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Hohfeld’s Analysis of Rights: An Essential

Approach to a Conceptual and Practical
Understanding of the Nature of Rights
Nikolai Lazarev

Contents

Part I - Exposition of Hohfeld's Jural Relationships

Right
Liberty
Power
Immunity
Part II - A Response to Critics
MacCormick and His Rejection of Hohfeld's
Correlativity Axiom
MacCormick and the Labour Relations Act 1974
Kant's View and the Conflation of Permissibility and
Inviolability
MacCormick and the Return to the Internal Complexity
Raz and His Conception of Hohfeldian "Power"
:
 Moral Rights and the Duty to Express Charitableness
Bibliography
Notes

The principal aim of Wesley Newcomb Hohfeld's project was to

clarify juridical relationships between the relevant parties. Hohfeld
presents us with an analytical scheme which splits rights into four
different categories of jural relationships and exemplifies a number
of analytical distinctions between various legal positions.
Importantly, Hohfeld's analysis of rights lies in the descriptive
exercise of the legal positions which are connected with each other
by means of logical relations of entailment and negation. Hohfeld's
analysis is engaged in an analytical and definitional enterprise and
does not concern itself with substantive or empirical enquiry into the
concept of a right. It follows that Hohfeld's ambition was to provide a
conceptual understanding for our use of right, duty etc in practice,
thus facilitating a better understanding of the nature of our rights. It
was not, however, to inform us what rights, duties etc are or should
be or what their moral foundation is or what is necessary for
something to count as a right, duty etc. He does not, therefore, say
anything about the justification of rights. Hohfeld's table[1] presents
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 essay 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, I 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-
Hohfeldians and non-Hohfeldians. 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[2] appear to be in conflict with Hohfeld's analysis. But
given, as I will argue in this essay, that Hohfeld's analysis, possesses
a high degree of clarity and a remarkable analytical[3] force, it must
represent a highly accurate depiction of the nature of our jural
relations. It follows that a non-Hohfeldian without directly
acknowledging it, will tacitly rely on Hohfeld's analytical framework if
he is to provide a coherent account of his position. The significance
of this distinction will become apparent when the critics are
discussed.

It is also important to note that since Hohfeld's analysis is definitional

or stipulative and not a product of empirical enquiry, arguably it is
nonsusceptible to disproof by means of empirical or moral refutation.
[4] 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,[5] 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,[6] in 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.

Despite the fact that criticisms of Hohfeld's enterprise, given its

stipulative nature, may not be criticisms at all, it would be insular and
narrow to ignore all attempts at criticizing his work. Such criticisms
will therefore be extensively examined and confronted. This paper is
:
 in two parts, I and II. In part I, I set out the Hohfeldian table and
present an exposition of his jural relationships. Part I is very
important to the general line of argument in this essay as it not only
explicates Hohfeld's analytical scheme but also presents a strong
case for why we should accept that his analysis is of great practical
importance in that its precise and clear approach enables real
normative choices to be disentangled from verbal confusions. Any
criticisms specifically arising in the discussion will also be dealt with
in this section. In Part II, I will concentrate on Hohfeld's most
noteworthy critics. Specifically, I will deal with MacCormick's
position, which sees rights as 'grounds' of duties, addressing his
criticism that Hohfeld's analysis cannot accommodate a situation
whereby a person's possession of a right endows him with a variety
of entitlements as opposed to just one by virtue of his legal position.
Then, I will deal with Kant's position, conflating the notions of
permissibility and inviolability in his theory of rights. Subsequently, I
will consider MacCormick's return to the internal complexity of a
right and then tackle Raz's conception of power. To conclude I will
illustrate that Hohfeld's analysis is capable of accommodating a
situation involving a moral duty to express charitableness.

Part I - Exposition of Hohfeld's Jural

Relationships
Figure 1: Hohfeld's Table of Entitlements and Burdens: [7]

Right(Claim-Right)[8] Liberty[9] Power Immunity

Duty No-Right Liability Disability
The table above represents four sets of various Hohfeldian jural
relations. The top row contains four types of Hohfeld's legal rights,
while the bottom row indicates the legal position entailed for the
other party in each of the types of right. These are jural correlatives.
:
 On the other hand, pairs of diagonally opposite elements in the first
two columns (duty/liberty and right/no-right) and those in the last
two columns (liability/immunity and power/disability) are jural
opposites, i.e. two legal positions that negate each other. Before
venturing to discuss each type of right and showing the importance
of their relationship in modern jurisprudential thinking and our
practices involving rights, it needs to be stated that all of the
Hohfeldian rights (in the top row) necessarily represent entitlements
against a specific person. Thus, each Hohfeldian right resolves only
one issue between two specific parties.

