Rights claimed in modern society have a contradictory quality about them. We can easily place strongly affirmed rights in direct conflict. For example, people claim the right to life yet there are others who claim a right to abortion; people claim the right not to be killed by another, yet there are also claims to a right to die.
These are few examples. The claim to right is thus ultimately a claim to self-determination, which can produce logical contradictions and is itself in contradiction to the aspect of social control by law. However, the contradiction is one of degree. Thus, the issue of rights in the social context is one of balancing conflicting claims and determining which claims have priority.
The nature of rights:
There are two principal theories of rights. Professors H.L.A Hart and Neil MacCormick have provided an interesting debate about the nature of rights. The debate centres around Hart’s will theory of rights and MacCormick’s interest theory of rights.
Hart’s argument is that a right is laid down in a legal rule and does not exist independently of that legal rule. Any individual has a choice whether or not to exercise his or her will over another by reference to the existing legal rule. The law can be explained in correlative terms-right and duty. However, the individual can choose whether to exercise that right. Whenever the individual exercise his right, he makes a choice whether or not to enforce a rule of law.
We can use the civil law to illustrate this. If A owes B £100, B can exercise his will by waiving the debt. Where this happens, A is released from his duty to B. duties owed in contract and trust can be waived in this manner. Criminal is different because one cannot waive duties imposed by the criminal law. I cannot waive your duty not to murder me. Neither can I say I am exercising my will in enforcing my right that you do not murder me. This makes no sense. It is because the waiver exists in the civil law but not the criminal law that we associate rights with the civil law rather than the criminal law.
MacCormick’s interest theory:
MacCormick criticises Hart’s theory on the grounds that there are some rights which do not seem to involve the exercise of a choice at all. He argues that, particularly in the area of paternalistic criminal law, the law limits the power of waiver without destroying a substantive right. An example would be in respect of assault or of murder. The law will not admit the consent of the victim in defence to a prosecution. MacCormick argues that if one cannot consent to assault it follows that one is not exercising a choice on the right to freedom of the person. MacCormick maintains that the nature of rights can be viewed as protecting the interests of the right holder.
Looking at the difficult example of the rights of a child MacCormick draws a distinction between the substantive right and the right to enforce the substantive right. He shows that the child possesses the substantive right to have its interest protected but lacks the right to enforce that right-the right to enforce is exercisable by the child’s guardian on behalf of the child. Further the child cannot in fact or in morals or in law relieve his or her parents of their duty towards it. MacCormick then prefers the view of rights as protecting certain interests in the sense that either moral or legal normative constraints are imposed on the acts and activities of other people with respect to the objects of one’s interest.
Hart rejects the view that rights are legally protected interests because he maintains that the interest analysis does not explain rights independently of duties. If a right is merely a protected interest then rights can always be expressed as a reflex of duties. MacCormick gives an example of the right of succession in intestacy. He shows that such a right cannot be rephrased in terms of the rights of the personal representatives because the right vests at death, prior to these duties. MacCormick maintains that the idea of correlatively obscures the fact that duties are imposed in order to protect rights.
There may be a problem with identifying the beneficiaries of a duty. Simmonds in his book Central Issues in Jurisprudence, uses the example of the crash helmet law whereby all people riding on a motor bike are under a legal duty to wear a crash helmet. Who is the beneficiary? Surely not the manufacturers of crash helmets? MacCormick may not be entirely correct in his contention that the power to waive a right is not a necessary part of a right but is just something that a right often includes. In support of that contention he demonstrates that in certain circumstances it is necessary to override freedoms-for example, in contract the freedom to contract the terms is overridden by the recent consumer protection legislation. Simmonds sums it up thus:
‘Even if MacCormick has provided a convincing case against the correlativity of rights and duties, it is by no means clear that he has provided a convincing alternative’.
MacCormick does admit the importance of the will theory in the explanation of rights. He put it thus:
‘…..it cannot be denied that the central point of the theory is that apart from children and incapacitated persons the holder of a legal right is empowered in law to choose whether he should avail himself of his right on a specific occasion by insisting on performance of the correlative duty’.
The particular strength of the interest theory is that it covers all types of rights (the so called socio-economic rights such as health care, education, a minimum income) as well as ‘liberties’. Despite problems, the interest theory remains the most convincing explanation of what having a right entails.
If that is so it might be assumed that Hart’s and MacCormick’s theories are compatible, but that would be to fall into the linguistic trap which was so much the concern of Hohfeld. For MacCormick the difficulty is in the absence of choice with regard to children’s rights, the argument going that those rights are among those referred to in a footnote by Hart in his notion of immunity rights of children as envisaged by MacCormick are claim rights whereas Hart’s are immunity rights. Hence while both rights are fundamental and important they have different lowest common denominators.
