By Pradeep N
Study Notes: H.L.A. Hart and Natural Rights
1. Introduction & Context
H.L.A. Hart (1907–1992) is widely regarded as one of the foremost legal philosophers of the 20th century. While best known for his work in legal positivism (specifically The Concept of Law), his 1955 essay “Are There Any Natural Rights?” remains a foundational text in contemporary political theory and moral philosophy.
At a time when utilitarianism dominated Anglo-American philosophy, and the concept of “natural rights” was often dismissed as metaphysical nonsense (famously dubbed “nonsense upon stilts” by Jeremy Bentham), Hart offered a rigorous, logically deduced defense of natural rights without relying on divine or metaphysical origins.
2. The Core Thesis: The One Natural Right
Hart’s essay hinges on a single, famous conditional claim: “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.”
To understand this thesis, you must break down its components:
- “If there are any moral rights…” Hart does not outright declare that moral rights exist. Instead, he argues that if we use the language of rights meaningfully in our moral discourse (e.g., “I have a right to say this,” or “You have no right to stop me”), we are already presupposing a deeper foundation.
- The Equal Right to Be Free: By this, Hart means that any adult capable of choice has the right to forbearance on the part of all others from coercion or restraint, provided they are not harming others.
- Why is it “Natural”? It is natural because (a) it belongs to all people qua human beings (not as members of a specific state), and (b) it is not created or conferred by any voluntary action, contract, or custom.
3. The “Choice” (or “Will”) Theory of Rights
To explain why the equal right to be free is foundational, Hart develops what is known as the “Choice Theory” or “Will Theory” of rights.
- Rights vs. Duties: Hart notes that not all moral duties create moral rights. For example, the Ten Commandments contain many duties (“Thou shalt not…”), but a system of duties does not automatically grant rights to individuals.
- Control over Duty: According to Hart, you only have a right when you have sovereignty or control over someone else’s duty. If I promise to pay you $10, you have a right to that money because you have the moral power to either demand payment or waive the duty entirely.
- Because having a right inherently means having the power to limit another person’s freedom (by holding them to a duty), all rights must ultimately be justified against a baseline presumption of equal freedom.
4. Special Rights vs. General Rights
A crucial part of Hart’s framework is his distinction between two types of rights that arise from this baseline of freedom:
| Feature | Special Rights | General Rights |
| Origin | Arise from specific transactions, relationships, or voluntary actions (e.g., promises, contracts, consent). | Arise simply from being human; they do not require any prior transaction. |
| Target | Held against specific, identifiable individuals (e.g., the person who made the promise). | Held against “everyone generally” (all of humanity). |
| Purpose | To justify an interference with another person’s freedom. | Asserted defensively to ward off unjustified interference or coercion. |
Hart argues that when we assert Special Rights, we are essentially saying: “We started equally free, but through your promise/action, you have temporarily restricted your own freedom and given me control over it.” Therefore, Special Rights logically depend on the pre-existing General Right to equal freedom.
5. The Principle of Mutuality of Restrictions (Fair Play)
A vital concept introduced in this essay—which later deeply influenced John Rawls—is Hart’s notion of the “mutuality of restrictions”.
Hart asserts: “When a number of persons engage in a just, mutually advantageous venture according to rules, and thus restrain their liberty in ways necessary to yield advantages for all, those who have submitted to these restrictions have a right to similar acquiescence on the part of those who have benefited from their submission.”
- The Takeaway: This provides a moral justification for political obligation. You have a duty to obey the law not necessarily because you explicitly consented to it, but because you benefit from the restraints that others place upon themselves. It is a matter of fair play.
6. Major Criticisms & Legacy (For Exams)
To score highly, engage with the limitations and critiques of Hart’s 1955 essay:
- The Interest Theory Critique (Joseph Raz / Neil MacCormick): Critics of Hart’s “Choice Theory” argue that rights are meant to protect profound interests, not just individual choice. Under Hart’s strict model, infants, animals, and individuals in comas cannot have rights because they lack the capacity to choose or waive duties. Interest theorists argue this is a fatal flaw in Hart’s reasoning.
- Ronald Dworkin’s Rights as Trumps: While Hart focuses on the equal right to be free, his former student Ronald Dworkin argued that the most fundamental right is the right to “equal concern and respect.” (You can contrast Hart’s focus on liberty with Dworkin’s focus on equality).
- Robert Nozick & Libertarianism: Hart’s deduction of the right to be free heavily influenced the libertarian tradition, particularly Nozick’s Anarchy, State, and Utopia, which builds upon the idea that individuals have rights to non-interference that cannot be violated for the “greater social good.”