LEGAL RIGHTS AND DUTIES (Project towards partial fulfillment of the assessment in the subject of Jurisprudence) Submitted To: Dr. MononitaKundu Das Associate Professor National Law University Submitted By: Aditya Singh (765) NitishKaushik (776) AnkurArora (787) ParthSarathyKaushik (794) Siddhartha Srivastava (799) National Law University, Jodhpur Winter Session (January - May 2014) 1 Table of Contents TOPIC: ........................................................................................................................................ 4 SUBJECT: ................................................................................................................................... 4 OBJECTIVE: ............................................................................................................................... 4 RESEARCH QUESTIONS:.......................................................................................................... 4 INTRODUCTION ............................................................................................................. 6 1.1 1.2 1.3 LEGAL WRONGS ................................................................................................................ 6 DUTIES .............................................................................................................................. 7 LEGAL RIGHTS .................................................................................................................. 7 THEORIES OF LEGAL RIGHTS .................................................................................. 9 2.1 THEORIES OF LEGAL RIGHTS ............................................................................................. 9 HOHFELD’S ANALYSIS OF RIGHTS ....................................................................... 13 3.1 ESSENTIAL ELEMENTS OF A LEGAL RIGHT ........................................................................... 13 3.2 FOUR TYPES OF RIGHTS BY HOHFELD: .................................................................................. 16 HOHFELD SCHEME OF JURAL RELATIONS ....................................................... 19 RELATION BETWEEN LEGAL CONCEPTIONS ................................................... 26 5.1 RIGHTS AND DUTIES............................................................................................................... 26 5.2 PRIVILEGES AND NO-RIGHTS ................................................................................................. 27 5.3 POWERS AND LIABILITIES ....................................................................................................... 29 5.4 IMMUNITIES AND DISABILITIES .............................................................................................. 30 CONCLUSION & CRITICISM .................................................................................... 31 2 ACKNOWLEDGEMENT We hereby express our heartfelt gratitude to Dr. MononitaKundu Das for her guidance and supervision. This project topic has instilled in us a unique thirst for knowledge in the subject. It could not have achieved completion without the aegis of Dr. MononitaKundu Das. 3 For the purpose of this project we have used Conceptual Research Methodology. It may be understood as a science of studying how research is done scientifically. What are the different concepts of Legal Rights and Duties as propounded by various jurists? 2. RESEARCH QUESTIONS: 1. Research methodology is a way to systematically solve the research problem.TOPIC: Legal Rights and Duties SUBJECT: Jurisprudence OBJECTIVE: Study and analyze the scheme of Jural Relations and Legal Conceptions in the backdrop of Hohfeld‟s analysis of Legal Rights and Duties. What are the fundamental legal conceptions resulting from Hohfeld Scheme of Jural relations? 5. What are the possible explanations deduced out of the Hohfeld‟s analysis of legal rights? 4. In it we study the various steps that are generally adopted by a researcher in studying his research problem along with the logic behind them. Conceptual research is that related to some abstract idea(s) or theory. What are the different types of theories with respect to the nature of legal rights? 3. What is the inter-relationship between various legal conceptions associated with Legal Rights and Duties? 4 . RESEARCH METHODOLOGY This section talks about the methodology which will be used for this piece of research work. areas and study view. It is generally used by philosophers and thinkers to develop new concepts or to reinterpret existing ones. Methodologies vary from research work to work due to the difference in subjects. mainly through the use of research cards for lifting relevant information from different sources and compilation into relevant headings.SOURCE: The project has been prepared using secondary sources of reference. 5 . Journals. Articles. Periodicals and Weeklies. Reliance has been placed on various Books. it is known as legal injury which is against law or jus. 1. 6 . therefore. it is necessary that state should make use of its physical force for the enforcement of legal rights and punish those who violate these rights. follows that in all civilized societies law consists of those rules which regulate human conduct and it is the state which enforces the rights and duties created by such rules. a wrong is a violation of legal right (injuria). For the attainment of this objective. being contrary to the rule of natural justice whereas a legal wrong is an act which is legally wrong. 1 Subbarao G.CHAPTER 1 INTRODUCTION The real credit of development of human civilization goes to law and its prohibitive process which apprised man of his rights and duties as a unit of the society. (1) Moral wrongs and (2) Legal wrongs. It is to be noted that the term „right‟ is closely connected with the terms „wrong‟ and „duty‟. be desirable to refer to them before analyzing the concept of right. It is well known that the main purpose of law is to protect human interest by regulating the conduct of individuals in the society. Wrongs may be of two kinds namely.) p.C. It would. A Moral wrong is an act which is morally or naturally wrong. 1 When people come in contact as members of society. It. A synonym of it is injury. therefore. In simpler words. 161. they have certain legal rights and duties towards one another. In its legal sense. Jurisprudence (3rd ed.1 LEGAL WRONGS Salmond defines „wrong‟ as “an act contrary to the rule of right and justice. being contrary to the rule of legal justice and a violation of the law. These rights and duties are regulated by the law prevalent in the society. in its true and primary sense of injuria. The conception of right accordingly is of fundamental significance in modern legal theory because rights are indispensable for all civil societies and are recognized and enforced by the state.. namely (1) Legal and (2) Moral.2 DUTIES A Duty is an obligatory act i.3 Since this duty is irrespective of knowledge and negligence.2 Duties are of two kinds. and without any question of negligence. recognition of an act as a legal wrong entails punishment or suppression by the physical force of the state. 217. A man has varied interests but all of them are not recognized by law. J. J. have for sale adulterated milk whether knowingly or otherwise. On the other hand. Salmond on Jurisprudence. Many interests exist de facto and not de jure. Thus duties and wrong are generally co-related. 