The American Journal of Jurisprudence, Vol. 0, No. 0 (2019), pp.

1–11
doi:10.1093/ajj/auz009

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On No-Rights and No Rights
Matthew H. Kramer *

Abstract: As is well known to everyone familiar with the analytical table of legal
relationships propounded by the American jurist Wesley Hohfeld, one of the eight
positions in the table is that of the no-right. In most discussions of Hohfeld’s overall
framework, no-rights have received rather little attention. Doubtless, one reason for
the relative dearth of scrutiny is that Hohfeld devised a hyphenated neologism to
designate no-rights. Each of the other positions in the Hohfeldian table is designated
by a term with a solid grounding in everyday discourse and juristic discourse, whereas
the hyphenated term “no-right”—in contrast with the unhyphenated phrase “no
right”—does not have any comparable grounding either in ordinary discourse or
in juristic discourse. That neologism is almost never employed by anyone outside the
confines of discussions of Hohfeld’s categories, and it is often not employed even
within those confines. Notwithstanding the enormous amount of philosophical and
juristic attention bestowed on Hohfeld’s analytical framework since its elaboration in
the second decade of the twentieth century, the term “no-right” has found little favor
in philosophical or juristic circles. Moreover, on the rather rare occasions when the
term is used rather than merely mentioned, it is almost always misused. The explor-
ation of the correct use of that term in the first half of this paper may seem rather
fussy, but the importance of that exploration for a satisfactory understanding of legal
and moral relationships will become apparent in the second half of the paper. While
endeavoring to vindicate the term “no-right” as a fully apposite element in the
vocabulary of legal philosophy, this paper will also be replying to a recent article
by Heidi Hurd and Michael Moore in this journal.

Keywords: Hohfeldian analysis, Hohfeld, rights, no-rights, liberties, duties, deontic

logic

As is well known to everyone familiar with the analytical table of legal relation-
ships propounded by the American jurist Wesley Hohfeld, each of the four en-
titlements in the top half of the table is correlated with a position in the lower
half.1 Correlativity in the Hohfeldian sense is biconditional entailment; the ex-
istence of any Hohfeldian entitlement with a certain content entails the existence
of the correlative position with the same content, and vice versa. For example,

* Professor of Legal & Political Philosophy, Cambridge University; Fellow of Churchill College,
Cambridge. Email: mhk11@hermes.cam.ak.uk.
1 For a full exposition of the Hohfeldian analysis, see Matthew Kramer, “Rights without
Trimmings,” in Matthew Kramer, N.E. Simmonds, and Hillel Steiner, A Debate over Rights
(Oxford: Oxford University Press, 1998), 7-60.

ß The Author(s) 2019. Published by Oxford University Press on behalf of University of Notre Dame.
All rights reserved. For permissions, please email: journals.permissions@oup.com.
2 Matthew H. Kramer

Joe’s claim-right to be paid $10 by Sally entails Sally’s duty to pay $10 to Joe, and

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vice versa.

