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Hohfeld’s Analysis of Rights: An Essential Approach to a Conceptual and Practical Understanding of the Nature of Rights

Nikolai Lazarev


The principal aim of Wesley Newcomb Hohfeld's project was to clarify juridical relationships between the relevant parties. Hohfeld presents us with an analytical scheme which splits rights into four different categories of jural relationships and exemplifies a number of analytical distinctions between various legal positions. Importantly, Hohfeld's analysis of rights lies in the descriptive exercise of the legal positions which are connected with each other by means of logical relations of entailment and negation. Hohfeld's analysis is engaged in an analytical and definitional enterprise and does not concern itself with substantive or empirical enquiry into the concept of a right. It follows that Hohfeld's ambition was to provide a conceptual understanding for our use of right, duty etc in practice, thus facilitating a better understanding of the nature of our rights. It was not, however, to inform us what rights, duties etc are or should be or what their moral foundation is or what is necessary for something to count as a right, duty etc. He does not, therefore, say anything about the justification of rights. Hohfeld's table[1] presents a distinction between four different sets of juridical relationships. This method of splitting the notion of a right into its constituent elements has many important benefits. It is this clear and precise method that makes Hohfeld's analysis of rights not only elegant and attractive but also fundamental to anyone wishing to make an informed and intelligible assessment of the legal position between the parties involved.

This essay argues in support of Hohfeld's analysis of rights. It contends that his approach is highly plausible and helps us to gain a clear understanding of what rights we have in various circumstances and allows us to see clearly what the consequence of holding a particular Hohfeldian entitlement or burden is. It will be argued that Hohfeld's precise exposition of jural relations is essential to jurisprudence and an understanding of our practices involving rights. Hohfeld's analysis has attracted much criticism from his fellow jurists, so, to provide a balanced view, in arguing in favour of Hohfeld's work, I will consider those criticisms, in order to show that the majority of them are unfounded because the critics have misconceived the nature of Hohfeld's work. Others are simply not criticisms at all in that they simply state rival theories of rights. As far as the critics go, it is pertinent to distinguish between anti-Hohfeldians and non-Hohfeldians. The former are critics who directly oppose Hohfeld's analysis, holding that it is not necessary, or even flawed, in that it does not depict our true conventional practices in relation to rights and does not account for an adequate conception of our rights. The latter are those who do not rely on Hohfeld's analysis per se but seek to offer an intelligible account of the conception or use of our rights. Such an account may linguistically[2] appear to be in conflict with Hohfeld's analysis. But given, as I will argue in this essay, that Hohfeld's analysis, possesses a high degree of clarity and a remarkable analytical[3] force, it must represent a highly accurate depiction of the nature of our jural relations. It follows that a non-Hohfeldian without directly acknowledging it, will tacitly rely on Hohfeld's analytical framework if he is to provide a coherent account of his position. The significance of this distinction will become apparent when the critics are discussed.

It is also important to note that since Hohfeld's analysis is definitional or stipulative and not a product of empirical enquiry, arguably it is nonsusceptible to disproof by means of empirical or moral refutation.[4] Therefore, critics who try to disprove the validity of Hohfeld's analysis by resorting to such means must be misconceiving Hohfeld's intention behind the stipulative nature of his project. It follows that a critic who tries to show the invalidity of Hohfeld's analysis by engaging in empirical refutation must, in effect, be putting forward an alternative conception which is capable of application in a different way,[5] but which does not refute Hohfeld's analysis in any way.

Conversely, it must be true that we also cannot validate Hohfeld's analysis of rights by finding flaws in rival analyses, given the stipulative nature of Hohfeld's work. If this is so, then what would be the point in tackling the criticisms put forward against his work, since they cannot either disprove or confirm the validity of his work? We could simply accept Hohfeld's analytical approach for its clarity, elegance and analytical precision without having to trouble ourselves with building a response to his critics. Indeed, it could be argued that there is no such need and Hohfeld's stipulative analysis should be left to stand as it is unless one argues that his analysis is more than merely stipulative and perhaps one that can be taken to embody necessary truths about rights,[6] in which case Hohfeld's analysis may serve to establish falsities in rival analyses and be validated itself. To prove this would require an argument which would call into doubt the general view of conceptual analysis on which Hohfeld's project is based (merely stipulative) but it is beyond the scope of this paper to argue that his work is more than merely stipulative and that it can serve as a finder for the necessary truths about rights and present a ground revealing falsities in rival analyses etc.

Despite the fact that criticisms of Hohfeld's enterprise, given its stipulative nature, may not be criticisms at all, it would be insular and narrow to ignore all attempts at criticizing his work. Such criticisms will therefore be extensively examined and confronted. This paper is in two parts, I and II. In part I, I set out the Hohfeldian table and present an exposition of his jural relationships. Part I is very important to the general line of argument in this essay as it not only explicates Hohfeld's analytical scheme but also presents a strong case for why we should accept that his analysis is of great practical importance in that its precise and clear approach enables real normative choices to be disentangled from verbal confusions. Any criticisms specifically arising in the discussion will also be dealt with in this section. In Part II, I will concentrate on Hohfeld's most noteworthy critics. Specifically, I will deal with MacCormick's position, which sees rights as 'grounds' of duties, addressing his criticism that Hohfeld's analysis cannot accommodate a situation whereby a person's possession of a right endows him with a variety of entitlements as opposed to just one by virtue of his legal position. Then, I will deal with Kant's position, conflating the notions of permissibility and inviolability in his theory of rights. Subsequently, I will consider MacCormick's return to the internal complexity of a right and then tackle Raz's conception of power. To conclude I will illustrate that Hohfeld's analysis is capable of accommodating a situation involving a moral duty to express charitableness.

