Hart, Herbert - Are There Any Natural Rights?

02/12/2010

This paper is mainly a statement that 'If there are any moral rights at all, the right of humans to be free is a natural right'. The freedom granted as a right means that others mustn't coerce or restrain s from acting so long as s's actions aren't coercing, restraining, or 'designed to injure' others. (pg77) Most of there rest of the paper is a clarification of what it is for there to be moral rights, natural rights, and other clarifications. Note that the argument is in the form of a conditional: 'If' there are any moral rights, then the right to be free is one. (Author mentions as an aside that there may be other moral systems that would include terms like right/wrong, good/bad that do not rely on rights.) (pg78)

A natural right is one that accrues to s by virtue of s's being a human chooser, e.g. someone capable of choice. It is not dependent on having taken a particular voluntary action. Rights have special characteristics, and author lays them out as he sees them as follows:
A) Moral rights are different, but related to legal ones; to secure a legal right there must be the allowance for coercion and restraint in case such a right is at risk of being violated. Yet the justification for s's restraining another isn't because of a moral right that s has vs others, it is due to the principle of legal rights distribution (pg80)
B) S's Having 'a right to x' means that s has no duty to restrain from doing x. However, there is competition for limited resources that provides an interesting contrast. All may have a right to acquire x, but no corresponding duty to let the other have it. (pg80-1)
C) Is there a corresponding right for every duty? No. Author argues we have a duty to not abuse animals, but they do not have a right against us in that regard. (pg81) Just because someone stands to gain from the performance of our duties, that someone does not have a right to that performance. Author uses as another example the contract n signs with s to provide care to s's aging mother. N's duty is to s, not the aging mother; yet the mother stands to benefit from the performance of the duty. (pg81-2)

Author takes care to distinguish between Special rights and General rights. Special rights arise out of transactions between individuals, special relationships, or special situations. These are such things as i) promises, ii) s conferring the prerogative to protect s's rights to another, iii) 'mutuality of restrictions' such as in a political process (pg85-6). (It is during this portion where author discusses the possibility of having a legal duty to refrain from doing the morally right thing, or vice versa.) iv) natural relationships like parent/child, v) s confers special liberties to another (e.g. to read s's diary).

General rights, on the other hand, accrue to s because of there being no special right inhibiting s's actions and because s has a right to be free. (pg87-88) The last section of the article involves author claiming that there is a right to interfere, restrain or coerce s when s is trying to do the same (or injure) another.