HOHFELDIAN TABLE OF LEGAL POSITIONS

ENTITLEMENTS claim (or claim-right) liberty power immunity

CORRELATES duty no-right liability disability

As should also be well known to everyone acquainted with the Hohfeldian

table, the positions diagonally across from each other on the left-hand half of the
table are logical duals,2 whereas the positions diagonally across from each other on
the right-hand half are logical contradictories.
A terse elucidation of the distinction between duals and contradictories is ad-
visable here. Consider, for example, the proposition “Sally bears a duty to pay Joe
$10” and the proposition “Sally is at liberty not to pay Joe $10.” The former
proposition is true if and only if the negation of the latter proposition is true.
Each proposition is the negation of the other, and the content of the deontic
predicate (that is, the content of the duty or liberty) in each proposition is the
negation of the content of the deontic predicate in the other proposition. These
twofold instances of negation, the negation of the proposition and the negation of
the predicated content, are characteristic of logical duals.
By contrast, the diagonal opposites on the right-hand side of Hohfeld’s table—
which will not be discussed hereafter in this paper—are contradictories rather
than duals. Thus, for example, “Peter bears a liability to undergo a certain change
X in his legal relations brought about by Melanie” is the contradictory of “Peter
has an immunity against undergoing a change X in his legal relations brought
about by Melanie.” The former proposition is true if and only if the negation of
the latter proposition is true, but the content of the normative predicate (that is,
the content of the liability or immunity) in each proposition is the same as the
content of the normative predicate in the other proposition.
The present paper will concentrate on the entry in Hohfeld’s table that has
most frequently been neglected in discussions of his overall analytical framework:
the no-right. Doubtless, one reason for the relative dearth of scrutiny accorded to
the no-right is that Hohfeld devised a hyphenated neologism to designate it. Each
of the other positions in the Hohfeldian table is designated by a term with a solid
grounding in everyday discourse and juristic discourse—though of course
Hohfeld greatly precisified and regimented each of those terms for his analysis,
by attaching a univocal or nearly univocal meaning to each of them—whereas the
hyphenated term “no-right,” in contrast with the unhyphenated phrase “no
right,” does not have any comparable grounding either in ordinary discourse or
in juristic discourse. That neologism is almost never employed by anyone outside
the confines of discussions of Hohfeld’s categories, and (as we shall see) it is often

2 As far as I am aware, the terminological distinction between “duals” and “contradictories” has not
previously been marked in the literature on the Hohfeldian analysis. However, anyone acquainted
with Hohfeld’s framework will be familiar with the logical difference—the difference between logical
relations—that corresponds to the terminological distinction.
 On No-Rights and No Rights 3

not employed even within those confines. Notwithstanding the enormous amount

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of philosophical and juristic attention bestowed on Hohfeld’s analytical frame-
work since its elaboration in the second decade of the twentieth century, the term
“no-right” has found little favor in philosophical or juristic circles. Moreover, on
the rather rare occasions when the term is used rather than merely mentioned, it is
almost always misused. My exploration of the correct use of that term in the first
half of this paper may seem rather fussy, but the importance of that exploration
for a satisfactory understanding of legal and moral relationships will become
apparent in the second half of the paper.

I. The Differences between “No-Right” and “No Right”

The persistent misuse of the term “no-right” is directly connected to the differ-
ences between that term and the phrase “no right.” Whereas “right” is a word
within the phrase “no right,” it is only a component of a word (a free morpheme,
but not a word) within the term “no-right.” Consequently, the morphological
differences between the phrase and the term are accompanied by logical differ-
ences; the phrase and the term cannot correctly be used interchangeably.
In Hohfeld’s parlance, the term “no-right” designates a legal or moral position
that is correlated with a legal or moral liberty.3 Any two such correlated positions
make up a liberty/no-right relationship that obtains between some specified par-
ties with a specified content. That is, if a liberty and a no-right are indeed
correlated, the content of each of them is the same as the content of the other
(and the parties between whom each of them obtains are the same as the parties
between whom the other one of them obtains). If a liberty and a no-right are not
possessed of the same content, then they do not form a single relationship, and
they are therefore not correlated with each other.
These terse reflections, on which this paper will of course expand, are sufficient
to reveal that Hohfeld himself and many eminent exponents of the Hohfeldian
analysis have failed to use the term “no-right” correctly. Let us begin here with
Hohfeld.

A. Hohfeld’s Missteps
In his only relevant remark about no-rights, Hohfeld wrote as follows: “[T]he
correlative of [a liberty] is a ‘no-right,’ there being no single term available to
express the latter conception. Thus, the correlative of X’s right that Y shall not
enter on the land is Y’s duty not to enter; but the correlative of X’s [liberty to
enter the land] is manifestly Y’s ‘no-right’ that X shall not enter.”4 Hohfeld here
went astray in more than one respect. In the first place, he wrote misleadingly at

