A Defense of H.L.A Hart's Will Theory of Rights Against Narrowness Objections

Document Type

Oral Presentation

Event Website

https://source2022.sched.com/

Start Date

18-5-2022

End Date

18-5-2022

Keywords

Philosophy of Law, Legal Rights, Ethics

Abstract

Within the study of the philosophy of law, there have been long standing disputes regarding the nature and origin of rights. One prominent view, espoused by authors such as H.L.A Hart, is such that rights are derived from control by the bearer of the right over whatever the object of the right is. Under this view, an individual has a right to an object insofar as they control the object and exert their will over it. Hart’s will theory approach to rights has often been criticized on several significant conceptual and performative hurdles, each tied to a notion of problematic narrowness. First among these hurdles is an inability to account for those rights believed to be possessed by individuals generally. Second, Hart’s view requires rights to be voluntarily waivable in order to be cogent due to its focus upon control. This is problematic since some rights, particularly rights towards self-ownership or other freedoms, appear to lack any ability to be waived meaningfully. Third, the rights of the incapable are inadequately handled. I defend Hart’s work on a will theory approach by showing that these hurdles are not impassable; that Hart’s work is defensible against these critiques. My argument includes a reassessment of what is meant by being able to waive a right. This is accomplished by reframing waivability as a refrain from enforcing, rather than as a relinquishment of, rights.

Faculty Mentor(s)

Matthew Altman

Department/Program

Philosophy & Religious Studies

Additional Mentoring Department

Philosophy & Religious Studies

Streaming Media

Share

COinS
 
May 18th, 12:00 AM May 18th, 12:00 AM

A Defense of H.L.A Hart's Will Theory of Rights Against Narrowness Objections

Within the study of the philosophy of law, there have been long standing disputes regarding the nature and origin of rights. One prominent view, espoused by authors such as H.L.A Hart, is such that rights are derived from control by the bearer of the right over whatever the object of the right is. Under this view, an individual has a right to an object insofar as they control the object and exert their will over it. Hart’s will theory approach to rights has often been criticized on several significant conceptual and performative hurdles, each tied to a notion of problematic narrowness. First among these hurdles is an inability to account for those rights believed to be possessed by individuals generally. Second, Hart’s view requires rights to be voluntarily waivable in order to be cogent due to its focus upon control. This is problematic since some rights, particularly rights towards self-ownership or other freedoms, appear to lack any ability to be waived meaningfully. Third, the rights of the incapable are inadequately handled. I defend Hart’s work on a will theory approach by showing that these hurdles are not impassable; that Hart’s work is defensible against these critiques. My argument includes a reassessment of what is meant by being able to waive a right. This is accomplished by reframing waivability as a refrain from enforcing, rather than as a relinquishment of, rights.

https://digitalcommons.cwu.edu/source/2022/CAH/14