LEGAL RIGHTS AND DUTIES

(Project towards partial fulfillment of the assessment in the subject of Jurisprudence)

Submitted To: Submitted By:

Dr. MononitaKundu Das Aditya Singh (765)

Associate Professor NitishKaushik (776)

National Law University 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 LEGAL WRONGS................................................................................................................6
1.2 DUTIES...............................................................................................................................7
1.3 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
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.

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 Hohfeld’s analysis of legal rights?
4. What are the fundamental legal conceptions resulting from Hohfeld Scheme of Jural
relations?
5. What is the inter-relationship between various legal conceptions associated with Legal
Rights and Duties?

4
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.

5
 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

1
Subbarao G.C., Jurisprudence (3rd ed.) p. 161.

6
of legal justice and a violation of the law. In simpler words, a wrong is a violation of legal right
(injuria).

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.

1.2 DUTIES

A Duty is an obligatory act i.e., it is an act the opposite of which would be wrong. Thus duties
and wrong are generally co-related. The commission of a wrong is the breach of duty and the
performance of a duty is avoidance of wrong.2

Duties are of two kinds, namely (1) Legal and (2) Moral.

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. Salmond illustrates this by an example. In England, there is a legal duty not to sell,
have for sale adulterated milk whether knowingly or otherwise, and without any question of
negligence.3 Since this duty is irrespective of knowledge and negligence, it is exclusively legal;
and not a moral duty. On the other hand, there is no legal duty in England to refrain from
offensive curiosity about one’s neighbor, even if the satisfaction of it does them harm. Here it is
clearly a breach of moral duty and not of legal duty.4Not to steal is both, one’s moral and legal
duty.

1.3 LEGAL 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

2
Fitzgerald P. J., Salmond on Jurisprudence, (12th ed.) p. 217.
3
The doctrine of constructive mens-rea applies in such cases.
4
Fitzgerald P. J., Salmond on Jurisprudence, (12th ed.) p. 217.

7
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 man’s 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, parent’s 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 Austin’s 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.5 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.

5
Paton, A Text Book of Jurisprudence, p. 222.

8
 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
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.6

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

6
Dias & Hughes: Jurisprudence, p. 250.

9
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 Ihring’s 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. 7 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 Salmond’s 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 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, it is rather his object. It is the power
conferred on him by law to recover the money which is his legal right.

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

7
In India, the Prevention of Cruelty to Animals Act, 1960

10
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 linguistically 8appear 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 analytical9 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

8
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
9
N.E. Simmonds in Central Issues in Jurisprudence: Justice, Law and Rights (London, 1986), p.129

11
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.10 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
rights,11in 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.

10
M. Kramer, 'Rights without Trimmings' in A Debate over Rights, Philosophical Enquiries, (Oxford, 1998), pp.22-
23.
11
S. Coyle, 'Are There Necessary Truths About Rights?', in The Canadian Journal of Law and Jurisprudence (2002),
p.4

12
 CHAPTER 3

HOHFELD’S ANALYSIS OF RIGHTS

Rights claimed in modern society have a contradictory quality about them. We can easily place
strongly affirmed rights in direct conflict. For example, people claim the 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 it’s 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
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’.

13
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 missing 12 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.13

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.
The content of right consists in non interference with the purchaser’s 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.14

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. Hohfeld’s 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. Hohfeld’s
description of relations between various forms of legal entitlements reflects truths on features of
12
Holland, Elements of Jurisprudence, p. 88.
13
Fitzgerald P.J., Salmond on Jurisprudence, (12th ed.) p. 223.
14
Ibid

14
legal rights. Countless references thereof prove Hohfeld’s great influence on analytical
jurisprudence.15

Hohfeld’s contribution is mostly contained in two articles published in the Yale

Law Journal in 1913 and 1917 respectively. 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. 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.17 Hohfeld’s intention was to emphasize the educational effects of a clear analytical
opinion on legal issues.18 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”.19

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
15
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).
16
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).

