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Hohfeldian analysis of rights in Civil Rights Act-2012.

Term paper in the subject of General Concept of Law

B.A.LL.B 1st Year

Yellow Zone

4/4/2020

3140 Words

Pratik Poudel

Kathmandu School of Law

Purbanchal University
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Contents
Introduction...........................................................................................................................................3
Methodology.........................................................................................................................................4
Limitations............................................................................................................................................4
Analysis................................................................................................................................................5
Section 4...........................................................................................................................................5
Section 5...........................................................................................................................................6
Section 6...........................................................................................................................................7
Section 7...........................................................................................................................................9
Section 8...........................................................................................................................................9
Section 9.........................................................................................................................................10
Section 10.......................................................................................................................................10
Section 11.......................................................................................................................................10
Section 12.......................................................................................................................................11
Section 13.......................................................................................................................................11
Section 14.......................................................................................................................................11
Section 15.......................................................................................................................................11
Section 16.......................................................................................................................................13
Section 18.......................................................................................................................................13
Section 19.......................................................................................................................................14
Summary.............................................................................................................................................14
Conclusion..........................................................................................................................................16
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Introduction
Wesley Newcomb Hohfeld mentioned once said that the tacit assumption all fundamental
legal relations can be reduced to rights and duties possesses one of the greatest hindrances in
clear understanding of legal problems. He then went on to examine the legal relations
through a scheme of ‘correlatives’ and ‘opposites’, drawing on lowest generic conceptions1
to which all and any legal relations could be reduced to.2 Based on these conceptions
developed by Hohfeld, this paper studies the ‘Civil Rights Act-2012’3 promulgated on B.S.
2012-7-18 through His majesty King. The different sections and sub-sections of the act are
analyzed and study of legal relation they establish is done. A listing and explanation of the
relation each schedule designate is done. This paper is concerned with establishment of the
legal conceptions over the preferred Right-Duty relation only.4

1
Eight such conceptions were Right (or Claim), Privilege, Power, Immunity, Duty, No-right, Liability, and
Disability.
2
WESLEY N. HOHFELD, SOME FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL
REASONING, 23 Yale L.J. (1913).
Available at: https://digitalcommons.law.yale.edu/ylj/vol23/iss1/4
3
Referred as act hereon.
4
It examines the rights conferred to citizens as whether claim, privilege, power and immunity and position of
state and third parties as whether of duty, no-right, liability or disability.
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Methodology
The act is studied on section by section basis. Each section is analyzed for the legal relation it
designates, and the analysis done documented. Tabulation of the sections and sub-sections
based on the relation each designate is also done. A translation of the act by the author was
done, this is referred in the case when translation of the act is needed.

Limitations
Only the first three amendments of the act are considered.5

5
These three amendments are:
 Foreigners act, 2015
 Some Nepal Acts (Amendment and re-organization) Act, 2020
 Civil Rights (First Amendment) act, 2035
‘Nepal Ain sangraha khanda 9 (ka) 2047’ was source of the act. Thus, amendments made post publication on
B.S.2047-2-25 thus not undertaken.
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Analysis

Section 1 of the act includes Short Title, Extent and Commencement and section 2 definition
of the term citizen. The provision of rights are included from section 3 onwards. The
following pages contain analysis of each section.

Section 4
No discrimination on the ground of Religion, Caste, Tribe or Gender

This states disability of His majesty’s government to appoint on criteria other than
qualification. This gives immunity to the qualified. The qualified are the automatic choice.
So, they need not make any claim. This automatic choice means the government has no duty.
For something already taking place, supposed to happen in the natural state of affairs, no one
needs to be dutiful to make that thing happen. His majesty’s government is not privileged
because of amount of strictness in the supposed action. Disability of his majesty’s
government means, it do not possess any power regarding the action. (Disability is the jural
opposite of power.)

Qualified get appointed. This appointment is inalienable from qualified. Dot the qualified
hold any power? They hold the feature to be appointed, nature to be appointed but this
feature cannot change legal position/legal relation of and with anyone.

An analogy is presented to elaborate further:

His majesty’s government is kept in cage. Qualified people are moving in right path and in
this way, they will surely reach the chair of appointment. Inside the cage means the
government cannot intervene and take the chair of appointment from the right path and put in
the wrong path, in which disqualified people are moving. Qualified people need not claim
the chair as they will in course of time reach the chair. Their natural state of motion cannot
be changed even if they wish6, thus, they are not privileged. If the qualified had power, then
His majesty’s government would be liable to carry the chair of appointment and place it in
the place the qualified wish to. This also is not the case.
6
The speed can be changed but entire conversion from motion to rest is not possible as both qualified and
disqualified are moving. The state of rest is non-existent.
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2 nd Clause, same section.