Right

To say that X has a legal claim-right means that he is legally

protected from interference by Y or against Y's withholding of
assistance with respect to X's project Z. Conversely, Y, who is to
abstain from interference, or is required to provide assistance in
connection with X's project Z, is under a correlative duty to do so.
The correlativity stipulation commands that if X has a claim-right
against Y, this entails Y owing a duty to X,[10] for example, if X has a
claim-right that Y should deliver him goods, this entails Y having a
duty to deliver goods to X. One has to be very specific here. He who
has the right must be able to pinpoint another person with a
correlative duty either in terms of shield or assistance. Hohfeld's
insistence that every right is a relation between no more than two
persons attracted criticism from James Penner[11] who criticizes
Hohfeld's analysis because it does not account for the distinction
between rights in personam[12] and rights in rem.[13] This is a very
weak line of argument because Hohfeld, in defence, can insist, as he
does, that a right held against the whole world is, in reality, a set of
various rights ad infinitum and each of those rights is held against a
particular person.[14] The importance of grasping Hohfeldian rights
:
 cannot be overestimated. For instance, in ordinary parlance we refer
to an individual having a right not to be tortured. This is not a 'right'
in the strict Hohfeldian sense because the state (or any other
person) is under no correlative duty to abstain from torturing people.
Instead, the person's 'right' not to be subjected to torture is
protected by the array of normative protections guaranteed by the
state through the general laws against assault, trespass etc.
Therefore, the general right not to be assaulted sets the protective
perimeter within which a person's legal 'right' to be free from torture
can exist.[15]

Liberty

In short, liberty is merely an absence of a duty to abstain from the

action. The correlativity of this jural relationship shows that the
person against whom the liberty is held has a no-right concerning
the activity to which the liberty relates. This, however, does not mean
that he himself does not have a liberty to interfere in the activity.
Suppose that I am irritated by people who smoke in my vicinity. I
meet S (smoker) in a public place, who starts to smoke in my
presence. I ask him to stop, but S tells me he has a 'right' to smoke
here (given the absence of any legal prohibitions). S is confusing his
entitlement. He does not have a right (in the Hohfeldian sense) to
smoke, but merely a liberty (a weaker right). Although I have a no-
right concerning his activity of smoking, I do have a liberty myself
(within the constraints imposed on me by S's genuine rights)[16] to
impede his smoking, say, by raising my voice or encouraging other
people to make fun of S for his smoking habit, which may make him
stop. The important point is that in almost every circumstance
outside the Hobbesian state of nature, a person who acts in line with
his liberty, such as S, would effectively be shielded, albeit
imperfectly, from the encroachment on his liberty by possession of
:
 some basic legal Hohfeldian rights such as the rights against assault,
battery, trespass etc.[17] Hohfeld's analysis therefore provides a
clear understanding as to what the legal position of S is (i.e. what
rights he has). As we can see, had it not been for Hohfeld providing
us with a precise vocabulary, S would mistake his liberty for a right,
and accordingly would be unable to accurately report the effect of
his entitlement. He would be wrong in saying to me that I cannot stop
him from smoking because he has a right to smoke in a public place,
since it puts me under no duty not to interfere with his smoking. This
once again shows the practical benefit of Hohfeld's elegant and clear
analysis. A problem may arise when two competing liberties arise in
the arena of jurisprudence. A good illustration of this is media law in
the United Kingdom whereby freedom of expression and the right to
privacy are often conflicting interests. The courts try to balance
these interests, but the state traditionally is under no duty to provide
for either interest. Therefore, it tends to be the consideration of
moral and social norms and principles which governs the judiciary's
favour of one interest over the other.[18] Hohfeld points out that it is
the mixing up of value-driven ideals that has confused the meaning
of rights; instead, the clarification of rights should aid the judiciary to
balance interests without letting a possible bias intrude.

Power

In short, a power is one's ability to alter legal (or moral) relations. For
instance, I can have the power to enter into a contract with S
whereby he agrees (for a consideration) to refrain from smoking in
my presence. Thus, I have the power to change our legal relations in
that I make S contractually bound (as well as myself). S, thus, has a
liability, which is correlative to power, in that he is liable to having his
legal relations altered by my exercise of power. Hohfeld's analysis
clears the practical meaning of the term power; on myriad occasions,
:
 lawyers have created confusion by referring to a 'right' to do
something when, in fact, they mean a Hohfeldian power to do
something. Suppose X steals my car. Does he have a 'right' to sell it
on to Y? If X sells it to Y, who is the bona-fide purchaser for value, he
can pass good title on to him. Thus, X has a Hohfeldian power to
perform the sale of my car. However, he is not at liberty (in Hohfeld's
sense) to do so, because liberty is the absence of a duty not to do
the act, whereas here, X's sale of the stolen car to Y is a legal wrong
and he thus clearly breaches his legal duty by selling it. Although he
has effective power to transfer the title, he does not have a liberty to
do so. How confusing would it be to say that X has a right to sell the
car, but he does not have a right to sell the car in the absence of
Hohfeld's precise vocabulary? Hohfeld's analysis indeed helps to
clarify the legal position of the parties and is able to more accurately
predict the effect of the alterations in their respective legal positions.

Immunity

If X has an immunity against Y, it means that Y has no power to

change X's legal position with respect to any entitlements covered
by the immunity. For instance, if the state has no power to place me
under a duty to wear a hat when I go out, I have immunity in that
respect, and the state a disability (a correlative to immunity).
Simmonds notes that 'Constitutional Bills of Rights frequently confer
extensive and very important immunities, in so far as; they disable
the legislature from enacting certain types of law'.[19] This shows
that adopting Hohfeldian analysis of rights is very important given its
clarity and precision to ensure that the state does not overpower the
individual. I have shown so far how useful Hohfeld's analysis can be
in getting a clear sight of the jural relations of the parties involved
and their legal positions. Indeed, as has been suggested, Hohfeld's
work has become important, not only in the classification and
:
 clarification of rights elements themselves, but also in the
relationship between the non-Hohfeldian uses of the term right, for
instance when a privilege (a non-absolute right) can co-exist with
another privilege. I will further illustrate how Hohfeld's analysis helps
to clarify legal relationships and the meaning of 'rights' by using the
case of Quinn v Leathem[20] in part II. One needs to note that the
stipulative nature of Hohfeld's analysis of rights presents an
analytically clear scheme which manages to steer clear of the
confusion and complexities which are usually present in theories of
rights which seek to justify rights, bringing into the equation various
justificatory factors. In contrast to Hohfeld, consider, for example,
theorists such as Dworkin,[21] Kymlicka,[22] Kant[23] and
MacKinnon[24] who seek to justify rights, mainly in terms of the
various values they serve. Arguably, this adds unnecessary
complexity to the nature of rights.

