civil war management are needed. We advocate for a developmental view of civil wars in order to better understand how to prevent the escalation of low-level armed conflict to full-scale civil war. To prevent full-scale civil war, third parties need to (a) respond swiftly, (b) have the will and ability to impose tangible costs on (and offer benefits to) governments and rebels, and (c) remain involved over the long term. Our analysis shows that typical third-party civil war management approaches (mediation, peacekeeping, and intervention) fail to adequately address at least one of these issues. This motivates our argument in favor of focusing on a different type of third party that could arguably play a particularly constructive role in civil war prevention: highly structured intergovernmental organizations.

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