In order to discriminate someone on the basis of religion, race, sex, caste, ethnicity; one must
do additional tasks of segregating people at first and then the act of discriminating. These
additional acts are restricted by this clause. This makes the continuation of normal situation
furthermore. This rules out the legal relation in which state possesses duty not to discriminate
because duty always involve additional tasks be done, compared to the state when duty was
not being done. This is not the case here.

Observing the relation between state and citizens, state is disable to discriminate and thus
citizens are immune of discrimination. State has no privilege as only the option not to
discriminate is available and it cannot have any power when it is disable beforehand.

As the state of discrimination is a special state, and non- discrimination being the natural
state, the citizens need not claim against discrimination. They are not privileged too as they
cannot chose between being discriminated and not being discriminated. This clause does not
confer any special ability upon citizens, it just instates what used to happen not be intervened
and disturbed. Thus, power too is not vested in citizens.

Section 5
His majesty’s government’s right to declare special provisions to the Specific
Class

Sub-section a:

The relation depend upon with whom it is being looked.

If it is between His majesty’s government and the class to which special provisions can be
given but has not been given,

His majesty’s government Mentioned Class

Privilege No-rights/ No-claim.

It is solely within His majesty’s government’s discretion to decide to which class special
provisions be declared of the classes eligible to receive special provisions.
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This law confers His majesty’s government the power to change legal position of some
groups with respect to other. This is not claim because the new status of the particular groups
is set in lack of any action of theirs. Thus, there is no duty of the respondent group- class
enjoying the special benefits. As immunity comes with the jural opposite disability of the
other group in changing the state of affairs, and the first group enjoys benefits by this fact;
here a particular class is enjoying because of action taken by another group, the relation
cannot involve immunity.

Whether his majesty’s government is using privilege or power seems contentious. So, let’s
look at the jural opposites,

Section 4 mentions no discrimination but this section has provisions of discrimination. This
could be only with a power, which makes people liable to discrimination.

But the jural relation between a particular groups among all eligible groups, say female, and
his majesty’s government is No-rights – Privilege relation.

Sub-section b:

Immunity – Disability relation.

All other universal institution, entities have been made disable to intervene by this clause.
This is different from duty not to intervene, as, it does not demand a further action rather
prohibits a particular action. The act of not intervening is not liability. This act does not
involve change in legal position of anyone. Those universal entities who might wish to
change the norms, traditions, by intervening are not in situation of No-rights because it must
result in privilege as jural opposites. This assumes involvement of consciousness in operation
of the religion, guthi etc. But it’s not any consciousness in material form rather an ‘invisible
hand’ that is operating these institutions.

Section 6

Sub-section 1

Freedom of speech and publication

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The state of non- freedom cannot be chosen and pursued by a citizen. Rather, it’s a situation
imposed upon him. An individual on its own cannot put himself in the state of non- freedom.7
State can either maintain the state of freedom or non-freedom, only one at once. These two
cannot occur together. Thus privilege- No-right relation between citizen(s) and state is not
established by this sub- section.

This right rather appears in a disguised form. When people are bounded by particular laws
over what they speak or publish, it is actually a non-freedom state. So this becomes claim of
state to speak and publish restricted contents. This claim corresponds duty upon citizens- to
speak and publish matters permitted by Nepal law only. Each citizen has a natural capacity to
speak and publish what they wish. State is putting restrictions over these capacities here. The
provisions do not confers immunity to citizens and disability to state as this existing capacity
has been intervened and cut off.

State is exercising particular power in putting the restriction and citizens are liable to follow
it.

Post state puts a restriction over what citizens have been doing using laws, it cannot further
interfere beyond the limit of restriction without amending the laws. Thus, the citizens have
claim over the state not to cross the boundary and it is duty of the state not to interfere
beyond that boundary. If citizens were conferred power to them by this provision, they have
control over the restriction put by the state. This is not the case here.

Sub-section 2 and 3.

The provisions in both of these sub-section designates Claim- Duty relation between citizens
and state in the same way as the previous provision.

Sub-section 4

Travel without restrictions all over Nepal state.

7
Lack of freedom of speech arises when one cannot speak what he/she wants to speak. If a person is not
speaking when there are no external constraints, it is not that he/she chose the non- freedom state. Rather he/she
is utilizing the freedom not to speak.
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Even if someone wishes to travel to a particular place in Nepal, obstacles can be put on him
by locals, terrorist or other factors except natural8. The one travelling or wishing to travel
does not hold any privilege, power or immunity over those restricting agents. Rather he/she
possesses claim right over the state and it is duty of the state to protect that claim by
removing those restrictions.

Sub-section 5

Settle and reside in any part of Nepal state.

The provision in this sub-section designates claim- duty relation between citizen and state.
The state has duty to protect one’s claim as reasoned in the previous sub-section.