Part II - A Response to Critics

Having explored Hohfeld's analytical scheme and exemplified its
pertinence if one is to have a clear and elegant tool for
understanding the effect of various jural relations, I now turn to
consider and subsequently dismiss some of the main criticisms that
have been made by fellow jurists of his analysis of rights. I will show
that some of those criticisms are unsustainable, some misguided
and some are not criticisms at all, but a reinforcement of the benefit
of Hohfeld's work.

MacCormick and His Rejection of Hohfeld's

Correlativity Axiom

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',[25] 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'.[26] 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',[27] 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, that for Hohfeld each of the pairs of legal
positions must be mutually entailed by definition. My first contention
is that MacCormick's attack on Hohfeld is misdirected because
Hohfeld's analysis is immune to empirical attacks, as explained
:
 above.

MacCormick therefore seemingly misconceives the nature and

purpose of Hohfeld's work. Nevertheless, I will still consider the
substance of his argument, but before doing so it is pertinent to note
that MacCormick is not putting forward a non-Hohfeldian account of
rights, he is presenting an anti-Hohfeldian argument by directly
attacking Hohfeld's chief postulation, which, if true, would probably
make his work flawed and unworkable.[28] In mounting his
argument, MacCormick cites the following from section 2(1) of the
Succession (Scotland) Act 1964, 'a). Where an intestate is survived
by children, they shall have right to the whole of the intestate
estate.'[29] He proceeds to say that at the time of the intestate's
death his/her children have a right to an equal share of the estate,
although there is not yet 'an executor to bear a correlative duty'. He
thus argues that since, as he understands it, the rights under that
statute are created before a correlative duty is created, theories of
rights which are based on the strict correlativity of right-duty must
be necessarily flawed. Does this mean that Hohfeld's analysis, as
one based on the correlativity axiom, is flawed? First of all, a
Hohfeldian right is a right against interference or for assistance and
never a claim to anything, so it would be incorrect to say, in
Hohfeldian terms, that the children have a claim-right to an equal
share of the estate. They cannot, for such right would not be a
Hohfeldian right. However, this is not really a stumbling block in our
discussion since we can easily convert the right to an equal share,
into a claim for assistance relating to the executor's duty to
administer the estate in a certain way.

Secondly, with respect, MacCormick errs if he believes that his

example (s. 2(1)) belies Hohfeld's analysis in that the entitlements
created by this provision cannot be accommodated by the
:
 Hohfeldian analytical scheme which stipulates a correlativity of rights
and duties etc. Kramer observed[30] that the children of the
intestate can acquire Hohfeldian rights at two separate stages. First,
they acquire a right in rem good against the whole world immediately
upon the intestate's death. The children will have the right to be free
from interference from the proper distribution of the estate, and
under Hohfeld's analysis, each and every specifiable person in the
whole world would be under a correlative duty not to interfere. The
second stage, at which the children obtain Hohfeldian rights, is when
an executor is appointed. Now they have a direct right against the
executor requiring that he properly administers the estate. The
executor is under a correlative duty to provide such assistance. We
see that at no point in time are the children's rights not reflected by
strict correlative duties placed on other specifiable individuals.
Therefore, we can see that Hohfeld's Correlativity Axiom, and thus
his general scheme, easily sustain this attack.[31] Indeed, as Kramer
pointed out, it can scarcely be defeated given that the axiom is true
by definition.

MacCormick and the Labour Relations Act 1974

Elsewhere, MacCormick offers to consider section 5 of the Trade

Union and Labour Relations Act 1974, which states that '[E]very
worker shall have the right not to be - a) excluded from membership
b) expelled from membership, of a trade union ... by way of arbitrary
discrimination.'[32] MacCormick then goes on to analyze this
provision conferring protections upon workers in a way which is in
conflict, so he thinks, with Hohfeld's analysis of rights. He tells
us[33] that the provision gives every worker a right which, in turn,
gives rise to a variety of different legal protections (sundry
Hohfeldian entitlements) and to a host of diverse legal relations.
Prima Facie this is at odds with Hohfeld's analysis which stipulates
:
 that each right must be one side of a single mutually entailed jural
relationship. The second point of contention is that MacCormick
holds that the right, as a ground of a duty, provides the justification
or reason for advancement of a particular set of legal protections as
considered necessary. In contrast to this is Hohfeld's analysis which
depicts rights and legal protections as arising in the relationships of
correlativity or mutual entailment. As regards the first point of
contention, MacCormicks's assertion does not debunk Hohfeld's
analysis in any way. Importantly, this is not an anti-Hohfeldian
criticism at all. If section 5(1) was shown to a non-Hohfeldian judge
he would probably find it somewhat ambiguous and would use the
term 'right' in a non-Hohfeldian manner. For instance, he may use
the term 'right' in the sense of immunity in that a worker may be
immune from having his legal relations altered through expulsion
from membership (given the appropriate legal doctrine and possibly
other assumptions).[34] The non-Hohfeldian judge would call such
immunity a 'right' not to be expelled from membership.

