THEORIES OF RIGHTS: HOHFELD AND THE INTEREST/WILL DEBATE

I. Wesley Hohfeld A. Analytical table of jural relations 1. The comprehensiveness of the Hohfeldian relations (a) The relations apply to the performance of any action or to the existence of any state of affairs (such as the possession of assets, including physical and psychological welfare) or to the nonperformance of any action. The relations can obtain between any person and any number of other people (ranging from one person to the indefinite group of people who make up the "world at large")

(b)

RIGHT DUTY

LIBERTY NO-RIGHT

POWER LIABILITY

IMMUNITY DISABILITY

2.

First-order jural relations (a) RightDuty. The holder of a right is normatively protected (with the backing of the state, if necessary) against the interference or uncooperativeness of one or more other people. Anyone vis--vis whom the right obtains is under a duty to comply with its terms, whether the terms call for noninterference or for assistance. LibertyNo-Right. The holder of a liberty is free of any duty to some other person(s), with regard to the act or omission or state of affairs covered by the liberty. Everyone vis--vis whom the liberty is held has no right that would limit the liberty-holder's freedom in the area of conduct covered by the liberty, though everyone may well have a liberty to interfere with the exercise of that freedom. A liberty can be surrounded by a perimeter of rights, which serve to protect one's ability to exercise the liberty (as Bentham, Hart, and Hillel Steiner have recognized).

(b)

(c)

(d)

Liberties do not entail rights, and rights do not entail liberties. To illustrate the latter point, consider an example involving fishermen and a factory. (i) My specifications of the contents of the relevant legal positions are accurate, even though theyre not uniquely accurate. The factory owner has a right to commit a wrong i.e., a right against interference with his commission of a wrong. The nature of the remedy (damages versus injunctive relief) doesnt affect my point, especially because the type of remedy is contingent.

(ii)

(iii)

(e) 3.

Potential for conflicts between duties (example of contract for nonpayment and statute for payment to elderly parents)

Second-order jural relations (a) PowersLiabilities. The holder of a power can change or cancel other people's entitlements and his own entitlements. The bearer of a liability is exposed to amplifications or shifts or reductions in his or her entitlements. i. Shifts in one's entitlements are not invariably unpleasant; a promisee can benefit greatly from the rights vested in him by a promisor. See Hohfeld, p 60 n90. The explanation here is that the distinctive functions of the second-order entitlements are defined in a purely nonevaluative and descriptive manner. Note the contrast with rights, the identification of which inevitably rests on evaluative assumptions. (Example of duty-to-support-one's-parents and duty-to-inform-onone's-parents.)

ii.

(b)

ImmunitiesDisabilities. The holder of an immunity is not exposed to the exercise of a power within the domain covered by the immunity. In that domain, everyone vis--vis whom the immunity obtains is disabled from changing the immunityholder's entitlements. i. ii. Most of the entitlements conferred by so-called bills of rights are immunities. Immunities must accompany other entitlements to prevent them from being meaninglessly hollow.

(c)

The relationship between the power/liability axis and the immunity/disability axis is precisely similar to the relationship between the liberty/no-right axis and the right/duty axis. Just as a liability is the absence of an immunity, and a disability is the absence of a power, so a no-right is [obviously] the absence of a right, and a duty is the absence of a liberty. Note that rights are logically parallel to immunities and that liberties are logically parallel to powers, whereas rights are genetically or etiologically parallel to powers, and liberties are genetically or etiologically parallel to immunities.

(d)

B.

Some clarificatory remarks 1. Purificatory and axiomatic, not substantive and empirical. Hohfeld's table is a formal framework of deontic logic, rather than an attempt to prescribe or postulate the substance and the distribution of entitlements. It is therefore not susceptible to empirical refutation. Existential or analytical priority versus justificational focus: right-based and duty-based moral/political theories are justificational doctrines that are fully compatible with the thesis of the correlativity of rights and duties Neutral between the "Interest Theory" and the "Will Theory" of rights (a) Interest Theory (i) Necessary though insufficient for the holding of a legal right by X is that the duty correlative to the right, when actual, normatively protects some aspect of Xs situation that on balance is typically in the interest of a human being or collectivity or nonhuman animal. Neither necessary nor sufficient for the holding of some specified legal right by X is that X is competent and authorized to demand or waive the enforcement of the duty that is correlative to the right.

2.

3.

