Hart on natural rights

Class notes for 1 February

Main points

Hart has a way of arguing for natural rights that is different from those criticized by MacDonald.

His argument is that there is one natural right that is logically entailed by any other moral right: the equal right to be free.

At most, the argument will show that those who believe in some rights are also committed to believing in this natural right. It doesn’t show that someone who rejects all rights is mistaken. But while it claims less than those working in the natural law tradition did, it has a much greater chance of success.

We spent our time going over how Hart tried to show that the equal right to be free is entailed by other rights. Strictly speaking, we spent a lot of time talking about the other rights. As Suzie pointed out, settling exactly what rights exist wasn’t Hart’s purpose. He only wanted to show that the equal right to be free exists and that it is a natural right, as he described natural rights.

Three ways

Hart claims there are three ways that rights logically entail the equal right to be free. Strictly speaking, he says that there are three ways that the assertion of rights logically entails the equal right to be free.

  1. The assertion that I have a general right is a direct invocation of the equal right to be free.
  2. The assertion that I have a right as a result of a contract, promise, or consent indirectly invokes the equal right to be free. In tracing the right back to the duty-bearer’s voluntary choice, I am conceding that there has to be a justification for my controlling that person’s freedom that is compatible with his or her equal right to be free.
  3. The assertion that I have a right against free-riders (this is the mutual restriction case) also invokes the equal right to be free indirectly. In this case, I am justifying my having control over their freedom in order to restore equal freedom.

Mutual restrictions

This was the most contentious example. There were two challenges pursued, variously, by Khrystyna, Caitlin, Taylor, Jay and John. In fact, I think I was pretty much the only one who spoke up for Hart here.

So I’m surrounded by free-riders, I see.

Anyway, the problems were:
  1. How do we define the group of people that will be covered by this right? He can’t mean that anyone who benefits from something another person does has a duty to chip in: if I admire the paint job on your car, I don’t have to help pay for it. In fact, Hart says that it applies to those who “conduct any joint enterprise” (p. 185). That seems appropriately narrow, but how do we determine what makes an enterprise “joint”? In particular, how do we determine that without reintroducing their voluntary choice to join the enterprise?
  2. Equal freedom isn’t really restored since those who chose to submit to the rules exercised the choice to submit while those who they claim a right to control did not have that choice. The submitters have one more free choice than the formerly-free riders did.

I think those are both great points and I don’t know how to answer them. Of course, Suzie’s point still applies: Hart wasn’t trying to explain this source of rights, he was taking it for granted that we think there are rights against free-riders and he was arguing that these rights logically imply the ERF.

In my opinion, Hart is right to say that we do think there are rights against free-riders. We’re asking questions about how it works.

I would be terrifically interested in seeing how the first question is implicitly answered in our practice. That is, when do we think that people are free-riding in an objectionable way and when do we let it go?

As for the second question, I suppose I think that it’s either encompassed in the answer to the first one or that it’s a minor issue. That is, I would imagine that we think free-riders are those who at least would want the benefit they’re getting for free. They did not choose how it would be delivered, but that’s either irrelevant to them — we need detergent, whether it’s Tide or All is a secondary matter — or due to their intentionally shunning the burden.

But that’s just a guess.