But so what? After all, there are numerous practices where the term
'right' is employed in a non-Hohfeldian manner. Such a criticism is
therefore incapable of either validating or belying Hohfeld's analysis
especially since MacCormick himself acknowledges[35] that the
diverse entitlements in s.5(1) are all perfectly capable of being
accommodated in a Hohfeldian vocabulary. Importantly, one needs
to appreciate that when we are using the term 'right' in a non-
Hohfeldian manner it does not mean that our talk of rights is in some
substantive way flawed. It would arguably help to achieve greater
precision and clarity in our discourse of rights if the non-Hohfeldian
terminology was eschewed altogether in favour of the Hohfeldian
vocabulary, but I would not suggest that there is anything
fundamentally wrong with it. Rather, my allegation is that it is usually
the anti-Hohfeldian talk of rights that is misguided, especially in
:
 instances where it is directed at denying Hohfeld's postulations of
correlativity between rights and duties etc.

As far as the second point of contention is concerned, on the face of

it this is an anti-Hohfeldian criticism. It seeks to attack Hohfeld's
regimentation of rights into distinct categories and atomic
relationships, in so far as that regimentation fails to provide for a
justification or reason for creating a particular set of legal
protections.

But is it a criticism at all? Hohfeld, it will be remembered, is only

concerned with the relationships of mutual entailment (Correlativity
Axiom) and not any sort of justification of rights. A question can be
asked: is it right that Hohfeld's analysis concentrates on the
relationships of mutual entailment to the exclusion of everything
else? Perhaps one could submit that to exclude external
(justificatory) considerations would be to misrepresent the actual
character of legal reasoning with rights.[36] Arguably not. Take
section 5(1) for instance. Once we have identified the rights of
employees, should we, in conferring the protections on employees
that those rights embody, give consideration to any countervailing
considerations which may tell us not to give any specific form of
protection? I argue we should not, because it would be likely, as
Simmonds points out,[37] that the court will not engage in solving
the questions relating to the balancing of interests or the
advancement of socially desirable goals as far as the understanding
of the nature of rights at the cutting edge is concerned. Instead, the
courts are much more likely to concern themselves with the
technicalities of the legal doctrine which is free from an evaluative or
justificatory exercise concerning other countervailing factors.

Thus, the above criticism is again misguided in that it fails to properly

:
 appreciate Hohfeld's conception of jural relations as one that never
intended to be concerned with anything else but the relationships of
mutual entailment. I argue that the rival analyses which concern
themselves with various justificatory exercises in relation to rights
are misguided in so far as they do not truly represent our
conventional practices involving the understanding of the nature of
rights. Rather it is the conceptual analysis, true by definition, based
on the correlativity axiom, that provides for our true conception of
the nature of our jural relationships. It thus reflects our conventional
practices in relation to rights. If I am right, it follows that Hohfeld's
analysis of rights is an extremely pertinent tool for dealing with
situations such as that contained in section 5(1), it does not require
the judge to immerse himself in the complexities of justificatory
exercise or balancing of interests and is a straightforward
mechanism which a judge can use to everyone's satisfaction.

Kant's View and the Conflation of Permissibility and

Inviolability

Kant presents another anti-Hohfeldian view whereby a conflation of

permissibility and inviolability is necessary for the understanding of
the nature of rights.[38] Kant believes that rights possess certain
internal complexity. For Kant, this means that possession of a right
would entail a number of different consequences. It follows that if X
possesses a right, the actions performed within the scope of the
right must be both permissible and legally inviolable. The former
means that if X has a right to do P, this action must be allowed
despite the fact that it may in some way be undesirable. The latter
means that when X is exercising his right to do P, the law will prevent
others from interfering with X's action. This is in contradiction with
Hohfeld's analysis in two respects; first, the permissibly of X's action
amounts to a Hohfeldian liberty to do P, while the inviolability (legal
:
 protection) amounts to a possession of a claim-right by X which
entitles him to a protection against interference. In this section I
illustrate, using Hohfeld's analysis of rights, that Kant's view fails to
accommodate the complexities of actual legal doctrines and does
not adequately depict our practices in relation to rights. I do this by
reference to Quinn and Leathem. The case concerns the situation
where Leathem, in the course of his butchery business, employed a
number of non-union workers. Quinn intended to force Leathem to
sack his non-union workers and instead employ only union workers.
To achieve this Quinn threatened a strike at a shop of one of
Leathem's customers to force him to terminate his trade with
Leathem. Leathem sued Quinn. In the course of his judgment Lord
Lindley made the following observation: "As to the plaintiff's rights.
He had the ordinary rights of a British subject. He was at liberty to
earn his own living in his own way, provided he did not violate some
special law prohibiting him from so doing, and provided he did not
infringe the rights of other people. This liberty involved liberty to deal
with other persons who were willing to deal with him. This liberty is a
right recognised by law; its correlative is the general duty of every
one not to prevent the free exercise of this liberty, except so far as
his own liberty of action may justify him in so doing."[39]

