Hart's Choice Theory Notes for March 20

Main points

Hart’s article has two major parts: an analysis of rights and an argument for one natural right. Today, we talked about the analysis of rights.

Hart’s analysis seeks to answer the following question: what is distinctive about rights? That is, why aren’t claim rights simply redundant with duties?

His answer is that rights give those who have them control over others’ freedom. That kind of control isn’t redundant with duties so it is what is distinctive about rights.

He argues for this answer by comparing his choice theory of rights with the interest (or benefit) theory of rights. The interest/benefit theory holds that to have a right is to be the beneficiary of the performance of a duty.

Hart has three arguments for the superiority of the choice theory of rights over the interest/benefit theory.

1. Third party beneficiaries: they benefit from the performance of duties but they don’t have rights (because of the promise or whatever generated the duty in the first place).
2. Redundancy: if the beneficiary theory is true, then that elaborate vocabulary surrounding rights doesn’t amount to much. By the elaborate vocabulary, I mean the ideas that they are things people have and can use. We could just eliminate rights and talk about duties.
3. People can benefit from the duties created by moral rules without having rights under those rules. That is supposed to be the lesson of the Ten Commandments.

Ben’s question

There are two major arguments for the choice theory of rights over the benefit theory: third party beneficiaries and redundancy.

Ben asked a question about the third party beneficiary objection that I didn’t answer. The object goes like this. If Victor promises Dante that he (Victor) will care for Will, Will is a beneficiary but lacks rights in this transaction. Therefore, being the beneficiary of a duty can’t be what having a right consists in.

Ben said that Will might gain some rights. If Will had passed up opportunities to hire other caregivers and Victor failed to care for him, he (Will) could sue Victor for damages. Ben’s idea is that but for Victor’s agreement, Will would have arranged for care. With the agreement, Will did not make these arrangements because he expected that Victor would show up. Will certainly seems to have a complaint against Victor, which suggests that he had rights created in the transaction too.

I think that Hart should answer the question this way.

“Will may well have rights by virtue of his expectation that Victor would care for him. But even if that’s so, that isn’t the same thing as saying that he had rights by virtue of being a beneficiary. Since it’s only the latter that is at issue, even if Ben is right, Hart’s argument against the benefit theory stands.”

Danny’s question

Danny pointed out that the third argument went by a little, um, quick. This is the point about the Ten Commandments. I benefit from the rule “thou shalt not kill” but that rule doesn’t give me any rights. Why? Well, the duties are entirely in God’s control, not mine.

I think that conflates two things:

1. The ability of a legislator (in this case, God) to change the rules.
2. Whether those rules give me rights.

To give an earthly example, the legislature in California passes laws that impose duties that benefit me. The legislature may change those laws: in that sense, the duties generated by the laws lie in someone’s power other than my own. But those laws can still give me rights. I can bring lawsuits, own property, and so on.