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.

Additional Metadata
Keywords Theories of rights Legal rights Hillel Steiner
Persistent URL dx.doi.org/10.1007%2Fs11158-010-9134-y, hdl.handle.net/1765/119529
Journal Res Publica : A journal of Moral, Legal and Political Philosophy
Citation
Vrousalis, N. (2010). Against the Will Theory of Rights. Res Publica : A journal of Moral, Legal and Political Philosophy. doi:10.1007%2Fs11158-010-9134-y