17
N. E. H. Hull, Vital Schools of Jurisprudence: Roscoe Pound, Wesley Newcomb Hohfeld, and the Promotion of an
Academic Jurisprudential Agenda, 1910-1919, 45 Journal of Legal Education 235, 257 (1995).
18
Id. at 257.

19
Id. at 27.

15
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.

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.

16
 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.

17
 CHAPTER 4

HOHFELD SCHEME OF JURAL RELATIONS

18
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. 20 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.21 Hohfeld saw every jural relation as a relation between two
persons.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, ’’two legal positions that entail each
other’’23 whereas the diagonal arrows couple jural opposites, ’’two legal positions that
deny each other’’. The latter expression is solely Hohfeld’s while Williams and a large
number of other authors call them ’’jural contradictories’’.Every pair of correlatives
must always exist together. 24Person 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.
20
Id at 36.

21
Id.
22
Williams, Glanville, The Concept of Legal Liberty, 56 Columbia Law Review 1129, 1135 (1956). Com. Halpin, supra
note 1, at 30.
23
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.
24
Arthur L. Corbin, Legal Analysis and Terminology,29 The Yale Law Journal 163, 166 (1919).

19
Hohfeld based his analytical system on earlier Salmond’s system. 25 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.

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

25
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).

20
Jural Correlatives- Right-Duty Privilege-No right Power-Liability Immunity-Disability

Some analysts have worked to find a unifying theme within Hohfeld’s 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 Hohfeld’s 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 A’s 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.”

21
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.

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. A brief consideration
serves to show, however, 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, these legal concepts become the “lowest common denominators” in terms of
which all legal problems can be stated, and stated so as to bring out with greater distinctness than
would otherwise be possible the real questions involved. Moreover, as previously suggested,
the writers who did recognize many of these concepts failed to make any real use of them in other
portions of their work.

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. Thus, to take a concrete
example, 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;
but that legal thinking can never be truly accurate unless we constantly discriminate carefully
between these different kinds of rights, few of us have sufficiently realized. We constantly
speak of the right to make a will; the right of a legislative body to enact a given statute; of the
right not to have one’s property taken without due process of law, etc. 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, often with resulting confusion of thought.

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

22
adopt and consistently use a terminology adequate to express the distinctions involved. The
great merit of the four terms selected by Hohfeld for this purpose - right, privilege, power and
immunity - 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.

Right in the narrow sense - as the correlative of duty - is too well known to require
extended discussion at this point. It signifies one’s affirmative claim against another, as
distinguished from “privilege”, one’s freedom from the right or claim of another. Privilege is
a term of good repute in the law of defamation and in that relating to the duty of witnesses to
testify. In defamation we say that under certain circumstances defamatory matter is
“privileged”, that is, that the person publishing the same has a privilege to do so. By this
statement we are not asserting that the person having the privilege has an affirmative claim
against another, i.e., that that other is under a duty to refrain from publishing the defamatory
matter, as we are when we use “right” in the strict sense, but just the opposite. 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. So in
reference to the duty of a witness to testify: upon some occasions we say the witness is
privileged, i.e., that under the circumstances there is an absence of duty to testify, as in the
case of the privilege against self-incrimination. “Privilege” therefore denotes absence of duty, 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, and the coining of a new term was
necessary. The term devised by Hohfeld was “no-right”, obviously fashioned upon an analogy
to our common words nobody and nothing. The exact term to be used is, of course, of far less
importance than the recognition of the concept for which a name is sought. The terms
“privilege” and “no-right”, therefore, 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”.
All lawyers are familiar with the word “power” as used in reference to “powers of
appointment.” A person holding such a “power” has the legal ability by doing certain acts to alter
legal relations, viz., to transfer the ownership of property from one person to another. Now the
lawyer’s world is full of such legal “power”, 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

23
exists there is at least one other human being whose legal relations will be altered if the power is
exercised. This situation Hohfeld described by saying that the one whose legal relations will
be altered if the power is exercised is under a “liability”. Care must be taken to guard against
misapprehension. “Liability” as commonly used is a vague term and usually suggests something
disadvantageous or burdensome. Not so in Hohfeld’s system, for a “liability” may be a
desirable thing. For example, one who owns a chattel may “abandon” it. 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. Before the chattel is abandoned, 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. So also any person can by offering to enter into
a contract with another person confer upon the latter -without his consent, be it noted - a power by
“accepting” the offer to bring into existence new legal relations. 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.

