Hart’s essay is about moral rights rather than legal rights. His thesis is that “if there are any moral rights at all, it follows that there is at least one natural right, the equal right of all men to be free” (Hart 1955, 175).
Hart’s defense of this thesis is interesting, but we are going to concentrate more on what he has to say about the nature of rights, since that applies to both moral and legal rights.
Hart thinks that rights concern the ability of one person to control another’s freedom.
it is I think a very important feature of a moral right that the possessor of it is conceived as having a moral justification for limiting the freedom of another and that he has this justification not because the action he is entitled to require of another has some moral quality but simply because in the circumstances a certain distribution of human freedom will be maintained if he by his choice is allowed to determine how that other shall act. (Hart 1955, 178).
This is his understanding of what Hohfeld called a right or a claim. A right, on this understanding, logically entails correlative duties. The duty is what limits another person’s freedom.
Hart’s big idea is going to be that having a right gives you the ability to control another person’s freedom because, he thinks, the party with the right has to have the ability to control the other party’s duties. Control can be exercised by, for example, insisting on the performance of the duty or by waiving the duty.
Hohfeld says that a right, properly understood, logically implies a correlative duty. But what there are a lot of duties out there. What makes a particular duty the correlative of a particular right? Hohfeld’s theory does not say.
One way of spelling out the relationship between a right and its correlative duty is given by what is called the benefit theory. According to this theory, a duty is the correlative of a right if the party who has the right would benefit from the performance of the duty (see Hart 1955, 180).
Hart has several criticisms of this theory.
Non-human animals and babies can benefit from the performance of duties but do not have rights, Hart believes.
We can stand to benefit from the performance of our own duties but do not have rights against ourselves.
Third party beneficiaries. Example: X promises Y that X will look after Y’s mother. Y’s mother benefits from the performance of X’s duty, but Y is the one that has the right.
The question is what makes a duty the correlative of a right? Hart’s answer is that a duty is the correlative of a right when the party with the right controls the duty. To be more specific, the right holder can choose whether the duty has to be performed or not.
Hart, of course, thinks that there are duties not to mistreat non-animals and babies. But he thinks it would be redundant to add rights to describe our relationship to them. That is what he is saying here.
If common usage sanctions talk of the rights of animals or babies it makes an idle use of the expression “a right,” which will confuse the situation with other different moral situations where the expression “a right” has a specific force and cannot be replaced by the other moral expressions which I have mentioned (see Hart 1955, 181).
Another way to put the point is by asking “what do rights add to duties?” Or, “is there anything that would be lost if we just talked about duties and eliminated rights from our conceptual toolbox?”
On Hohfeld’s theory, the answers would be “nothing” and “no,” respectively. All that it means to have a right is that another party has a duty (and that the party with the right does not have a no-right). You could leave rights out of it and just talk about duties. (As a bonus, you could dispense with the unlovely expression “no-right”.)
There can be moral, or legal, systems that just use duties and have no room for rights. The Ten Commandments are like that. They are full of thou shalt nots. What is missing from such a system? Here is what Hart thinks.
Rights are typically conceived of as possessed or owned by or belonging to individuals, and these expressions reflect the conception of moral rules as not only prescribing conduct but as forming a kind of moral property of individuals to which they are as individuals entitled; only when rules are conceived in this way can we speak of rights and wrongs as well as right and wrong actions. (Hart 1955, 182)
So what do rights add to duties? What does it mean to possess or own a right? The answer, according to Hart, is control.
Here are some bonus questions.
Which of Hohfeld’s concepts seems relevant to control?
Assuming that control is essential to rights, why would it follow that non-human animals and babies do not have them?
How does the choice theory handle the third party beneficiary case?
The first half of the article is the most important for our purposes. That spells out Hart’s understanding of what rights are.
His thesis, to remind you, is that “if there are any moral rights at all, it follows that there is at least one natural right, the equal right of all men to be free” (Hart 1955, 175).
That is what the rest of the essay is about.
The argument in the first section was supposed to establish that to have a right entails having a moral justification for limiting another person’s freedom and determining how that person should act.
In the second section, Hart tries to show that the moral justification for limiting another person’s freedom must be of a special kind in order to constitute a right.
Specifically, the moral justification has to show that the right stems from the voluntary actions of the person whose freedom is controlled by the right holder. Or it has to show that respecting the right is necessary to make freedom equal.
Hart draws a distinction between what he calls special rights and what he calls general rights.
Special rights arise out of a transaction or relationship among individuals. For example, if A promises to give B a pencil, B has a right against A, namely, B has a right to be given a pencil by A. The promise explains why A has the right; without the promise, there would be no right. Similarly, children have rights against their parents in virtue of their relationship to one another.1
General rights are unlike special rights in that everyone has them. The right not to be murdered is an example of a general right. You do not need someone to promise not to murder you in order to have this right. And you do not have the right only against your relatives; everyone is obliged not to murder you. Hart believes that all general rights amount to an equal right to be free (Hart 1955, 186–87).
So if you invoke a general right, you are directly asserting that everyone has an equal right to be free. And if you invoke a special right, you are saying there is a specific reason for making an exception to the proposition that everyone has an equal right to be free. This particular person owes a duty to me, and thus has less freedom than everyone else, because he made a promise to me, for example. Hart thinks this shows that departures from equal freedom require justification. And that is so only if we start with an equal right to be free.
And that is how he thinks he can move from the existence of any right, whether special or general, to the conclusion that there is an equal right of everyone to be free.
Hart has some very interesting remarks about consent and the social contract tradition in this section (see Hart 1955, 185–86).↩︎