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THE CONCEPT OF LEGAL RIGHTS

(Project of the assessment in the subject of Jurisprudence)

Submitted To: Submitted By:

Dr.Anukriti Mishra Apoorva Chandra

Assistant lecturer

Hidayatullah National Law University

National Law University, Jodhpur

Winter Session

(January - May 2014)


Table of Contents

TOPIC: .......................................................................................Error! Bookmark not defined.


SUBJECT: ..................................................................................Error! Bookmark not defined.
OBJECTIVE: .............................................................................................................................. 4
RESEARCH QUESTIONS: ........................................................................................................ 4

INTRODUCTION ............................................................................................................. 5
1.1 LEGAL WRONGS ................................................................................................................ 5
1.2 DUTIES .............................................................................Error! Bookmark not defined.
1.3 LEGAL RIGHTS .................................................................................................................. 6

THEORIES OF LEGAL RIGHTS .................................................................................. 7


2.1 THEORIES OF LEGAL RIGHTS ............................................................................................. 7

HOHFELDS ANALYSIS OF RIGHTS ....................................................................... 11


3.1 ESSENTIAL ELEMENTS OF A LEGAL RIGHT ........................................................................... 11
3.2 FOUR TYPES OF RIGHTS BY HOHFELD: .................................................................................. 15
HOHFELD SCHEME OF JURAL RELATIONS ....................................................... 16

CONCLUSION & CRITICISM .................................................................................... 20


ACKNOWLEDGEMENT

We hereby express my heartfelt gratitude to Dr. Anukriti Mishra 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. Anukriti Mishra.
OBJECTIVE:

Study and analyze the types, theories, classification of legal righs, scheme of Jural Relations and
Legal Conceptions in the backdrop of Hohfelds analysis of Legal Right.

RESEARCH METHODOLOGY

This section talks about the methodology which will be used for this piece of research work.
Methodologies vary from research work to work due to the difference in subjects, areas and
study view. Research methodology is a way to systematically solve the research problem. It may
be understood as a science of studying how research is done scientifically. 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. For the purpose of this project we have used Conceptual Research
Methodology. Conceptual research is that related to some abstract idea(s) or theory. It is
generally used by philosophers and thinkers to develop new concepts or to reinterpret existing
ones.

RESEARCH QUESTIONS:

1. What are the different concepts of Legal Rights and Duties as propounded by various
jurists?
2. What are the different types of theories with respect to the nature of legal rights?
3. What are the possible explanations deduced out of the Hohfelds analysis of legal rights?

SOURCE:

The project has been prepared using secondary sources of reference, mainly through the use of
research cards for lifting relevant information from different sources and compilation into
relevant headings. Reliance has been placed on various Books, Articles, Journals, Periodicals and
Weeklies.
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 When people come in
contact as members of society, they have certain legal rights and duties towards one another.
These rights and duties are regulated by the law prevalent in the society. It is well known that the
main purpose of law is to protect human interest by regulating the conduct of individuals in the
society. For the attainment of this objective, 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.

It, therefore, 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. 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.

It is to be noted that the term right is closely connected with the terms wrong and duty. It
would, therefore, be desirable to refer to them before analyzing the concept of right.

1.1 LEGAL WRONGS

Salmond defines wrong as an act contrary to the rule of right and justice. A synonym of it is
injury, in its true and primary sense of injuria. In its legal sense, it is known as legal injury which
is against law or jus.

Wrongs may be of two kinds namely, (1) Moral wrongs and (2) Legal wrongs.

A Moral wrong is an act which is morally or naturally wrong, being contrary to the rule of
natural justice whereas a legal wrong is an act which is legally wrong, being contrary to the rule
of legal justice and a violation of the law. In simpler words, a wrong is a violation of legal right
(injuria).
1
Subbarao G.C., Jurisprudence (3rd ed.) p. 161.
A legal wrong may or may not be a moral wrong and conversely a moral wrong may or may not
be a legal wrong. For instance, 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. Generally, recognition of an act as a legal
wrong entails punishment or suppression by the physical force of the state.

1.2LEGAL RIGHTS

Sir John Salmond defines right as an interest recognized and protected by a rule or justice. It is
an interest in respect of which there is duty and the disregard of which is wrong. A man has
varied interests but all of them are not recognized by law. Many interests exist de facto and not
de jure; they receive no recognition or protection from any rule of right. The violation of them is
no wrong, and respect for them is no duty. Interests are things which are to mans advantage,
e.g., a man has interest in his freedom or reputation.