As a slight digression, it can be seen that Lord Lindley uses the term
right in a non-Hohfeldian manner. He uses the term 'liberty' ('...to
deal with other persons') and then says that this liberty involves a
correlative general duty not to interfere. The liberty does not entail a
correlative duty. If it does then it would mean it also entails a claim-
right (as a correlative to someone else's duty). This cannot be right.
And, indeed, Leathem merely had a Hohfeldian liberty (correlative to
a no-right) to trade, he did not have a claim-right as I could well
interfere with his business by, for instance, opening up a rival shop in
the same street. We see that when Lord Lindley says that Leathem's
:
 'right' (Hohfeldian liberty) placed correlative duties on Quinn, he
must be contemplating (wrongly) a claim-right. This provides an
example where one can see how, by not applying Hohfeld's analysis,
a distinguished judge gets it spectacularly wrong.[40] Arguably, a
different (correct) outcome of the judgement would have been
achieved had Leathem's 'right' been termed a Hohfeldian liberty as it
would not entail a correlative duty on anyone else. Indeed, business
competition would be legally impermissible if company X's 'right' to
trade and earn profits entailed a correlative duty on company Y not
to interference with X's running of the business, earning profits etc.
This shows the pertinence of Hohfeld's analysis in that, if applied,
such quandaries would be avoided. Under the Kantian analysis of
rights we could reconstruct the passage (as Lord Lindley seemingly
does) in the following manner: Leathem had a right to run his
butchery business because such action was permissible. The
exercise of his right is juridically inviolable, because it is protected
against interference by law. I have already noted that the Kantian
analysis is misleading because it is wrong to say that a mere
permissibility of an action entails a duty on others not to interfere.
Permissibility is at most a mere Hohfeldian liberty in the sense that
the person has no duty not to perform the action. A more serious
problem with the Kantian view is the conflation of permissibility and
inviolability. Conflation arises from the fact that in Kant's view of
internal complexity, a single concept of a 'right' entails both
permissibility (Hohfeldian liberty) and inviolability (Hohfeldian claim-
right as a correlative to duties incumbent on other specifiable
persons). Such conflation is wrong because rather than offering a
clear line of sight as to how the judge should deal with the issue it
adds fog into the context of what the issue of the case is.[41] In
Quinn v Leathem, such issue was whether Leathem had liberty to
trade, which ought to be protected by a claim-right against
interference.
:
 If Hohfeld's analysis is applied it is absolutely clear that Leathem's
liberty does not entail any incumbent duties on others - and this
must be right. If not, then we could potentially outlaw much of
reasonable business competition. Such straightforward clarity is
obtained given the stipulative nature of Hohfeld's work. For him,
rights are discrete, atomic elements, which are distinct and
separable from other rights-elements. For Hohfeld, the nature of the
right-element is static, and when applied to a particular issue this
specific right-element automatically entails a specific duty /
outcome.[42] But this is not the case for Kant who views the
concept of a right as a complex molecular structure, which
comprises various components including permissibility and
inviolability. Hohfeldian language gives a precise tool for identifying
the issue in the case and then describes with precision the effect of
the decision in relation to that issue. The Kantian notion of 'right' is
based on the idea that the internal logic of the right must be worked
out through legal reasoning. In this case, the judge would apply such
a meaning to the concept of right as he thinks fit given the particular
situation. Perhaps the judge would take into account broader
considerations of social policy and justice. Quinn v Leathem shows
that this is, in fact, not always true. Indeed in Lord Lindley's use of
the Kantian notion of right we can see that he is appealing to logic,
rather than the broader question of justice etc.

Therefore, we can relate to Hohfeld's analysis to expose weakness in

Kant's conflation of permissibility and inviolability because such
conflation does not in fact represent scope for adequate legal
reasoning, as Kant intended it to be the proponent of the theory of
greater good. It follows that as a result of conflation of permissibility
and inviolability the judge is more likely to find himself confused as to
what meaning he ought to attach to the term 'right' and with what
:
 consequences. What will result is not deductive reasoning, as
envisaged by Kant, but rather unnecessary confusion caused by the
equivocations between distinct meanings of the term 'right'. Thus,
the conflation of inviolability and permissibility, as the basis of Kant's
internal complexity of the right, is neither desirable, nor indeed
necessary, and Hohfeld's analysis should be preferred given its
precision and clarity.

MacCormick and the Return to the Internal

Complexity

I have shown above that Kant's view ascribes to rights internal

complexity. Hohfeld's view, in contrast, ascribes to rights peremptory
force,[43] but no internal complexity. However, analysis developed
by MacCormick (and Raz) seeks to restore internal complexity of a
right, but at the expense of making the peremptory force of a right
less important. So, is MacCormick's / Raz's or Hohfeld's analysis of
rights the better vision? In response, I argue that Hohfeld's analysis
of rights deals with the specifics of clarification of the nature of our
rights, because for too long it has been confused with the
justification of rights in terms of various moral or other
considerations. The problem with MacCormick's analysis of rights is
that it returns to the situation pre-Hohfeld, where there is a
confusion of the nature of rights with the justification of rights. When
considering the nature of rights it is apparent that rights are
peremptory in nature, whereby the determined rights-elements are
used as a tool to justify the existence of rights, moral or legal. In
short, would this not mean that the nature of rights (i.e. rights-
elements) is peremptory and the justification of rights is based on
moral or other factors such as, for example, notions of justice and
social policy? This would mean that Hohfeld's analysis of rights is
correct in its nature and substance whereas Kant and MacCormick
:
 deal with the added moral and social complexities of justification
which are outside the conception of a right itself. To summarize, the
confusion caused by mixing the justification of rights with the nature
of rights results in mistaking rights as internally complex and is
therefore to be avoided. This means that the Hohfeldian approach
should be favoured instead. Arguably though, reliance on the single
duty of a right, which results in splitting rights into rights-elements,
could reduce the intensity of rights:[44] "This immediately lessens
the rhetorical force of these rights as somehow possessing a quality
which sets them apart from other considerations in a normative
debate and diminishes the analytical eminence that rights
characteristically receive."[45] The fact that the normative element
has been taken away is not necessarily true, because what Hohfeld
argues is that rights-elements by their very nature do not have
justificatory factors attached to them, but does not deny that these
justificatory factors may be present elsewhere. What Hohfeld's
analysis does is to consider that complex moral and normative
justificatory considerations are present outside of rights-elements.
This avoids confusion and simplifies operation with rights as well as
more adequately depicting our true conception of the nature of
rights. It is not concerned with the intention of law underpinning the
existence of a particular right. Indeed, normative debate can still be
resorted to in order to understand why there are particular rights or
deduce their origin or justify them in some other fashion, but these
considerations are not within the context of the nature of rights, as
correctly reflected by Hohfeldian analysis. Rather, they are arguably
extrinsic factors which it is a mistake of MacCormick and Raz to
bring within the scope of the nature of a right itself.

