768 HOFSTRA LAW REVIEW [Vol. 37:763
person, a moral person, or both.
18
To fill this void, two different theories
have emerged: the Interest Theory and the Will Theory.
19
Will Theorists argue that legal rights exist only where one is
sentient and capable of making choices.
20
According to this school of
thought, “the essence of a right consists in opportunities for the right-
holder to make normatively significant choices relating to the behavior
of someone else.”
21
Because the dead are incapable of making
significant choices and lack the ability to form interests, a Will Theorist
would argue decedents cannot be right-holders.
22
Even living persons
who are comatose or senile cannot be legal right-holders under the Will
Theory because they are incapable of forming and expressing their
wishes in a way that allows them to exercise a legal right.
23
This is not to
say that the law cannot protect persons or things that are incapable of
being legal right-holders. A Will Theorist may believe that the comatose,
senile, or dead should receive the benefit of legal protections, but he
18. “There are two legal categories of persons: natural and juridical. ‘Natural person’ is the
term used to refer to human beings’ legal status. . . . ‘[J]uridical person’ is used to refer to an entity
that is not a human being, but for which society chooses to afford some of the same legal
protections and rights as accorded natural persons. Corporations are the best example of this
category . . . . Both designations, ‘natural’ and ‘juridical,’ signify legal personhood as opposed to
moral personhood.” Jessica Berg, Of Elephants and Embryos: A Proposed Framework for Legal
Personhood, 59 H
ASTINGS
L.J. 369, 372-74 (2007). The dead most likely would be considered
juridical persons. While arguments might be made to the contrary, given that the dead are
genetically human, I do not take up this argument here. For purposes of this Article, it is sufficient
to say that the dead are treated as legal persons, even if not natural persons.
19. Waldron, supra note 15, at 9. Waldron refers to the “Interest Theory” as the “Interest” or
“Benefit” Theory of rights and the “Will Theory” as the “Choice Theory” of rights. I adopt the
terms Interest Theory and Will Theory because they appear to be the most prevalent in the recent
literature. See generally Matthew H. Kramer, Getting Rights Right, in R
IGHTS
,
W
RONGS AND
R
ESPONSIBILITIES
,
supra note 11, at 28 (discussing the differences between the Interest Theory and
the Will Theory).
20. For a discussion on the use of the Will Theory of rights in the law, see, for example,
Kramer, supra note 2, at 29.
21. Id.; see also Ernest Partridge, Posthumous Interests and Posthumous Respect, 91 E
THICS
243, 249 (1981) (“[The dead] have no present desires because they are dead, and, more to the point,
they have no interests now because, being dead, nothing that happens now can affect their final,
immutable, and completed desires and prospects.”).
22. See Kramer, supra note 2, at 30; see also Partridge, supra note 21, at 246-47. Partridge
suggests that beings must be sentient to form interests. He writes: “But must we not also affirm that
it is only in virtue of being persons (or, minimally, of being sentient), that beings can have interest
and thus be harmed? And must we not also affirm that without the sentient interest bearer, there can
be no interests at all?” Id. at 247. I reject the application of this argument to legal interests and legal
rights. The law currently gives non-sentient beings, like persons in a persistent vegetative state,
legal rights. This, I believe, is correct.
23. Kramer, supra note 2, at 30.