Bentham's Test vs. the Protection of Interests

Simon F. Ewers (University of Zürich)

ABSTRACT

Among Matthew Kramer’s numerous contributions to the debate over the function and nature of rights, Bentham’s Test (BT) occupies an important role. It is designed to figure out to whom an existing duty is owed. A given duty is owed to Z “if and only if a violation of a duty [...] can be established by simply showing that the duty-bearer has withheld a benefit from Z or has imposed some harm upon him.” (Kramer 1998, p. 81) BT has been criticized, perhaps most notably by Steiner (1998), Simmonds (1998), Frydrych (2017), and Sreenivasan (2005; 2010; 2017), for being unable to do the work it has been devised for, viz., to overcome the Interest Theory’s problem of being too expansive, especially when it comes to third-party beneficiaries.1 In response to his critics, Kramer (2007; 2010) has refined BT,2 but, even with these modifications, some sort of deadlock obtains. Kramer doesn’t think BT leads to over-inclusivity, his critics do (cf. Frydrych 2018, p. 584; Stewart2012, p. 320.).

To break this apparent tie my argument against Kramer takes a different route. I don’t attempt to prove that BT is over-inclusive, but rather that it leads to a tension with “[t]hebasic idea underlying the Interest Theory [which] is that every right protects some aspect of a person’s welfare.” (Kramer 1998, p. 61) Much of the Interest Theory’s initial plausibility stems from this basic intuition. Hence, it would be a serious problem for Kramer should it turn out that BT comes into conflict with said intuition.

The tension becomes apparent in certain cases of third-party beneficiaries: According to BT, C holds a right in (at least some) cases in which A holds the power to waive B’s duty to ', but C benefits from B’s doing '. Some aspect of C’s welfare is (seemingly) protected by that right. However, since A holds the power to waive B’s duty, it seems that the correlating right is entirely at the whim of A. But in what sense, then, does C’s right protect her interest? The right doesn’t seem to provide an additional layer of protection. If A doesn’t want C to have the benefit, she will simply waive B’s duty. C’s interest is not protected, but only aligned with an interest of A’s, and as soon as those interests fall out of line with each other C’s interest will be set back. Therefore, BT is at odds with the basic idea that rights protect interests.

Notes

1. This weakness of the Interest Theory was spotted early on by Hart (1955).

2. Recently Kurki (2018) has attempted to improve even further on BT. I will show that the revised versions of BT suffer from the same problem.

References

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