7 . Generally. (12th ed. it is exclusively legal. nonpayment of a time-barred debt is a moral wrong but it is not a legal wrong since the same is not enforceable by law. In England. 4 Fitzgerald P. (12th ed. 217. there is no legal duty in England to refrain from offensive curiosity about one‟s neighbor.. one‟s moral and legal duty. The doctrine of constructive mens-rea applies in such cases..) p. even if the satisfaction of it does them harm.3 LEGAL RIGHTS Sir John Salmond defines right as an interest recognized and protected by a rule or justice.e. 1. Salmond on Jurisprudence. It is an interest in respect of which there is duty and the disregard of which is wrong.) p. 1.4Not to steal is both. A duty may be moral but not legal or it may be legal but not moral or it may be both moral and legal at once. Here it is clearly a breach of moral duty and not of legal duty. For instance. there is a legal duty not to sell.A legal wrong may or may not be a moral wrong and conversely a moral wrong may or may not be a legal wrong. Salmond illustrates this by an example. and not a moral duty. The commission of a wrong is the breach of duty and the performance of a duty is avoidance of wrong.. they receive no recognition or protection from any rule of right. The violation of them is 2 3 Fitzgerald P. it is an act the opposite of which would be wrong. 5 Paton. Therefore. A moral or natural right is an interest recognized and protected by a rule of morality-violation of which would be a moral wrong. He argues that all laws originate from social solidarity hence there is no existence of a right as such. Interests are things which are to man‟s advantage. 222. rights are either moral or legal. demands that everyone should abide by his duties and has no right to claim rights. For example. A Text Book of Jurisprudence.no wrong. John Austin observes. there is no place for the concept of right in society. 8 . A legal right.g. parent‟s interest to command respect from their children is their moral right but if children violate it. Thus everyone has right to privacy in his house and if any person interferes with this right. it would be a legal wrong.” This definition has been criticized on the ground that it overlooks the element of interest involved in the conception of right.. “A party has a right when another or others are bound or obliged by law to do or forbear towards or in regard of him. violation of which would be a legal wrong. Law being an expression of social solidarity. e. Thus Duguit rejects the concept of rights as immoral against the interest of the society.5 Duguit believes that human will is opposed to social good because it always leads to conflict of interests between individuals. John Stuart Mill illustrates the inadequacy of Austin‟s definition of right by pointing out that when a prisoner is sentenced to death the jailor is duty-bound to execute him. on the other hand is an interest recognized and protected by a rule of law. He considers law as a means to an end. and respect for them is no duty. it is a moral wrong. a man has interest in his freedom or reputation. Like wrongs and duties. The eminent French jurist Duguit is opposed to the view that the basis of a legal right is human will. Ihiring also defines right as a „legally protected interest‟. p. He calls theory of subjective right as a mere metaphysical abstraction.1 THEORIES OF LEGAL RIGHTS There are two main theories regarding nature of legal rights. In a social order established by law no man is absolutely free to act as he likes.1. Austin defines duty as an obligation the breach of which is punishable because of the penal sanction attached with it.CHAPTER II THEORIES OF LEGAL RIGHTS 2.1. 2. The theory has been also accepted by historical jurists of Germany. “a legal right is a 6 Dias & Hughes: Jurisprudence. a right is an inherent attribute of the human will.2 Interest theory of Legal Right Another popular theory regarding the nature of legal right is called the Interest theory which was mainly propounded by the German Jurist Ihring.S. The subject-matter of right is derived from human will.6 Duguit suggests that will is not an essential element of a legal right or law. Kant. According to this theory. The theory suggests that it is through a right that a man expresses his will over an object. but his freedom of action is restricted due to rights of others. Justice Holland of U. They are (1) The Will Theory. According to this theory. The real basis of law is social solidarity. Likewise.1 Will Theory of Legal Right The Will theory of legal rights has been supported by Hegel. right of a person means that others are obliged to do or forbear from doing something in relation to him. Austinian conception of right is obviously based on sovereign power of the state. pointed out that a legal right is nothing but permission to exercise certain natural powers to obtain protection under certain conditions. Vinogradoff considers that psychology of asserting claim is the basis of legal right. According to Austin. Hume and others. 250. Puchta observed that a legal right is a power over an object which by means of his right can be subjected to the will of the person enjoying the right. p. 9 . It has the support of public force for its protection. and (2) Interest theory: 2.A. But Salmond has criticized Ihring‟s theory on the ground that it is incomplete since it completely overlooks the element of recognition by state. the Prevention of Cruelty to Animals Act. however. if a man lends some money to another. Thus. He asserts that the basis of legal right is „interest‟ not will. duty etc in practice. 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. The main object of law is protection of human interests and to avert a conflict between their individual interests.” Ihring does not emphasize on the element of will in a legal right. The interests of beasts are to some extent protected by law in as much as cruelty to animals is a criminal offence. It is the power conferred on him by law to recover the money which is his legal right. thus facilitating a better understanding of the nature of our rights. 1960 10 . held that the interest theory was only partly true. Professor Gray was greatly impressed by Salmond‟s view about legal right. He. 7 But beasts cannot for that reason be said to possess a legal right of not being treated with cruelty. He considers legal right as that power by which a man makes other persons do or refrain from doing a certain act by imposing a legal duty upon them through the agency of law (State). not his legal right but it is rather a power conferred on him by law by the exercise of which he recovers the debt. to inform us what rights. the creditor‟s interest to get back his money from the debtor is protected by law but this interest is not a legal right in itself. In other words. Importantly. for example. He emphasized that a legal right is not an interest in itself but it is only a means to extend protection to interests. it is rather his object. duties etc are or should be or what their 7 In India.legally protected interest. A legal right should not be protected by the state but should also be legally recognized by it. however. The principal aim of Wesley Newcomb Hohfeld's project was to clarify juridical relationships between the relevant parties. the right of the creditor to recover his money from the debtor is. It was not. He cites an example to substantiate this view. in reality. 