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Philosophical Review

Are There Any Natural Rights?

Author(s): H. L. A. Hart

Source: The Philosophical Review, Vol. 64, No. 2 (Apr., 1955), pp. 175-191

Published by: Duke University Press on behalf of Philosophical Review

Stable URL: http://www.jstor.org/stable/2182586

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ARE THERE ANY NATURAL RIGHTS?'

I SHALL advance the thesis 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. By saying that there is this

right, I mean that in the absence of certain special conditions

which are consistent with the right being an equal right, any

adult human being capable of choice (i) has the right to for-

bearance on the part of all others from the use of coercion or

restraint against him save to hinder coercion or restraint and

(2) is at liberty to do (i.e., is under no obligation to abstain

from) any action which is not one coercing or restraining

designed to injure other persons.2

I have two reasons for describing the equal right of all men

to be free as a natural right; both of them were always empha-

sized by the classical theorists of natural rights. (i) This right

is one which all men have if they are capable of choice; they

have it qua men and not only if they are members of some so-

ciety or stand in some special relation to each other. (2)

This

right is not created or conferred by men's voluntary

action;

I was first stimulated to think along these lines by Mr. Stuart Hampshire,

and I have reached by different routes a conclusion similar to his.

2 Further explanation of the perplexing terminology of freedom is, I fear,

necessary. Coercion includes, besides preventing a person from doing what he

chooses, making his choice less eligible by threats; restraint includes any action

designed to make the exercise of choice impossible and so includes killing or

enslaving a person. But neither coercion nor restraint includes competition.

terms of the distinction between "having a right to" and " being at liberty

to," used above and further discussed in Section I, B, all men may have,

consistently with the obligation to forbear from coercion, the liberty to satisfy

if they can such at least of their desires as are not designed to coerce or injure

others, even though in fact, owing to scarcity, one man's satisfaction causes

another's frustration. In conditions of extreme scarcity this distinction between

competition and coercion will not be worth drawing; natural rights are only

of importance "where peace is possible" (Locke). Further, freedom (the

absence of coercion) can be valuelessto those victims of unrestricted competi-

tion too poor to make use of it; so it will be pedantic to point out to them that

though starving they are free. This is the truth exaggerated by the Marxists

whose identification

of poverty with lack of freedom confuses two different evils.

'75

THE PHILOSOPHICALREVIEW

other moral rights are.3 Of course, it is quite obvious that my

thesis is not as ambitious as the traditional theories of natural

rights; for although on my view all men are equally entitled to

be free in the sense explained, no man has an absolute or un-

conditional right to do or not to do any particular thing or to

be treated in any particular way; coercion or restraint of any

action may be justified in special conditions consistently with

the general principle. So my argument will not show that men

have any right (save the equal right of all to be free) which is

"absolute," "indefeasible," or "imprescriptible." This may for

many reduce the importance of my contention, but I think that

the principle that all men have an equal right to be free, meager

as it may seem, is probably all that the political philosophers

of the liberal tradition need have claimed to support any pro-

gram of action even if they have claimed more. But my con-

tention that there is this one natural right may appear unsatisfy-

ing in another respect; it is only the conditional assertion that

if there are any moral rights then there must be this one natural

right. Perhaps few would now deny, as some have, that there

are moral rights; for the point of that denial was usually to

object to some philosophical claim as to the "ontological status"

of rights, and this objection is now expressed not as a denial

that there are any moral rights but as a denial of some assumed

logical similarity between sentences used to assert the existence

of rights and other kinds of sentences. But it is still important

to remember that there may be codes of conduct quite properly

termed moral codes (though we can of course say they are "im-

perfect") which do not employ the notion of a right, and there

is nothing contradictory or otherwise absurd in a code or

morality consisting wholly of prescriptions or in a code which

prescribed only what should be done for the realization of hap-

piness or some ideal of personal perfection.4 Human actions in

I Save those general rights (cf. Section II, B) which are particular exemplifi-

cations of the right of all men to be free.