Jeremy Bentham believes that rights consist of those rights given by law. Bentham would draw a clear distinction between moral and legal rights. The concepts of ‘right’ and ‘duty’ are legal constructs; no one has any rights except those given by law.
Professor Dworkin, on the other hand, argues that rights have a sufficiently special status to make a difference to the way social and political decisions are reached. In Dworkin’s Theory of Rights, he states that all goals that a society pursues must be justified by reference to rights.
There are good reasons for concluding that there are no ‘absolute rights’. Rights can be overridden, for example, to protect another person’s right, in national emergencies and to protect the national interest as shown by the Official Secrets Act. Beyond this, there is no justification to interfere with rights such as liberty and equality. Surely, if the reasons for interfering with these rights are based on utilitarian calculation then there is a strong case that since these rights cannot be compromised, they have trumped those utilitarian considerations.
Hohfeld’s Analysis of Rights
Hohfeld sought to clarify the proposition ‘X has a right to do R’ which may, in his view, mean one of four things:
a) That Y (or anyone else) is under a duty to allow X to do R; this means, in effect, that X has a claim against Y. He calls this claim right simply a ‘right’.
b) That X is free to do or refrain from doing something; Y owes no duty to X. He calls this a ‘privilege’ (though it is often described as a ‘liberty’).
c) That X has a power to do R; X is simply free to do an act which alters legal rights and duties or legal relations in general (e.g., sell his property) whether or not he has a claim right or privilege to do so. Hohfeld calls this a ‘power’.
d) That X is not subject to Y’s (or anyone’s) power to change X’s legal position. He calls this‘immunity’.
Hohfeld conceived of these four ‘rights’ having both ‘opposites’ and ‘correlatives’ (i.e., the other side of the same coin)
Hofeld’s scheme of ‘jural relations’
Opposites: right privilege power immunity
No-right duty disability liability
Correlatives: right privilege power immunity
Duty no-right liability disability
Thus, to use Hohfeld’s own example, if X has a right against Y that Y shall stay off X’s land, the correlative (and equivalent) is that Y is under a duty to keep off the land. A privilege is the opposite of a duty, and the correlative of a ‘no-right’. Hence, whereas X has a right (or claim) that Y should stay off his land, X himself has the privilege of entering on the land, or, in other words, X does not have a duty to stay off.
It is important to note that, for Hohfeld, claim rights (i.e, rights in the normal sense) are strictly correlative to duties. To say that X has a claim right of some kind is to say that Y ( or someone else) owes a certain duty to X. but to say that X has a certain liberty is not to say that anyone owes him a duty. Thus if X has a privilege (or liberty) to wear a hat, Y does not have a duty to X, but a no-right that X should not wear a hat. In other words, the correlative of a liberty is a no-right. Similarly the correlative of a power is a liability (i.e, being liable to have one’s legal relations changed by another), the correlative of an immunity is a disability (i.e, the inability to change another’s legal relations)
But is Hohfeld correct? Is it true that whenever I am under some duty someone else has a corresponding right? Or vice versa? In the first case, surely it is possible for me to have a duty without you (or anyone else) having a right that I should perform it. In the criminal law certain duties are imposed upon me, but no one has a correlative right to my performing these duties. This is because it is possible for there to be a duty to do something which is not a duty to someone; for instance, the duty imposed on a policeman to report offenders-he owes this duty to no one in particular, and, hence, it gives rise to no right in anyone. And even where someone owes a duty to someone to do something, the person to whom he owes such a duty does not necessarily have any corresponding right. Thus , I have certain duties toward my students, but this does not necessarily confer any rights upon them. Similarly, we commonly accept that we owe certain duties to infants or animals; yet many argue that it does not follow from this that they have rights. You will have encountered several examples of the absence of correlativity of rights and duties in criminal law: the duty, say, to observe road signs contains no reference to any duty to others and therefore implies no rights vested in anyone.
On the other hand, it is, of course, common for me to have a right to do something, without you (or anyone else) having a corresponding duty. Lawyers, however, often assume that right and duty are correlatives. Hohfeld (Fundamental Legal Conceptions) quotes Lord Lindley’s dictum in Quinn v Leatham , that the claimant had a right to earn his living as he pleased provided he did not infringe the law or the rights of others:
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.
But this seems mistaken. And similar attacks have been made on Hohfeld’s treating a power as a correlative of a liability, an immunity of a disability and so on.