3 Here and henceforth, I take as given that the Hohfeldian framework is applicable to moral
positions as well as to legal positions. However, Hohfeld himself elaborated the framework only
with reference to legal positions.
4 Wesley Hohfeld, Fundamental Legal Conceptions, ed. Walter Wheeler Cook (New Haven: Yale
University Press, 1923), 39.
4 Matthew H. Kramer

best when he asserted that there is “no single term available” to designate the

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correlate of a liberty. On the one hand, he may simply have been indicating—
correctly—that there is no single term for a no-right that is commonly employed
by users of English in the settings of everyday life. On the other hand, in its
context, his statement about the absence of any single term appears to presume
that “no-right” is not itself a single term. Yet, unlike the phrase “no right,” the
hyphenated term “no-right” is indeed a single term. Both its having been coined
as a technical neologism and its hyphenatedness are fully consistent with its status
as a single term.
Hohfeld committed an outright mistake in the second sentence of this quota-
tion, where he employed the word “no-right” as if it were the phrase “no right.”
Had he employed that phrase, the expression “X shall not enter” would correctly
have designated the content of the claim-right that is the dual of the relevant no-
right. Hohfeld would have been asserting correctly that Y does not have any claim-
right with that content. However, having used the term “no-right” rather than the
phrase “no right,” Hohfeld specified the content incorrectly. Just as the content of
a liberty is the negation of the content of the duty that is the dual of the liberty, so
too the content of a no-right is the negation of the content of the claim-right that
is the dual of the no-right. X’s liberty to enter the land is the dual of X’s duty not
to enter the land, and Y’s no-right concerning X’s entering the land is the dual of
Y’s claim-right to X’s not entering the land. Whereas the content of Y’s no-right is
the same as the content of X’s liberty, the content of Y’s no-right is the negation of
the content of the claim-right which Y would possess if he did not bear the no-
right which he bears.
As is evident from the penultimate sentence in the preceding paragraph, the
term “no-right” does not connect very elegantly to a specification of the content
of the position which that term designates. In this respect, “no-right” differs from
“liberty” or “duty” or “claim.” Each of those last three words is readily joinable to
a specification of the content of the position which each word respectively des-
ignates. For example, consider X’s liberty to enter the land, held vis-à-vis Y. Here
the term “liberty” is smoothly linked to a specification of the content of the
position which the term designates, through the use of an infinitive verb
phrase: “to enter the land.” Much the same is true, mutatis mutandis, when we
formulate the duty of Mary to pay John $10. As for the claim-right of John to be
paid $10 by Mary, the term “claim-right” can be connected in several ways to a
specification of the content of the position which the term designates. One such
way is illustrated in the opening clause of the preceding sentence, where I have
used a passive infinitive verb phrase (“to be paid $10 by Mary”). Another such
way is illustrated in the statement that John has a claim-right to Mary’s paying
him $10. In this latter formulation, a nominalized verb phrase is connected to
“claim-right” as the object of the preposition “to.” Yet another possibility is
exemplified in the statement that John has a claim-right that Mary pay him
$10. Here the specification of the content of the claim-right is a subordinate
clause that is joined to “claim-right” through the subordinate conjunction “that.”
All of the foregoing ways of linking the names of Hohfeldian legal or moral
positions to formulations of the contents of those positions are familiar from
 On No-Rights and No Rights 5

quotidian contexts. By contrast, largely because the term “no-right” is itself alien

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to such contexts, there is no really smooth way of connecting it to a specification
of the content of the position which it designates. Hohfeld’s conflation of “no-
right” with “no right” stemmed in part from his failure to recognize this very
point. In the second sentence of the passage from Hohfeld quoted above, the
content of Y’s no-right is formulated as a subordinate clause connected to “no-
right” through the subordinate conjunction “that”; such a construction would be
appropriate for “no right” but is inapposite for “no-right.” For the hyphenated
term, the link to the content of its designated position has to be formulated
slightly more ponderously through words such as “concerning” or “regarding”
or phrases such as “in relation to” or “pertaining to” or “in respect of.” Thus,
instead of writing that the correlate of X’s liberty to enter the land is Y’s no-right
that X shall not enter, Hohfeld should have written that the correlate is Y’s no-
right concerning X’s entering the land (or Y’s no-right in respect of X’s entering
the land, and so forth). When the link to the content is formulated suitably, the
content itself can then be specified straightforwardly and accurately.