Another use of the term “right”, possibly less usual but by no means unknown, 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”. For example, often when we speak of the “right” of a
person not to be deprived of his liberty or property without due process of law, 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. In
such cases the real concept is one of exemption from legal power, i.e., “immunity”. At times,
indeed, the word “immunity” is used in exactly this sense in constitutional law. In Hohfeld’s
system it is the generic term to describe any legal situation in which a given legal relation
vested in one person cannot be changed by the acts of another person. Correlatively, the one
who lacks the power to alter the first person’s legal relations is said to be under a “disability”,
that is, he lacks the legal power to accomplish the change in question. This concept of legal
“immunity” is not unimportant, as Salmond in his Jurisprudence seems to indicate by placing
it in a brief footnote. For example, 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, but also the immunities of the cestui from having his equitable

24
interest divested without his consent in order to satisfy the claims of creditors. Ordinary
exemption laws, homestead laws, etc., also furnish striking illustrations of immunities.

A power, therefore, “bears the same general contrast to an immunity that a right does to a privilege.
A right is one’s affirmative claim against another, and a privilege is one’s freedom from the right or
claim of another. Similarly, a power is one’s affirmative ‘control’ over a given legal relation as
against another; whereas immunity is one’s freedom from the legal power or ‘control’ of another as
regards some legal relation.”

Rights, privileges, powers, immunities - these four seem fairly to constitute a

comprehensive general classification of legal “rights” in the generic sense. The four
correlative terms - duty, no-right, liability and disability - likewise sufficiently classify the legal
burdens which correspond to the legal benefits. It is interesting in passing to note that of the two
writers who preceded Hohfeld, neither Terry nor Salmond had completed the scheme.
In Terry’s Principles of Anglo-American Law, rights strictosensu appears as “correspondent
rights”, privileges as “permissive rights”, privileges as “permissive rights”, powers as “faculative
rights”; but immunities not at all. Moreover the correlatives are not worked out. In Salmond’s
Jurisprudence privileges are called “liberties” - mere question of phraseology, -immunities are
treated as relatively unimportant, and liability is treated as the correlative of both liberty
(privilege) and power. This assignment of a single correlative for two independent
conceptions must result sooner or later in confusion of thought, for if the distinction
between privilege and power be valid - as it clearly is - then the distinction between the
correlatives, no-right and liability, must be equally valid.

25
 CHAPTER 5

RELATION BETWEEN LEGAL CONCEPTIONS

5.1RIGHTS AND DUTIES

Rights and Duties are the very important elements of law. The administration of justice, in most
part, consists of the enforcement of rights and the fulfillment of duties. Rights and Duties are
correlated to each other in such a way that one cannot be conceived of without the other. In other
words, 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. A right is always against someone upon whom the
correlative duty is imposed. In the same a duty is always towards someone in whom the
correlative right vests. There are some jurists who do not agree to this view. They said that there
can be duties without a corresponding right. They call duties as ‘absolute duties’.

Hohfeld did not spend much time on the relation between rights and duties. 26According to
him, the term “rights” is incorrectly used for denoting something that, in a certain case, might be a
privilege, a power, or immunity, and not a right in the strictest sense.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”. 28As a correlative, legal right always have a legal duty.29
This pair of terms expresses the same jural relation, although seen from different points of view.30
Hohfeld gave an example wherein X has a right against Y that he shall stay off the X’s land.
The invariable correlative thereof is comprised in the fact that Y is under a duty towards X to
stay off X’s land. In Hohfeld’s opinion, the word ’’claim’’ is the most suitable synonym for the
word “right” in terms of its precise and most appropriate meaning. 31A genuine right or claim is

26
He dedicated somewhat less than three pages to that relation. See Hohfeld, FLC, supra note 16, 36-38
27
Id at 36.
28
Id at 38.

