We discussed two points:
- Hart’s analysis of what rights are: his choice theory of rights
- Hart’s argument for natural rights: if there are any rights, then there is at least one natural right, the equal right of all people to be free.
Hart’s Choice theory
What does it mean to have a right? That is, what does having a right give the person who has it that someone who does not have a right doesn’t have?
Hart’s answer is: control over other people’s freedom or, what amounts to the same thing, control over other people’s duties. (Duties are limits on freedom, meaning moral freedom or what a person is morally permitted to do).
His way of bringing this out was to criticize a different answer: that having a right consists in being the beneficiary of someone else’s duties. Hart argued that there are some examples where a person is the beneficiary of a duty but does not have a right.
Before pressing on, it’s worth noting one point that Ken jumped on right from the start. Hart was trying to discover what is distinctive about rights. What do rights do that other moral notions, such as duties, do not? So one of his objections to the benefit theory is that it does not supply an answer to that question: rights and duties are just two different words for basically the same thing. But, as Ken pointed out, it isn’t obvious that there has to be anything distinctive about rights; Hart may have been asking the wrong question.
Hart’s implicit answer to Ken’s question is found in the vocabulary he lays out on pp. 180-1: rights are thought of as things that people have and use and that seems to mean that they are thought of as being distinctive.
Third party beneficiaries
One example involved third party beneficiaries. X promises Y to do something for Z. Z is the beneficiary of X’s duty, but Z does not have a right against X. Only Y does.
As Kiran pointed out, however, Y could be described as benefitting from the performance of X’s duty.
But, as Danielle noted, the essential point for Hart’s purposes is that Z does not have the right even though Z is at least one of the beneficiaries. So being a beneficiary of a duty cannot be sufficient for having a right.
I tried to suggest that being the beneficiary of the performance of duty is not a necessary condition of having a right either. Y may be worse off if X cares for Z than if X does not do so but Y might still have a right against X. Or so I said.
Note: Raz will present a benefit theory that will challenge Hart’s view. So if you think something fishy is going on here, you’ll probably prefer Raz.
Hart’s argument for natural rights
The equal right of all people to be free is a natural right insofar as it is held by everyone and does not arise from any agreements or interactions. That does not mean that it is natural in the sense that it comes from a natural law or the natural features of human beings. But, Hart argues, it is probably the most that anyone advocating natural rights every really needed to show.
The argument is that this right is invoked either directly or indirectly in general or special rights.
A person with a general right has a justification for limiting the freedom of another person. That means that limiting the freedom of another person requires justification. And it would need justification only if other people had the right to be free.
Note: the equal right to be free limits freedom. All rights limit freedom: they give the person with the right the power to control other people’s freedom by giving that person control over other people’s duties. Since everyone has the same rights, everyone has equal freedom, including equal limits to others’ freedom. Pretty clever, eh?
Special rights are more tricky. The basic idea is that the person with a special right has special control over another person’s freedom: her having that control seems to make the distribution of freedom unequal because it reduces the freedom of the person with the corresponding duty below what everyone else has.
The justifications required for special rights involve showing that they do not really make the distribution of freedom unequal. Thus, my right under a promise is justified because you voluntarily made the promise. And the rule-follower has the right that others comply with rules that benefit everyone as a way of rectifying an inequality: those who try to take a free ride on others enjoy more freedom than those who follow the rules and depriving them of that freedom restores the balance.
Does it work?
It’s tremendously clever. Stunning, even. Easily one of the best things I have ever read. (Now you know something about my tastes). Alas, I don’t think it works. Societies with unequal rights to freedom can have promises. All that a promise involves is freedom in the absence of the promise. It doesn’t require that freedom be equal. Therefore, the equal right of all people to be free doesn’t follow from any right and therefore, it is not the case that if there are any rights, there is an equal right of all people to be free.
Still, the argument does show that there is an important relationship between rights to be free and other rights, even in apparently distant areas such as promises and fairness. That helps to explain, in a way that few of us appreciated prior to reading Hart, the depth of our commitment to this right.