Part I - Exposition of Hohfeld's Jural Relationships

Figure 1: Hohfeld's Table of Entitlements and Burdens: [7]

Right(Claim-Right)[8] Liberty[9] Power Immunity
Duty No-Right Liability Disability

The table above represents four sets of various Hohfeldian jural relations. The top row contains four types of Hohfeld's legal rights, while the bottom row indicates the legal position entailed for the other party in each of the types of right. These are jural correlatives. On the other hand, pairs of diagonally opposite elements in the first two columns (duty/liberty and right/no-right) and those in the last two columns (liability/immunity and power/disability) are jural opposites, i.e. two legal positions that negate each other. Before venturing to discuss each type of right and showing the importance of their relationship in modern jurisprudential thinking and our practices involving rights, it needs to be stated that all of the Hohfeldian rights (in the top row) necessarily represent entitlements against a specific person. Thus, each Hohfeldian right resolves only one issue between two specific parties.


To say that X has a legal claim-right means that he is legally protected from interference by Y or against Y's withholding of assistance with respect to X's project Z. Conversely, Y, who is to abstain from interference, or is required to provide assistance in connection with X's project Z, is under a correlative duty to do so. The correlativity stipulation commands that if X has a claim-right against Y, this entails Y owing a duty to X,[10] for example, if X has a claim-right that Y should deliver him goods, this entails Y having a duty to deliver goods to X. One has to be very specific here. He who has the right must be able to pinpoint another person with a correlative duty either in terms of shield or assistance. Hohfeld's insistence that every right is a relation between no more than two persons attracted criticism from James Penner[11] who criticizes Hohfeld's analysis because it does not account for the distinction between rights in personam[12] and rights in rem.[13] This is a very weak line of argument because Hohfeld, in defence, can insist, as he does, that a right held against the whole world is, in reality, a set of various rights ad infinitum and each of those rights is held against a particular person.[14] The importance of grasping Hohfeldian rights cannot be overestimated. For instance, in ordinary parlance we refer to an individual having a right not to be tortured. This is not a 'right' in the strict Hohfeldian sense because the state (or any other person) is under no correlative duty to abstain from torturing people. Instead, the person's 'right' not to be subjected to torture is protected by the array of normative protections guaranteed by the state through the general laws against assault, trespass etc. Therefore, the general right not to be assaulted sets the protective perimeter within which a person's legal 'right' to be free from torture can exist.[15]


In short, liberty is merely an absence of a duty to abstain from the action. The correlativity of this jural relationship shows that the person against whom the liberty is held has a no-right concerning the activity to which the liberty relates. This, however, does not mean that he himself does not have a liberty to interfere in the activity. Suppose that I am irritated by people who smoke in my vicinity. I meet S (smoker) in a public place, who starts to smoke in my presence. I ask him to stop, but S tells me he has a 'right' to smoke here (given the absence of any legal prohibitions). S is confusing his entitlement. He does not have a right (in the Hohfeldian sense) to smoke, but merely a liberty (a weaker right). Although I have a no-right concerning his activity of smoking, I do have a liberty myself (within the constraints imposed on me by S's genuine rights)[16] to impede his smoking, say, by raising my voice or encouraging other people to make fun of S for his smoking habit, which may make him stop. The important point is that in almost every circumstance outside the Hobbesian state of nature, a person who acts in line with his liberty, such as S, would effectively be shielded, albeit imperfectly, from the encroachment on his liberty by possession of some basic legal Hohfeldian rights such as the rights against assault, battery, trespass etc.[17] Hohfeld's analysis therefore provides a clear understanding as to what the legal position of S is (i.e. what rights he has). As we can see, had it not been for Hohfeld providing us with a precise vocabulary, S would mistake his liberty for a right, and accordingly would be unable to accurately report the effect of his entitlement. He would be wrong in saying to me that I cannot stop him from smoking because he has a right to smoke in a public place, since it puts me under no duty not to interfere with his smoking. This once again shows the practical benefit of Hohfeld's elegant and clear analysis. A problem may arise when two competing liberties arise in the arena of jurisprudence. A good illustration of this is media law in the United Kingdom whereby freedom of expression and the right to privacy are often conflicting interests. The courts try to balance these interests, but the state traditionally is under no duty to provide for either interest. Therefore, it tends to be the consideration of moral and social norms and principles which governs the judiciary's favour of one interest over the other.[18] Hohfeld points out that it is the mixing up of value-driven ideals that has confused the meaning of rights; instead, the clarification of rights should aid the judiciary to balance interests without letting a possible bias intrude.


In short, a power is one's ability to alter legal (or moral) relations. For instance, I can have the power to enter into a contract with S whereby he agrees (for a consideration) to refrain from smoking in my presence. Thus, I have the power to change our legal relations in that I make S contractually bound (as well as myself). S, thus, has a liability, which is correlative to power, in that he is liable to having his legal relations altered by my exercise of power. Hohfeld's analysis clears the practical meaning of the term power; on myriad occasions, lawyers have created confusion by referring to a 'right' to do something when, in fact, they mean a Hohfeldian power to do something. Suppose X steals my car. Does he have a 'right' to sell it on to Y? If X sells it to Y, who is the bona-fide purchaser for value, he can pass good title on to him. Thus, X has a Hohfeldian power to perform the sale of my car. However, he is not at liberty (in Hohfeld's sense) to do so, because liberty is the absence of a duty not to do the act, whereas here, X's sale of the stolen car to Y is a legal wrong and he thus clearly breaches his legal duty by selling it. Although he has effective power to transfer the title, he does not have a liberty to do so. How confusing would it be to say that X has a right to sell the car, but he does not have a right to sell the car in the absence of Hohfeld's precise vocabulary? Hohfeld's analysis indeed helps to clarify the legal position of the parties and is able to more accurately predict the effect of the alterations in their respective legal positions.


