Against the Will Theory of Rights
Res Publica, Forthcoming
11 Pages Posted: 6 Nov 2010
Date Written: November 5, 2010
This paper recasts an old objection to the will theory in the light of recent attempts to defend it, 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 will theory discretion over powers is restricted by duties of care, or it is not. If will theory discretion is not thus restricted, then the will theory is insensitive to the lives of the disempowered, in virtue of the fact that these lives are viewed as not meriting direct normative consideration. If, on the other hand, will theory discretion over powers is thus restricted, then the will theory is incomplete, in the sense that it lacks the conceptual resources to justify the restriction of these powers.
Keywords: Rights, Will Theory, H. L. A. Hart, Hillel Steiner
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