B. In Hohfeld’s Wake
Many other philosophers of rights have followed Hohfeld in conflating “no-right”
and “no right.” Glanville Williams, for example, repeatedly made errors akin to
that of Hohfeld. For instance, he contended that each of the following three
sentences is equivalent:
1. My tailor has not a right that I shall pay him.
2. My tailor has no right that I shall pay him.
3. My tailor has a no-right that I shall pay him.5
Although the first two sentences in this triad are indeed equivalent to each
other, Williams erred in thinking that the third of them is equivalent to the other
two. The source of his error and of other similar errors by him is apparent from
the logical squares which he constructed, where he represented “right” and “no-
right” as contradictories rather than as duals.6 What is ironic is that Williams
rightly and emphatically affirmed that “liberty” and “duty” are duals rather than
contradictories (even though he did not use the terminology of “duals” versus
“contradictories”). For example, he correctly affirmed that the proposition “A
father is not under a duty not to chastise his child” is logically equivalent to
the proposition “A father has a liberty to chastise his child.”7 Trenchant and
correct though Williams was on that point, he did not parlay his insight into
any awareness that “right” and “no-right” must also be duals rather than
contradictories.
Peter Jones is yet another estimable philosopher of rights who has elided the
distinction between “no right” and “no-right.” In his generally admirable book on
5 Glanville Williams, “The Concept of Legal Liberty,” Columbia Law Review 56 (1956): 1137.
6 Ibid., 1138. In fairness to Williams, I should note that he parried a number of ill-advised
objections by other philosophers to Hohfeld’s use of the term “no-right.”
7 Ibid., 1136.
6 Matthew H. Kramer

rights, Jones declares that “when A has a liberty-right to do something, B has a

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‘no-right’ (that is, no claim-right) that A shall not do it.”8 Although the formu-
lation of the content of the relevant legal or moral position as a subordinate clause
is apposite for the parenthetical insertion—“no claim-right”—it is inapposite for
the term “no-right” in the main body of the sentence. Predictably, the inapposite
grammatical form is accompanied by an inaccurate substantive specification of the
content. The actual content of B’s no-right is the same as the content of A’s liberty
rather than the negation thereof.
Rowan Cruft, another major contemporary philosopher of rights, has gone
slightly astray in a somewhat different manner in his handling of no-rights. He
avoids any use of the hyphenated term, but he initially uses the phrase “no claims”
as if it were equivalent to that term: “Hohfeld introduces the ‘first-order’
Hohfeldian positions: ‘claims,’ ‘no claims,’ ‘duties’ and [‘liberties’].”9 Cruft intro-
duces the phrase “no claims” as if it were a name of a Hohfeldian legal and moral
position like the other names which he lists. Thus, although he subsequently
employs the phrase “no claims” correctly, he has here obscured the distinction
between that phrase and the term “no-rights” or “no-claims.”
Some other philosophers have avoided the conflation of “no-rights” and “no
rights” by eschewing the hyphenated term altogether and by not using the phrase as
if it were equivalent to that term. Just such an approach has been adopted by
William Edmundson.10 Alon Harel and Leif Wenar each go a step further by
never mentioning the correlates of liberties at all.11 These philosophers have steered
clear of mistakes in the analysis of no-rights, but they have not offered any guidance
on how the term “no-rights” is properly used. Nor has any such guidance been
supplied by Hugh Upton, who straightaway abandons the term “no-right” in favor
of “the absence of a claim”: “The correlate of [A’s liberty to serve in the army] is
another’s ‘no-right,’ the absence of a claim that A not serve.”12
Just about the only three philosophers to have marked the distinction between
“no-rights” and “no rights” heretofore are George Rainbolt, John Finnis, and I.
Rainbolt has written that “X has a liberty with respect to Y that X do A if and only
if Y has a no-claim with respect to X that X do A.”13 In a like vein, he has
declared: “If Joshua [vis-à-vis Evelyn is at liberty to drive her car], then Evelyn
would have a no-claim on Joshua that Joshua drive the car. Liberties and no-
claims are correlatives. X has a liberty against Y that X do A if and only if Y has a
no-claim on X that X do A.”14 Although Rainbolt would have been well advised
to employ a gerundial phrase in lieu of a subordinate clause as the grammatical