If X has an immunity against Y, it means that Y has no power to change X's legal position with respect to any entitlements covered by the immunity. For instance, if the state has no power to place me under a duty to wear a hat when I go out, I have immunity in that respect, and the state a disability (a correlative to immunity). Simmonds notes that 'Constitutional Bills of Rights frequently confer extensive and very important immunities, in so far as; they disable the legislature from enacting certain types of law'.[19] This shows that adopting Hohfeldian analysis of rights is very important given its clarity and precision to ensure that the state does not overpower the individual. I have shown so far how useful Hohfeld's analysis can be in getting a clear sight of the jural relations of the parties involved and their legal positions. Indeed, as has been suggested, Hohfeld's work has become important, not only in the classification and clarification of rights elements themselves, but also in the relationship between the non-Hohfeldian uses of the term right, for instance when a privilege (a non-absolute right) can co-exist with another privilege. I will further illustrate how Hohfeld's analysis helps to clarify legal relationships and the meaning of 'rights' by using the case of Quinn v Leathem[20] in part II. One needs to note that the stipulative nature of Hohfeld's analysis of rights presents an analytically clear scheme which manages to steer clear of the confusion and complexities which are usually present in theories of rights which seek to justify rights, bringing into the equation various justificatory factors. In contrast to Hohfeld, consider, for example, theorists such as Dworkin,[21] Kymlicka,[22] Kant[23] and MacKinnon[24] who seek to justify rights, mainly in terms of the various values they serve. Arguably, this adds unnecessary complexity to the nature of rights.

Part II - A Response to Critics

Having explored Hohfeld's analytical scheme and exemplified its pertinence if one is to have a clear and elegant tool for understanding the effect of various jural relations, I now turn to consider and subsequently dismiss some of the main criticisms that have been made by fellow jurists of his analysis of rights. I will show that some of those criticisms are unsustainable, some misguided and some are not criticisms at all, but a reinforcement of the benefit of Hohfeld's work.

MacCormick and His Rejection of Hohfeld's Correlativity Axiom

Hohfeld stipulates that the atomic rights elements in his analytical framework are, by definition, always correlative. His idea that this relationship of mutual entailment between rights and duties as well as other elements is correlative was not a product of some empirical assessment of the nature of rights; rather, he presented the notion of correlativity as a definitional foundation of his analysis. For Hohfeld, it was a matter of logical necessity that there must be some kind of axiomatic mutual entailment between the rights-elements which is congruent with the notion that his analysis is stipulative and analytical rather than empirical or justificatory. Given the axiomatic nature of Hohfeld's stipulation of correlativity, which I will refer to as the 'Correlativity Axiom',[25] one should not attempt to try and refute it by empirical counter-examples because, as I have shown above, it is not susceptible to such attacks. Be that as it may, there have been a number of distinguished jurists who have tried to refute Hohfeld's Correlativity Axiom. The most notable critic in this respect is MacCormick in whose view a legal right is not (or does not) have to be correlative to a duty placed upon some other individual. Thus, he states that '[t]o rest an account of claim rights solely on the notion that they exist whenever a legal duty is imposed by a law intended to benefit assignable individuals ... is to treat rights as being simply the "reflex" of logically prior duties'.[26] He further notes that a law conferring a right is 'best understood in terms of a standard intention to confer some form of benefit'. When such benefit is conferred, the law will then provide a normative protection to that individual and this normative protection may include 'any or all of the various modes identified by Hohfeld and others',[27] such as duties, disabilities etc placed on others. Therefore, MacCormick sees legal rights as 'grounds' of duties, or reasons for imposing duties rather than simply being a correlative of the duty. On the face of it, this mounts a direct attack on the Hohfeldian Correlativity Axiom because, it will be recalled, that for Hohfeld each of the pairs of legal positions must be mutually entailed by definition. My first contention is that MacCormick's attack on Hohfeld is misdirected because Hohfeld's analysis is immune to empirical attacks, as explained above.

MacCormick therefore seemingly misconceives the nature and purpose of Hohfeld's work. Nevertheless, I will still consider the substance of his argument, but before doing so it is pertinent to note that MacCormick is not putting forward a non-Hohfeldian account of rights, he is presenting an anti-Hohfeldian argument by directly attacking Hohfeld's chief postulation, which, if true, would probably make his work flawed and unworkable.[28] In mounting his argument, MacCormick cites the following from section 2(1) of the Succession (Scotland) Act 1964, 'a). Where an intestate is survived by children, they shall have right to the whole of the intestate estate.'[29] He proceeds to say that at the time of the intestate's death his/her children have a right to an equal share of the estate, although there is not yet 'an executor to bear a correlative duty'. He thus argues that since, as he understands it, the rights under that statute are created before a correlative duty is created, theories of rights which are based on the strict correlativity of right-duty must be necessarily flawed. Does this mean that Hohfeld's analysis, as one based on the correlativity axiom, is flawed? First of all, a Hohfeldian right is a right against interference or for assistance and never a claim to anything, so it would be incorrect to say, in Hohfeldian terms, that the children have a claim-right to an equal share of the estate. They cannot, for such right would not be a Hohfeldian right. However, this is not really a stumbling block in our discussion since we can easily convert the right to an equal share, into a claim for assistance relating to the executor's duty to administer the estate in a certain way.