Raz and His Conception of Hohfeldian "Power"

Raz, another anti-Hohfeldian critic, considers the problem of

:
 Hohfeld's categories of rights-elements, because he believes that
this categorization causes problems with the definition of power, in
the contexts of powers, rights and freedoms. Raz cannot see power
as a simple legal right, such as contracting to sell a house. Instead,
he argues from the perspective of the lawgiver, where the notion of
power should be in the context of the state. He also argues that the
categories defined by Hohfeld are not powerful enough, especially in
relation to the idea of power, whereby the importance of legal
powers are 'not in the intention with which power-exercising acts are
performed but in the reasons they are recognized'.[46] In response
to Raz, the definition of state power is not the same as the right-
element of power, which specifically deals with a legal power.[47]
Therefore, even this criticism of Raz's adds complexity to the nature
of rights, which Hohfeld has tried to simplify and clarify. By putting
forward such a criticism Raz seemingly misconceives the nature and
spirit of Hohfeld's work.

Moral Rights and the Duty to Express Charitableness

So far I have discussed Hohfeld's analysis in relation to legal rights.

But can his analysis also apply to moral rights? Some critics,
including MacCormick, have argued that it cannot.[48] In so far as
some moral duties cannot be correlative to other persons' rights,
others have argued on the contrary, stipulating that it is an
appropriate tool for analysis of moral and other non-legal ranges of
rights.[49] Consider a well-known example:[50] a person X has a
moral duty to express charitableness (expressed by giving money to
charity). An anti-Hohfeldian would argue that such a duty is
uncorrelated with the moral right of the poor Y to receive alms and
thus the allegation is that this (moral) relationship cannot be
accommodated by Hohfeld's Correlativity Axiom. One way in which a
Hohfeldian can respond is to say that a duty to express
:
 charitableness, given its abstract virtue, is to be best understood not
as a general duty, but as one falling within the distinct class of
supererogatory obligations. Since they are supererogatory
obligations and not duties - they plausibly entail no correlative rights,
and thus this does not pose a threat to Hohfeld's Correlativity Axiom.
[51] But, suppose that we agree that the moral obligation to give to
charity is a moral duty which must thus entail a moral right - does
this reveal a weakness in Hohfeld's analysis? Arguably not, because
a person holding a moral duty to express charitableness can always
find a candidate to hold the correlative right. For example, X can find
a correlative right in the individual members who belong to his
favorite charity since arguably the holder of the moral duty can
always pinpoint the holder of the correlative moral right. Hohfeld's
analysis can perfectly accommodate the moral duty/obligation to
express charitableness within its Correlativity Axiom. This suggests
that it can be a pertinent tool for dealing with moral obligations, as
well as, legal certainly in so far as this relates to charitableness.

In this essay I have dealt with and dismissed some of the most
noteworthy criticisms of Hohfeld's analysis of rights and have argued
that his work is the essential tool for gaining not only a conceptual
but a practical understanding of the nature of rights. In the course of
producing his analytical scheme, Hohfeld examined the fundamental
underpinnings of our legal doctrines and institutions as well as the
foundations of our rights discourse. Hohfeld's work involved a deep
and thorough analysis by which he sought to reflect the true
convictions that people held about rights. Therefore, although
analytical in its nature, Hohfeld's analysis is of fundamental practical
value. As he himself insists, proper analysis is the prerequisite of
correct practical application, and 'the deeper the analysis, the
greater becomes one's perception of the unity and harmony in the
law'.[52]
:
 Bibliography
W.W. Cook, 'Hohfeld's Contribution to the Science of Law', 28 Yale
Law Journal (Yale, 1919)

S. Coyle, 'Are There Necessary Truths About Rights?' in The

Canadian Journal of Law and Jurisprudence (2002)

R. Dworkin, Taking Rights Seriously (London, 1977)

H. Fenwick, Civil Liberties and Human Rights (London, 2002)

P.M.S. Hacker and J. Raz (eds) Law, Morality and Society (Oxford,
1977a)
Halpin, D. Phil, Rights and Law: Analysis and Theory (Oxford, 1997)

Halpin, 'Hohfeld's Conceptions: From Eight to Two', Cambridge Law

Journal 435 (1985)

J.W. Harris, Legal Philosophies (London, 1980)

H.L.A. Hart, 'Legal Rights' in H.L.A. Hart Essays on Bentham:

Jurisprudence and Political Theory (Oxford, 1982)