8
Peter Jones, Rights (London: Macmillan, 1994), 13.
9
Rowan Cruft, “Rights: Beyond Interest Theory and Will Theory,” Law and Philosophy 23 (2004):
349.
10 William Edmundson, An Introduction to Rights, 2d ed. (Cambridge: Cambridge University Press,
2012), 73.
11 Alon Harel, “Theories of Rights,” in The Blackwell Guide to the Philosophy of Law and Legal
Theory, ed. Martin Golding and William Edmundson (Oxford: Blackwell Publishing, 2005), 192;
Leif Wenar, “The Nature of Rights,” Philosophy and Public Affairs 33 (2005): 225-8.
12 Hugh Upton, “Right-Based Morality and Hohfeld’s Relations,” Journal of Ethics 4 (2000): 240.
13 George Rainbolt, “Rights Theory,” Philosophy Compass 1 (2006): 12.
14 George Rainbolt, The Concept of Rights (Dordrecht: Springer), 2, italics omitted.
 On No-Rights and No Rights 7

form for each specification of the content of a no-right—for example, the phrase

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“in relation to Joshua’s driving of the car” in lieu of the clause “that Joshua drive
the car”—he sure-footedly grasps that the content of a no-right is the same as the
content of the liberty that is its correlate. That key point is likewise recognized in
my first main essay on rights, published more than two decades ago. There I have
affirmed that “[t]he person against whom [a] liberty is held has a no-right con-
cerning the activity or state of affairs to which the liberty pertains.”15
Deserving of special mention here is Finnis. On the one hand, in the original
version of his 1972 essay on the Hohfeldian analysis—an essay which, like
Williams’s article, astutely dispelled many of the misconceptions about
Hohfeld’s work that had gained currency in the mid-twentieth century—he
declared that the correlate of X’s liberty to enter a plot of land is “Y’s no-right
that X shall not exercise that [liberty].”16 Finnis here ran together “no-right” with
“no right” in much the same manner as Hohfeld, and he added a further oddity.
Even if he had used the phrase “no right” rather than the term “no-right,” he
would have been mistaken in referring to a liberty which the holder of the liberty
is duty-bound not to exercise. If X vis-à-vis Y is not at liberty to exercise a liberty
to f, then X vis-à-vis Y does not possess a liberty to f. On the other hand, when
Finnis republished his essay nearly four decades later, he removed the features to
which I have objected here. In the modified and retitled version of the piece, he
deftly resorts to parentheses to mark the distinction between “no right” and “no-
right.” Adverting to a situation in which B does not owe to A any duty to do X, he
affirms that “A now has no right (‘a no-right’) that B do (or not do) X.”17 Here
Finnis has correctly used the parentheses to differentiate between the content of
the right which A does not hold and the content of the no-right which A bears.
Whereas the phrase “no right” in the quoted wording is connected to “that B do
X,” the term “no-right” is connected to “that B not do X.”
Now, so far, the ruminations in this paper on the differences between “no-
rights” and “no rights” may seem aridly technical and pedantic. However, the far-
reaching importance of marking those differences will become apparent as we
turn to a recent article by Heidi Hurd and Michael Moore in which they repeat-
edly and insistently efface the distinction between “no-rights” and “no rights.”
Unlike the other philosophers who have obfuscated that distinction, Hurd and
Moore seek at some length to justify their expunction of it. By probing the
shortcomings of their justification, we can grasp the full significance of the re-
flections in the first half of this paper.

