Hart’s choice theory of rights Notes for March 10

Main points

Hart’s article does two things.

First, Hart tries to identify what is distinctive about rights. What do rights add to our moral vocabulary that could not be accomplished with any other part? In particular, what do we accomplish by pointing to rights do that could not be accomplished by simply referring to people’s duties? I called this his analytical project since it offers an analysis of rights or statement of what rights involve. This is what we talked about on the tenth of March.

Second, Hart tries to use his answer to that question in order to show that a variety of commonly accepted rights logically entail a particular natural right, namely, the right of all people to be free. This is what we will talk about after spring break.

The initial premise

Hart starts with an initial premise, that rights do, in fact, play a distinctive role that is not captured by duties or any other element of our moral code. To support this premise, he gave a list of things that having a right involves that go beyond what duties could explain.

I, of course, haven’t updated my notes since they switched editions of the textbook. So I flubbed this. Max and others were right. The passages I was looking for are in section (C) on pp. 379–81.

What’s especially irritating about this is I remember tripping over the same thing last year. Obviously, I neglected to make a note of it. Never again!

The choice theory of rights

Rights give people control over other people’s freedom. If I have a right, then the extent of other people’s freedom depends on my choices. That is Hart’s answer to the question about what rights add to duties. From the fact that you have a duty to me, it doesn’t follow that I have any control over your freedom. I have duties to Milo, my two-year old, for instance, but he can’t control them.

“Control” has to be understood in a fairly specific way. The control exercised by the party with the right has to be control of the duty. It can be claimed or waived verbally. By contrast, the party who bears the duty cannot declare the duty waived. That party can only control the duty through performance.

The choice theory is motivated by two objections to a rival theory, the benefit (or interest) theory of rights. According to the benefit theory, having a right is the same thing as being the beneficiary of the performance of another person’s duty.

One problem with this theory concerns third party beneficiaries, people who benefit from the performance of a duty but, on the face of it, lack the relevant rights. Another concerns the redundancy of rights and duties. It doesn’t explain what rights add that could not be expressed by talking about duties alone. (Of course, this is only a problem if you think that rights really do add something.)

In defense of the benefit theory

Jamie noted a way that the benefit theory could be defended against the third party beneficiary problem. Jamie’s version of the benefit theory puts special emphasis on the way that interests justify duties. It holds that someone has a right when that person’s interests justify holding another person under a duty and that duty protects that person’s intrests.

Jamie’s version of the benefit theory gets the right answer in the third party beneficiary case. The interests of the person to be cared for are not sufficient to justify the duty. That’s why there has to be a promise involved. Very clever!

Jamie’s version of the benefit theory doesn’t do much with the redundancy problem. Interests do the work of justifying duties. Rights are the output. So rights themselves don’t do very much on the revised benefit theory. (I should add that the advocates of this kind of view dispute that opinion: I’ll refer to one later.)

Finally, I believe that quite a few rights do not fit the choice theory very well. We talked about children’s rights and animal rights. I also think that many of the standardly recognized human rights and rights protected by the criminal law better fit the benefit theory than the choice theory.

At the same time, I think the choice theory does better explain what is distinctive about rights. A lot of what we call rights really could be replaced by duties without much loss. But a lot of what we call rights could not be replaced too. So Hart is largely correct but we should qualify his initial premise: it isn’t true that all rights have a role to play that is distinct from duties.

Additional reading

What do I mean by “what we call human rights”? I mean the rights listed in the Universal Declaration of Human Rights.

For a fully worked out modification of the benefit along the lines that Jamie suggested, see Joseph Raz. “On the nature of rights.” Mind, (1984) 93(370):194–214. [JSTOR]

Hart followed up the article we read with one that acknowledges some of the limitations I noted in the previous section. Hart, H. L. A. (1982). “Legal rights.” In Essays on Bentham: studies in jurisprudence and political theory, pages 162–193. [BLAIS]

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2010. It was posted March 13, 2010.
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