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University of Toronto St. George
Mark Schranz

PHL370 Jan 16th Lecture #4 Will Theory - rights protect individuals' choices / autonomy - only individuals deemed capable of autonomous choice can have rights (better – only individuals legally competent to exercise Hohfeldian powers can have rights o problem 1: WT denies rights to too many individuals  the kinds of beings that are allowed to have rights and within them, it inhibits them from having rights - beings have rights (are right-holders) only when they actually have the power to waive a duty correlative to some claim o problem 2: WT handles criminal law rights in a number of counterintuitive ways Will Theory and Right Holders - two things needed to be a potential right holder at any given moment: o (1) be the kind of thing that can be legally competent to exercise a power  disqualifies pretty much every kind of thing (or being) except humans o (2) possess all the attributes that kind of thing needs to possess to be legally competent to exercise powers (have the capacity to sue – exercise the power)  disqualifies all sorts of humans: infants, children, the insane (or otherwise mentally incapacitated)  so one can gain the status of a right-holder upon reaching the age at which legal competence kicks in and can lose that status later in life (e.g. if one has a sufficiently severe case of Alzheimer's) • a special case of this is that one can have their status as a right- holder taken away if they are rendered comatose by an assault (see Kramer 64) - a potential WT response: In the case of those temporarily disabled from exercising powers, those powers can be exercised by proxies (other legally authorized individuals) o a power is being exercised on my behalf by someone else o MY power is being exercised on my behalf by someone else – eventually going to be able to get my power back  WT will count you as a right holder o but not all will theorists take this route (ex. Steiner does not) – should they?  reason why he doesn’t – we should be able to figure out who is the right holder at any given moment - but if it only works if at some point I will be able to get my rights back – but we wont know that unless I come back from the temporary disabled state – but we need to know NOW at this moment… Will Theory and the Criminal Law – The Basics 1. on WT, if an individual does not have the legal power to waive/enforce some duty, then no matter the content of the duty, that individual is not the holder of the right that correlates with that duty 2. generally speaking, private individuals do not have the power to waive the duties that others have in regard to them under the criminal law 3. therefore, on WT we generally don't have criminal law rights against being murdered, enslaved, etc. - WT’s basic picture of how the law works: civil law gives WT rights to private citizens, and criminal law gives WT rights to state officials (but none to private citizens insofar as they are private citizens - so we are each protected by criminal law rights, they just aren’t OUR rights Will Theory and the Criminal Law – The Implications - things that we typically think of as rights are not in fact rights at all o most especially inalienable rights, such as the right against being enslaved - we have civil law rights against a number of things that we don't have criminal law rights against (e.g. unprovoked assaults) - since we can in fact extinguish (or prevent enforcement of) some criminal law duties o (e.g. regarding theft, minor assaults), we do seem to have some criminal law rights on WT. But the criminal law duties that we do have control over will generally be less important than the ones we don't have control over  "We are thus forced to conclude that - according to the Will Theory - the foremost protections of our truly vital interests do not amount to rights, whereas the less formidable protections of relatively inconsequential interests do amount to rights" (Kramer, 73) - seems like in unimportant criminal cases, we are the right holders, but in important cases, we do not have rights o ex. dropping charges – you have the discretion  but when you are beaten into a coma, or if your arm is broken, the law would not allow you to ‘let them go’ - in many cases, we don’t have criminal rights, but we have civil rights – have discretion over civil suits (damages
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