Secondly, with respect, MacCormick errs if he believes that his example (s. 2(1)) belies Hohfeld's analysis in that the entitlements created by this provision cannot be accommodated by the Hohfeldian analytical scheme which stipulates a correlativity of rights and duties etc. Kramer observed[30] that the children of the intestate can acquire Hohfeldian rights at two separate stages. First, they acquire a right in rem good against the whole world immediately upon the intestate's death. The children will have the right to be free from interference from the proper distribution of the estate, and under Hohfeld's analysis, each and every specifiable person in the whole world would be under a correlative duty not to interfere. The second stage, at which the children obtain Hohfeldian rights, is when an executor is appointed. Now they have a direct right against the executor requiring that he properly administers the estate. The executor is under a correlative duty to provide such assistance. We see that at no point in time are the children's rights not reflected by strict correlative duties placed on other specifiable individuals. Therefore, we can see that Hohfeld's Correlativity Axiom, and thus his general scheme, easily sustain this attack.[31] Indeed, as Kramer pointed out, it can scarcely be defeated given that the axiom is true by definition.

MacCormick and the Labour Relations Act 1974

Elsewhere, MacCormick offers to consider section 5 of the Trade Union and Labour Relations Act 1974, which states that '[E]very worker shall have the right not to be - a) excluded from membership b) expelled from membership, of a trade union ... by way of arbitrary discrimination.'[32] MacCormick then goes on to analyze this provision conferring protections upon workers in a way which is in conflict, so he thinks, with Hohfeld's analysis of rights. He tells us[33] that the provision gives every worker a right which, in turn, gives rise to a variety of different legal protections (sundry Hohfeldian entitlements) and to a host of diverse legal relations. Prima Facie this is at odds with Hohfeld's analysis which stipulates that each right must be one side of a single mutually entailed jural relationship. The second point of contention is that MacCormick holds that the right, as a ground of a duty, provides the justification or reason for advancement of a particular set of legal protections as considered necessary. In contrast to this is Hohfeld's analysis which depicts rights and legal protections as arising in the relationships of correlativity or mutual entailment. As regards the first point of contention, MacCormicks's assertion does not debunk Hohfeld's analysis in any way. Importantly, this is not an anti-Hohfeldian criticism at all. If section 5(1) was shown to a non-Hohfeldian judge he would probably find it somewhat ambiguous and would use the term 'right' in a non-Hohfeldian manner. For instance, he may use the term 'right' in the sense of immunity in that a worker may be immune from having his legal relations altered through expulsion from membership (given the appropriate legal doctrine and possibly other assumptions).[34] The non-Hohfeldian judge would call such immunity a 'right' not to be expelled from membership.

But so what? After all, there are numerous practices where the term 'right' is employed in a non-Hohfeldian manner. Such a criticism is therefore incapable of either validating or belying Hohfeld's analysis especially since MacCormick himself acknowledges[35] that the diverse entitlements in s.5(1) are all perfectly capable of being accommodated in a Hohfeldian vocabulary. Importantly, one needs to appreciate that when we are using the term 'right' in a non-Hohfeldian manner it does not mean that our talk of rights is in some substantive way flawed. It would arguably help to achieve greater precision and clarity in our discourse of rights if the non-Hohfeldian terminology was eschewed altogether in favour of the Hohfeldian vocabulary, but I would not suggest that there is anything fundamentally wrong with it. Rather, my allegation is that it is usually the anti-Hohfeldian talk of rights that is misguided, especially in instances where it is directed at denying Hohfeld's postulations of correlativity between rights and duties etc.

As far as the second point of contention is concerned, on the face of it this is an anti-Hohfeldian criticism. It seeks to attack Hohfeld's regimentation of rights into distinct categories and atomic relationships, in so far as that regimentation fails to provide for a justification or reason for creating a particular set of legal protections.

But is it a criticism at all? Hohfeld, it will be remembered, is only concerned with the relationships of mutual entailment (Correlativity Axiom) and not any sort of justification of rights. A question can be asked: is it right that Hohfeld's analysis concentrates on the relationships of mutual entailment to the exclusion of everything else? Perhaps one could submit that to exclude external (justificatory) considerations would be to misrepresent the actual character of legal reasoning with rights.[36] Arguably not. Take section 5(1) for instance. Once we have identified the rights of employees, should we, in conferring the protections on employees that those rights embody, give consideration to any countervailing considerations which may tell us not to give any specific form of protection? I argue we should not, because it would be likely, as Simmonds points out,[37] that the court will not engage in solving the questions relating to the balancing of interests or the advancement of socially desirable goals as far as the understanding of the nature of rights at the cutting edge is concerned. Instead, the courts are much more likely to concern themselves with the technicalities of the legal doctrine which is free from an evaluative or justificatory exercise concerning other countervailing factors.

Thus, the above criticism is again misguided in that it fails to properly appreciate Hohfeld's conception of jural relations as one that never intended to be concerned with anything else but the relationships of mutual entailment. I argue that the rival analyses which concern themselves with various justificatory exercises in relation to rights are misguided in so far as they do not truly represent our conventional practices involving the understanding of the nature of rights. Rather it is the conceptual analysis, true by definition, based on the correlativity axiom, that provides for our true conception of the nature of our jural relationships. It thus reflects our conventional practices in relation to rights. If I am right, it follows that Hohfeld's analysis of rights is an extremely pertinent tool for dealing with situations such as that contained in section 5(1), it does not require the judge to immerse himself in the complexities of justificatory exercise or balancing of interests and is a straightforward mechanism which a judge can use to everyone's satisfaction.

