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.
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.
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 do 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, for instance, but he can’t control them.
“Control” has to be understood in a fairly specific way. Sean is right to point out that a person with duties can exercise some control by performing the duty; that ends the other party’s claim on the person’s time. 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 my opinion, many of what we call 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.
What do I mean by “what we call human rights”? I mean the rights listed in the Universal Declaration of Human Rights.
The benefit or interest theory has been formulated in a way that evades the two problems Hart noted. 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 the limitations I noted in the last paragraph of the previous section. Hart, H. L. A. (1982). “Legal rights.” In Essays on Bentham: studies in jurisprudence and political theory, pages 162–193.
The second part of Hart’s article makes an ambitious claim that many commonly accepted rights logically entail one natural right, the equal right to be free. What does “natural” mean? It means rights that are not derived from any social interaction. Rights derived from promises, by contrast, are derived from the interaction of making a promise.
In brief, Hart tries to show how the way we use three kinds of rights doesn’t make any sense unless we also believed in that natural right. There is no better way of explaining our invocation of those other rights.
We spent a lot of time discussing one right in particular, the right of those who have restricted their freedom in order to produce a public good against free riders. For Hart’s purposes, it is only important that this is a recognized right. He does not have to spell out the exact circumstances under which it is appropriately recognized and when it is not. That’s fortunate for him, because the latter task is extremely difficult. Ben, Kelly, and others brought up compelling cases that seem to fit the pattern but in which the right to coerce the “free riders” seems inappropriate. Toby added that the argument appears to conflate the equal right to be free with the right to be equally free; if so, that looks like another big problem.
But leave aside questions about the details. Who cares even if the rights he looked at were clear as a bell and uncontroversial to boot? So what? What would he have established?
Here’s the answer. Natural rights are a bit obscure. We picked on the natural law tradition to start of the term for that very reason. If Hart succeeds in showing that apparently less obscure practices surrounding rights depend on natural rights, then he will have cleared away some of the obscurity. He will also have shown that we probably can’t do without natural rights, at least, without giving up quite a lot that we otherwise believe in.
Alas, I don’t think the inference works. The sticking point concerns the equal distribution of the right to be free. I don’t think that’s logically entailed by the other rights. All that is necessary is that people have some freedom, not an equal distribution of it.