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. 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. It follows that Hohfeld's ambition was to provide a conceptual understanding for our use of right. Salmond treats the right to protection of animals from cruelty merely as a moral right. in order to show that the majority of them are unfounded because the critics have misconceived the nature of Hohfeld's work.W. therefore. But given. as we will argue in this project. It will be argued that Hohfeld's precise exposition of jural relations is essential to jurisprudence and an understanding of our practices involving rights.E. holding that it is not necessary. p. Legal Philosophies (London. duty etc. This method of splitting the notion of a right into its constituent elements has many important benefits. so. He does not. we will consider those criticisms. This project argues in support of Hohfeld's analysis of rights. Hohfeld's analysis has attracted much criticism from his fellow jurists. it is pertinent to distinguish between anti-Hohfeldian and nonHohfeldian. or even flawed. The significance of this distinction will become apparent when the critics are discussed. 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 former are critics who directly oppose Hohfeld's analysis.129 11 . to provide a balanced view. 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. it must represent a highly accurate depiction of the nature of our jural relations. 1986). say anything about the justification of rights. Law and Rights (London. p. Simmonds in Central Issues in Jurisprudence: Justice. As far as the critics go. Hohfeld's tablepresents a distinction between four different sets of juridical relationships.82 9 N. Harris. 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. 1980).moral foundation is or what is necessary for something to count as a right. Others are simply not criticisms at all in that they simply state rival theories of rights. in arguing in favour of Hohfeld's work. 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. 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. Such an account may linguistically8appear to be in conflict with Hohfeld's analysis. 8 Harris criticisedHohfeld for the fact that his vocabulary does not match that of his fellow jurists. that Hohfeld's analysis possesses a high degree of clarity and a remarkable analytical9 force. J. Kramer. then what would be the point in tackling the criticisms put forward against his work. in effect. 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. (Oxford. 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. Coyle.22- 23.It is also important to note that since Hohfeld's analysis is definitional or stipulative and not a product of empirical enquiry. 1998).11in which case Hohfeld's analysis may serve to establish falsities in rival analyses and be validated itself. since they cannot either disprove or confirm the validity of his work? We could simply accept Hohfeld's analytical approach for its clarity. If this is so.but which does not refute Hohfeld's analysis in any way. be putting forward an alternative conception which is capable of application in a different way. 'Rights without Trimmings' in A Debate over Rights. in The Canadian Journal of Law and Jurisprudence (2002). 11 S. pp. Indeed. it must be true that we also cannot validate Hohfeld's analysis of rights by finding flaws in rival analyses. p. elegance and analytical precision without having to trouble ourselves with building a response to his critics. Conversely. Philosophical Enquiries. 'Are There Necessary Truths About Rights?'. 10 M. arguably it is nonsusceptible to disproof by means of empirical or moral refutation. It follows that a critic who tries to show the invalidity of Hohfeld's analysis by engaging in empirical refutation must. given the stipulative nature of Hohfeld's work. 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.4 12 .10 Therefore. These are few examples. We can easily place strongly affirmed rights in direct conflict.A legal right avails against a person upon whom lies the corelative duty. Hart. Dworkin and Hohfeld. a right can be owned by the society at large. the owner of the right need not to be certain or determinate.1. all these rights have demonstrated by different philosophers in the separate ways. A legal right is always vested in a person who may be distinguished as the owner of the right. the issue of rights in the social context is one of balancing conflicting claims and determining which claims have priority. yet there are also claims to a right to die.1. For instance. people claim the right to life yet there are others who claim a right to abortion.CHAPTER 3 HOHFELD’S ANALYSIS OF RIGHTS Rights claimed in modern society have a contradictory quality about them. people claim the right not to be killed by another. He is distinguished as the “person of incidence. the contradiction is one of degree.There are clearly different types of rights but they share common features. 3. the subject of it or the person of inherence. 13 . In some extent it‟s fair to say that the concept is used ambiguously. Thus there cannot be a legal right without a subject or a person who owns it. However. Likewise. For example. They are.1 The Person of Inherence.He is also called the subject of right. However. Bentham. MacCormick. it is a valid right though the subject of right is indeterminate. an unborn child possesses a legal right although it is not certain whether he would be born alive or not. 3. However.1 ESSENTIAL ELEMENTS OF A LEGAL RIGHT According to Salmond every legal right has the following five elements or characteristics:3. Thus. for example. The claim to right is thus ultimately a claim to self-determination. which can produce logical contradictions and is itself in contradiction to the aspect of social control by law.2 The Person of Incidence.” He is a person bound by the duty and so may be described as „subject of the duty‟. then in this case „A‟ is the person of inherence. Hohfelds scheme of Jural relations. but at determining what holding of a right involves. Salmond illustrates these elements of a legal right by referring to an example. The main topic comprises an analytical scheme of jural relations. considers that Holland looks at the object of right with such narrowness that he is forced to conclude that there are some rights which have no objects. for a right of this kind avails against the world at large. This may be called the object or subject-matter of the right.5 Title of the Right. 3.J. This is called the content or substance of right. If A buys a piece of land from B. Salmond on Jurisprudence. strength. If B is the servant of A. p. Holland argue that there are certain rights which have no objects.) p. But in this case the object of right is missing12 because there is no material thing to constitute an „object‟ in this illustration.Every legal right has a title. The person bound by the correlative duty are persons in general. (12th ed.. Hohfeld‟s 12 13 Holland. 223. This Project is divided into four parts i. The content of right consists in non interference with the purchaser‟s exclusive use of the land. He cites an illustration of master and servant relationship. 