Sub-section 6 and 7.

The provisions in both these sub-section involve privilege- No-right relation between citizens
and state or third parties. In regard to sub-section 7, one has the privilege of pursuing the
ancestral occupation or doing something new9. The restricting agents that prevented one to
deviate from the traditional occupation, now cannot have any-claim. The same reasoning also
applies in regard to sub-section 6.10

Section 7
Right related to religion

7(a), 7(b), 7 (c) all three establish immunity-disability relation between religious sects and
other universal parties. The provisions accept that the sects already have the capacities to
conduct the action stated and restricts any external agents to intervene over these capacities.
This claim is substantiated by Appeal to morality observed.

Section 8
The provisions in this sub-section hinder the capacity of the state to claim taxes of certain
type over citizens. It snatches the power to levy tax in new titles in some conditions from the
state. Collectively, it results in prevention in levying of taxes unauthorized by law. Nor can
8
Natural factors include calamities, difficult topography etc.
9
This is observed in the light of Varna system.
10
This provision is observed in the light of feudal practices like kamaiya, haliya, Bali ghare. A kamaiya has the
privilege of continuing as kamaiya with no property in his name or living independently and earning, selling
property. The feudal lord has no-claim over what he/she do.
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the citizens be in privilege of paying taxes unauthorized by law. The restriction over state
means there is no duty and liability11, rather disability of the state. Disability to levy taxes
when unauthorized by law, giving immunity to the citizens.

Section 9
This section and section 8 are almost similar except the fact that this section talks about
property. In the same way as section 8, this section also designates Immunity – Disability
relation between citizens and state.12

Section 10
Forceful entry is not possible in situation when shelter owner has privilege and power over
those doing forceful entry.13 Immunity – Disability relation will not suffice as, forceful
enterers never previously held the capacity to enter forcefully. The provision of this section
sets duty over all party to not enter forcefully in other’s house. The house owner has claim
over each who intends to enter forcefully.

Section 11
Sub-section 1

Any person performing certain act not punishable according to existing Nepal law is immune
from any sort of punishment. Immunity – Disability relation between such person and state
exists.14

Sub-section 2

If the relation established between person stated and state is claim-duty, in situation when
one doesn’t not claim the provision, he/she is susceptible to double punishment or filing of

11
If this provision conferred power to the citizens, citizens not exercising the power will be paying taxes
unauthorized by law to the state, which is not what is expected.
12
This section prevents state from depriving citizens of their property when unauthorized by law, infusing
disability to the state and immunity to citizens in this regard.
13
Consent of the owner is present in both of these context. Enterers will be entering because they are liable when
other party(the owner) possesses power and when next party hold privilege, they will be entering as next party
has no compulsion to stop them.
14
Punishing someone is doing an act. The provision prevents this act be done. Duty of state thus cannot exist as
no additional act (new burden) is being done- everything is continuing in natural state of affairs. Privilege
involves openness over doing certain work by citizens but here, they are not doing any new work of the
provision. And as it is not under the discretion of law followers to determine which act is punishable and which
not in the presence of law keeper, the power- liability relation too cannot exist.
The same reasoning applies in determination of severity of punishment.
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multiple cases against him/her for a single act done. In privilege - no-right relation, again
there are rooms for double punishment and filing of multiple cases for a single act - if the
person wishes. Capacity to change the legal position rests at the person- not state, if there is
power-liability relation and this puts law followers in supreme place than law keepers
regarding law implementation, which is not the spirit of any law. Thus, the relation should be
Immunity-disability.

Sub section 3

The provision attests privilege over one to be or not to be the witness against oneself, state
cannot put any claim that compels this party to be the witness. Thus, Privilege- No-rights
relations between citizen and state is established through this sub-section.

Section 12
Personal Freedom

Section 13
Choice is always seen as a claim. Stating I do not have interest is claim in itself and post this,
duty arises not to engage this man in any task. Possessing privilege to do a task when not
interested does not carry any sense. Because in all way he/she will not be engaged in any
task. Possession of power does not satisfy because employer is not liable to employ ones
interested. He can select among them. Not interested people are not always immune. People
could have forcefully been brought to employer and this might be known only after he/she
has been employed. Thus, the relation should be claim-duty.

Section 14
No claim-Duty relation. Because this situation needs to be prevented even one wishes to be
engaged in risky works, in situation where there is no requirement of duty of the employer.
The same applies over privilege-no-right and power-liability jural relation. The situation is
only satisfied by immunity-disability jural relation.

Section 15
Sub-section 1(a)
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Immunity-Disability relation. Information that includes reason to arrest must be given to the
arrested in order to put him/her prison. The police/state is not able to put the other party in
prison without doing so. This must be done even when people (the other party) do not claim
for information. Arrested cannot be left to decide on their own if they need this information
or not by providing them privilege, as per the inherent motive of the provision. This state
cannot be achieved fully even in the situation of changed legal position. Only possible
relation that matches with the situation is of immunity- disability.