Kant's View and the Conflation of Permissibility and Inviolability

Kant presents another anti-Hohfeldian view whereby a conflation of permissibility and inviolability is necessary for the understanding of the nature of rights.[38]  Kant believes that rights possess certain internal complexity. For Kant, this means that possession of a right would entail a number of different consequences. It follows that if X possesses a right, the actions performed within the scope of the right must be both permissible and legally inviolable. The former means that if X has a right to do P, this action must be allowed despite the fact that it may in some way be undesirable. The latter means that when X is exercising his right to do P, the law will prevent others from interfering with X's action. This is in contradiction with Hohfeld's analysis in two respects; first, the permissibly of X's action amounts to a Hohfeldian liberty to do P, while the inviolability (legal protection) amounts to a possession of a claim-right by X which entitles him to a protection against interference. In this section I illustrate, using Hohfeld's analysis of rights, that Kant's view fails to accommodate the complexities of actual legal doctrines and does not adequately depict our practices in relation to rights. I do this by reference to Quinn and Leathem. The case concerns the situation where Leathem, in the course of his butchery business, employed a number of non-union workers. Quinn intended to force Leathem to sack his non-union workers and instead employ only union workers. To achieve this Quinn threatened a strike at a shop of one of Leathem's customers to force him to terminate his trade with Leathem. Leathem sued Quinn. In the course of his judgment Lord Lindley made the following observation: "As to the plaintiff's rights. He had the ordinary rights of a British subject. He was at liberty to earn his own living in his own way, provided he did not violate some special law prohibiting him from so doing, and provided he did not infringe the rights of other people. This liberty involved liberty to deal with other persons who were willing to deal with him. This liberty is a right recognised by law; its correlative is the general duty of every one not to prevent the free exercise of this liberty, except so far as his own liberty of action may justify him in so doing."[39]

As a slight digression, it can be seen that Lord Lindley uses the term right in a non-Hohfeldian manner. He uses the term 'liberty' (' deal with other persons') and then says that this liberty involves a correlative general duty not to interfere. The liberty does not entail a correlative duty. If it does then it would mean it also entails a claim-right (as a correlative to someone else's duty). This cannot be right. And, indeed, Leathem merely had a Hohfeldian liberty (correlative to a no-right) to trade, he did not have a claim-right as I could well interfere with his business by, for instance, opening up a rival shop in the same street. We see that when Lord Lindley says that Leathem's 'right' (Hohfeldian liberty) placed correlative duties on Quinn, he must be contemplating (wrongly) a claim-right. This provides an example where one can see how, by not applying Hohfeld's analysis, a distinguished judge gets it spectacularly wrong.[40] Arguably, a different (correct) outcome of the judgement would have been achieved had Leathem's 'right' been termed a Hohfeldian liberty as it would not entail a correlative duty on anyone else. Indeed, business competition would be legally impermissible if company X's 'right' to trade and earn profits entailed a correlative duty on company Y not to interference with X's running of the business, earning profits etc. This shows the pertinence of Hohfeld's analysis in that, if applied, such quandaries would be avoided. Under the Kantian analysis of rights we could reconstruct the passage (as Lord Lindley seemingly does) in the following manner: Leathem had a right to run his butchery business because such action was permissible. The exercise of his right is juridically inviolable, because it is protected against interference by law. I have already noted that the Kantian analysis is misleading because it is wrong to say that a mere permissibility of an action entails a duty on others not to interfere. Permissibility is at most a mere Hohfeldian liberty in the sense that the person has no duty not to perform the action. A more serious problem with the Kantian view is the conflation of permissibility and inviolability. Conflation arises from the fact that in Kant's view of internal complexity, a single concept of a 'right' entails both permissibility (Hohfeldian liberty) and inviolability (Hohfeldian claim-right as a correlative to duties incumbent on other specifiable persons). Such conflation is wrong because rather than offering a clear line of sight as to how the judge should deal with the issue it adds fog into the context of what the issue of the case is.[41] In Quinn v Leathem, such issue was whether Leathem had liberty to trade, which ought to be protected by a claim-right against interference.

If Hohfeld's analysis is applied it is absolutely clear that Leathem's liberty does not entail any incumbent duties on others - and this must be right. If not, then we could potentially outlaw much of reasonable business competition. Such straightforward clarity is obtained given the stipulative nature of Hohfeld's work. For him, rights are discrete, atomic elements, which are distinct and separable from other rights-elements. For Hohfeld, the nature of the right-element is static, and when applied to a particular issue this specific right-element automatically entails a specific duty / outcome.[42] But this is not the case for Kant who views the concept of a right as a complex molecular structure, which comprises various components including permissibility and inviolability. Hohfeldian language gives a precise tool for identifying the issue in the case and then describes with precision the effect of the decision in relation to that issue. The Kantian notion of 'right' is based on the idea that the internal logic of the right must be worked out through legal reasoning. In this case, the judge would apply such a meaning to the concept of right as he thinks fit given the particular situation. Perhaps the judge would take into account broader considerations of social policy and justice. Quinn v Leathem shows that this is, in fact, not always true. Indeed in Lord Lindley's use of the Kantian notion of right we can see that he is appealing to logic, rather than the broader question of justice etc.

Therefore, we can relate to Hohfeld's analysis to expose weakness in Kant's conflation of permissibility and inviolability because such conflation does not in fact represent scope for adequate legal reasoning, as Kant intended it to be the proponent of the theory of greater good. It follows that as a result of conflation of permissibility and inviolability the judge is more likely to find himself confused as to what meaning he ought to attach to the term 'right' and with what consequences. What will result is not deductive reasoning, as envisaged by Kant, but rather unnecessary confusion caused by the equivocations between distinct meanings of the term 'right'. Thus, the conflation of inviolability and permissibility, as the basis of Kant's internal complexity of the right, is neither desirable, nor indeed necessary, and Hohfeld's analysis should be preferred given its precision and clarity.