14 Ibid 14 .1. that is.14 This project is not aimed at determining what rights some person has. however.13 3.1. Some writers. Fitzgerald P. that is.It is something to which the act or omission relates. the thing over which a right is exercised. certain facts or events which are events by reason of which the right has become vested in its owner.4 Subject matter of Right.3 Contents of the Right.The act or omission which is obligatory on the person bound in favour of the person entitled.e. knowledge. developed by American jurist Wesley Newcomb Hohfeld at the beginning of the 20th century.1. A is the subject or owner of the right so required. 88. Elements of Jurisprudence.3. time etc. criticism of the theory and relation between rights and duties. B is the person of incidence and reasonable service is the „act‟ to which A is entitled. Hohfeld‟s analysis of rights. of the person bound by the duty. particularly Dr. The object or the subject-matter of the right is the conveyance by which it was acquired from the former owners. According to Salmond the object in the instant illustration is the skill. Sir Salmond. at 27. 1964). L. The Moral Foundation of Rights. and J. i. On the contrary.W. Vital Schools of Jurisprudence: Roscoe Pound. everyday problems of law”. Andrew Halpin.description of relations between various forms of legal entitlements reflects truths on features of legal rights. as may be suggested by its title. Hull. 1985). A Theory of Rights. 18 Id. 1910-1919. Wesley Newcomb Hohfeld. and the Promotion of an Academic Jurisprudential Agenda. represented “a merely philosophical inquiry as to the nature of law and legal relations”.e.19 The principal aim of Wesley Newcomb Hohfeld's project was to clarify juridical relationships 15 See. 257 (1995). Persons Under Laws. 23 Yale Law Journal 16 (1913) and «Fundamental Legal Conceptions as Applied in Judicial Reasoning». Clarendon Press Oxford 1987). he had intended to show that developments in the field of jurisprudence and in the field of legal pedagogy had to be connected. his motifs had been primarily pedagogic. 45 Journal of Legal Education 235.J. Hohfeld did reveal that his articles “are intended more for the law school students than for any other class of readers”.W. but its main purpose was to “emphasize certain often neglected matters that may aid in the understanding and in the solution of practical. Real Rights (Oxford University Press. 17 N. Thomson. It is important to point out that Hohfeld had not expected the article to be a revolutionary theoretical contribution to the legal science. Carl Wellman. all quotations from the text are given pursuant to this edition (hereinafter cited as Hohfeld. New Haven and London. Institutins and Morals (Rowman and Allanheld Publishers. Cook and Al Corbin (Yale University Press. E. Id. 1990). 19 15 . 26 Yale Law Journal 710 (1917). FLC).15 Hohfeld‟s contribution is mostly contained in two articles published in the Yale Law Journal in 1913 and 1917 respectively. with forewords by W. 1995). Sumner. 16 The one published in 1913 and entitled “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning‟‟ is one of the most cited articles in law reviews in general. Countless references thereof prove Hohfeld‟s great influence on analytical jurisprudence. The Realm of Rights (Harvard University Press. H. Rights and Law Analysis and Theory. 16 His two famous articles: «Some Fundamental Legal Conceptions as Applied in Judicial Reasoning». Carl Wellman.18 He denied that the article. After his death. for instance. his articles were collected and published in a book called ‟‟Fundamental Legal Conceptions as Applied in Judicial Reasoning‟‟.17 Hohfeld‟s intention was to emphasize the educational effects of a clear analytical opinion on legal issues. at 257. Importantly.A has a claim-right against B with regard to X just in case B has a duty to A to bring about X.between the relevant parties. thus facilitating a better understanding of the nature of our rights. 3. 16 . This method of splitting the notion of a right into its constituent elements has many important benefits. duty etc. It follows that Hohfeld's ambition was to provide a conceptual understanding for our use of right. Claim-rights . 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. therefore. He does not. duties etc are or should be or what their moral foundation is or what is necessary for something to count as a right. say anything about the justification of rights. A and B are persons and X is a situation. 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 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. however. 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.2FOUR TYPES OF RIGHTS BY HOHFELD: Here. Hohfeld's tablepresents a distinction between four different sets of juridical relationships. duty etc in practice. to inform us what 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. This project argues in support of Hohfeld's analysis of rights. It was not. Example: B borrowed $100 from A. 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. So A has a claim right against B that B returned $100 to A. ). For example. A has no duty to the Japanese Government that he leaves Japan. at least in the following ways: A claim-right corresponds to the absence of a privilege . then A has a claim-right against B that B gives $10 back to A.Suppose A has a claim-right against B that B performs some action K. if A lends $10 to B. Example: Diplomats are supposed to have diplomatic immunity. Or in other words. This implies that B does not have the privilege of not giving $10 to B. Example: The librarian has the power over a student with regard to the use of the library. they are immune against arrests and legal prosecution. (They can still be expelled though. But if a student is noisy then the librarian has the power to take away that right and stop the student from using the library. the police would have no power over them.A has an immunity against B with respect to X just in case B has no power over A's rights with respect to X. Example: If A the right (against the Japanese Government) to stay in Japan. In other words. Powers (authority rights) .A has a power over B with respect to X just in case he can change B's rights with regard to X.A has a privilege against B to X just in case B has no claim right against A not to X. If they have committed a crime in their host country. Then B does not have the privilege of not doing K. Immunities .Suppose A has power over B with respect to a certain right of B. Normally a student has the right to use the library. Privileges (liberties) . then this is a privilege. An example is that an employer has power over its employees with respect to their rights 17 . Then B lacks immunity against A with respect to that right. It means that the Japanese Government has no claim-right against A that he leaves the country. Notice that these four kinds of rights are related to each other. A power corresponds to the absence of immunity . to enter the company building. The right to enter the building is granted by the employer. and can be taken away as the employer sees fit. This means that the employee lacks immunity against the employer with respect to such a right. 18 . 21 22 Id. at 8. 23 Matthew H. at 30. Glanville. A Debate Over Rights. Simmonds. Com. ‟‟two legal positions that entail each other‟‟23 whereas the diagonal arrows couple jural opposites. to proceed with stating examples of their individual scope and application in concrete cases. 