Sub-section 1(b)

Claim-Duty relation. State/Police must act to maintain the scenario set by the provision. The
provision mentions of choice of the other party, this choice is a legal claim of arrested
person. Not immunity-disability because it is an expressed need, not inherent need. This
applies only if the claim is observed. The choice is claim. Immunity does not satisfy as the
situation needs legal professional be chosen.

Sub-section 2- first clause.

Immunity-Disability. The relations in which state has duty, no-claim, or liability open rooms
in which one could be kept in prison for longer times which is not the spirit of this provision.
As one must be presented before the authority within 24 hours, this represents disability of
state and immunity of the involved person.

Sub-section 2-second clause

Immunity- Disability. One possesses immunity from being kept more than 24 hours at jail
except in a given case. This is not the duty of state/police because this is not what the state
should do. Rather this is represented here as what the state/police should not do. This is not
sufficient but it does not have to be claim of him/her for it to happen. Not privilege because
cannot keep in prison for longer times even if one chooses. Not power because legal position
of state is not changed while enjoying this benefit or similarly, it is not liability of the
state/police as it is not something arising out of the decision undertaken by the arrested, even
before exercising power, in non-exercise of power this exists.

Sub-section 3
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Though not right conferred to any citizens, this confers disability to prisoners from enemy
state, or those arrested under house detention. This disability means state has an immunity to
proceed as it wishes in lack of the said restriction.

Section 16
Sub-section 1

Claim-Duty

If one claims to proceed with Habeous Corpus, duty to proceed it further is of court/state.
Not privilege because it gives sense that solely the discretion of detainee completes the
action. No-right of the other party (court/state) will not help complete it. Not immunity-
disability because this is not arising from lack of capacity of court/state-disability-as clearly
observed. The exercise of power would make the state liable, but even in this liability, as part
of separate chain of event it must fulfill the duty which is a burden to it. Over, the claim is
one that results in concluding action of Habeous Corpus.

Sub-section 2

Privilege-No-claim

Even if proved someone is detained without authority of existing law, it is not the duty, rather
privilege of the state because it can keep the person filing Habeous Corpus further( for longer
period) under detention. The party with no-right is party under detention.

The jural relation between court and state seems to be ‘mixmash’. Restriction too is present
in the relation. Restriction suggests disability- disability to give orders. It appears that court
merely can give suggestion only to the state. The benefit the state thus enjoys is again
privilege. There is no ascertained particular reaction to the state upon the action of the court.
Thus, it does not possess duty or liability as it seems and this benefit has also not risen out of
its disability.

Section 18
Power-Liability

Power under restrictive effect to file case against state. Possess benefit to change the jural
relation with state- position of state becomes that of defendant. Not duty of the state, can one
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practice one’s duty over self to change one’s position? Not disability because- no power cut
off.

Section 19
Immunity- Disability

The benefit is exercised by the state or civil servants because the other party-those filing case
against the state or civil servants (regarding action/issues of government) cannot proceed
without doing so. This benefit arises not because of claim, privilege or power but rather of
disability of proceeding party- the case filer.

Summary

Summary of these relations is given in the following table:

 Claim - Duty Privilege – No-Right Power - Liability Immunity –
Disability
6.1, Citizen – State 5(a), His majesty’s 5(a), His majesty’s 4,Citizen- State
government- government- All
Advantageous group citizens
6.2, Citizen- State 6.7,Citizen – 18, Case filer- State 9,Citizen- State
Regulators
6.3,Citizen- State 6.6,Citizen - 8,Citizen- State
Regulators
6.4,Citizen- State 11.3,Crime suspect- 5(b) Practices-
Authority External forces
6.5,Citizen- State 16.2, Court- Person 7, Religious sect- all
filing habeous universal parties
corpus
Court-state
10,Citizen- State 11.1, Not punishable
act doers- State
13, Not interested- 11.2, Defendant-
Employer State
15(b), Arrested 14, Child below 14-
person-state Employer
16.1, 15.1 (a), Arrested –
Arrested/wishing to State
file-State
15.2 (b),Arrested-
State
15.3, State-Arrested
16.2, State-Court
19, State-civil
servants.
Table 1: Summary of legal conceptions by section.

Conclusion

To conclude, this paper produces the fundamental legal relations between state and citizens
by analyzing the different provisions of the civil rights act 2012 as per Hohfeldian analysis.
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The greatest number of relations observed in the act was immunity-disability relation,
followed by Claim- Duty relation, then Privilege – No right, and power- liability. This shows
the law tended to preserve what is available already to the citizens then providing newer
benefits. This is suggestive of the political scenario of that time.