T. Hobbes, Leviathan (edited Richard Tuck) (Cambridge, 1991)

W.N. Hohfeld, Fundamental Legal Conceptions: as applied in judicial

reasoning (ed W.W. Cook) (New Haven, 1923)

W.N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial

Reasoning (Aldershot, 2001)

W.N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial

Reasoning (Westport, 1978),
:
 A.M. Honore, Rights of Exclusion and Immunities against Divesting
(34 Tulane Law Review 1960)

W. Kamba, Legal Theory and Hohfeld's Analysis of a Legal Right (19

Judicial Review 249 1974)

I. Kant, Critique of Pure Reason (Translated by Norman Kemp Smith)

2nd Edition (Basingstoke, 2003)

I. Kant, Metaphysics of Morals (Cambridge, 1991)

M.H. Kramer, 'Rights Without Trimmings', in M.H. Kramer, A Debate

Over Rights: Philosophical Enquiries (Oxford, 1998)

W. Kymlicka, Liberalism, Community and Culture (Oxford, 1989)

J. Locke, The Second Treatise of Government (1698)

D.N. MacCormick, 'Rights in Legislation' in P.M.S. Hacker and J. Raz

(eds) Law, Morality and Society (Oxford, 1977)

N. MacCormick, Legal Right and Social Democracy; Essays in Legal

and Political Philosophy (London, 1982)

C. MacKinnon, Toward a Feminist Theory of the State (Harvard,

1989)

J. Penner, 'The Analysis of Rights' in 10 Ratio Juris (1997)

J. Penner, 'Hohfeldian Use-Rights in Property' in J.W. Harris (ed)

Property Problems: From Genes to Pension Funds (London, 1997b)

J. Penner, The Idea of Property Law (Oxford, 1997)

J. Rawls, A Theory of Justice, (Oxford, 1973)

:
 J. Raz, 'Voluntary Obligations and Normative Powers' - an essay in
two parts by J. Raz and D.N. MacCormick, 46 Proceedings of the
Aristotelian Supplement Volume 59 (1972)

J. Raz, Practical Reason and Norms (London, 1975)

J. Raz, 'Legal Rights' 4 Oxford Journal of Legal Studies (Oxford,

1984)

J. Raz, 'Hart on moral rights and legal duties', 4 Oxford Journal of

Legal Studies (Oxford, 1984)

J. Raz, The Morality of Freedom (Oxford, 1988)

H. Ross, Law as Social Institution (Oxford, 2001a)

H. Ross, 'Social Power and the Hohfeldian Relation' 10(1) Nottingham

Law Journal (2001b)

N.E. Simmonds, The Decline of Juridicial Reason (Manchester, 1984)

N. E. Simmonds, Central Issues in Jurisprudence: Justice, Law and

Rights (London, 1986)

N. E. Simmonds, Central Issues in Jurisprudence: Justice, Law and

Rights, 2nd Edition (London, 2002)

N. E. Simmonds, 'Rights at the Cutting Edge', A Debate Over Rights

(Oxford, 1998)

J.W. Singer, 'The Legal Rights Debate' in Analytical Jurisprudence

from Bentham to Hohfeld (Wisconsin Law Review, 1982)

H. Steiner, 'Working Rights' in a Debate Over Rights (Oxford, 1998)

J. Waldron, Liberal Rights (Cambridge, 1993)

:
 Cases

Douglas and Others v. Hello! Ltd (No.1) [2001] Q.B. 967

Lake Shore and MSR Co v Kurtz (1894) 10 Ind. App. 60

Quinn v Leathem (1901) AC 495

Sunday Times v UK (1979) 2 EHRR 245

West, Saint Louis, & Pacific Railway Company v Shaklet

Acts

Succession (Scotland) Act 1964

Trade Union and Labour Relations Act 1974

Notes
[1] Shown in Fig.1.

[2] Harris criticised Hohfeld for the fact that his vocabulary does not
match that of his fellow jurists. J.W. Harris, Legal Philosophies
(London, 1980), p.82. Such criticism is misguided since Hohfeld's
intention was to correct the confused judicial discourse over rights
by offering a precise analytical framework. He never intended to
engage in a descriptive exercise of clarifying jural relations.

[3] Hohfeld's analysis is primarily concerned with analytical

jurisprudence. N.E. Simmonds in Central Issues in Jurisprudence:
Justice, Law and Rights (London, 1986), p.129, offers a distinction
between analytical and normative jurisprudence. The former is
concerned with the formal analysis of concepts in an effort to reveal
and refine conceptual distinctions. The latter is concerned to offer a
:
 theory about what is morally right, and thus offers criteria by which
the law should be evaluated. Arguably, Hohfeld's analysis can also
deal, mutatis mutandis, with the normative jurisprudence, although
this is not its chief objective.

[4] Point made by M. Kramer, 'Rights Without Trimmings' in A Debate

Over Rights, Philosophical Enquiries, (Oxford, 1998), pp.22-23.

[5] I will consider MacCormick's example of a labour relations statute

which he uses to attack Hohfeld's analysis in Part II of this paper.

[6] As was plausibly argued by S. Coyle, 'Are There Necessary Truths

About Rights?', in The Canadian Journal of Law and Jurisprudence
(2002), p.4.

[7] Produced by reference to W.N. Hohfeld, Fundamental Legal

Conceptions as Applied in Judicial Reasoning (Aldershot, 2001),
p.12. Section 1.

[8] Used interchangeably throughout this discussion.

[9] I shall go with the modern practice of Hohfeld's 'Privilege' being

renamed 'Liberty'.