20 The most satisfying approach is to lay down various jural relations in a scheme of “opposites” and “correlatives” and. That was singled out as the main obstacle to comprehension and successful resolution of legal issues.Every pair of correlatives 20 Id at 36. Those fundamental legal conceptions are sui generis. Kramer. ‟‟two legal positions that deny each other‟‟. Rights Without Trimmings.His notions might be presented in a slightly modified version of Glanville Williams‟ table22: Right Privilege Power Immunity Duty No-Right Liability Disability The vertical arrows couple jural correlatives. and Hillel Steiner. Kramer. Halpin. then. which means that all the attempts aimed at creating a formal definition are not only dissatisfying but also useless. Philosophical Enquiries (Oxford University Press. The Concept of Legal Liberty. in Matthew H. N. 1135 (1956). 2002).CHAPTER 4 HOHFELD SCHEME OF JURAL RELATIONS The eight fundamental legal conceptions resulted from Hohfeld's dissatisfaction with the idea that all the jural relations can be reduced to rights and duties. Williams. The latter expression is solely Hohfeld‟s while Williams and a large number of other authors call them ‟‟jural contradictories‟‟. 56 Columbia Law Review 1129. E.21 Hohfeld saw every jural relation as a relation between two persons. there are eight fundamental legal conceptions. supra note 1. 19 . According to Hohfeld. must always exist together. Those rights are div ided into different categories: (1) Rights in the strict sense. which are defined as interests protected by the law by imposing its duties with respect to the rights upon other persons. disabilities and liabilities. 1937). 20 . and would include all the burdens imposed by the law. Since the appearance of his Fundamental Legal Conceptions in 1913 his work has attracted both followers and critics. (London: Sweet and Maxwell. Salmond also made a table of “correlatives” but he did not pay much attention to the “opposites”. Hohfeld based his analytical system identified three jural relations. 1049 (1982). his ideas have appeared in US Supreme court opinions.29 The Yale Law Journal 163. Corbin. None of the pairs of opposites can exist together. Limited. he cannot have a no-right in relation to the same subject matter and the same person. Legal Analysis and Terminology. (2)Liberties defined as “interests of unrestrained activity” and. correlative to those three categories of advantages or benefits. Jurisprudence. 166 (1919). On the other hand. John Salmond. Salmond found no generic term which would be correlative to right in a wider sense. the notion of right was used in a wider sense in order to indicate “any advantage or benefit which is in any manner conferred upon a person by a rule of law”. If person A has a right. Hohfeld cleared out the relation between the eight fundamental legal conceptions by inventing different terms for the correlatives of liberties and powers and by designing the relations between the opposites. and the restatement of property. Nevertheless. Hohfeld defined eight basic Jural relations in his masterful attempt to clarify legal thinking. The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld. Joseph William Singer.25 Salmond According to Salmond. he. on earlier Salmond‟s system. 24Person A as part of the pair cannot have a right if other person B has no duty. (3) Powers “when the law actively assists me in making my will effective”. 24 25 Arthur L. Seven decades have passed since Wesley N. Com. 1982 Wisconsin Law Review 975. singled out three types of legal burdens: duties. it is the legal relations of A to B when society commands action forbearance by B and will at the instance of A in some manner penalize disobedience.“The relation of A to B when A may be brought into new legal relations by the voluntary act of B.“The legal relation of A to B when A(with respect to B) is free or at liberty to conduct himself in a certain manner for the benefit of B by the command of society.“An enforceable claim to performance (action or forbearance) by another. either immediately or in the future. Professor Corbin.” PRIVILEGE.” DUTY. B.” LIABILITY.” NO-RIGHT. and those which must exist together (correlatives). Hohfeld divided the eight into pairs which cannot exist together (opposites).Right-Duty Privilege-No right Power-Liability Immunity-Disability Some analysts have worked to find a unifying theme within Hohfeld‟s ideas. for the reason that society has made no command. Some have divided the eight concepts into primary and secondary relations. however.The Eight Jural Relations are basic parts of the more complex legal relationships with which the law must deal.“The legal relations of A to B when A‟s own voluntary act will cause new legal relations either between B and A or between B and the third person. A. and when he is not threatened by with any penalty for disobedience. Jural Opposites. Hohfeld defined none of his new terms but provided concrete examples from case law. A.“The legal relation of a person. B. functions of only one or two more general legal concepts.“It is a legal relation of a person. and others have stated that the eight concepts are all of a piece.” POWER.Right-No right Privilege-Duty Power-Disability Immunity-Liability Jural Correlatives. took up the challenge of defining formal definitions for Hohfeld‟s concepts and presented the following in 1919: RIGHT. in whose behalf society commands nothing of another. who is commanded by the society to act or to forbear for the benefit of another person. and who will be penalized by the society for disobedience.” 21 . or indeed.” One thing which at once impresses itself upon one who is familiar with law and especially with the work of writers upon jurisprudence. as previously suggested. they have not ordinarily been used with precision of meaning as in the table we are considering. different meanings by the same person upon different occasions. It is also true that nearly all the concepts which these terms represent in Hohfeld‟s system have been recognized and discussed by more than one writer upon jurisprudence. nearly all of us have probably noted at some time or other that the “right” (privilege) of self-defense is a different kind of “right” from the “right” not to be assaulted by another.“The relation A to B when B has no legal power… to affect someone or more of the existing legal relations of A.“The relation of A to B when by no voluntary act of his own can A extinguish one (or more) of the existing legal relations of B. Moreover. however. another by another. That the word right is often used broadly to cover legal relations in general has probably been at least vaguely realized by all thoughtful students of law. as to that particular existing relation A has an immunity with respect to B. Thus. to take a concrete example. of the 22 . is that the terms found in this scheme are with one exception not new. We constantly speak of the right to make a will. but that legal thinking can never be truly accurate unless we constantly discriminate carefully between these different kinds of rights.” DISABILITY. who preceded Hohfeld. few of us have sufficiently realized. they have been given one meaning by one person. A brief consideration serves to show. but have always been more or less frequently used. the writers who did recognize many of these concepts failed to make any real use of them in other portions of their work. IMMUNITY. these legal concepts become the “lowest common denominators” in terms of which all legal