Hart on Natural Rights Notes for March 22

Main points

Last time, we talked about Hart’s answer to the question: what is distinctive about rights? His answer is given in his choice theory of rights.

Today, we talked about his argument for one natural right. Here’s the conclusion he wants to establish: “if there are any moral rights at all, it follows that there is at least one natural right, the equal right of men to be free” (p. 175). It’s blessedly succinct.

Here’s an outline of how Hart argued for that conclusion.

  1. The general level. According to the choice theory, having a right involves having a justification for controlling another person’s freedom. Why do we have rights? Because we think that you need a justification for controlling another person’s freedom. Why would you need a justification? Because without a special justification for limiting a person’s freedom, that person has a right to be free.
  2. The specific level. The specific justifications we offer for controlling others’ freedom either directly or indirectly invoke the equal right to be free.
    1. We invoke the equal right to be free directly when we assert that we have general rights. Why? Because we simply assert the right, we don’t offer up anything other than our own humanity to support our assertions.
    2. We invoke the equal right to be free indirectly we assert that we have special rights. Special rights give specific people control over specific other people’s freedom.
      1. Rights generated by promises and contracts have to be voluntarily generated. Why? They have to be consistent with the equal right to be free. Showing that the person whose freedom is controlled voluntarily surrendered that freedom does this.
      2. Rights generated by what Hart calls mutual restrictions are not voluntarily generated by those who bear the relevant duties. Instead, they are justified because they return the distribution of freedom to equality.

Complicated, eh?

Why equal freedom?

I dearly love this article. I have learned a lot from reading it over and over again. But I don’t see how one important conclusion follows.

I agree that the rights Hart mentions make sense only if there is some right to freedom prior to the other rights. There’s no need to have promises to establish new rights unless the person who makes the promise wasn’t free prior to making the promise. (And that person has to have the power to make promises as well.)

But I don’t see why everyone’s freedom has to be equal. There can be promises, for example, among people who have different positions in a hierarchical system of rights. So it isn’t true that “if there are any moral rights at all, it follows that there is at least one natural right, the equal right of men to be free.”

Now, I promised a discussion of the last paragraph in the article. Here it is.

In the last paragraph (pp. 189-90), Hart considers a point similar to the one I made. He asks whether a racist could think that he had a right to obedience from a member of another race. Let’s call these two characters A and B. A, by hypothesis, believes that he has a moral justification for limiting B’s freedom on the basis of their racial difference.

Hart doesn’t think that this is correct: morality does not, in fact, incorporate racism. But he also doesn’t think that it is logically incoherent that morality could be that way. And if that’s so, it doesn’t follow, as a matter of logic, that any right at all logically implies an equal right to be free. So there’s nothing in the logical features of morality that will help to make the point.

Instead, he maintains that racists do not assert that they have rights. Why? Because given what they believe, B’s obedience could be owed to any member of A’s race. There is nothing in the racist moral justification that explains why A, the individual, has moral justification for controlling B’s freedom.

Alas, I don’t get it. A thinks that he has justification for controlling B’s freedom by virtue of belonging to his race. By analogy, when you and I assert our general rights, we think we have justification for controlling someone else’s freedom by virtue of belonging to the human race.

What did Hart achieve?

Even if I’m right, it seems to me that Hart has shown something about our culture’s commitment to the equal right to be free. He’s shown how deeply embedded it is in our moral system.

You might ask why we should believe in the equal right to be free, where it comes from, and so on. It’s as if this is something detachable from other things we believe and do. Hart shows that isn’t so. You give up the equal natural right to be free at the cost of giving up enormous parts of your moral practice.

Even if this doesn’t answer a question about the origins of the equal right to be free, it helps to explain why we’re committed to continuing to believe it. That’s no small thing.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2007.
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