Hart’s argument is as follows: if there are any moral rights at all, then it follows that there must be at least one natural right: equal right to freedom.
What is a natural right?
- Rights we have because we are human insofar as we are capable of choice.
- They are not created by our voluntary actions, unlike moral rights.
- There is a branch of morality concerning the legitimate conditions for determining when one’s free actions can be limited by another’s.
- It regards, i.e., the principles of legitimate distribution of human freedoms, from which stem determinants of other actions, including when coercion is justified.
- These principles have to be considered separate from the rest of morality, for it not because the act that I am entitled to require from you itself carrying moral quality than it is legitimate, but because it maintains a “certain distribution of human freedom”.
Sometimes rights don’t have correlative duties
- These are what jurists call “liberties”
- For example, X and Y both see £10 on the floor.
- Neither have a “duty” to let the other pick it up, but both have a “right”.
- Here, a “right to X” would simply mean “not having a duty to not do X”.
Duties and Correlative Rights
- To have a right is no identical with being capable of benefiting from the performance of a moral duty.
- E.g. X promises to look after Y’s mother. Who has a moral claim upon me- Y or the mother?
- Evidently- Y. Y is a position to limit X’s freedom (and thus have a right) and X has an obligation.
- This is not because Y benefits from X’s performance of duty- the mother does- but because the promise was made to Y.
- Thus whilst the beneficiary of a duty can be known through considering what happens it the duty is not performed, but who has the right can only be discovered through examining the situations antecedent from the duty from which the duty arises.
- Rights have to be reserved for a specific relation. Rights are duties refer to relations where one party is bound by it, and the other has the freedom to exercise the restrictions or not.
- Where there is a justification, specific and special for the actions of another person, and they form from special relationships between two parties. E.g. A right because you promised by X
- Four sources
- a) Promises- because it’s a voluntary exchange.
- b) Consent into interference- same as above.
- c) Mutuality of Restrictions. That is, when a number of persons conduct in joint enterprise following rules thus restricting their own liberty, there exists right claim from those who have restricted towards those who have benefited from it, and ask for similar submissions.
- d) Natural ties, e.g. family.
- Crucially, all of these conditions show two things. a) Special rights are special because not because of the character of the action involved, but because of the nature of the relationship. b) They confer rights specifically to those involved, not everyone.
Special Liberties and General Rights
- Special liberties are where you have permissibility or exemption to act (or not), but are not rights. They are revocable, unlike rights.
- E.g. liberty to read my diary, which I can revoke at any given point.
- General Rights- the ground for resisting of interference when the person doing so has no legitimate justification for doing so. E.g. I have a right to my freedom of speech.
- Like Special rights, they are justifications for determining other’s action, arising not out the action itself but conditions of morality.
- Yet it imposes restrictions upon everyone, not requiring a special relationship.
All these rights provide justification for (lack of) interference. Either the interference with another person’s actions, or a right to be free from interference from another’s actions.
The question is, why are any of these conditions a basis of legitimate justifications? Why are they stronger than saying “I am stronger then you” or because I am of “X race”? What principle is common to promising, consenting, mutual restrictions and general rights which ground justification, independent of the content of rights?
Answer: the principle that all have a right to be free. In the case of promising and consent, it is legitimate because all are free to choose what to do with themselves. In the case of mutual restrictions it is fair, and it is fair because it ensures the equal distribution of freedom amongst all. General rights too, assume that. Thus if there are moral rights, there must be at least one natural right- the equal right to be free.
I read this objection to Hart’s argument online. Basically, it points to the fact the promises can be made by respecting freedom, but not the equality of freedom. It made me reevaluate the arguments and reconsider what Hart means by “equality of freedom”.
I think the point that Hart is making is that if all promises provided the grounds for right claims, irrespective of the who makes that promise, then freedom- the basis for accepting promises- is also universal and irrespective of who is involved, thus the “equality” of freedom.
On the other hand, does Hart’s argument explain the possibility of a second “natural right”? In his explanation of why mutual restrictions seem compelling, it never seems clear to me why it is the “equality of freedom” rather than “equality” that forms the justification. Why is not the desire to be considered as equals that underpins moral rights?