MacCormick and the Return to the Internal Complexity

I have shown above that Kant's view ascribes to rights internal complexity. Hohfeld's view, in contrast, ascribes to rights peremptory force,[43] but no internal complexity. However, analysis developed by MacCormick (and Raz) seeks to restore internal complexity of a right, but at the expense of making the peremptory force of a right less important. So, is MacCormick's / Raz's or Hohfeld's analysis of rights the better vision? In response, I argue that Hohfeld's analysis of rights deals with the specifics of clarification of the nature of our rights, because for too long it has been confused with the justification of rights in terms of various moral or other considerations. The problem with MacCormick's analysis of rights is that it returns to the situation pre-Hohfeld, where there is a confusion of the nature of rights with the justification of rights. When considering the nature of rights it is apparent that rights are peremptory in nature, whereby the determined rights-elements are used as a tool to justify the existence of rights, moral or legal. In short, would this not mean that the nature of rights (i.e. rights-elements) is peremptory and the justification of rights is based on moral or other factors such as, for example, notions of justice and social policy? This would mean that Hohfeld's analysis of rights is correct in its nature and substance whereas Kant and MacCormick deal with the added moral and social complexities of justification which are outside the conception of a right itself. To summarize, the confusion caused by mixing the justification of rights with the nature of rights results in mistaking rights as internally complex and is therefore to be avoided. This means that the Hohfeldian approach should be favoured instead. Arguably though, reliance on the single duty of a right, which results in splitting rights into rights-elements, could reduce the intensity of rights:[44] "This immediately lessens the rhetorical force of these rights as somehow possessing a quality which sets them apart from other considerations in a normative debate and diminishes the analytical eminence that rights characteristically receive."[45]

The fact that the normative element has been taken away is not necessarily true, because what Hohfeld argues is that rights-elements by their very nature do not have justificatory factors attached to them, but does not deny that these justificatory factors may be present elsewhere. What Hohfeld's analysis does is to consider that complex moral and normative justificatory considerations are present outside of rights-elements. This avoids confusion and simplifies operation with rights as well as more adequately depicting our true conception of the nature of rights. It is not concerned with the intention of law underpinning the existence of a particular right. Indeed, normative debate can still be resorted to in order to understand why there are particular rights or deduce their origin or justify them in some other fashion, but these considerations are not within the context of the nature of rights, as correctly reflected by Hohfeldian analysis. Rather, they are arguably extrinsic factors which it is a mistake of MacCormick and Raz to bring within the scope of the nature of a right itself.

Raz and His Conception of Hohfeldian "Power"

Raz, another anti-Hohfeldian critic, considers the problem of Hohfeld's categories of rights-elements, because he believes that this categorization causes problems with the definition of power, in the contexts of powers, rights and freedoms. Raz cannot see power as a simple legal right, such as contracting to sell a house. Instead, he argues from the perspective of the lawgiver, where the notion of power should be in the context of the state. He also argues that the categories defined by Hohfeld are not powerful enough, especially in relation to the idea of power, whereby the importance of legal powers are 'not in the intention with which power-exercising acts are performed but in the reasons they are recognized'.[46] In response to Raz, the definition of state power is not the same as the right-element of power, which specifically deals with a legal power.[47] Therefore, even this criticism of Raz's adds complexity to the nature of rights, which Hohfeld has tried to simplify and clarify. By putting forward such a criticism Raz seemingly misconceives the nature and spirit of Hohfeld's work.

Moral Rights and the Duty to Express Charitableness

So far I have discussed Hohfeld's analysis in relation to legal rights. But can his analysis also apply to moral rights? Some critics, including MacCormick, have argued that it cannot.[48] In so far as some moral duties cannot be correlative to other persons' rights, others have argued on the contrary, stipulating that it is an appropriate tool for analysis of moral and other non-legal ranges of rights.[49] Consider a well-known example:[50] a person X has a moral duty to express charitableness (expressed by giving money to charity). An anti-Hohfeldian would argue that such a duty is uncorrelated with the moral right of the poor Y to receive alms and thus the allegation is that this (moral) relationship cannot be accommodated by Hohfeld's Correlativity Axiom. One way in which a Hohfeldian can respond is to say that a duty to express charitableness, given its abstract virtue, is to be best understood not as a general duty, but as one falling within the distinct class of supererogatory obligations. Since they are supererogatory obligations and not duties - they plausibly entail no correlative rights, and thus this does not pose a threat to Hohfeld's Correlativity Axiom.[51] But, suppose that we agree that the moral obligation to give to charity is a moral duty which must thus entail a moral right - does this reveal a weakness in Hohfeld's analysis? Arguably not, because a person holding a moral duty to express charitableness can always find a candidate to hold the correlative right. For example, X can find a correlative right in the individual members who belong to his favorite charity since arguably the holder of the moral duty can always pinpoint the holder of the correlative moral right. Hohfeld's analysis can perfectly accommodate the moral duty/obligation to express charitableness within its Correlativity Axiom. This suggests that it can be a pertinent tool for dealing with moral obligations, as well as, legal certainly in so far as this relates to charitableness.