II. Hurd, Moore, and the Reality of No-Rights

The recent article by Hurd and Moore is lengthy, and it contains quite a few lines
of thought which I have impugned elsewhere (as well as quite a few incisive lines
15 Kramer, “Rights without Trimmings,” 10, emboldening omitted.
16 John Finnis, “Some Professorial Fallacies about Rights,” Adelaide Law Review 4 (1972): 379.
17 John Finnis, “Rights: Their Logic Restated,” in Collected Essays: Volume IV, Philosophy of Law
(Oxford: Oxford University Press, 2011), 376.
8 Matthew H. Kramer

of thought).18 Here, however, we shall look only at their efforts to justify their

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conflation of “no-rights” and “no rights.” Like Williams, they furnish logical
squares that clearly present “claim-right” and “no-right” as contradictories
while presenting “duty” and “liberty” as duals. Unlike him, however, they go to
some lengths to try to vindicate this differential treatment of “no-right.”
Their first line of thought is as follows: “Hohfeld uses the phrase ‘no-right,’ as if
the term labelled some thing. But it is plain from his usage that what he means to
designate is the absence of some thing, namely, the absence of a claim right.”19
Both sentences in this quotation are problematic. Contrary to what the first
sentence presupposes, “no-right” is a term rather than a phrase, and it does
label some thing. That is, it labels a position within a deontic relationship. Any
deontic position designated by “no-right” is constituted by the absence of a claim-
right as a position of rightlessness that is the correlate of a liberty—and so the
second sentence quoted here relies on a false dichotomy.
Hurd and Moore try to bolster their stance in a lengthy footnote. Let us
examine only two sentences from that note: “Kramer distinguishes a ‘no right’
(which does indeed designate an absence of a claim-right by one person that a
[liberty-holder] not do the act he is [at liberty] to do, as we say in the text) from a
‘no-right’ which supposedly designates an actual [position], one that Kramer calls
a [‘position of rightlessness’]. . . . So construed, Kramer’s ‘no-right’ would still
designate an absence of a status in the ‘no-right’ holder, not a status itself.”20
Hurd and Moore stumble by using the indefinite article “a” before “no right,” for
my chief point in distinguishing between the term “no-right” and the phrase “no
right” is to indicate that the term designates a position in a deontic relationship
whereas the phrase does not. That point is missed again by Hurd and Moore
when they assert that “no-right” designates “an absence of a status. . ., not a status
itself.” Although the status or position designated by “no-right” is constituted by
the absence of a claim-right, it is indeed a position within a deontic relationship.
The insistence of Hurd and Moore to the contrary appears to derive from a
concern which they express slightly later, when they declare that a no-right “is
not a special, ghostly kind of claim right that someone can possess; rather, it is the
absence of there being any such right.”21 A no-right is of course not a special kind
of claim-right. Rather, it is a position in a deontic relationship—a position of
rightlessness—constituted by the absence of such a right. Worries about ghostli-
ness or mysteriousness would be warranted if I were presenting no-rights as
18 My most profound disagreements with Hurd and Moore are focused on the matter of conflicts
between duties (where a conflict between duties is a situation in which somebody simultaneously
bears duties that are not jointly fulfillable). See my Torture and Moral Integrity (Oxford: Oxford
University Press, 2014), 1-28; “Moral Conflicts, the ‘Ought’ Implies ‘Can’ Principle, and Moral
Demandingness,” in The Limits of Moral Obligation, ed. Marcel van Ackeren and Michael Kühler
(London: Routledge, 2016), 163-84.
19 Heidi Hurd and Michael Moore, “The Hohfeldian Analysis of Rights,” American Journal of
Jurisprudence 63 (2018): 307, emphasis in original.
20 Ibid., 307 n29. The first two bracketed insertions are alterations of terminology for the sake of
clarity. The other two bracketed insertions are corrections of quotational errors committed by Hurd
and Moore, who are responding here to some of the numerous comments which I made on a draft of
their article.
21 Ibid., 313.
 On No-Rights and No Rights 9