problems can be stated. on the contrary. and stated so as to bring out with greater distinctness than would otherwise be possible the real questions involved. that the concepts and terms which are new are needed to logically complete the scheme and make of it a useful tool in the analysis of problems. When so completed. the right of a legislative body to enact a given statute. To be sure. i. but just the opposite. The great merit of the four terms selected by Hohfeld for this purpose .as the correlative of duty . It signifies one‟s affirmative claim against another. The exact term to be used is. that that other is under a duty to refrain from publishing the defamatory matter.e. By this statement we are not asserting that the person having the privilege has an affirmative claim against another. With the clear recognition of the fact that the same term is being used to represent four distinct legal conceptions comes the conviction that if we are to be sure of our logic we must adopt and consistently use a terminology adequate to express the distinctions involved. Privilege is a term of good repute in the law of defamation and in that relating to the duty of witnesses to testify. as distinguished from “privilege”. Right in the narrow sense . So in reference to the duty of a witness to testify: upon some occasions we say the witness is privileged. as we are when we use “right” in the strict sense..is that they are already familiar to lawyers and judges and are indeed at times used with accuracy to express precisely the concepts for which he wished always to use them. often with resulting confusion of thought. The terms 23 . and its correlative must denote absence of right. Unfortunately there is no term in general use which can be used to express this correlative of privilege.is too well known to require extended discussion at this point. etc. The assertion is merely that under the circumstances there is an absence of duty on the part of the one publishing the defamatory matter to refrain from doing so under the circumstances. of far less importance than the recognition of the concept for which a name is sought. and the coining of a new term was necessary. In defamation we say that under certain circumstances defamatory matter is “privileged”.e. privilege. that is. In these and innumerable other instances it turns out upon examination that the one word “right” is being used to denote first one concept and then another. of course.. that under the circumstances there is an absence of duty to testify. “Privilege” therefore denotes absence of duty. power and immunity . that the person publishing the same has a privilege to do so. The term devised by Hohfeld was “no-right”.right. one‟s freedom from the right or claim of another.right not to have one‟s property taken without due process of law. i. obviously fashioned upon an analogy to our common words nobody and nothing. as in the case of the privilege against self-incrimination. . i.” A person holding such a “power” has the legal ability by doing certain acts to alter legal relations.a power by “accepting” the offer to bring into existence new legal relations. the word “immunity” is used in exactly this sense in constitutional law. therefore. possibly less usual but by no means unknown. Before the chattel is abandoned. denote respectively absence of duty on the part of the one having the privilege and absence of right on the part of the one having the “no-right”. For example. Another use of the term “right”. “immunity”. to transfer the ownership of property from one person to another. be it noted . the idea sought to be conveyed is of the exemption of the person concerned from a legal power on the part of the persons composing the government to alter his legal relations in a certain way. By doing so he confers upon each person in the community a legal power to acquire ownership of the chattel by taking possession of it with the requisite state of mind. At times. “Liability” as commonly used is a vague term and usually suggests something disadvantageous or burdensome. In Hohfeld‟s system it is the generic term to describe any legal situation in which a given legal relation 24 .. indeed. is to denote that one person is not subject to the power of another person to alter the legal relations of the person said to have the “right”. and in Hohfeld‟s terminology any human being who can by his acts produce changes in legal relations has a legal power or powers. Whenever a power exists there is at least one other human being whose legal relations will be altered if the power is exercised. So also any person can by offering to enter into a contract with another person confer upon the latter -without his consent. It follows that every person in the community who is legally capable of contracting is under a liability to have such a power conferred upon him at any moment. one who owns a chattel may “abandon” it. therefore. every person other than the owner is under a legal “liability” to have suddenly conferred upon him a new legal power which previously he did not have. This situation Hohfeld described by saying that the one whose legal relations will be altered if the power is exercised is under a “liability”.e. All lawyers are familiar with the word “power” as used in reference to “powers of appointment. Care must be taken to guard against misapprehension. For example. viz. Not so in Hohfeld‟s system. for a “liability” may be a desirable thing.“privilege” and “no-right”. In such cases the real concept is one of exemption from legal power. often when we speak of the “right” of a person not to be deprived of his liberty or property without due process of law. Now the lawyer‟s world is full of such legal “power”. It is interesting in passing to note that of the two writers who preceded Hohfeld. powers. Similarly. that is.” Rights. as Salmond in his Jurisprudence seems to indicate by placing it in a brief footnote.then the distinction between the correlatives. but immunities not at all. For example. no-right. privileges. -immunities are treated as relatively unimportant. and a privilege is one‟s freedom from the right or claim of another. for if the distinction between privilege and power be valid . “bears the same general contrast to an immunity that a right does to a privilege. This concept of legal “immunity” is not unimportant. whereas immunity is one‟s freedom from the legal power or „control‟ of another as regards some legal relation. and liability is treated as the correlative of both liberty (privilege) and power. A power. Correlatively. 25 . Ordinary exemption laws.as it clearly is . A right is one‟s affirmative claim against another. In Terry‟s Principles of Anglo-American Law.duty. no-right and liability. the thing which distinguishes a “spendthrift trust” from ordinary trusts is not merely the lack of power on the part of the cestuique trust to make a conveyance of his interest. the one who lacks the power to alter the first person‟s legal relations is said to be under a “disability”. also furnish striking illustrations of immunities. This assignment of a single correlative for two independent conceptions must result sooner or later in confusion of thought. liability and disability . correlative terms .likewise sufficiently classify the legal burdens which correspond to the legal benefits. etc. privileges as “permissive rights”. therefore. immunities comprehensive general these four seem fairly to constitute a The four classification of legal “rights” in the generic sense. neither Terry nor Salmond had completed the scheme. but also the immunities of the cestui from having his equitable interest divested without his consent in order to satisfy the claims of creditors. he lacks the legal power to accomplish the change in question. rights strictosensu appears as “correspondent rights”.vested in one person cannot be changed by the acts of another person. privileges as “permissive rights”. homestead laws.mere question of phraseology. powers as “faculative rights”. must be equally valid. In Salmond‟s Jurisprudence privileges are called “liberties” . a power is one‟s affirmative „control‟ over a given legal relation as against another.. Moreover the correlatives are not worked out. supra note 26. 