- Wesley Newcomb Hohfeld
Wesley Newcomb Hohfeld (1879-1918) was an American
jurist. He was the author of the seminal "Fundamental Legal Conceptions, As Applied in Judicial Reasoning and Other Legal Essays", published in 1919.
During his life, he published only a handful of law journal articles. At his death, the material forming the basis of "Fundamental Legal Conceptions" was derived from two articles in the "
Yale Law Journal" (1913) and (1917) that had been partially revised with a view to publication. Editorial work was undertaken to complete the revisions and the book was published with the inclusion of the manuscript notes that Hohfeld had left, plus seven other essays.
The work remains a powerful contribution to modern understanding of the nature of
rightsand the implications of liberty. To reflect this continuing importance, a chair at Yale Universityis named after him, which is currently held by Jules Coleman.
Hohfeld, professor of jurisprudence
Jurisprudenceis that branch of philosophydealing with the principles of law and the legal systems through which it is applied. Hohfeld's contribution was to engage in a very precise form of analysis which distinguished between concepts and specified a framework of relationships for those concepts. His work offers a sophisticated method for deconstructing broad legal and moral principles into their component elements, thereby illuminating policy implications and identifying issues to be resolved in practical decision making.
Examples of Hohfeldian analysis
Hohfeld's analysis began by distinguishing
right(or claim) from liberty(or privilege), power and immunity, and defined them through three corelatives, i.e. duty, liability, and disability. He arranged these fundamental legal concepts in terms of Jural Opposites and Jural Corelatives.
The Jural Opposites look like this:
1. Right/No-Right 2. Privilege/Duty 3. Power/Disability 4. Immunity/Liability
The Jural Corelatives look like this:
1. Right/Duty 2. Privilege/No-Right 3. Power/Liability 4. Immunity/Disability
Previously, the concept of "right" had been defined in ambiguous terms. Put simply, Hohfeld argued that right and duty are corelative concepts, i.e. the one must always be matched by the other. If A has a right against B, this is meaningless unless B has a duty to honour A's right. If B has no duty, that means that B has liberty, i.e. B can do whatever he or she pleases because B has no duty to refrain from doing it, and A has no right to prohibit B from doing so. Each individual is located within a matrix of relationships with other individuals. By summing the rights held and duties owed across all these relationships, the analyst can identify both the degree of liberty — an individual would be considered to have perfect liberty if it is shown that no-one has a right to prevent the given act — and whether the concept of liberty is comprised by commonly followed practices, thereby establishing general moral principles and
Hohfeld defines the corelatives in terms of the relationships between two individuals. In the theory of "in rem rights", there is a direct relationship between a person and a thing. Real rights are in this respect unlike claim rights or "rights in personam", which by nature must be exercised against a person; the best example being when someone is owed money by another. Hohfeld demonstrates that this way of understanding rights in general is wrong. In particular, Hohfeld demonstrates that there is no such thing as a legal relation between a person and a thing, since a legal relation always operates between two people. As the legal relations between any two people are complex, it is helpful to break them down into their simplest forms. Legal rights do not correspond to single Hohfeldian relations, but are compounds of them. A right can be defined as an aggregate of the Hohfeldian relations with other people.
Hohfeld replaces the concept of “right in personam” by “paucital right” and "right in rem" by a compound or aggregate of "multital rights". Rights held by a person against one or a few definite persons are paucital (or “in personam”), and rights held by a person against a large indefinite class of people are mutital (or “in rem”). A contract right is paucital (or "in personam") because it can only be enforced against the specific parties to the contract. A property right is multital (or "in rem") because a landowner has the right to exclude not only specific people from his land but the “whole world.” The landowner has many rights, privileges, powers, and immunities; his multital rights are composed of many paucital rights. For example, the owner has a right that others do not step on his land but there is not just one such right against a mass of persons (the community), but many separate although usually identical paucital rights with this content (as many instances as there are people in the community). This is what Hohfeld calls "multital” rights.
Consider also the definition of liberty. In Hohfeldian analysis, liberty is defined by an absence both of a duty and of a right. B is free because he has no obligation to recognise any of A's rights. That does not deny that B might decide to do what A wants because that is the essence of liberty. Nor does it deny the possibility that B might accept a duty to A to give a benefit to C. In that situation, C would have no right and would have to rely on A to enforce the duty. The truth is that liberty is significant from both a legal and a moral point of view because only liberty ensures that an individual has control over his or her choices on whether and how to act. If something interferes with this choice, the natural reaction is to resent it and to seek a remedy. The corelative between right and duty inevitably describes the way in which two people are limited in their choices to act, and the outside observer cannot capture the legal and moral implications without examining the nature of the right held by A. Hence, this relationship is qualitatively different. An interference with liberty would be considered wrongful without having to ask for detailed evidence. Yet whether A's relationship with B is morally suspect could only be determined by evaluating evidence on precisely what B's duty requires B to do or not to do.
Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wisconsin Law Review 975.
Curtis Nyquist, Teaching Wesley Hohfeld's Theory of Legal Relations, 52 Journal of Legal Education 238 (2002).
Claim rights and liberty rights
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