Hohfeld’s Analysis of Rights: An
Essential Approach to a Conceptual and Practical Understanding of the
Nature of Rights
Nikolai Lazarev
Contents
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. Right
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]
Liberty
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. Power
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. Immunity
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'
('...to 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]
Bibliography
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) Cases
Douglas and Others v. Hello!
Ltd (No.1) [2000] EWCA Civ 353; [2001] Q.B. 967 Lake
Shore and MSR Co v Kurtz (1894) 10 Ind. App. 60 Quinn
v Leathem [1901] UKHL 2; (1901) AC 495 Sunday
Times v UK [1979] ECHR 1; (1979) 2 EHRR 245 West,
Saint Louis, & Pacific Railway Company v Shaklet Acts
Succession (Scotland) Act
1964 Trade Union and Labour
Relations Act 1974
Notes
[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) [2000] EWCA Civ 353; [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] UKHL 2; (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] UKHL 2; [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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