28As a correlative.30 Hohfeld gave an example wherein X has a right against Y that he shall stay off the X‟s land. the term “rights” is incorrectly used for denoting something that. There are some jurists who do not agree to this view. at 988. at 165 30 31 Singer. Rights and Duties are correlated to each other in such a way that one cannot be conceived of without the other. supra note 16. Corresponds to Corbin's second question which was proposed for determining jural relations: “What must A (or B) do.1RIGHTS AND DUTIES Rights and Duties are the very important elements of law. FLC. See Hohfeld. They said that there can be duties without a corresponding right. might be a privilege. 29 under threat of societal penalty assessed for the benefit of the other?” Corbin. consists of the enforcement of rights and the fulfillment of duties. and not a right in the strictest sense.CHAPTER 5 RELATION BETWEEN LEGAL CONCEPTIONS 5. In the same a duty is always towards someone in whom the correlative right vests. a power. In other words. The administration of justice. A right is always against someone upon whom the correlative duty is imposed. FLC. Hohfeld. Id at 38. The invariable correlative thereof is comprised in the fact that Y is under a duty towards X to stay off X‟s land. 36-38 Id at 36. although seen from different points of view. the word ‟‟claim‟‟ is the most suitable synonym for the word “right” in terms of its precise and most appropriate meaning. the existence of the one depends on the existence of the other as there can be no child without a father and no father without a child. in most part.31A genuine 26 27 28 He dedicated somewhat less than three pages to that relation.27A solution for the limitation of the word “right” to its precise and most appropriate meaning is to be found in the correlative (and equivalent) “duty”. at 38 26 . legal right always have a legal duty. or immunity. In Hohfeld‟s opinion. They call duties as „absolute duties‟. in a certain case. 26According to him. supra note 16. Hohfeld did not spend much time on the relation between rights and duties.29 This pair of terms expresses the same jural relation. supra note 25. if necessary. In the state of nature. Privileges are permissions to act in a certain way without being responsible for the damage done to other people who. As Hohfeld pointed out: “To the extent that the defendants have privileges the 32 33 34 35 36 37 Kramer. supra note 16. FLC. A person that is supposed to abstain from interference or to provide assistance or remuneration is under a duty to act in that manner.37 In Hohfeld‟s analysis these two terms have the same structural position.33 5. What they have are privileges and their privileges are their natural rights. A right or claim is a legal position arising from imposition of a duty on someone else. Most of the subsequent jurists prefer the term liberty over the term privilege. which describes the state of nature as ''the war of all against all''.right or claim is enforceable. Hohfeld criticized classical analytical writers such as Thomas Holland and John Chipman Gray who incorrectly deduced duties from privileges. supra note 26. supra note 24. the concept that privileges are rights is not Hohfeld's but is featured by a long history and can be found in Hobbes' Leviathan. simultaneously. are not in position to call in the authorities to prevent such action.32 Being granted or having a legal right (or a claim according to Hohfeld) consists of legal protection against other people‟s interference or against refusal of providing aid or remuneration regarding a particular action or a particular state of affairs. and thus rights.34 The non-distinction between these terms leads to “confusion or blurring of ideas”. although Hohfeldhimself favoured the term privilege. See also Singer. supra note 26.35 He wished to correct the faulty classical viewpoint that privileges are necessarily accompanied with other people‟s duties not to interfere with such permitted actions. FLC. at 987. Chapter 13.2 PRIVILEGES AND NO-RIGHTS Hohfeld‟s main goal was to clarify the basic difference between rights (or claims) and privileges. people have no claims. at 40 Singer. at 1014 According to Thomson. at 9. Hohfeld. by means of state coercion. Id Hohfeld. A privilege as a jural relation means a bare negation of duties. supra note 16. 27 .36 Consequently. at 39. so that if X succeeds in eating the salad. supra note 16. Hohfeld showed how privileges can be legitimately in conflict. FLC. Hohfeld thought that this passage deals with two types of relations: the first one refers to the privilege of eating salad and the second one relates to a party‟s claim for not being disturbed while doing so. C and D. B. rights do not imply privileges.” Rights (claims) and privilege cannot be in conflict. a remainder person has no privilege “to enter the land but retains a right to keep trespassers off”. Privileges may be accompanied with rights that impose duties on other people not to interfere. being the owners of the salad. As privileges do not imply rights. Hohfeld commented John Chipman Gray‟s example who. supra note 16. conflicts with the privilege of person X to take it from him. privileges can sometimes exist without the existence of a right. in a chapter called “Legal Rights and Duties” of his book The Nature and Sources of Law wrote about the property right: The eating of shrimp salad is an interest of mine. no right of X would have been violated. However. 48 (1909) according to Hohfeld. although I know that shrimp salad always gives me the colic38. you have our license to do so. The dominancy will not result 38 39 J. the law will protect that interest. As said by Singer. In such a case the privileges exist. Such interferences represent a special case of damage for which victims have no legal recourse. FLC. Butif A had succeeded in holding so fast to the dish that X couldn't eat the content. he has violated no rights of any of the parties. but we don't agree not to interfere with you”. and it is therefore a right of mine. to eat shrimp salad which I have paid for. The Nature and Sources of the Law sec. and. Gray. might say to X: “Eat the salad if you can. 28 .40 It is also relevant to take notice that Hohfeld‟s example is one of conflicting liberties: A„s privilege to keep salad for himself.plaintiffs have no rights. X and Y can both have the legal liberty to eat the salad from the table. at 41 Hohfeld. if I can pay for it. at 41 40 Id. For instance.39 A. at 165. this relation is held between two persons with respect to particular actions or states of affairs. 