Mark McBride (National University of Singapore (NUS) – Faculty of Law) has posted Modality and Bentham's Test on SSRN. Here is the abstract:
According to Interest Theorists (ITs) of rights, rights function to protect the right-holder’s interests. True. But this leaves a lot unsaid. Most saliently for our purposes, it is certainly not the case that every agent who stands to benefit from performance of a duty under a contract or norm gets to be a right-holder. For a theory to allow this to be the case – to allow for an explosion of right-holders – would be tantamount to a reductio thereof. So the challenge for ITs is to respect the core of the interest theory while principledly delimiting the set of right-holders. The foremost explicit attempt to do this has involved invocation of Bentham’s Test (BT). Predictably, invocation of this test has come under attack, with the ultimate aim of casting doubt on the tenability of IT itself. My purpose in this paper is to render BT in the most clear and accurate form possible – something not always done by its foremost advocate. Doing so will get us involved in issues of modality. The upshot of all this is that a core attack on BT falls away, and, to that extent, IT remains standing as a promising theory of rights.