Study Guide - The Hohfeldian Analysis of Rights PDF

**[THE HOHFELDIAN ANALYSIS OF RIGHTS: A STUDY GUIDE]** **This study guide provides a brief overview of some of the important features in Wesley Newcomb Hohfeld's analysis of rights and duties in the law.** **[1. The Correlativity of Rights and Duties.]** **(a) The Correlativity Thesis says that f...

**[THE HOHFELDIAN ANALYSIS OF RIGHTS: A STUDY GUIDE]** **This study guide provides a brief overview of some of the important features in Wesley Newcomb Hohfeld's analysis of rights and duties in the law.** **[1. The Correlativity of Rights and Duties.]** **(a) The Correlativity Thesis says that f**or every right there is a correlative duty. **(b) The Strict Correlativity Thesis** says **BOTH** that for every right there is a correlative duty **AND** that for every duty there is a correlative right. **(c) The Justificatory Correlativity Thesis** says **BOTH** that for every right there is a correlative duty **AND** that the existence of that duty is justified by the existence of that right. **[2. The Two Basic Kinds of Jural Relation.]** Hohfeld says that there are two basic sorts of legal (or 'jural') relations that constitute the network of rights and duties: **jural correlation** and **jural opposition**. **(a) Jural Correlation:** **(b) Jural Opposition:** **[3. The Hohfeldian Categories.]** Hohfeld says that what we vaguely and imprecisely call the 'rights' and 'duties' of a legal system can be classified without remainder into **four** kinds of rights and **four** kinds of duties. (Note that since the law as a whole can in theory be reduced to right-duty relationships, Hohfeld is implying that *all of the law* eventually comes down to these categories.) A\) The four kinds of 'rights' are (i) **claims** (or claim-rights); (ii) **permissions** (or privileges); (iii) **powers**, and (iv) **immunities**.[^2^](#fn2){#fnref2.footnote-ref} \(i) **Claims** can take things or actions or state of affairs for their objects. - *Charlene has a claim to the wages she is owed if Charlene can demand that Dave, her employer, pay her the wages she is owed. (This is an example of what is called a '**positive claim**'. In a positive claim, the bearer of the claim demands that some action be performed, or something be positively done for her.)* - *Edith has a claim to her wallet if Edith can demand that Fred not take her wallet from her. (This is an example of what is called a '**negative claim**'. In a negative claim, the bearer of the claim demands that some action **not** be performed, or something **not** be done to her.)* \(ii) **Permissions** generally take actions (or omissions from actions) for their objects. \(iii) A **Power** is the ability to change someone's legal relation to an object. \(iv) An **Immunity is** the ability **not** to have one's legal relation to an object be changed by another. B\) The four kinds of duties are (i) **duties** (or claim-duties); (ii) **no-rights** (or no-claims); (iii) **liabilities**; and (iv) **disabilities**.[^3^](#fn3){#fnref3.footnote-ref} \(i) **Duties** can take for their objects either things or actions or state of affairs. - *Dave has a duty to Charlene to pay the wages that he owes her if Charlene can demand that Dave pay her the wages she is owed. (This is an example of what is called a '**positive duty**'. In a positive duty, the bearer of the duty is required to perform an action, or positively do something, for the bearer of the right which correlates to that duty.)* - *Fred has a duty not to take Edith's wallet from her if Edith can demand that Fred not take her wallet from her. (This is an example of what is called a '**negative duty**'. In a negative duty, the bearer of the duty is required **not** to perform an action, or **not** to do something, to the bearer of the right which correlates to that duty.)* \(ii) **No-Rights** generally take actions (or omissions from actions) for their objects. \(iii) **Liabilities** involve a susceptibility to having one's legal relations be changed by someone else. \(iv) **Disabilities** involve the inability to change someone else's legal relations regarding something. C\) The first two kinds of rights (claims and privileges) are **first-order rights**; the second two (powers and immunities) are **second-order rights**. First-order rights take things, acts, or state of affairs for their objects; second-order rights take either first-order right-duty pairs or other second-order right-duty pairs for their objects. Similarly, the first two kinds of duties (duties and no-rights) are **first-order duties**, and the second two are **second-order duties**. As with their correlative rights, first-order duties take things, acts, or state of affairs for their objects; second-order duties take either first-order right-duty pairs or other second-order right-duty pairs for their objects. **[4. The Relations Between the Hohfeldian Categories.]** It is easy to see, from the examples provided above, that the Hohfeldian categories are related to each other both by jural correlation and by jural opposition. A\) The **[four jural correlations]** in which the Hohfeldian categories stand are: B\) The **[four jural oppositions]** in which the Hohfeldian categories stand are: (I have provided, separately, a diagram that shows all these relations in the form of a cube. To grasp those relations thoroughly, it may help you to draw up your own Hohfeldian cube and use it to sort through various examples of rights: the right to free speech, the right to life, the right to bear arms, the right to vote, etc. It is does not greatly matter, in your own diagram, whether you use horizontals for correlations and verticals for oppositions, as I do, or whether you flip the scheme. What matters is that your chosen scheme be self-consistent, and that you grasp each of the relations you're diagramming.) ::: {.section.footnotes} ------------------------------------------------------------------------ 1. ::: {#fn1} Note that in practice two jural opposites cannot simultaneously coexist within a legal system: if I have a right R at time T, it cannot also be the case that I do not have R at T. However, it can sometimes be *unclear* whether or not I have R at T: if this is the case, the law must be approached to clarify the matter. Making such clarifications as and when they are needed is a basic function of the courts.[↩](#fnref1){.footnote-back} ::: 2. ::: {#fn2} For his four kinds of rights, Hohfeld used the labels 'claims', '*privileges*', 'powers', and 'immunities'. Many philosophers use the term 'liberties' for Hohfeld's 'privileges'. This is needlessly confusing, because what we generally think of as our liberties are not what Hohfeld meant by 'privileges'. I will use the term '**permissions**' to refer to what Hohfeld called 'privileges', because it makes Hohfeld's meaning clearer.[↩](#fnref2){.footnote-back} ::: 3. ::: {#fn3} For his four kinds of duties, Hohfeld used the labels 'duties', 'no-rights', 'liabilities', and 'disabilities'. Some have argued that 'duties' should be called '*claim-duties*' to indicate that they correlate specifically to claims (or claim-rights). Some have also argued that 'no-rights' should be called '*no-claims*' because they are the jural opposites of what Hohfeld calls claims. These points have merit, but for the sake of convenience, I will continue to use the terms Hohfeld himself preferred.[↩](#fnref3){.footnote-back} ::: 4. ::: {#fn4} There is a small complication here. Consider these two statements: a\. If I have a permission to do X, it is not the case that I have a duty **not** to do X. b\. If I have a permission to do X, it is not the case that I have a duty to do X. Of these two statements, only the first is true. The second is false because it is possible for me to have a duty to do something that I am permitted to do, and vice versa: for example, I have a duty to pay my taxes, and it is also true that I am permitted to pay my taxes. What cannot be true is that I have a permission to do what I have a duty not to do or vice versa: I have a duty not to commit murder, and it follows from this that I have no permission to commit murder (although I obviously do have a permission **not** to commit murder). Some philosophers have therefore suggested that, for abundant clarity, Hohfeld's 'no-right' should be called a 'no-right-not-to' (or, even more precisely, a 'no-claim-not-to'). They make a good point, but the name they suggest has not caught on for obvious reasons: it is horribly unwieldy.[↩](#fnref4){.footnote-back} ::: :::