Between Insensitivity and Incompleteness: Against the Will Theory of Rights
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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.
KeywordsTheories of rights Legal rights Hillel Steiner
I am grateful to Hillel Steiner for illuminating written commentary and to G.A. Cohen, Haris Psarras and the participants of the Antwerp/Louvain legal theory colloquium for helpful discussion. I have also benefited from support by the ARC sustainability project (French speaking community of Belgium) during the writing of this paper.
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