somehow akin to claim-rights. However, given that I am instead presenting claim-

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rights and no-rights as logical duals with no formal features or substantive features
in common,22 worries about the ghostliness or mysteriousness of no-rights are
themselves mysterious.
Having denied the reality of no-rights, Hurd and Moore naturally proceed to
deny the reality of the liberties that are correlates of no-rights. On the one hand,
they assert that “[i]t is no part of our thesis to deny that [Hohfeldian] liberties can
exist.” On the other hand, especially given that their article is focused predom-
inantly on moral positions, their treatment of liberties amounts to a retraction of
this initial disavowal. Remarkably, they declare that a Hohfeldian liberty “is naked
in the sense that renders it devoid of any moral significance.” They then deny the
very reality of Hohfeldian liberties:
[A Hohfeldian liberty is] only the absence of obligation on the part of the option
holder, and the absence of rights on the part of everyone else. Unlike double negation
in logic, two absences do not make for a presence. Morally speaking, naked liberties are
no things at all—no more than an absent elephant is a ghostly kind of elephant, or an
absence of two elephants is a ghostly herd of ghostly elephants.23
Hurd’s and Moore’s worries about the ghostliness of liberties are no less peculiar
than their worries about the ghostliness of no-rights. Nobody has ever suggested
that a Hohfeldian liberty is a kind of duty—a ghostly kind. Rather, a Hohfeldian
liberty is a deontic position constituted by the absence of the duty that is the
logical dual of the liberty.
Having proclaimed that Hohfeldian liberties are “devoid of any moral signifi-
cance,” Hurd and Moore concede in a footnote that such a contention is false:
Granted, [Hohfeldian] liberties can have other kinds of moral significance. For example,
one owes no duties of corrective or of retributive justice with respect to some harm
caused to another by one’s doing of some act if one did no wrong in doing such [an]
act, i.e., if one violated no obligation not to do the act causing that harm. That one was
nakedly at liberty to act as one did can have this kind of moral significance.24
Quite striking is the fact that Hurd and Moore treat this immense moral signifi-
cance of any Hohfeldian liberty as a trifling matter or an afterthought that is to be
consigned to a footnote. At any rate, their footnote reveals why their dismissal of
the reality of Hohfeldian liberties—their dismissal of the reality of such liberties,
“[m]orally speaking”—should itself be discountenanced.
How do my objections to some portions of the lengthy article by Hurd and
Moore underscore the importance of the first half of this paper? Their attempts to
establish the unreality of Hohfeldian liberties are directly connected to their in-
sistence on the unreality of Hohfeldian no-rights. Given that the relationship
between a Hohfeldian liberty and its correlative no-right is like the relationship
22 Between a claim-right and the no-right that is its dual, there is only one thing in common (apart
from the fact that each of them is a deontic position): the person who holds the claim-right is the
person who bears the no-right, and the person who bears the duty correlative to the claim-right is the
person who holds the liberty correlative to the no-right.
23 Ibid., 339.
24 Ibid., 339 n110.
10 Matthew H. Kramer