[10] To illustrate how the judiciary correlates duty and right, Hohfeld
uses the case of Lake Shore and MSR Co v Kurtz (1894)

[10] Ind. App.60, 'Duty and right are correlative terms. When a right
is invaded, a duty is violated'.

[11] J. Penner, 'The Analysis of Rights' in 10 Ratio Juris (1997).

[12] Held against determinate, specifiable persons.

[13] A right good against 'the whole world at large'

:
 [14] W.N.Hohfeld, Fundamental Legal Conceptions, pp.91-6.

[15] Some critics, including Simmonds, have argued that the duties
of the state cannot only be governed by analytical thinking on which
Hohfeld's analysis is based, as the state needs to be able to make
both legal and moral decisions. But, Kramer ('Rights Without
Trimmings', p.8.) points out that Hohfeld's analytical scheme can
also apply to the structuring of moral relationships after making the
necessary changes to it.

[16] For instance, against assault, battery, theft etc, which would
provide a protective perimeter for his liberty to smoke.

[17] It is a misguided view presented by Andrew Halpin, that liberties

can be reduced to the rights which protect the exercise of them. A.
Halpin, 'Hohfeld's Conceptions: From Eight to Two', Cambridge Law
Journal 435 (1985). Liberties, at best, can be classed as 'de-facto
rights' so long as they are within the protective perimeter of genuine
rights and no more.

[18] In support of this, consider the case of Douglas and Others v.

Hello! Ltd (No.1) [2001] Q.B. 967 where Sedley LJ in considering
whether to give recognition to the claim to privacy considers the
principle of personal autonomy as a social norm; '... [The law] can
recognise privacy itself as a legal principle drawn from the
fundamental value of personal autonomy', my emphasis p.1000.

[19] N.E. Simmonds, Introduction in W.N. Hohfeld (2001), p.xv

[20] (1901) AC 495

[21] R. Dworkin, Taking Rights Seriously (London, 1977). This relates

to Dworkin's 'rights as trumps' theory. It provides the basis of
Dworkin's justification of rights where a right operates as a 'trump'
:
 against other countervailing considerations.

[22] W. Kymlicka, Liberalism, Community and Culture (Oxford, 1989),

reconstructs the notion of the social contract theory, but amends it
to the modern era.

[23] I. Kant, Critique of Pure Reason (Basingstoke, 2003) has

provided an interesting justification of rights, where the aim of the
state and the individual is to achieve the greater good.

[24] C. MacKinnon, Toward a Feminist Theory of the State (Harvard,

1989) provides a discussion on rights and gender equality, explaining
how it is necessary to balance the inequalities between men and
women. In MacKinnon's theory of rights, she provides justification for
giving stronger rights to women than men.

[25] Respectfully, I borrow this term from M. Kramer, 'Rights Without

Trimmings.'

[26] D.N. MacCormick, 'Rights in Legislation' in P.M.S. Hacker and J.

Raz (eds) Law Morality and Society (Oxford, 1977), p.199.

[27] Ibid. pp.204-205.

[28] In so far as it can be at all proved unworkable given its

definitional nature.

[29] MacCormick, 'Legislation', p.200

[30] Kramer, 'Rights Without Trimmings', p.28

[31] It seems that Hohfeld expected such an attack and thus

considered a similar kind of entitlement as in s.2(1) in the case of
West, Saint Louis, & Pacific Railway Company v Shaklet. For more
information please refer to Hohfeld, Fundamental Legal Conceptions,
:
 p.83.

[32] D.N. MacCormick, 'Legislation', p.205.

[33] Ibid, p.206

[34] N.E. Simmonds, 'Rights at the Cutting Edge', in A Debate Over

Rights, p.159.

[35] D.N. MacCormick, 'Legislation', pp.203-205.

[36] N.E. Simmonds, 'Rights at the Cutting Edge', p.163-164.

[37] Ibid, p.163.

[38] I. Kant, Metaphysics of Morals (Cambridge, 1991)

[39] [1901] A.C. 495, p.534

[40] Naturally, Hohfeld's work was not available at the time, but this
still serves as a good example.

[41] Hillel Steiner 'Working Rights' in a Debate Over Rights, pp.281-

283.

[42] N.E. Simmonds, 'Rights at the Cutting Edge', in A Debate Over

Rights, pp.203 - 205.

[43] This relates to a conclusive force of a right which excludes the

consideration of other countervailing factors and thus precludes the
balancing of various considerations against each other.

[44] As both D.N. MacCormick, 'Rights in Legislation' and J. Raz,

'Legal Rights', 4 OJLS (Oxford, 1984) argue in relation to Hohfeld's
analysis of rights.
:
 [45] A. Halpin, Rights and Law: Analysis and Theory (Oxford, 1997),
p.100

[46] J. Raz, 'Voluntary Obligations and Normative Powers',

[46] Proceedings of the Aristotelian Supplement Volume 59 (1972),

p.78.

[47] That is a power that is given to the individual under the law, i.e.
that has been given to the individual by governing persons.

[48] N. MacCormick, Legal Right and Social Democracy; Essays in

Legal and Political Philosophy (London, 1982), pp.155-156.

[49] M. Kramer, John Locke and the Origin of Private Property

(Cambridge, 1997), p.16.

[50] J. Waldron, Liberal Rights (Cambridge, 1993), pp.14-16

[51] Point made by S. Coyle, Are There Necessary Truths About

Rights? p.20.

[52] W.N. Hohfeld, Fundamental Legal Conceptions (Westport,

1978), p.64.

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