Notes on Wesley Hohfeld\'s Theory of Law PDF

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Notes on Wesley Hohfeld's Theory of Law...

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Hofeld:

Wesley Hohfeld’s analysis: Hudson and Husak, How useful is Hofeldian Analysis? Hofeld was gripped by classic puzzles in legal theory about rights in rem and rights in personam in relation to equitable interests. Hofeld realised that confusion regarding rights could easily arise as a result of misunderstanding fundamental conceptions and jural relations. The most serious impediment to clear thinking and true solution of all legal problems, was the express tacit assumption that all legal relations can be reduced to rights and duties and that these latter catergories are therefore aequete for the purpose of analysising event he most complex legal interests suxh a s trusts optionsm escrows, corporate interests etc He did this by criticising judicial creativity in the backdrop of Wrote of the backdrop of backdrop of legal realism. Criticises activism  Criticises legal reasoning in Quinn v Leatham (tort you can commit by interfering with somebody else’s business, tort of interference e.g Picket in front of a shop) Tort of interference – There is a cause of action (could affect trade unions)  Hohfeld criticises judgment, that - Everybody has right not to be interfered. - Judge changed concept of right. Shifted it, everybody has right to engage in business. People are free, not the same you have the claim right to say somebody has a duty not to interfere. - Hohfeld says – When you start with the proposition everybody has right to engage in business, it means nobody is under a duty to engage in a business. - Not the same as saying you have a claim right against a 3rd Party who has a duty not to interfere with you. That is creative, needs more argument  H is saying HOL, anti trade union agenda, pro shop owners. Free market direction  Therefore Gap in the logic, clarity is needed  Hohfeld sets up table of positions, different things we could call rights, aims to disentangle and clarify the four conceptions. When we talk about rights it could be:

Baby Sitter I have claim right that you not leave the house– you have duty to not leave – You do not have liberty to leave I have no claim that you should not leave – you have liberty not to leave – You do not have duty to not leave You have liberty to leave – I have no-right that you should not-leave - I do not have Claim right that you should not leave You have duty to leave – I have claim right that you should not leave – You do not have noright Aristotle: ‘It is impossible for the same man to suppose that the same thing is and is not. One cannot say of something that it is and that it is not in the same respect and at the same time. A has a no-right, or right but not both. Williams suggests that there is a third set of jural relations. Called contradictories – So let us suggest that A has a right that B pays her $10 and B has a duty to pay $10 to A, for the jural contradictory, Since A has a right to be paid $10, B cannot have the liberty to pay. -

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Claim right (Duty) – Relationship with another. When I have a claim right against you, you owe a duty to me. Selling a book – Claim right to 100 pounds against you, you have a duty to pay me 100 pounds Liberty (no right) – I have no duty to you if I have liberty. Absence of duty. Power (liability) – To have to power to change the legal position of another. Writing a will, effects the ownership of the other people. OR Renting a flat, your lease may give you to terminate in a month notice. Liability against another with power –risk something may happen. Immunity (Disability) – Protection. Prevents your rights and duties from being changed. Contract, with a month’s notice gives you immunity from being evicted not in a month’s notice (while giving you the power, and liability of terminating that contract) Opposite of a power is a disability.

Can use the analysis to excuse judges from justifying a particular view

It must be noted that jural relations cannot be with a thing, it can only be with a person (in personam) or with the world (in rem) Markbly: If we attempt to translate the phrase in rem literally and get it into our heads that a thing is a person, and liable to duties, we shall get into a endless confusion Decond, ownership of a thing is generally understood as a bundle of entitlements over the thing. Hohfeld’s system unbundles the entitlements, which could logically improved the decision of Quinn. 1. Entitlement of liberty to enter and enjoy your own land. 2. Entitlement of claim right to be free of trespass They are linked entitlements but distinquished

Ought

Ought to pay taxes Ought not to take cocaine

Not ought to join the army Not ought to not drink (liberty to do so)

N t

ght t d

O – Ought ~ - Negative p - Proposition (E.g Paying your taxes) The boxes show the overlap – E.g Permission implies Prohibition Deontic Hexagon: Plan of most basic logical possibilities of what ought to be:

Adapt this to Hofeld’s analysis: Babysitter: Contract: Stay in the house – Duty not to leave - I had a right against the babysitter, you have a duty not to leave. - The opposite: I now have no right against you that you not leave the house, so you have the liberty to leave, not a liberty not to leave - As you can see, the description of the action has changed Look at the Hexagon: Command, not to leave – (Op) to a permission (~O) Q – Can you ever have the freedom not to leave Burglar: Not allowed – I have a right that you leave – Burglar has the Duty to leave. - I have a right, you have a duty to leave

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The Opposite: I have no right against you that you leave, so you have the liberty to not leave (Not liberty to leave), freedom to stay - We have negative the action Q what does he mean by 3 times one way one time the other His liberties and privileges are half; they only relate to one side of permission. Permission is worked out in two ways – permission to do, and permission not to do. In Hohfeld’s analysis, it is only freedom one way: The Baby sitter has the liberty to leave, not, the liberty not to leave  

It is a liberty not to not leave which does not imply the liberty to not leave

Advantages:    

Much easier to navigate the law Better legal argument, practical tools, question can be answered practically Summary taken from Simmonds Retains notion of rights as peremptory

Limitations of Hohfeld’s analysis  Legal relations and complex persons, What about a company or state? Holfeld break  Legal relations and imperfect obligations US Hoefeldians immunities due to constitutions, your freedom cannot be changed. UK Hoefeldian Privileges – IT can always be changed – holfedian power, state can change your freedom. Difficulty with that analysis is that when you push further, it is not that simple:  

In UK, Gov can limit freedom expression, but local authority cannot. Immunity from authority no immunity from parliament. Immunity from congress, no immunity from constitution

Breaking the state up, We must think of state as consistent parts

Legal relations and complex positions. Legal positons never simple in H terms. (when you have a plain right to contract for 1oo quids, you have capacity to sue (this is additional claim right) Procedural rights (Still Hofeldian power) further claim right  Hart says it is complex Hofeldian positions.  Cushion of other legal rules that secure your freedom in practice, for example third parties stopping you such as person breaking your leg, who limit your freedom.  Whole set, interlinked bundle Can Hofeld cope with imperfect obligations. 

Can criminal law work?

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If rights entail duties they restrict freedom Moral Rights? Useful? Not telling us hat to do

Look at Gemma’s presentation:  Read Tutorial Reading Gerwith: Tries to group human rights in morality itself Criticism:...