Rights in Criminal Law in the Light of a Will Theory. Issue 3 (2nd September 2019)

• Record Type: Journal Article
• Authors: Moser, Elias
• Is Part Of: Criminal justice ethics. Volume 38:Issue 3(2019)
• Page Start: 176
• Page End: 197
• Publication Date: 2019-09-02
• Subjects: Rights -- theory of rights -- will theory -- philosophy of criminal law -- compensation -- mediation -- informed consent; Criminal justice, Administration of -- Periodicals; Criminal justice, Administration of -- United States -- Periodicals; Social justice -- Periodicals; Social ethics -- Periodicals; 174.9364
• DOI: 10.1080/0731129X.2019.1681667
• Languages: English
• ISSNs: 0731-129X

Abstract

Abstract : The will theory of rights has so far been considered incapable of capturing individual rights under criminal law. Adherents of the will theory, therefore, have defended the claim that criminal law does not assign rights to individuals. In this article I argue first, that criminal law does assign individual rights and second, that the will theory of rights may enhance our understanding of these rights. The two major implications of the account are: a volenti non fit iniuria principle for criminal law, and a theoretical framework for an idea of punishment as restitution.