The Will Theory of Rights and Criminal Law A Normative Account on Rules and Restrictions that Protect Individual Entitlements

The will theory of rights has so far been considered incapable of accounting for individual rights in criminal law. Adherents of the theory, therefore, defend the claim that criminal law does not assign rights to individuals. In this article I argue that criminal law in fact does assign rights to individuals and that the will theory of rights may enhance our understanding of these rights. I admit that if the theory is understood as a descriptive account, it cannot encompass rights conferred by criminal law. If the theory, however, is understood as a normative theory, it can be applied to an analysis and assessment of criminal legal rules and restrictions. The aim of this article is first, to outline how a normative account of the theory is applicable for a justification of the criminal legal protection of individual entitlements. Second, the major implications of the approach are outlined. The normative will theory on the one hand includes a volenti non fit iniuria principle. On the other hand, it provides support for an idea of punishment as restitution.