Book contents
- Frontmatter
- Contents
- Preface
- 1 Introduction
- 2 Plato
- 3 Hobbes
- 4 Locke
- 5 Human motivation
- 6 Human value
- 7 Hohfeld's analysis
- 8 Hohfeld's analysis analysed
- 9 Change
- 10 Inconsistency
- 11 Understanding rights
- 12 The rights-based approach
- 13 Duty and justice
- Conclusion
- Appendix 1 United Nations Universal Declaration of Human Rights
- Appendix 2 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 Rome, 4.XI.1950
- Bibliography
- Index
8 - Hohfeld's analysis analysed
- Frontmatter
- Contents
- Preface
- 1 Introduction
- 2 Plato
- 3 Hobbes
- 4 Locke
- 5 Human motivation
- 6 Human value
- 7 Hohfeld's analysis
- 8 Hohfeld's analysis analysed
- 9 Change
- 10 Inconsistency
- 11 Understanding rights
- 12 The rights-based approach
- 13 Duty and justice
- Conclusion
- Appendix 1 United Nations Universal Declaration of Human Rights
- Appendix 2 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 Rome, 4.XI.1950
- Bibliography
- Index
Summary
What exactly does it mean for Hohfeld's scheme of “exact” concepts to be an “analysis” of fundamental jural relations? According to Hohfeld we can use his system to solve legal questions, as his editor Cook observed. For example, where a person has property rights of a certain kind, we can deduce that someone else has the appropriate correlative duties. More generally, with complex situations we can deduce a series of relationships involving claim-rights, privileges, powers and immunities, and their opposites and correlatives. Hohfeld quotes Bruce Wyman's (1876–1926) work Public Service Companies, as follows:
The duty placed upon every one exercising a public calling is primarily a duty to serve every man who is a member of the public. … It is somewhat difficult to place this exceptional duty in our legal system … The truth of the matter is that the obligation resting upon one who has undertaken the performance of public duty is sui generis.
And Hohfeld comments on this, “It is submitted that the learned writer's difficulties arise primarily from a failure to see that the innkeeper, the common carrier and others similarly ‘holding out’ are under present liabilities rather than present duties”.
As Cook says, these kinds of solutions to legal questions are “correct” solutions: the truth of the matter lies not with Wyman but with Hohfeld. But what makes them correct? Given the truth of presupposed assertions about a person's legal rights, further legal and social truths can then be deduced.
- Type
- Chapter
- Information
- Rights and ReasonAn Introduction to the Philosophy of Rights, pp. 100 - 114Publisher: Acumen PublishingPrint publication year: 2003