Like wrongs and duties, rights are either moral or legal. A moral or natural right is an interest
recognized and protected by a rule of morality-violation of which would be a moral wrong. For
example, parents interest to command respect from their children is their moral right but if
children violate it, it is a moral wrong. A legal right, on the other hand is an interest recognized
and protected by a rule of law, violation of which would be a legal wrong. Thus everyone has
right to privacy in his house and if any person interferes with this right, it would be a legal
wrong.

John Austin observes, 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. This definition has been criticized on the ground that
it overlooks the element of interest involved in the conception of right. John Stuart Mill
illustrates the inadequacy of Austins definition of right by pointing out that when a prisoner is
sentenced to death the jailor is duty-bound to execute him.

Ihiring also defines right as a legally protected interest. He considers law as a means to an end.

The eminent French jurist Duguit is opposed to the view that the basis of a legal right is human
will. He argues that all laws originate from social solidarity hence there is no existence of a right
as such.2 Duguit believes that human will is opposed to social good because it always leads to
conflict of interests between individuals. Therefore, there is no place for the concept of right in
society. Law being an expression of social solidarity, demands that everyone should abide by his
duties and has no right to claim rights. Thus Duguit rejects the concept of rights as immoral
against the interest of the society.

CHAPTER II

THEORIES OF LEGAL RIGHTS

2.1 THEORIES OF LEGAL RIGHTS

There are two main theories regarding nature of legal rights. They are (1) The Will Theory, and
(2) Interest theory:

2.1.1 Will Theory of Legal Right

The Will theory of legal rights has been supported by Hegel, Kant, Hume and others. According
to this theory, a right is an inherent attribute of the human will. The subject-matter of right is
derived from human will. The theory suggests that it is through a right that a man expresses his
will over an object. The theory has been also accepted by historical jurists of Germany. 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. Vinogradoff considers that psychology of asserting
claim is the basis of legal right. In a social order established by law no man is absolutely free to
act as he likes, but his freedom of action is restricted due to rights of others.

According to Austin, 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. Likewise, Austin defines duty as an obligation the breach of which is
punishable because of the penal sanction attached with it. Justice Holland of U.S.A. pointed out

2
Paton, A Text Book of Jurisprudence, p. 222.
that a legal right is nothing but permission to exercise certain natural powers to obtain protection
under certain conditions. It has the support of public force for its protection.3

Duguit suggests that will is not an essential element of a legal right or law. The real basis of law
is social solidarity. He calls theory of subjective right as a mere metaphysical abstraction.

2.1.2 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. According to this theory, a legal right is a
legally protected interest. Ihring does not emphasize on the element of will in a legal right. He
asserts that the basis of legal right is interest not will. The main object of law is protection of
human interests and to avert a conflict between their individual interests. But Salmond has
criticized Ihrings theory on the ground that it is incomplete since it completely overlooks the
element of recognition by state. A legal right should not be protected by the state but should also
be legally recognized by it. He cites an example to substantiate this view. The interests of beasts
are to some extent protected by law in as much as cruelty to animals is a criminal offence. 4 But
beasts cannot for that reason be said to possess a legal right of not being treated with cruelty.
Salmond treats the right to protection of animals from cruelty merely as a moral right.

Professor Gray was greatly impressed by Salmonds view about legal right. He, however, held
that the interest theory was only partly true. He emphasized that a legal right is not an interest in
itself but it is only a means to extend protection to interests. 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). Thus, for example, if a man lends some
money to another, the right of the creditor to recover his money from the debtor is, in reality, not
his legal right but it is rather a power conferred on him by law by the exercise of which he
recovers the debt. In other words, the creditors interest to get back his money from the debtor is
protected by law but this interest is not a legal right in itself, it is rather his object. It is the power
conferred on him by law to recover the money which is his legal right.