In this essay I have dealt with and dismissed some of the most noteworthy criticisms of Hohfeld's analysis of rights and have argued that his work is the essential tool for gaining not only a conceptual but a practical understanding of the nature of rights. In the course of producing his analytical scheme, Hohfeld examined the fundamental underpinnings of our legal doctrines and institutions as well as the foundations of our rights discourse. Hohfeld's work involved a deep and thorough analysis by which he sought to reflect the true convictions that people held about rights. Therefore, although analytical in its nature, Hohfeld's analysis is of fundamental practical value. As he himself insists, proper analysis is the prerequisite of correct practical application, and 'the deeper the analysis, the greater becomes one's perception of the unity and harmony in the law'.[52]


W.W. Cook, 'Hohfeld's Contribution to the Science of Law', 28 Yale Law Journal (Yale, 1919)

S. Coyle, 'Are There Necessary Truths About Rights?' in The Canadian Journal of Law and Jurisprudence (2002)

R. Dworkin, Taking Rights Seriously (London, 1977)

H. Fenwick, Civil Liberties and Human Rights (London, 2002)

P.M.S. Hacker and J. Raz (eds) Law, Morality and Society (Oxford, 1977a)

Halpin, D. Phil, Rights and Law: Analysis and Theory (Oxford, 1997)

Halpin, 'Hohfeld's Conceptions: From Eight to Two', Cambridge Law Journal 435 (1985)

J.W. Harris, Legal Philosophies (London, 1980)

H.L.A. Hart, 'Legal Rights' in H.L.A. Hart Essays on Bentham: Jurisprudence and Political Theory (Oxford, 1982)

T. Hobbes, Leviathan (edited Richard Tuck) (Cambridge, 1991)

W.N. Hohfeld, Fundamental Legal Conceptions: as applied in judicial reasoning (ed W.W. Cook) (New Haven, 1923)

W.N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (Aldershot, 2001)

W.N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (Westport, 1978),

A.M. Honore, Rights of Exclusion and Immunities against Divesting (34 Tulane Law Review 1960)

W. Kamba, Legal Theory and Hohfeld's Analysis of a Legal Right (19 Judicial Review 249 1974)

I. Kant, Critique of Pure Reason (Translated by Norman Kemp Smith) 2nd Edition (Basingstoke, 2003)

I. Kant, Metaphysics of Morals (Cambridge, 1991)

M.H. Kramer, 'Rights Without Trimmings', in M.H. Kramer, A Debate Over Rights: Philosophical Enquiries (Oxford, 1998)

W. Kymlicka, Liberalism, Community and Culture (Oxford, 1989)

J. Locke, The Second Treatise of Government (1698)

D.N. MacCormick, 'Rights in Legislation' in P.M.S. Hacker and J. Raz (eds) Law, Morality and Society (Oxford, 1977)

N. MacCormick, Legal Right and Social Democracy; Essays in Legal and Political Philosophy (London, 1982)

C. MacKinnon, Toward a Feminist Theory of the State (Harvard, 1989)

J. Penner, 'The Analysis of Rights' in 10 Ratio Juris (1997)

J. Penner, 'Hohfeldian Use-Rights in Property' in J.W. Harris (ed) Property Problems: From Genes to Pension Funds (London, 1997b)

J. Penner, The Idea of Property Law (Oxford, 1997)

J. Rawls, A Theory of Justice, (Oxford, 1973)

J. Raz, 'Voluntary Obligations and Normative Powers' - an essay in two parts by J. Raz and D.N. MacCormick, 46 Proceedings of the Aristotelian Supplement Volume 59 (1972)

J. Raz, Practical Reason and Norms (London, 1975)

J. Raz, 'Legal Rights' 4 Oxford Journal of Legal Studies (Oxford, 1984)

J. Raz, 'Hart on moral rights and legal duties', 4 Oxford Journal of Legal Studies (Oxford, 1984)

J. Raz, The Morality of Freedom (Oxford, 1988)

H. Ross, Law as Social Institution (Oxford, 2001a)

H. Ross, 'Social Power and the Hohfeldian Relation' 10(1) Nottingham Law Journal (2001b)

N.E. Simmonds, The Decline of Juridicial Reason (Manchester, 1984)

N. E. Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights (London, 1986)

N. E. Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights, 2nd Edition (London, 2002)

N. E. Simmonds, 'Rights at the Cutting Edge', A Debate Over Rights (Oxford, 1998)

J.W. Singer, 'The Legal Rights Debate' in Analytical Jurisprudence from Bentham to Hohfeld (Wisconsin Law Review, 1982)

H. Steiner, 'Working Rights' in a Debate Over Rights (Oxford, 1998)

J. Waldron, Liberal Rights (Cambridge, 1993)


Douglas and Others v. Hello! Ltd (No.1) [2001] Q.B. 967

Lake Shore and MSR Co v Kurtz (1894) 10 Ind. App. 60

Quinn v Leathem (1901) AC 495

Sunday Times v UK (1979) 2 EHRR 245

West, Saint Louis, & Pacific Railway Company v Shaklet


Succession (Scotland) Act 1964

Trade Union and Labour Relations Act 1974


[1] Shown in Fig.1.

[2] Harris criticised Hohfeld for the fact that his vocabulary does not match that of his fellow jurists. J.W. Harris, Legal Philosophies (London, 1980), p.82. Such criticism is misguided since Hohfeld's intention was to correct the confused judicial discourse over rights by offering a precise analytical framework. He never intended to engage in a descriptive exercise of clarifying jural relations.

[3] Hohfeld's analysis is primarily concerned with analytical jurisprudence. N.E. Simmonds in Central Issues in Jurisprudence: Justice, Law and Rights (London, 1986), p.129, offers a distinction between analytical and normative jurisprudence. The former is concerned with the formal analysis of concepts in an effort to reveal and refine conceptual distinctions. The latter is concerned to offer a theory about what is morally right, and thus offers criteria by which the law should be evaluated. Arguably, Hohfeld's analysis can also deal, mutatis mutandis, with the normative jurisprudence, although this is not its chief objective.

[4] Point made by M. Kramer, 'Rights Without Trimmings' in A Debate Over Rights, Philosophical Enquiries, (Oxford, 1998), pp.22-23.

[5] I will consider MacCormick's example of a labour relations statute which he uses to attack Hohfeld's analysis in Part II of this paper.

