Subject-Wise Law Notes Hohfeld’s Analysis Of Legal Rights

Hohfeld’s Analysis of Legal Rights

Jurisprudence Subject-Wise Law Notes

LawBhoomi ● March 5, 2020

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 Contents [ hide ]

1. Meaning of Legal Rights

2. About Hohfeld’s Analysis of Legal Rights

3. Legal Rights in Strict Sense

4. Hohfeld’s Analysis of Legal Rights

5. Liberty and No-Rights

6. Power and Liabilities

7. Immunities and Disabilities

8. Conclusion of Hohfeld’s Analysis of Legal Rights

Meaning of Legal Rights

A right is an interest protected and enforced by law. In law it is mostly

applied to property in its restricted sense, but it is often used to designate
power, prerogative, and privilege. The words ‘right’ or ‘privilege’ have a
variety of meanings, like ‘a legal claim to do’, ‘legal power’, ‘authority,’
‘immunity granted by authority’. A man has several rights over both
tangible and intangible objects. He also possesses rights as a person.

Rights can be divided into 4 different kinds:

Rights in the strict sense

Immunities
Liberties
Powers

The correlatives of each of these rights are:

Duties
No-Rights
Liabilities
Disabilities
About Hohfeld’s Analysis of Legal Rights

Professor Wesley Newcomb Hohfeld, a graduate from University of

California gave the concept of analyzing legal rights. Professor Hohfeld
has contributed mostly to the field of Jurisprudence. He simplified the
term right by analyzing several core concepts in law.

Professor Hohfeld has proposed that the different meanings of the term
right are often expressed in a single sentence. This uncertainty in the
language indicates a lack of precision in thought and the conclusions that
are derived in turn. His broke the meaning of rights into eight unique
concepts. These terms are defined with respect to one another to
eliminate the presence of any ambiguity. The four pairs of opposites and
correlatives exist as mentioned below.

Legal Rights in Strict Sense

Each and every right has a corresponding duty. When a right is invaded, a
duty is violated. This implies that if A enjoys a right against B, then B is
duty bound to respect this right.

Positive and Negative rights– A positive act relates to a positive right

whereas any abstinence from it would constitute a negative right.

‘Rights in rem’ and ‘Rights in personam’– Both these terms have been
derived from civil law. A ‘right in rem’ is a right that exists against the entire
world whereas a ‘right in personam’ is against a specific individual. ‘Rights
in rem’ are considered as negative rights whereas ‘rights in personam’ are
usually positive in nature.

Proprietary and Personal rights– The former is concerned with value while
the latter is not. Value, in the case of proprietary rights, is derived from
estate, property etc and personal rights are associated with status,
reputation.

Hohfeld’s Analysis of Legal Rights

Liberty and No-Rights

Liberty is defined as the exercise of a right without the interference of law.

By adding all the rights and duties across relationships, the degree of
liberty can be determined. A perfect liberty is one where no one has any
exclusive right to restrain the occurrence of a given act.

Liberty does not mean interference with others like liberty to free speech
on public affairs does not grant a person the right to publish defamation.
Likewise one has the liberty to self-defense against violence but no right is
conferred to engage in revenge against the person who inflicted the injury.

Liberty is exercise of unrestrained activity permitted under law. The

primary difference between liberty and rights in strict sense is that things
we do for ourselves are termed as liberty whereas things which others do
in our respect are classified as rights in strict sense.

No-right is the correlative of liberty. It means absence of a right. The term

‘no-right’ basically implies that a certain person does not have a right
against another individual in a particular respect.

Another example in this context is that when an alien who has no duty not
to enter a foreign country i.e. he has liberty to enter. The authorities have a
no-right against him i.e. they may not have any right in the strict sense
though they may still possess a liberty to refrain him from entering. [i]

Power and Liabilities

Another set of legal rights come in the form of powers. Example- power to
make a will, the power to take legal action against someone, the power to
sell a property if the mortgagee does not receive the money from the
mortgagor etc. Power determines legal relations and gives rise to either
‘authority’ or ‘capacity’. ‘Authority’ is the exertion of power over others
whereas ‘capacity’ is power exerted over oneself.

Powers and rights in the strict sense are different because in the latter
case, a corresponding duty always exists which is absent in the former
case. Example- right to create a will does not result in a corresponding
obligation for someone else.

Private or Public powers– Private powers are exercised by individuals.

Public powers lie with state agencies or instruments that carry out public
functions. Example- powers exercised by the judiciary, legislature and
executive.

Liability is defined as the alteration of a person’s legal rights by the person

exercising power. Examples- the determination of a lease by reentry of the
landlord places a liability on the tenant, one against whom a judgement
has been passed is liable to have a decree of execution etc.

Liability is not concerned with the fruitful or unfruitful result in any given
case. For instance, a person committing a tort is duty bound to pay
compensation and is liable for an action to be brought against him/her as
well. However, someone who is not a tortfeasor is not under any duty to
pay compensation but is equally liable for an action to be instituted, that in
all probability will fail, as no grounds exist.

Liability can also be seen as an advantage or benefit. A person who

professes to transfer his property as a gift through the exercise of power,
the person entitled to the gift has a liability to receive it. [ii]
Immunities and Disabilities

Another category of rights is immunity from legal power. The relationship

between immunity and power is identical to that of liberty and right in the
strict sense. Immunity implies a complete lack of liability.

Disability, the correlative of immunity, is better known as inability and

signifies the absence of power. The legal maxim ‘Nemo dat quod non
habet’ means that no person can transfer a better title in property than
what is possessed by oneself, is an expression of disability.[iii]

Conclusion of Hohfeld’s Analysis of Legal Rights

In this article some of the most important principles of Hohfeld’s analysis

of rights and his work is the essential tool for gaining not only a
conceptual but a practical understanding of the nature of rights. Hohfeld’s
work consists of a deep analysis by which he sought to reflect the ideas
that people hold about rights. Although analytical in its nature, Hohfeld’s
analysis is of fundamental practical value.

For more notes on Jurisprudence, click here.

References

[i] https://www.ukessays.com/essays/philosophy/the-hohfeldian-analysis-
of-rights-philosophy-essay.php
[ii] https://en.wikipedia.org/wiki/Wesley_Newcomb_Hohfeld
[iii] http://classic.austlii.edu.au/au/journals/MurUEJL/2005/9.html

Author Details: Prapti Bhattacharya (2nd year student at Asian Law

College, Noida)
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