29
Corresponds to Corbin's second question which was proposed for determining jural relations: “What must A (or B) do,
under threat of societal penalty assessed for the benefit of the other?” Corbin, supra note 25, at 165
30
Singer, supra note 26, at 988.
31
Hohfeld, FLC, supra note 16, at 38

26
enforceable, by means of state coercion, if necessary.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. A person that is
supposed to abstain from interference or to provide assistance or remuneration is under a
duty to act in that manner. A right or claim is a legal position arising from imposition of a
duty on someone else.33

5.2 PRIVILEGES AND NO-RIGHTS

Hohfeld’s main goal was to clarify the basic difference between rights (or claims)
and privileges.34 The non-distinction between these terms leads to “confusion or blurring of
ideas”.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.36
Consequently, Hohfeld criticized classical analytical writers such as Thomas Holland and John
Chipman Gray who incorrectly deduced duties from privileges. A privilege as a jural relation
means a bare negation of duties.
Most of the subsequent jurists prefer the term liberty over the term privilege. 37 In Hohfeld’s
analysis these two terms have the same structural position, although Hohfeldhimself favoured the
term privilege.
Privileges are permissions to act in a certain way without being responsible for the damage done to
other people who, simultaneously, are not in position to call in the authorities to prevent
such action. As Hohfeld pointed out: “To the extent that the defendants have privileges the

32
Kramer, supra note 24, at 9.
33
Id
34
Hohfeld, FLC, supra note 16, at 39. See also Singer, supra note 26, at 987.
35
Hohfeld, FLC, supra note 16, at 40
36
Singer, supra note 26, at 1014
37
According to Thomson, the concept that privileges are rights is not Hohfeld's but is featured by a long history and can
be found in Hobbes' Leviathan, Chapter 13, which describes the state of nature as ''the war of all against all''. In the
state of nature, people have no claims. What they have are privileges and their
privileges are their natural rights, and thus rights.

27
plaintiffs have no rights.” Rights (claims) and privilege cannot be in conflict.
Hohfeld commented John Chipman Gray’s example who, 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, and, if I can pay for it, the
law will protect that interest, and it is therefore a right of mine, to eat shrimp salad which I have
paid for, although I know that shrimp salad always gives me the colic38.

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. Privileges may be accompanied with rights that impose duties on other people not to
interfere. However, privileges can sometimes exist without the existence of a right.39

A, B, C and D, being the owners of the salad, might say to X: “Eat the salad
if you can; you have our license to do so, but we don't agree not to interfere
with you”. In such a case the privileges exist, so that if X succeeds in eating
the salad, he has violated no rights of any of the parties. Butif A had succeeded in holding so
fast to the dish that X couldn't eat the content, no right of X would have been violated.
As privileges do not imply rights, rights do not imply privileges. For instance, a
remainder person has no privilege “to enter the land but retains a right to keep trespassers
off”.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, conflicts with the privilege of person X to take it from him.
As said by Singer, Hohfeld showed how privileges can be legitimately in conflict. Such
interferences represent a special case of damage for which victims have no legal recourse. X and
Y can both have the legal liberty to eat the salad from the table. The dominancy will not result

38
J. Gray, The Nature and Sources of the Law sec. 48 (1909) according to Hohfeld, FLC, supra note 16, at 41
39
Hohfeld, FLC, supra note 16, at 41
40
Id.

28
from common instruments of law but from power struggle which the state will not participate in.

5.3 POWERS AND LIABILITIES

Whereas the first two pairs of legal positions (“right”/“duty” and “liberty”/“no-
right”) are first order relations, the following two pairs are second order relations
(“power”/”liability” and “immunity”/”disability”).41 Some first order relations are applied
directly to human conduct and social intercourses, without mediation of any second order
relation. On the other hand, all the second order relations are applied directly to human
entitlements and only indirectly to human conduct and social intercourses.42