between the upward trajectory and downward trajectory of a slope,25 theorists

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who reject the reality of no-rights are bound to reject the reality of liberties. In
each case, the rejection stems from a failure to differentiate between the reality of
a no-right or a liberty as a deontic position and the unreality of a no-right or a
liberty as (respectively) a ghostly claim-right or a ghostly duty. A no-right is not a
claim-right of any kind, and a liberty is not a duty of any kind, but each of them is
a perfectly genuine deontic position. A no-right is a position of rightlessness, and
a liberty is a position of dutilessness.
Hence, my seemingly pedantic distinction in the first half of this paper between
“no-rights” and “no rights” (a distinction between a term that refers to deontic
positions of a certain type and a phrase that does not so refer) is crucial for a
vindication of the reality of liberties as well as for a vindication of the reality of
no-rights. However, the import of that distinction goes even further—for the
Hurd/Moore approach, if correct, would undermine the reality of every
Hohfeldian position. Consider a counterfactual world in which Wesley
Schmofeld has propounded an analysis of deontic positions where the first of
the four axes in his table is the claim-right/no-liberty relation. Schmofeld knows
that a no-liberty could be labeled as a “duty” or an “obligation,” but he prefers the
symmetry with “no-right.” His analytical table is otherwise the same as Hohfeld’s
in the actual world. Suppose that the counterparts of Hurd and Moore in this
counterfactual world contemplate the first axis in the Schmofeldian analysis.
While so doing, they persistently conflate “no liberty” with “no-liberty.”
Believing correctly that the phrase “no liberty” does not designate any deontic
position, they conclude that the same is true of “no-liberty.” Mutatis mutandis,
they say the same things about no-liberties that have been said in the actual world
by Hurd and Moore about no-rights and liberties. They assert that, although “no-
liberty” might seem to designate some thing, it in fact designates only the absence
of some thing: namely, the absence of a liberty. They assure their readers that a no-
liberty is not a special ghostly kind of liberty, and they proclaim that no-liberties
are devoid of moral significance. The immense moral significance of no-liberties is
fleetingly mentioned by them as an afterthought in a footnote, but it surfaces only
there and not in their main analyses at all. Having emphatically denied the reality
of no-liberties, they proceed to deny the reality of the claim-rights that are the
correlates of no-liberties. They assert that a claim-right is simply the absence of a
no-right on the part of the holder of the claim-right and the absence of a liberty
on the part of the person vis-à-vis whom the claim-right is held. They inform
their readers that two absences do not make up a presence, and they contend that
a claim-right is no more a ghostly no-right than an absent elephant is a ghostly
elephant. They conclude that claim-rights are like no-liberties in not being genu-
ine deontic positions at all. After all, a claim-right against interference with one’s
f-ing is consistent with one’s not being at liberty to f.
We could contemplate still further counterfactual worlds in which the coun-
terparts of Hurd and Moore deny the reality of each of the four normative pos-
itions on the right-hand side of the Hohfeldian table. And so Hurd and Moore

25 Kramer “Rights without Trimmings,” 24.

 On No-Rights and No Rights 11

and their counterparts end up with the conclusion that none of the eight positions

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in the Hohfeldian framework is genuinely a normative position. Hurd and Moore
have committed themselves to such an unpalatable conclusion because they have
sought to derive metaphysical inferences from premises about purely logical re-
lations among Hohfeldian positions.26 Although the logical relations in the two
halves of the Hohfeldian framework are not entirely symmetrical—in that the
diagonals are duals on the left-hand side and contradictories on the right-hand
side—there is sufficient symmetry between them to render the reasoning of Hurd
and Moore applicable to each of the four axes in the Hohfeldian table alike. If that
reasoning were correct in application to any of the four axes, it would be correct in
application to every one of them.
What pretty clearly impels Hurd and Moore to concentrate on the liberty/no-
right axis—while not applying their reasoning to any other axis in the Hohfeldian
table—is their adherence to certain metaphysical assumptions which are never
expounded and defended in their long article.27 Although I believe that those
metaphysical assumptions are unfounded in an exploration of normative phenom-
ena, I do not have to argue here for my view on that point. Rather, the message of
this paper is that Hurd and Moore cannot vindicate their metaphysical precon-
ceptions about deontic positions by appealing to logical relations among those
positions. Their attempt to do so has committed them to the proposition that
none of the eight Hohfeldian positions is real. That proposition can be avoided by
anyone who properly attends to the distinction between “no-rights” and “no
rights.” Somebody who marks that distinction will recognize that there is nothing
ghostly about no-rights, which are deontic positions just as solidly as are claim-
rights and duties and liberties.28

26 For some analyses that prefigure the approach of Hurd and Moore in this respect, see Andrew
Halpin, Rights and Law: Analysis and Theory (Oxford: Hart Publishing, 1997), 34, 41; Isaac Husik,
“Hohfeld’s Jurisprudence,” University of Pennsylvania Law Review 72 (1924): 267-8.
27 I will not conjecturally endeavor here to identify the assumptions, but I presume that they are
redolent of the naturalistic outlook to which Hurd and Moore adhere (that is, an outlook in which
the only entities recognized as real are those which are causally efficacious).
28 I am very grateful to Jeffrey Pojanowski, John Finnis, Visa Kurki, and two anonymous readers for
their salutary comments on earlier drafts of this paper.