(ii)

(b)

Will Theory: Both necessary and sufficient for the holding of some specified legal right by X is that X is competent and authorized to demand or waive the enforcement of the duty that is correlative to the right. Hohfeldian claims can be combined with powers of enforcement, but do not have to be hence, strict neutrality in the Interest/Will dispute

(c)

II. The Will Theory: amplification and criticism A. Three stages at which powers of waiver/enforcement are held by a right-holder 1. Before the violation of a duty 2. In the aftermath of the violation of a duty 3. In the aftermath of successful legal proceedings against the violator B. Shortcomings of the Will Theory 1. 2. 3. 4. 5. 6. No rights against being murdered or rendered comatose No rights under the criminal law No minimum-wage law rights No rights for children, senile people, lunatics, comatose people, dead people, future generations, animals No unwaivable fundamental rights Powers of enforcement/waiver can be held by multiple individuals or groups.

III. Facets of the Interest Theory A. Benthams test is needed for limiting the range of actual right-holders: In order to
determine whether someone holds a legal right under a contract or under any other legal norm, we need to ask what facts are minimally sufficient to constitute a breach of the contract or norm. If and only if at least one minimally sufficient set of facts includes the undergoing of a detriment by some person Q at the hands of some other person R who bears a duty under the contract or norm, Q holds a right correlative to that duty under the contract or norm.1

B. Claim-rights have to be accompanied by immunities if they are not to be utterly hollow. The term right is best used for the combination of a claim-right and sundry immunities against divestiture of the claim-right. C. Purely vicarious interests are not sufficient as the basis for an attribution of a right; see the 2007 article by Kramer & Steiner. D. Interest Theorists readily recognize the conferral of rights by the criminal law and by minimum-wage laws.
1

Ihaveslightlysacrificedaccuracyforthesakeofreadabilityinthisformulation.Thephrase undergoingofadetrimentshouldreallybeundergoingofsomedevelopmentthatistypically detrimentalforahumanbeing.

IV.

The Interest Theory does not rule out the holding of legal rights by animals and dead people and future persons and infants and comatose people and lunatics and senile people and foetuses. (The Will Theory rules out the holding of such rights by such beings, while acknowledging of course that many of those beings do and should enjoy various legal protections.) A. But the Interest Theory does not per se logically commit its proponents to the thesis that the aforementioned creatures are potential holders of legal rights. [It answers the conceptual question favorably but not determinatively.] One further set of inquiries, a set of moral inquiries, is needed. To what classes of beings can interests of the germane sorts be properly attributed? 1. To see the need for this additional question, we should ponder the difference between a law against assault and a law against walking on the grass (or a law against the defacement of beautiful paintings or the destruction of majestic buildings). A question about the sorts of interests rather than the attributability of interests (a) Conception of interests is broad enough to allow the attribution of interests to many inanimate entities as well as all plants and animals. Disentangles moral and conceptual questions, and allows us to ascribe interests to beings (such as goldfish) that are nonetheless not designated as potential holders of legal rights

B.

2.

(b)

3.

This inquiry is distinct from questions about the ways in which various beings should be treated. (a) Thus, for example, the following two theses are perfectly compatible: (i) Legal norms that shield foetuses against abortions and experimentation have endowed the foetuses with legal rights. Foetuses should be largely or wholly devoid of legal protection against abortions and experimentation, at least in the early stages of the foetuses' development.

(ii)

(b)

Similarly compatible are the following two theses: (i) (ii) Trees should be legally safeguarded against a number of injurious practices. The law's securing of arboreal welfare does not consist in

the holding of any legal rights by the trees. (c) In other words, the question whether various beings are potential holders of legal rights is separate from the question whether any or all of those beings should actually be legally protected.

4. 5. 6.

The inappositeness of the "rights bring with them responsibilities" objection What is the benchmark or touchstone for gauging the germaneness of interests? Mentally competent human adults are the point of reference. What are some possible factors that might serve as bases for distinguishing between beings that are and beings that are not potential holders of legal rights? (a) Factors to distinguish between beings for whom legal protections are established and beings in relation to which such protections are established Animateness; sentience; capacity for pain/pleasure; possibly some degree of sophistication Groups of human beings and certain types of human beings must be considered separately (i) (ii) Interests of groups connnected to interests of individuals (qua individuals and qua collectivity) Infants and senile people and foetuses and lunatics are fairly clear-cut, even without our taking account of their membership in the human species. Comatose people: ongoing membership in the human species (and also moral assimilability of current existence to earlier or later periods of their existence) Dead people: aftermath of each person's existence (presence in other people's lives) is morally assimilable for a certain period to the time of his or her existence Future persons <> Anticipated existence morally assimilable to eventual existence; solicitude of current persons is the key Problems of individuation

(b) (c)

(iii)

(iv)

(v)

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