3
Dias & Hughes: Jurisprudence, p. 250.
4
In India, the Prevention of Cruelty to Animals Act, 1960
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 tablepresents 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 project 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, we 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-Hohfeldian and non-
Hohfeldian. 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 linguistically5appear to be in conflict with Hohfeld's
analysis. But given, as we will argue in this project, that Hohfeld's analysis possesses a high
degree of clarity and a remarkable analytical6 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.7 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,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

5
Harris criticisedHohfeld for the fact that his vocabulary does not match that of his fellow jurists. J.W. Harris, Legal
Philosophies (London, 1980), p.82
6
N.E. Simmonds in Central Issues in Jurisprudence: Justice, Law and Rights (London, 1986), p.129
7
M. Kramer, 'Rights without Trimmings' in A Debate over Rights, Philosophical Enquiries, (Oxford, 1998), pp.22-
23.
rights,8in 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.

CHAPTER 3

HOHFELDS 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 right to life yet there are
others who claim a right to abortion; people claim the right not to be killed by another, yet there
are also claims to a right to die.These are few examples. 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. However, the contradiction is one of degree.
Thus, the issue of rights in the social context is one of balancing conflicting claims and
determining which claims have priority.There are clearly different types of rights but they share
common features. In some extent its fair to say that the concept is used ambiguously. However,
all these rights have demonstrated by different philosophers in the separate ways. They are, for
example, MacCormick, Hart, Bentham, Dworkin and Hohfeld.

3.1 ESSENTIAL ELEMENTS OF A LEGAL RIGHT

According to Salmond every legal right has the following five elements or characteristics:-

3.1.1 The Person of Inherence- He is also called the subject of right. A legal right is always
vested in a person who may be distinguished as the owner of the right, the subject of it or the

8
S. Coyle, 'Are There Necessary Truths About Rights?', in The Canadian Journal of Law and Jurisprudence (2002),
p.4
person of inherence. Thus there cannot be a legal right without a subject or a person who owns it.
However, the owner of the right need not to be certain or determinate. For instance, an unborn
child possesses a legal right although it is not certain whether he would be born alive or not.
Likewise, a right can be owned by the society at large, it is a valid right though the subject of
right is indeterminate.

3.1.2 The Person of Incidence- A legal right avails against a person upon whom lies the co-
relative duty. He is distinguished as the person of incidence. He is a person bound by the duty
and so may be described as subject of the duty.

3.1.3 Contents of the Right- The act or omission which is obligatory on the person bound in
favour of the person entitled. This is called the content or substance of right.

3.1.4 Subject matter of Right- It is something to which the act or omission relates, that is, the
thing over which a right is exercised. This may be called the object or subject-matter of the right.

Some writers, particularly Dr. Holland argue that there are certain rights which have no objects.
He cites an illustration of master and servant relationship. If B is the servant of A, then in this
case A is the person of inherence, B is the person of incidence and reasonable service is the
act to which A is entitled. But in this case the object of right is missing9 because there is no
material thing to constitute an object in this illustration. Sir Salmond, however, 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. According to Salmond the object in the instant illustration
is the skill, knowledge, strength, time etc. of the person bound by the duty.10

3.1.5 Title of the Right- Every legal right has a title, that is, certain facts or events which are
events by reason of which the right has become vested in its owner.

Salmond illustrates these elements of a legal right by referring to an example. If A buys a piece
of land from B, A is the subject or owner of the right so required. The person bound by the
correlative duty are persons in general, for a right of this kind avails against the world at large.

9
Holland, Elements of Jurisprudence, p. 88.
10
Fitzgerald P.J., Salmond on Jurisprudence, (12th ed.) p. 223.
The content of right consists in non interference with the purchasers exclusive use of the land.
The object or the subject-matter of the right is the conveyance by which it was acquired from the
former owners.11

This project is not aimed at determining what rights some person has, but at determining
what holding of a right involves. This Project is divided into four parts i.e. Hohfelds analysis
of rights, Hohfelds scheme of Jural relations, criticism of the theory and relation between rights
and duties. The main topic comprises an analytical scheme of jural relations, developed by
American jurist Wesley Newcomb Hohfeld at the beginning of the 20th century. Hohfelds
description of relations between various forms of legal entitlements reflects truths on features of
legal rights. Countless references thereof prove Hohfelds great influence on analytical
jurisprudence.12

Hohfelds contribution is mostly contained in two articles published in the Yale


Law Journal in 1913 and 1917 respectively. 13 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. It is important to point out that Hohfeld had
not expected the article to be a revolutionary theoretical contribution to the legal science.
On the contrary, his motifs had been primarily pedagogic, i.e. he had intended to show
that developments in the field of jurisprudence and in the field of legal pedagogy had to
be connected.14 Hohfelds intention was to emphasize the educational effects of a clear analytical

