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.
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On this general claim I am in agreement with Wenar (2005), although I remain agnostic as to the truth of his ‘several-functions’ theory.
It may therefore not afflict weaker versions of the will theory, such as H.L.A. Hart’s. For discussion of Hart, see below.
The relevant incidents are structured as follows: A has a claim-right against B (not) to φ, A has a liberty (not) to φ, A has a power to alter A’s or B’s claim-rights or liberties (not) to φ and A has an immunity against B altering A’s claim rights or liberties (not) to φ. A’s claim-right (not) to φ entails a duty of B (say, of non-interference) over A’s (not) φ-ing, while A’s liberty (not) to φ entails the absence of a duty of A not (not) to φ. A’s power over B’s first-order incidents entails B’s liability against A over B’s first-order incidents, while A’s immunity against B entails B’s disability against A over A’s first-order incidents.
In the course of discussion he also suggests that there exist many cases in the law where a course of action may be both permitted and obligatory: these are cases where A may have a duty (no liberty not) to φ and a liberty to φ. As we shall see, some will theorists, such as Hillel Steiner, believe that A’s duty to φ somehow entails A’s liberty to φ. But this does not follow, nor is there reason to think that the ‘best’ legal systems will always permit actions that are obligatory. I need not take up this question here.
See, for critical discussion of this argument, Hillel Steiner’s ‘Are there still any natural rights?’, in Kramer et al. (eds) (2008).
This will strike many as highly contentious legally, for the ubiquity of waivability implies legal authorities can waive duties of all kinds, even duties to obey the law (as opposed to a law). The assumption is even more contentious morally: who has the moral power to waive A’s right not to be killed by B through torture? Steiner claims, in response, that this assumption is implied by the Hohfeldian schema itself, which implies that all disabilities correspond to immunities somewhere in the legal hierarchy. Even if the Hohfeldian schema does have this implication (from no-powers to immunities, and from no-liberties to claim-rights), what is the reason for adhering to it? Certain elements of Hohfeld’s taxonomy, such as his ‘correlativity axiom’, may not be worth keeping. I shall return to the correlativity axiom below.
The argument can therefore be extended to cover foetuses, animals, or future persons.
Steiner cannot here respond that the said officials lack a legal duty, but have a moral duty to enforce duties to M. For he puts forward the will theory not merely as a theory of legal, but also as a theory of moral rights (see for example Steiner (2006)). This means that the dilemma just posed reproduces itself if we turn to the moral domain, as this putative response does.
It remains a mystery how the defenders of the unempowerable and the disempowered could grant relevant powers to the sensitive powerful. Presumably they could do so by electing or supporting the latter through political and economic means, etc. This claim is highly reminiscent of postures held by opponents of rights, who believe that protecting the interests of, say, minorities, takes convincing of majorities. I will not pursue this analogy further: if valid, it would in all probability be detrimental to Steiner.
When, arguably, their lives should be least dependent for care on such arbitrium.
Hillel Steiner, Personal Communication, 10 December 2009.
Simmonds’ account is consistent with restricted discretion, i.e. with duties to exercise the corresponding right-conferring powers. See Steiner (1998, p. 220).
Other rights theories, like the interest theory, do not fall prey to this vicious regress. For the relevant right to care is directly ascribed to M on the basis of his interest in receiving care.
Someone might object that this does not follow, particularly in light of rejection of the correlativity axiom. For the ascription of a duty to Oi is no longer eo ipso tantamount to ascription of a right. But the term ‘rights’ in the text simply designates some distinctive area of legal or moral concern, in which ‘right-holder’ is an apt predicate, without (falsely) assuming that duties entail rights. The point here is that M, like every being with moral standing, merits some form of direct concern that the will theory is incapable of funding.
It is, perhaps, no coincidence that Steiner tends to associate the will theory with the libertarian idea of self-ownership. For there are many affinities between the two, the foremost being an emphasis on control over my person and powers. Such emphasis precludes the intentional exercise of third-party control over these elements of my self-ownership, even to the (severe) detriment of needy others. For salient criticism of the idea of self-ownership, see Cohen (1995).
Cohen, G.A. 1995. Self-ownership, freedom, and equality. Cambridge: Cambridge University Press.
Hart, H.L.A. 1982. Essays on Bentham. Oxford: Clarendon.
Kramer, Matthew et al. (eds). 2008. The legacy of H.L.A. Hart: legal, political and moral philosophy. Oxford: Oxford University Press.
Kramer, Matthew, Nigel Simmonds, and Hillel Steiner. 1998. A debate over rights. Oxford: Oxford University Press.
Steiner, Hillel. 1994. An essay on rights. Oxford: Clarendon.
Steiner, Hillel. 1998. Working rights. In A debate over rights, eds M. Kramer, N.E. Simmonds and H. Steiner. Oxford: Oxford University Press.
Steiner, Hillel. 2006. Moral rights. In The Oxford handbook of ethical theory, ed. David Copp. Oxford: Oxford University Press.
Wenar, Leif. 2005. The nature of rights. Philosophy and Public Affairs 33: 223–252.
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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Vrousalis, N. Between Insensitivity and Incompleteness: Against the Will Theory of Rights. Res Publica 16, 415–423 (2010). https://doi.org/10.1007/s11158-010-9134-y
- Theories of rights
- Legal rights
- Hillel Steiner