H.L.A. Hart - Are there any natural rights.pdf
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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
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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
or
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.
In
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.
I
(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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