Res Publica: Journal of Legal and Social Philosophy

Publication date: 2010-12
Volume: 16 Pages: 415 - 423
ISSN: 1356-4765, 1572-8692
DOI: 10.1007/s11158-010-9134-y
Publisher: Deborah Charles Publications

Author:

Vrousalis, Nicholas

Keywords:

rights, will theory, Hohfeld, Arts & Humanities, Philosophy, Theories of rights, Legal rights, Hillel Steiner, 1801 Law, 2203 Philosophy, 1602 Criminology

Abstract:

This paper recasts an old objection to the will theory in the light of recent attempts to defend that theory, notably by Nigel Simmonds and Hillel Steiner. It enlists the idea of duties of care—effectively restrictions over legal officials’ discretionary exercise of powers—to form a dilemma for such theorists: either legal officials’ discretion over powers is restricted by duties of care for the unempowerable, or it is not. If their discretion is unrestricted, then the will theory is insensitive to the (values of the) lives of the unempowerable, in virtue of the fact that these lives are viewed as not meriting direct normative consideration. If, on the other hand, their discretion is restricted by duties of care, then the will theory has no argumentative resources within its conceptual apparatus to ascribe or justify them. It is therefore incomplete as a theory of rights.