11
Ibid
12
See, for instance, Andrew Halpin, Rights and Law Analysis and Theory; Carl Wellman, A Theory of Rights,
Persons Under Laws, Institutins and Morals (Rowman and Allanheld Publishers, 1985); Carl Wellman, Real Rights
(Oxford University Press, 1995); L.W. Sumner, The Moral Foundation of Rights, Clarendon Press Oxford 1987);
and J.J. Thomson, The Realm of Rights (Harvard University Press, 1990).
13
His two famous articles: Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale Law
Journal 16 (1913) and Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale Law Journal
710 (1917). After his death, his articles were collected and published in a book called Fundamental Legal
Conceptions as Applied in Judicial Reasoning, with forewords by W.W. Cook and Al Corbin (Yale University
Press, New Haven and London, 1964), all quotations from the text are given pursuant to this edition (hereinafter
cited as Hohfeld, FLC).

14
N. E. H. Hull, Vital Schools of Jurisprudence: Roscoe Pound, Wesley Newcomb Hohfeld, and the Promotion of an
opinion on legal issues.15 He denied that the article, as may be suggested by its title, represented
a merely philosophical inquiry as to the nature of law and legal relations, but its main purpose
was to emphasize certain often neglected matters that may aid in the understanding and in the
solution of practical, everyday problems of law. Hohfeld did reveal that his articles are
intended more for the law school students than for any other class of readers.16

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 tablepresents 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 project 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

Academic Jurisprudential Agenda, 1910-1919, 45 Journal of Legal Education 235, 257 (1995).
15
Id. at 257.
16
Id. at 27.
an understanding of our practices involving rights.

3.2FOUR TYPES OF RIGHTS BY HOHFELD:


Here, A and B are persons and X is a situation.

Claim-rights - A has a claim-right against B with regard to X just in case B has a duty to
A to bring about X.

Example: B borrowed $100 from A. So A has a claim right against B that B


returned $100 to A.

Privileges (liberties) - A has a privilege against B to X just in case B has no claim right
against A not to X.

Example: If A the right (against the Japanese Government) to stay in Japan, then
this is a privilege. It means that the Japanese Government has no claim-right
against A that he leaves the country. Or in other words, A has no duty to the
Japanese Government that he leaves Japan.

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.

Example: The librarian has the power over a student with regard to the use of the
library. Normally a student has the right to use the library. 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.

Immunities - 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: Diplomats are supposed to have diplomatic immunity. If they have


committed a crime in their host country, they are immune against arrests and legal
prosecution. In other words, the police would have no power over them. (They
can still be expelled though.).
Notice that these four kinds of rights are related to each other, at least in the following ways:

A claim-right corresponds to the absence of a privilege - Suppose A has a claim-right


against B that B performs some action K. Then B does not have the privilege of not doing
K. For example, if A lends $10 to B, then A has a claim-right against B that B gives $10
back to A. This implies that B does not have the privilege of not giving $10 to B.
A power corresponds to the absence of immunity - Suppose A has power over B with
respect to a certain right of B. Then B lacks immunity against A with respect to that right.
An example is that an employer has power over its employees with respect to their rights
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.

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. That was
singled out as the main obstacle to comprehension and successful resolution of legal
issues. According to Hohfeld, there are eight fundamental legal conceptions. Those
fundamental legal conceptions are sui generis, which means that all the attempts aimed at
creating a formal definition are not only dissatisfying but also useless. 17 The most
satisfying approach is to lay down various jural relations in a scheme of opposites and
correlatives and, then, to proceed with stating examples of their individual scope and
application in concrete cases.18 Hohfeld saw every jural relation as a relation between two
persons.His notions might be presented in a slightly modified version of Glanville Williams

17
Id at 36.
18
Id.
The vertical arrows couple jural correlatives, two legal positions that entail each
other19 whereas the diagonal arrows couple jural opposites, two legal positions that
deny each other. The latter expression is solely Hohfelds while Williams and a large
number of other authors call them jural contradictories.Every pair of correlatives
must always exist together. 20Person A as part of the pair cannot have a right if other
person B has no duty. None of the pairs of opposites can exist together. If person A has a
right, he cannot have a no-right in relation to the same subject matter and the same
person.