Yet these criticisms may miss the point of Hohfeld’s purpose. J.W. Hassis (Legal Philosophies), offers a spirited defence of Hohfeld’s position. It is true that, in order to make sense of legal relations between persons, correlativity is part of the law’s lowest common denominator-because every judicial issue involves two persons. In practice, therefore, litigation gives rise to opposing parties-even where, strictly speaking, the defendant does not owe a duty to the plaintiff. Thus my duty to pay tax on my income does not necessarily give rise to a right held by another; but the taxman will pursue me in the courts in order to recover tax owing. Hence, the court has to answer the question: does the defendant owe a duty to the plaintiff. Similarly, in those recent decisions in which the courts have had to consider whether private individuals have locus standi to enforce the duties imposed by the criminal law, or the duty of public authorities to provide various facilities such as health care and housing, the question is whether the defendant’s conduct was in some way privileged-in relation to the plaintiff. In other words, someone has to bring the action or, indeed, be sued. Correlatives seem a convenient way of describing the relationship between the plaintiff’s action and the defendant’s conduct. But, as Harris concedes, where a court holds that a private person may bring an action only where he has a ‘private right’, this must mean that he has a ‘private interest’-a non-Hohfeldian, non-relational conception of right. And, on the other hand, there will be cases where a general, uncorrelated ‘duty’ is the basis for recognising a certain relationship. So, in Johnson v. Phillips, the duty of the police to promote the free flow of traffic was held to justify a constable, in an emergency, ordering a motorist to drive the wrong way down a one-way street. Here no correlative right arises. Perhaps the answer is that ‘judicial reasoning is necessarily infused with moral and political ideas about private right and public duty, for which some non-Hohfeldian analysis is essential’
All four of Hohfeld’s rights are rights against a specific person or persons.
You may discover other defects with the correlativity thesis.
There are clearly different types of ‘right’. The concept is used ambiguously. Hohfeld was not the first jurist to note this, but his account was the most rigorous and remains today, despite its faults, the source to which most (and not just jurists) return.
The undoubted value of Hohfeld’s analysis, whatever its limitations, should not blind us to the fact that there are common features shared by all these types of rights. What MacCormick calls ‘normative security’ can be achieved in a number of ways. What Hohfeld has demonstrated are the separate ways in which this can be done.
There are many problems with Hohfeld’s analysis. I point to a few major difficulties.
First, he purports to analyse fundamental legal concepts, but he has no concept of law, nor does he attempt to define what it is that gives his conceptions their ‘legal character’.
Secondly, there is no adequate explication of what legal relations are. There is no discussion of the role that legal concepts play. Though there is no real examination of the question, Hohfeld seems to assume that the word ‘right’ denotes some entity.
Thirdly, most, if not all, of Hohfeld’s examples are drawn from private law. This may account for the cursory, and inadequate, treatment he gives to the concept of ‘duty’. Whilst Hohfeld is correct to state that every right stricto sensu implies the existence of a correlative duty, not every duty implies a correlative right. Non-correlative duties do not seem to have a place in Hohfeld’s scheme. This suggests that Hohfeld would find it difficult to explain whole areas of law, most obviously criminal law. By his failure to analyse ‘duty’ Hohfeld misses the point that duties are not all of one type. There are prohibitions backed up by sanctions (the criminal law provides the paradigm of this), but there are also different types of regulation and many civil law duties. These, for example the duty to take reasonable care in the law of negligence, are related to issues of liability in ways Hohfeld does little to explain. Fourthly, other concepts are also explained inadequately. For example, power is described in terms of control. But control itself is not further explicated or discussed. And right stricto sensu is described in terms of claim, but claiming itself is far from an uncontentious or unambiguous activity. For example, does a right imply a claim, or imply a right to claim?
Despite these faults, it is generally agreed that Hohfeld has uncovered longstanding confusions and offered valuable analytical clarification. His schema remains a starting-point for much contemporary rights analysis. It has been found useful by moral philosophers, by anthropologists, by comparative lawyers, as well as by jurists. Its value essentially lies in its enabling us to reduce any legal transaction (or moral relationship) to relative simplicity and precision, and to recognise its universality.
The positive features of Hohfeld’s analysis should not be overlooked. His scheme has advanced our knowledge of concepts of ‘rights’ and ‘duties’, particularly through his specific comparisons. He has drawn attention to the legal circumstances which may flow from the existence or absence of defined rights, liabilities, etc. The practical effect of the analysis may be seen, for example, in the American Restatement of the Law of Property, in which ‘right’, ‘privilege’, ‘power’, and ‘immunity’ are defined in Hohfeld’s terms. Pound, in an article which is generally critical of Hohfeld, refers to the ‘great service’ he performed in bringing home to teachers, practitioners and judges the necessity to use caution in the employment of the conventional terms used in discussion concerning rights, and to realise that whatever we choose to call basic conceptions, they must be understood clearly. This is, to a large extent, what Hohfeld had in mind as the purpose of his analysis of rights in terms which would reduce significantly the deleterious effect of chameleon-hued words.