43 Hohfeld. a jural relation can be modified in two ways: by means of facts that are not under the volitional control of one or more persons or by means of facts which are not under volitional control of human beings. 29 . The power-liability relation corresponds with the third of Corbin questions: “What can A (or B) do. so as to change the existing legal relations of the other? (This has no reference to mere physical power)” Corbin. Hohfeld mentioned the position of the people engaged in a “public callings” such as innkeepers. Therefore.from common instruments of law but from power struggle which the state will not participate in.41 Some first order relations are applied directly to human conduct and social intercourses. the creation of agency relation etc. When it comes to liability. at 20. property-related powers (property abandonment and power to transfer property). travellers have a legal power by making an adequate tender to impose a liability on an innkeeper to 41 42 Kramer.44Similar to other jural relations. supra note 16. at 51. as well as an inheritor. Unlike the usual perception that innkeepers are under a duty towards all other parties. 5. Deference to a change within someone‟s entitlement is not necessarily unpleasant. supra note 25. power to create contractual obligation. Liability is susceptibility to someone‟s exercising of a power. the following two pairs are second order relations (“power”/”liability” and “immunity”/”disability”). without mediation of any second order relation. at 50 44 Id. On the other hand. A promisee may have a benefit from an entitlement vested by a promisor. Hohfeld listed various examples of legal powers.3 POWERS AND LIABILITIES Whereas the first two pairs of legal positions (“right”/“duty” and “liberty”/“no right”) are first order relations. FLC. all the second order relations are applied directly to human entitlements and only indirectly to human conduct and social intercourses. a person with the dominant volitional control has a legal power to effect a particular change of jural relations. Id.43He defined powers by reference to the second group of cases. supra note 24. Hohfeld emphasized that an innkeeper is under the liability and travellers are in possession of a correlative power.42 Pursuant to Hohfeld. Immunity rights can be frequently found in constitutional texts. 45 Singer. if the people are granted the freedom of speech by the constitution. If we describe the power as a “right”. 5. legislature. If A has an immunity against B. B is under a disability with respect to exercising powers referring to entitlements covered by the immunity. cannot exercise a power in that respect. Consequently. Simmonds.45 Disability is a lack of power to change legal entitlements. Similarly. A right is an affirmative claim against another whereas a privilege is someone‟s freedom from the right -claim of another. supra note 26. provides an example wherein a power may be combined with a duty not to exercise it. The people have immunity rights to the freedom of speech while legislature is under a disability.Powers bear the same general contrast towards immunities as rights towards privileges. a power is an affirmative control over a given jural relation as against another while an immunity is someone‟s freedom from a legal power or control of another with respect to some jural relations.4 IMMUNITIES AND DISABILITIES Immunity is state of being safe from modifications of one‟s entitlements by another. 30 . than we will have to say that the non -owner has a right to sell the property. but will commit an offence while exercising the power.receive them as guests. There would be a great fuss if jurist confused Hohfeldian powers with rights. which happens when a non-owner has a power to pass title in property. For example. at 986. at 63 Id at 64. at 22.49 They enable “discovering essential similarities and illuminating analogies in the midst of what appears superficially to be infinite and hopelessvariety to discern common principles of justice and policy to use as persuasive authorities judicial precedents that might otherwise seem altogether irrelevant”.47 Hohfeld himself stressed “the great practical importance of a clear appreciation of the distinctions and discriminations set forth”. Singer gives on almost two pages a bibliography related to Hohfeld. supra note 16. The process of the evaluation of its utility and relevance is still going on. Id.48 The eight proposed terms-rights and duties. 22 48 49 50 51 52 Hohfeld. 31 .CONCLUSION&CRITICISM Hohfeld did not only correct minor technical mistakes but he also offered a radical critique of previous concepts of legal rights and liberties. supra note 16. Since then (the article was published in 1982) there have been a number of articles (reviews) and books thereabout. Kramer. it is important to grasp that Hohfeld‟s endeavour is analytical and definitional rather than empirical or substantive. See Singer.46 In the end. privileges and no-right. powers and liabilities. FLC.52 This is the central feature of his analytical scheme which diminishes all the critiques 46 47 Id at 979.51 Hohfeld put forth a scheme of jural relations in which legal positions are connected with each other by purely logical relations of entailment and negation. immunities and disabilitiesrepresent “the lowest common denominators of the law” to which all “legal quantities” may be reduced.50 Finally. there is a question of the utility of Hohfeld‟s scheme. The discussion on Hohfeld‟s scheme of jural relations has turned out to be one of the most complex discussions in the history of legal analysis. at 989-91 n. supra note 24. Id. Be that as it may. it will be recalled. which I will refer to as the 'Correlativity Axiom'. disabilities etc placed on others. Thus. 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. 32 . Given the axiomatic nature of Hohfeld's stipulation of correlativity. Hohfeld stipulates that the atomic rights elements in his analytical framework are. MacCormick sees legal rights as 'grounds' of duties. as I have shown above. is to treat rights as being simply the "reflex" of logically prior duties'. 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'. On the face of it. 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.He further notes that a law conferring a right is 'best understood in terms of a standard intention to confer some form of benefit'.. liberties and powers etc. When such benefit is conferred. 53 Id at 23.53Hohfeld‟s goal was to provide a precise analyze of legal rights and thus prevent confusions arising from "inadequacy and ambiguity of terminology” that refers to the use of rights. For Hohfeld. Therefore. there have been a number of distinguished jurists who have tried to refute Hohfeld's Correlativity Axiom. it is not susceptible to such attacks. such as duties. 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 . always correlative. in practice. and that for Hohfeld each of the pairs of legal positions must be mutually entailed by definition. this mounts a direct attack on the Hohfeldian Correlativity Axiom because. rather.involving an empirical denial of Hohfeld‟s theses. 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. he presented the notion of correlativity as a definitional foundation of his analysis.. by definition. one should not attempt to try and refute it by empirical counter-examples because. or reasons for imposing duties rather than simply being a correlative of the duty.