[6] As was plausibly argued by S. Coyle, 'Are There Necessary Truths About Rights?', in The Canadian Journal of Law and Jurisprudence (2002), p.4.

[7] Produced by reference to W.N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (Aldershot, 2001), p.12. Section 1.

[8] Used interchangeably throughout this discussion.

[9] I shall go with the modern practice of Hohfeld's 'Privilege' being renamed 'Liberty'.

[10] To illustrate how the judiciary correlates duty and right, Hohfeld uses the case of Lake Shore and MSR Co v Kurtz (1894)

[10] Ind. App.60, 'Duty and right are correlative terms. When a right is invaded, a duty is violated'.

[11] J. Penner, 'The Analysis of Rights' in 10 Ratio Juris (1997).

[12] Held against determinate, specifiable persons.

[13] A right good against 'the whole world at large'

[14] W.N.Hohfeld, Fundamental Legal Conceptions, pp.91-6.

[15] Some critics, including Simmonds, have argued that the duties of the state cannot only be governed by analytical thinking on which Hohfeld's analysis is based, as the state needs to be able to make both legal and moral decisions. But, Kramer ('Rights Without Trimmings', p.8.) points out that Hohfeld's analytical scheme can also apply to the structuring of moral relationships after making the necessary changes to it.

[16] For instance, against assault, battery, theft etc, which would provide a protective perimeter for his liberty to smoke.

[17] It is a misguided view presented by Andrew Halpin, that liberties can be reduced to the rights which protect the exercise of them. A. Halpin, 'Hohfeld's Conceptions: From Eight to Two', Cambridge Law Journal 435 (1985). Liberties, at best, can be classed as 'de-facto rights' so long as they are within the protective perimeter of genuine rights and no more.

[18] In support of this, consider the case of Douglas and Others v. Hello! Ltd (No.1) [2001] Q.B. 967 where Sedley LJ in considering whether to give recognition to the claim to privacy considers the principle of personal autonomy as a social norm; '... [The law] can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy', my emphasis p.1000.

[19] N.E. Simmonds, Introduction in W.N. Hohfeld (2001), p.xv

[20] (1901) AC 495

[21] R. Dworkin, Taking Rights Seriously (London, 1977). This relates to Dworkin's 'rights as trumps' theory. It provides the basis of Dworkin's justification of rights where a right operates as a 'trump' against other countervailing considerations.

[22] W. Kymlicka, Liberalism, Community and Culture (Oxford, 1989), reconstructs the notion of the social contract theory, but amends it to the modern era.

[23] I. Kant, Critique of Pure Reason (Basingstoke, 2003) has provided an interesting justification of rights, where the aim of the state and the individual is to achieve the greater good.

[24] C. MacKinnon, Toward a Feminist Theory of the State (Harvard, 1989) provides a discussion on rights and gender equality, explaining how it is necessary to balance the inequalities between men and women. In MacKinnon's theory of rights, she provides justification for giving stronger rights to women than men.

[25] Respectfully, I borrow this term from M. Kramer, 'Rights Without Trimmings.'

[26] D.N. MacCormick, 'Rights in Legislation' in P.M.S. Hacker and J. Raz (eds) Law Morality and Society (Oxford, 1977), p.199.

[27] Ibid. pp.204-205.

[28] In so far as it can be at all proved unworkable given its definitional nature.

[29] MacCormick, 'Legislation', p.200

[30] Kramer, 'Rights Without Trimmings', p.28

[31] It seems that Hohfeld expected such an attack and thus considered a similar kind of entitlement as in s.2(1) in the case of West, Saint Louis, & Pacific Railway Company v Shaklet. For more information please refer to Hohfeld, Fundamental Legal Conceptions, p.83.

[32] D.N. MacCormick, 'Legislation', p.205.

[33] Ibid, p.206

[34] N.E. Simmonds, 'Rights at the Cutting Edge', in A Debate Over Rights, p.159.

[35] D.N. MacCormick, 'Legislation', pp.203-205.

[36] N.E. Simmonds, 'Rights at the Cutting Edge', p.163-164.

[37] Ibid, p.163.

[38] I. Kant, Metaphysics of Morals (Cambridge, 1991)

[39] [1901] A.C. 495, p.534

[40] Naturally, Hohfeld's work was not available at the time, but this still serves as a good example.

[41] Hillel Steiner 'Working Rights' in a Debate Over Rights, pp.281-283.

[42] N.E. Simmonds, 'Rights at the Cutting Edge', in A Debate Over Rights, pp.203 - 205.

[43] This relates to a conclusive force of a right which excludes the consideration of other countervailing factors and thus precludes the balancing of various considerations against each other.

[44] As both D.N. MacCormick, 'Rights in Legislation' and J. Raz, 'Legal Rights', 4 OJLS (Oxford, 1984) argue in relation to Hohfeld's analysis of rights.

[45] A. Halpin, Rights and Law: Analysis and Theory (Oxford, 1997), p.100

[46] J. Raz, 'Voluntary Obligations and Normative Powers',

[46] Proceedings of the Aristotelian Supplement Volume 59 (1972), p.78.

[47] That is a power that is given to the individual under the law, i.e. that has been given to the individual by governing persons.

[48] N. MacCormick, Legal Right and Social Democracy; Essays in Legal and Political Philosophy (London, 1982), pp.155-156.

[49] M. Kramer, John Locke and the Origin of Private Property (Cambridge, 1997), p.16.

[50] J. Waldron, Liberal Rights (Cambridge, 1993), pp.14-16

[51] Point made by S. Coyle, Are There Necessary Truths About Rights? p.20.

[52] W.N. Hohfeld, Fundamental Legal Conceptions (Westport, 1978), p.64.

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