4 Is the notion of a right found in either Plato or Aristotle? There seems to

be no Greek word for it as distinct from "right" or "just" (&lKalov), though

expressions like ra eik alKala are I believe fourth-century legal idioms.

The natural expressions in Plato are ro' E'abrov

(ExEtv) or ra TLrV 6q5EtX6'/Eva,

I 76

ARE THERE NA TURAL RIGHTS?

such systems would be evaluated or criticised as compliances

with prescriptions or as good or bad, right or wrong, wise or foolish,

fitting or unfitting,but no one in such a system would have, exer-

cise, or claim rights, or violate or infringe them. So those who

lived by such systems could not of course be committed to the

recognition of the equal right of all to be free; nor, I think

(and this is one respect in which the notion of a right differs

from other moral notions), could any parallel argument be con-

structed to show that, from the bare fact that actions were

recognized as ones which ought or ought not to be done, as

right, wrong, good or bad, it followed that some specific kind

of conduct fell under these categories.

(A) Lawyers have for their own purposes carried the dissec-

tion of the notion of a legal right some distance, and some of

their results I are of value in the elucidation of statements of the

form "X has a right to . . ." outside legal contexts. There is of

course no simple identification to be made between moral and

legal rights, but there is an intimate connection between the

two, and this itself is one feature which distinguishes a moral

right from other fundamental moral concepts. It is not merely

that as a matter of fact men speak of their moral rights mainly

when advocating their incorporation in a legal system, but that

the concept of a right belongs to that branch of morality which

is specifically concerned to determine when one person's free-

dom may be limited by another's 6 and so to determine what

actions may appropriately be made the subject of coercive le-

gal rules. The words "droit," "diritto," and "Recht," used by con-

but these seem confined to property or debts. There is no place for a moral

right unless the moral value of individual freedom is recognized.

I As W. D. Lamont has seen: cf. his Principlesof Moral Judgment(Oxford,

I946); for the jurists, cf. Hohfeld's FundamentalLegal Conceptions

(New Haven,

I923).

6 Here and subsequently I use "interfere with another's freedom," "limit

another's freedom," "determine how another shall act," to mean either the

use of coercion or demanding that a person shall do or not do some action.

The connection between these two types of "interference" is too complex

for discussion here; I think it is enough for present purposes to point out

I77

THE PHILOSOPHICALREVIEW

tinental jurists, have no simple English translation and seem to

English jurists to hover uncertainly between law and morals,

but they do in fact mark off an area of morality (the morality

of law) which has special characteristics. It is occupied by the

concepts of justice, fairness, rights, and obligation (if this last is

not used as it is by many moral philosophers as an obscuring

general label to cover every action that morally we ought to do

or forbear from doing). The most important common character-

istic of this group of moral concepts is that there is no incon-

gruity, but a special congruity in the use of force or the threat

of force to secure that what is just or fair or someone's right to

have done shall in fact be done; for it is in just these circum-

stances that coercion of another human being is legitimate.

Kant, in the Rechtslehre,discusses the obligations which arise in

this branch of morality under the title of official

juris, "which do

not require that respect for duty shall be of itself the determin-

ing principle of the will," and contrasts them with official virtutis,

which have no moral worth unless done for the sake of the moral

principle. His point is, I think, that we must distinguish from

the rest of morality those principles regulating the proper dis-

tribution of human freedom which alone make it morally legiti-

mate for one human being to determine by his choice how

another should act; and a certain specific moral value is secured

(to be distinguished from moral virtue in which the good will is

manifested) if human relationships are conducted in accordance

with these principles even though coercion has to be used to

secure this, for only if these principles are regarded will freedom

be distributed among human beings as it should be. And 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.

that having a justification for demanding that a person shall or shall not do

some action is a necessary though not a sufficient condition for justifying

coercion.

I 78

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