Hart tried to do two things in “Are there any natural rights?”
First, he tried to identify what is distinctive about rights. I called this his analytical project since it offers an analysis of what rights are. This is what we talked about on Wednesday.
The second thing Hart did was use his analytical treatment of rights 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 question driving the analytical part of Hart’s essay is this: 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?
By putting the question that way, Hart was clearly assuming 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. For example, rights are said to be held or possessed, the duties corresponding to claim rights are owed to the person who holds the right, that person can make a claim on the person who holds the duty, the person with the claim right can waive the duty and release the other from bearing the duty, and the person with the claim right can call for its coercive enforcement (see Hart, 370–71).
Hart’s answer to the question about what is distinctive about rights is that they give those who have them 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 take care of my child, for instance, but he can’t control them. That, to Hart, indicates that he does not have rights against me. (This is a disputable point, obviously.)
“Control” has to be understood in a fairly specific way. The control exercised by the party with the right has to be control of another party’s duty. As Bogdan noted, this means that powers play an important role in rights, as Hart understood them. The relevant kind of control is not the same as the ability to physically control someone. But it is thought to be related to the justification for using physical coercion, as Hart noted.
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. We looked at Bentham as an example of someone who advocated the benefit theory.
One problem with the benefit theory concerns third party beneficiaries, people who benefit from the performance of a duty but, on the face of it, lack the relevant rights. That suggests that being a beneficiary of the performance of a duty is not a sufficient condition of having a right.
Another problem with the benefit theory 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.)