Hohfeld’s Analysis of Rights
Rights claimed in modern society have a contradictory quality about them. We can easily place strongly affirmed rights in direct conflict. For example, people claim the proper to life yet there are others who claim a right to abortion; people claim the proper to not be killed by another, yet there are also claims to a right to die.
The claim to right is thus ultimately a claim to self-determination, which may produce logical contradictions and is itself in contradiction to the aspect of group action by law. However, the contradiction is one of degree. Thus, the difficulty of rights within the social context is one among balancing conflicting claims and determining which claims have priority.
There are clearly differing types of rights but they share common features. In some extent it’s fair to say that the concept is used ambiguously. However, of these rights have demonstrated by different philosophers within the separate ways. They are, for instance, MacCormick, Hart, Bentham, Dworkin and Hohfeld.
What is Right?
A right is an interest protected and enforced by law. In law it is mostly applied to property in its restricted sense, but it is often used to designate power, prerogative, and privilege. The words ‘right’ or ‘privilege’ have a variety of meanings, like ‘a legal claim to do’, ‘legal power’, ‘authority,’ ‘immunity granted by authority’. A man has several rights over both tangible and intangible objects. He also possesses rights as a person.
Rights can be divided into 4 different kinds:
Rights in the strict sense
The correlatives of each of these rights are:
Hohfeld’s Analysis of Rights
Hohfeld sought to clarify the proposition ‘X has a right to do R’ which may mean one of four things:
That Y is under a duty to allow X to do R; this means that X has a claim against Y. He calls this claim right simply a ‘right’.
That X is free to do or refrain from doing something; Y owes no duty to X. He calls this a ‘privilege’ (though it is often described as a ‘liberty’).
That X has a power to do R; X is simply free to do an act which alters legal rights and duties or legal relations in general whether or not he has a claim right or privilege to do so. Hohfeld calls this a ‘power’.
That X is not subject to Y’s power to change X’s legal position. He calls this an ‘immunity’.
Hohfeld conceived of these four ‘rights’ having both ‘opposites’ and ‘correlatives’ (i.e., the other side of the same coin)
Thus, to use Hohfeld’s own example, if X has a right against Y that Y shall stay off X’s land, the correlative is that Y is under a duty to keep off the land. A privilege is the opposite of a duty, and the correlative of a ‘no-right’. Hence, whereas X has a right that Y should stay off his land, X himself has the privilege of entering on the land, or, in other words, X does not have a duty to stay off.
Rights are strictly correlative to duties:
It is important to note that claim rights are strictly correlative to duties. For example, X has a claim right of some kind is to say that Y owes a certain duty to X. but to say that X has a certain liberty is not to say that anyone owes him a duty. Thus, if X has a privilege (or liberty) to wear a hat, Y does not have a duty to X, but a no-right that X should not wear a hat. In other words, the correlative of a liberty is a no-right. Similarly, the correlative of a power is a liability, the correlative of an immunity is a disability.
Is Hohfeld correct?
Is it true that whenever I am under some duty someone else has a corresponding right? Or vice versa? In the first case, surely it is possible for me to have a duty without you having a right that I should perform it. In the criminal law certain duties are imposed upon me, but no one has a correlative right to my performing these duties. This is because it is possible for there to be a duty to do something which is not a duty to someone; for instance, the duty imposed on a policeman to report offenders-he owes this duty to no one in particular, and, hence, it gives rise to no right in anyone. And even where someone owes a duty to someone to do something, the person to whom he owes such a duty does not necessarily have any corresponding right.
Thus, I have certain duties toward my students, but this does not necessarily confer any rights upon them. Similarly, we commonly accept that we owe certain duties to infants or animals; yet many argue that it does not follow from this that they have rights. You will have come across several examples of the absence of correlativity of rights and duties in criminal law: the duty to observe road signs contains no reference to any duty to others and therefore implies no rights vested in anyone.
Common for me to have a right to do something:
On the other hand, it is common for me to have a right to do something, without you having a corresponding duty. Lawyers often assume that right and duty are correlatives. Hohfeld in Fundamental Legal Conceptions quotes Lord Lindley’s dictum in Quinn v Leatham, that the claimant had a right to earn his living as he pleased provided he did not infringe the law or the rights of others.
This liberty is a right recognized 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. But this seems mistaken. And similar attacks have been made on Hohfeld’s treating a power as a correlative of a liability, an immunity of a disability and so on.
Problems with Hohfeld’s analysis:
There are many problems with Hohfeld’s analysis. I would point here few major difficulties.
First, he claims to analyse fundamental legal concepts, but he has no concept of law, nor does he attempt to define what it is that gives his conceptions their ‘legal character’.
Secondly, there is no adequate clarification of what legal relations are. There is no discussion of the role that legal concepts play. Though there is no real examination of the question, Hohfeld seems to assume that the word ‘right’ denotes some entity.
Thirdly, most, if not all, of Hohfeld’s examples are drawn from private law. This may account for the superficial, and inadequate, treatment he gives to the concept of ‘duty’. Whilst Hohfeld is correct to state that every right stricto sensu implies the existence of a correlative duty, not every duty implies a correlative right. Non-correlative duties do not seem to have a place in Hohfeld’s scheme. This suggests that Hohfeld would find it difficult to explain whole areas of law, most obviously criminal law. By his failure to analyse ‘duty’ Hohfeld misses the point that duties are not all of one type. There are prohibitions backed up by sanctions, but there are also different types of regulation and many civil law duties. These, for example the duty to take reasonable care in the law of negligence, are related to issues of liability in ways Hohfeld does little to explain.
Fourthly, other concepts are also explained inadequately. For example, power is described in terms of control. But control itself is not further discussed. And right stricto sensu is described in terms of claim, but claiming itself is far from an uncontentious or unambiguous activity. For example, does a right imply a claim, or imply a right to claim?
Despite these faults, it is generally agreed that Hohfeld has uncovered longstanding confusions and offered valuable analytical clarification. His schema remains a starting-point for much contemporary rights analysis. It has been found useful by moral philosophers, by anthropologists, by comparative lawyers, as well as by jurists. Its value essentially lies in it’s enabling us to reduce any legal transaction (or moral relationship) to relative simplicity and precision and to recognise its universality.
The positive features of Hohfeld’s analysis should not be overlooked. His scheme has advanced our knowledge of concepts of ‘rights’ and ‘duties’, particularly through his specific comparisons. He has drawn attention to the legal circumstances which may flow from the existence or absence of defined rights, liabilities, etc. The practical effect of the analysis may be seen, for example, in the American Restatement of the Law of Property, in which ‘right’, ‘privilege’, ‘power’, and ‘immunity’ are defined in Hohfeld’s terms.