Pursuant to 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. 43He defined powers by reference
to the second group of cases, a person with the dominant volitional control has a legal power to
effect a particular change of jural relations. 44Similar to other jural relations, this relation is held
between two persons with respect to particular actions or states of affairs. Hohfeld listed
various examples of legal powers, property-related powers (property abandonment and
power to transfer property), power to create contractual obligation, the creation of agency
relation etc. Liability is susceptibility to someone’s exercising of a power. Deference to a
change within someone’s entitlement is not necessarily unpleasant. A promisee may have a
benefit from an entitlement vested by a promisor, as well as an inheritor.
When it comes to liability, Hohfeld mentioned the position of the people engaged
in a “public callings” such as innkeepers. Unlike the usual perception that innkeepers are
under a duty towards all other parties, Hohfeld emphasized that an innkeeper is under the
liability and travellers are in possession of a correlative power. Therefore, travellers have
a legal power by making an adequate tender to impose a liability on an innkeeper to
41
Kramer, supra note 24, at 20.
42
Id.
43
Hohfeld, FLC, supra note 16, at 50
44
Id. at 51. 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, supra note 25, at
165.

29
receive them as guests. There would be a great fuss if jurist confused Hohfeldian
powers with rights. Simmonds, provides an example wherein a power may be combined
with a duty not to exercise it, which happens when a non-owner has a power to pass title
in property, but will commit an offence while exercising the power. If we describe the
power as a “right”, than we will have to say that the non-owner has a right to sell the
property.

5.4 IMMUNITIES AND DISABILITIES

Immunity is state of being safe from modifications of one’s entitlements by another.45

Disability is a lack of power to change legal entitlements.Powers bear the same general contrast
towards immunities as rights towards privileges. A right is an affirmative claim against
another whereas a privilege is someone’s freedom from the right-claim of another. Similarly, 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.
For example, If A has an immunity against B, B is under a disability with respect to
exercising powers referring to entitlements covered by the immunity. Immunity rights
can be frequently found in constitutional texts. Consequently, legislature, if the people
are granted the freedom of speech by the constitution, cannot exercise a power in that
respect. The people have immunity rights to the freedom of speech while legislature is
under a disability.

45
Singer, supra note 26, at 986.

30
 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. 46 In the end, 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. The process of the evaluation of its
utility and relevance is still going on.47

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

the distinctions and discriminations set forth”. 48 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.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”.50

Finally, it is important to grasp that Hohfeld’s endeavour is analytical and definitional

rather than empirical or substantive.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.52 This is the central feature of his analytical scheme which diminishes all the critiques

46
Id at 979.
47
Singer gives on almost two pages a bibliography related to Hohfeld. Since then (the article was published
in 1982) there have been a number of articles (reviews) and books thereabout. See Singer, supra note 16, at
989-91 n. 22
48
Hohfeld, FLC, supra note 16, at 63
49
Id at 64.
50
Id.
51
Kramer, supra note 24, at 22.
52
Id.

31
involving an empirical denial of Hohfeld’s theses.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, liberties and powers etc. in practice.

Hohfeld stipulates that the atomic rights elements in his analytical framework are, by definition,
always correlative. 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; rather, he presented the notion of correlativity as a definitional foundation of his
analysis. For Hohfeld, 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. Given the
axiomatic nature of Hohfeld's stipulation of correlativity, which I will refer to as the
'Correlativity Axiom', one should not attempt to try and refute it by empirical counter-examples
because, as I have shown above, it is not susceptible to such attacks.

Be that as it may, there have been a number of distinguished jurists who have tried to refute
Hohfeld's Correlativity Axiom. 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. Thus, 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 ... is to
treat rights as being simply the "reflex" of logically prior duties'.He further notes that a law
conferring a right is 'best understood in terms of a standard intention to confer some form of
benefit'. When such benefit is conferred, 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', such as duties, disabilities etc placed on others. Therefore, MacCormick
sees legal rights as 'grounds' of duties, or reasons for imposing duties rather than simply being a
correlative of the duty. On the face of it, this mounts a direct attack on the Hohfeldian
Correlativity Axiom because, it will be recalled, and that for Hohfeld each of the pairs of legal
positions must be mutually entailed by definition.

53
Id at 23.

32