Hohfeld based his analytical system on earlier Salmonds system. 21 Salmond


identified three jural relations. According to Salmond, 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. Those rights are divided 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,

(2)Liberties defined as interests of unrestrained activity and;

(3) Powers when the law actively assists me in making my will effective. Salmond found no
generic term which would be correlative to right in a wider sense, and would include all the
burdens imposed by the law. Nevertheless, he, correlative to those three categories of
advantages or benefits, singled out three types of legal burdens: duties, disabilities and liabilities.
Salmond also made a table of correlatives but he did not pay much attention to the opposites.
On the other hand, 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.

19
Matthew H. Kramer, Rights Without Trimmings, in Matthew H. Kramer, N. E. Simmonds, and Hillel Steiner, A
Debate Over Rights, Philosophical Enquiries (Oxford University Press, 2002), at 8.
20
Arthur L. Corbin, Legal Analysis and Terminology,29 The Yale Law Journal 163, 166 (1919).
21
John Salmond, Jurisprudence, (London: Sweet and Maxwell, Limited, 1937). Com. Joseph William
Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982
Wisconsin Law Review 975, 1049 (1982).
Seven decades have passed since Wesley N. Hohfeld defined eight basic Jural relations in his
masterful attempt to clarify legal thinking. Since the appearance of his Fundamental Legal
Conceptions in 1913 his work has attracted both followers and critics; his ideas have appeared in
US Supreme court opinions, and the restatement of property.

The Eight Jural Relations are basic parts of the more complex legal relationships with which the
law must deal. Hohfeld divided the eight into pairs which cannot exist together (opposites), and
those which must exist together (correlatives);

Jural Opposites- Right-No right Privilege-Duty Power-Disability Immunity-Liability

Jural Correlatives- Right-Duty Privilege-No right Power-Liability Immunity-Disability

Some analysts have worked to find a unifying theme within Hohfelds ideas. Some have divided the
eight concepts into primary and secondary relations, and others have stated that the eight concepts
are all of a piece, functions of only one or two more general legal concepts.
Hohfeld defined none of his new terms but provided concrete examples from case law. Professor
Corbin, however, took up the challenge of defining formal definitions for Hohfelds concepts and
presented the following in 1919:

RIGHT- An enforceable claim to performance (action or forbearance) by another, 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.
DUTY- It is a legal relation of a person, B, who is commanded by the society to act or to
forbear for the benefit of another person, A, either immediately or in the future, and who
will be penalized by the society for disobedience.
PRIVILEGE- 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; and
when he is not threatened by with any penalty for disobedience, for the reason that society
has made no command.
NO-RIGHT- The legal relation of a person, A, in whose behalf society commands nothing
of another, B.
POWER- The legal relations of A to B when As own voluntary act will cause new legal
relations either between B and A or between B and the third person.
LIABILITY- The relation of A to B when A may be brought into new legal relations by
the voluntary act of B.
IMMUNITY- The relation A to B when B has no legal power to affect someone or
more of the existing legal relations of A, as to that particular existing relation A has an
immunity with respect to B.
DISABILITY- 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.

One thing which at once impresses itself upon one who is familiar with law and especially with the
work of writers upon jurisprudence, who preceded Hohfeld, is that the terms found in this scheme
are with one exception not new, but have always been more or less frequently used. To be sure,
they have not ordinarily been used with precision of meaning as in the table we are considering;
on the contrary, they have been given one meaning by one person,
another by another, or indeed, different meanings by the same person upon different
occasions.
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.22 In the end, there is a question of the utility of
Hohfelds scheme. The discussion on Hohfelds scheme of jural relations has turned out to be one
of the most complex discussions in the history of legal analysis. The process of the evaluation of its
utility and relevance is still going on.23

Hohfeld himself stressed the great practical importance of a clear appreciation of


the distinctions and discriminations set forth.24 The eight proposed terms-rights and
duties, privileges and no-right, powers and liabilities, immunities and disabilities-
represent the lowest common denominators of the law to which all legal quantities
may be reduced.25 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.26

Finally, it is important to grasp that Hohfelds endeavour is analytical and definitional


rather than empirical or substantive.27 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.28 This is the central feature of his analytical scheme which diminishes all the critiques
involving an empirical denial of Hohfelds theses.

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