. Will theory accepts every person as sovereign in micro level, interest theory regards rights as legally protected interest and obligation and state protection theory assumes that all the rights are the concession granted by the state through law. Copyright © 2003-2019 The Beyond Intractability Project The goal of many dispute resolution approaches, such as mediation, negotiation, or arbitration, is the settlement of conflict. According to Salmond: A legal right is an “interest which is protected and recognized by the rule of law. Its meaning and relation to positive law have been debated throughout time, varying from a law innate or divinely determined … Such standards include reciprocity, precedent, equality, and seniority. An effective dispute resolution system might be viewed a pyramid: most disputes are resolved through reconciling interests, some through determining who is right, and the fewest through determining who is more powerful. c/o Conflict Information Consortium vs. More... Get the NewsletterCheck Out Our Quick Start Guide. For example, because reaching agreement based on rights is often difficult, parties typically turn to a third party to decide who is right. Disclaimer: All opinions expressed are those of the authors and do not necessarily reflect those of Beyond Intractability or the Conflict Information Consortium. Eds. They maintain that while interests are tangible things, such as land, money, or jobs that can be traded and compromised, needs are intangible things, such as identity, security, and recognition, that are not for trading. The Will Theory and 2. Ronald Steiner (Ph.D. Often, negotiations involve a mix of all three approaches. In response to Smith, Congress by statute demanded strict scrutiny and a showing of a compelling interest for infringements of free exercise. “Historicizing Judicial Scrutiny.” South Carolina Law Review 57 (2005): 1–82. Yet unlike land or water or money, which are often in short supply, needs do not run out. Many states have enacted their own RFRA requirements as a matter of state law. An interest is compelling when it is essential or necessary rather than a matter of choice, preference, or discretion. By trading off issues of lesser concern for those of great concern, both parties can gain from the resolution of the dispute. Or again, the rights of political speech a… http://mtsu.edu/first-amendment/article/31/compelling-state-interest, United States v. Carolene Products Company, Employment Division, Department of Human Resources of Oregon v. Smith, Religious Freedom Restoration Act of 1993, Religious Freedom Restoration Act of 1993 (1993), http://mtsu.edu/first-amendment/article/31/compelling-state-interest. One factor that significantly influences process frames is whether parties approach their dispute in terms of interests, needs, rights, or power. LEGAL RIGHTS • According to Salmond : “ A right is an interest recognized and protected by a rule of right. The Whanganui River has recently been declared a legal person and a right-holder according to New Zealand legislation. Finally, power can be understood as the ability to coerce someone into doing something he would not otherwise do. Others focus on who is more powerful, such as when parties exchange threats or counter-threats. However, many theorists propounding the interest theory of rights, such as Matthew Kramer and Joseph Raz, would deny that rivers can hold rights. This theory argues that children, as humans, have rights if their interests are the basis for having rules which require others to … It can also help parties to identify the issues that are of most concern to each side. Contract theory is the study of how individuals and businesses construct and develop legal agreements. This article was originally published in 2009. This theory was advocated by scholars like Hegel, Kant, Hume and so on.  If fundamental needs remain unmet, violent conflict is likely to resurface, even if it is no longer manifest. Strict scrutiny, however, requires the government to demonstrate that it is using the most narrowly tailored, or least restrictive, means to achieve an interest that is compelling. . Information about interesting conflict and peacebuilding efforts. One way to answer this question, and consequently provide a way to Indeed, human needs theorists point out that if agreements focus solely on material interests and ignore the underlying needs of adversaries, they may not be stable in the long run. In correcting for mar- ket failure, economic … Workshops help to create a setting in which adversaries can interact in more productive ways. Thus, the goal of dispute systems design is to create a system in which most disputes are resolved by reconciling interests; if that is impossible, turning to rights, and only using power contests as a very last resort.  Benefits include the parties' mutual satisfaction with the result, the positive long-term effects on the parties' relationship, and the production of lasting solutions. In contrast, an Interest Theory of legal rights would permit the conclusion that a person who is unable to make choices, such as a comatose person, can be a legal right-holder because he still has interests even if he is unable to express them.27For example, while in a persistent vegetative state, Terry Schiavo was by almost all medical accounts non- sentient.28Yet, Interest Theorists might argue that Terry Schiavo … You may deal other theories in detail in your course on jurisprudence. #mbi_frontiers, Good conflict resolution skills are not just for peacebuilders--they are crucial for disputants as well. #mbi_frontiers, The Election, COVID, Racism, and the Constructive Conflict Initiative, http://www.beyondintractability.org/essay/interests-rights-power-needs-frames, The Peacebuilding / Constructive Confrontation Synthesis, The Peace and Democracy-Building Continuum. The ‘Minimum Sufficiency’ test is thought necessary because the Interest Theory is charged with being over-inclusive: it purportedly counts certain agents and entities as legal right-holders even though the law itself does not recognize them as such. Your having a right to something means that it is in your interest,or is to your benefit, and someone else has a duty to provide it. A rights procedure may then be needed to clarify the boundary within which a resolution may be sought.  For discussions and illustrations of the canon, see, J. Roland Pennock and John W. Chapman, eds., Property (Nomos XXII) (New York: New York University Press, 1980); Alan Ryan, Property and Political Theory (Oxford: Blackwell, 1984); Waldron, Right to Private Property. These frames indicate various ways to resolve a dispute: reconciling the interests or needs of the parties, assessing who is right, or determining who is more powerful. Our inability to constructively handle intractable conflict is the most serious, and the most neglected, problem facing humanity. In this respect, legal realism differs from legal formalism. Reconciling interests involves discovering parties' deep-seated concerns, devising creative solutions, and making trade-offs and concessions in cases where their interests are opposed. This is particularly apparent, perhaps, in the Israeli-Palestinian conflict. It analyzes how parties with conflicting interests build … What is Legal Interest?  Christopher Mitchell and Michael Banks, Handbook of Conflict Resolution: The Analytical Problem-solving Approach, (New York: Pinter, 1996), 3. In these workshops, scholars help disputants to jointly analyze the fundamental sources of conflict, focusing on unmet human needs such as identity and security. All rights reserved.  For example, Brown v. Board of Education was needed to authoritatively resolve the issue of school segregation in the United States. The dispute resolution procedures associated with the different ways of framing conflict all involve transaction costs and possible benefits. Interest theory argues that the principal function of human rights is to protect and promote certain essential human interests, while will theory attempts to establish the validity of human rights based on the unique human capacity for freedom. Regulation vital to the protection of public health and safety, including the regulation of violent crime, the requirements of national security and military necessity are examples of compelling governmental interests. The Will Theory is an explicitly revisionary theory, according to which rights can be held only by beings capable of waiving their rights Rights and power should be a last resort rather than a first resort. So, for example, any attempt to regulate expression based on its content will require a showing of a compelling governmental interest, particularly where the speech occurs in a public forum or on public property traditionally available for expressive and associative activities. Where human needs are at stake, reconciling interests will not make the conflict go away. The Beyond Intractability Knowledge Base Project Guy Burgess and Heidi Burgess, Co-Directors and Editors John Burton and Frank Dukes, (New York: St. Martin's Press, 1990), 206. A compelling state (or governmental) interest is an element of the strict scrutiny test by which courts exercise judicial review of legislative and executive branch enactments that affect constitutional rights, such as those found in the First Amendment. Explain in brief. 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