Hohfeld's Jural Relations
Hohfeld saw every jural relation as a relation between two. 5 Id. at . Hohfeld's main goal was to clarify the basic difference between rights (or claims). Part I - Exposition of Hohfeld's Jural Relationships .. the balancing of interests or the advancement of socially desirable goals as far as the understanding of the . Jural Relationship is a type of legal relationship existing between the landlord and tenant as long as the valid tenancy shall continue between them with regard .
Simmonds notes that 'Constitutional Bills of Rights frequently confer extensive and very important immunities, in so far as; they disable the legislature from enacting certain types of law'.
I have shown so far how useful Hohfeld's analysis can be in getting a clear sight of the jural relations of the parties involved and their legal positions.
Indeed, as has been suggested, Hohfeld's work has become important, not only in the classification and clarification of rights elements themselves, but also in the relationship between the non-Hohfeldian uses of the term right, for instance when a privilege a non-absolute right can co-exist with another privilege.
I will further illustrate how Hohfeld's analysis helps to clarify legal relationships and the meaning of 'rights' by using the case of Quinn v Leathem  in part II. One needs to note that the stipulative nature of Hohfeld's analysis of rights presents an analytically clear scheme which manages to steer clear of the confusion and complexities which are usually present in theories of rights which seek to justify rights, bringing into the equation various justificatory factors. In contrast to Hohfeld, consider, for example, theorists such as Dworkin,  Kymlicka,  Kant  and MacKinnon  who seek to justify rights, mainly in terms of the various values they serve.
Arguably, this adds unnecessary complexity to the nature of rights. Part II - A Response to Critics Having explored Hohfeld's analytical scheme and exemplified its pertinence if one is to have a clear and elegant tool for understanding the effect of various jural relations, I now turn to consider and subsequently dismiss some of the main criticisms that have been made by fellow jurists of his analysis of rights.
I will show that some of those criticisms are unsustainable, some misguided and some are not criticisms at all, but a reinforcement of the benefit of Hohfeld's work. MacCormick and His Rejection of Hohfeld's Correlativity Axiom Hohfeld stipulates that the atomic rights elements in his analytical framework are, by definition, always correlative. His idea that this relationship of mutual entailment between rights and duties as well as other elements is correlative was not a product of some empirical assessment of the nature of rights; rather, he presented the notion of correlativity as a definitional foundation of his analysis.
For Hohfeld, it was a matter of logical necessity that there must be some kind of axiomatic mutual entailment between the rights-elements which is congruent with the notion that his analysis is stipulative and analytical rather than empirical or justificatory. Given the axiomatic nature of Hohfeld's stipulation of correlativity, which I will refer to as the 'Correlativity Axiom',  one should not attempt to try and refute it by empirical counter-examples because, as I have shown above, it is not susceptible to such attacks.
Be that as it may, there have been a number of distinguished jurists who have tried to refute Hohfeld's Correlativity Axiom. The most notable critic in this respect is MacCormick in whose view a legal right is not or does not have to be correlative to a duty placed upon some other individual. Thus, he states that '[t]o rest an account of claim rights solely on the notion that they exist whenever a legal duty is imposed by a law intended to benefit assignable individuals When such benefit is conferred, the law will then provide a normative protection to that individual and this normative protection may include 'any or all of the various modes identified by Hohfeld and others',  such as duties, disabilities etc placed on others.
Therefore, MacCormick sees legal rights as 'grounds' of duties, or reasons for imposing duties rather than simply being a correlative of the duty. On the face of it, this mounts a direct attack on the Hohfeldian Correlativity Axiom because, it will be recalled, that for Hohfeld each of the pairs of legal positions must be mutually entailed by definition.
My first contention is that MacCormick's attack on Hohfeld is misdirected because Hohfeld's analysis is immune to empirical attacks, as explained above. MacCormick therefore seemingly misconceives the nature and purpose of Hohfeld's work.
Nevertheless, I will still consider the substance of his argument, but before doing so it is pertinent to note that MacCormick is not putting forward a non-Hohfeldian account of rights, he is presenting an anti-Hohfeldian argument by directly attacking Hohfeld's chief postulation, which, if true, would probably make his work flawed and unworkable.
Where an intestate is survived by children, they shall have right to the whole of the intestate estate. He thus argues that since, as he understands it, the rights under that statute are created before a correlative duty is created, theories of rights which are based on the strict correlativity of right-duty must be necessarily flawed.
Does this mean that Hohfeld's analysis, as one based on the correlativity axiom, is flawed? First of all, a Hohfeldian right is a right against interference or for assistance and never a claim to anything, so it would be incorrect to say, in Hohfeldian terms, that the children have a claim-right to an equal share of the estate. They cannot, for such right would not be a Hohfeldian right. However, this is not really a stumbling block in our discussion since we can easily convert the right to an equal share, into a claim for assistance relating to the executor's duty to administer the estate in a certain way.
Secondly, with respect, MacCormick errs if he believes that his example s. Kramer observed  that the children of the intestate can acquire Hohfeldian rights at two separate stages. First, they acquire a right in rem good against the whole world immediately upon the intestate's death. The children will have the right to be free from interference from the proper distribution of the estate, and under Hohfeld's analysis, each and every specifiable person in the whole world would be under a correlative duty not to interfere.
The second stage, at which the children obtain Hohfeldian rights, is when an executor is appointed. Now they have a direct right against the executor requiring that he properly administers the estate. The executor is under a correlative duty to provide such assistance. We see that at no point in time are the children's rights not reflected by strict correlative duties placed on other specifiable individuals.
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- Quotations from Hohfeld's writings
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Therefore, we can see that Hohfeld's Correlativity Axiom, and thus his general scheme, easily sustain this attack. MacCormick and the Labour Relations Act Elsewhere, MacCormick offers to consider section 5 of the Trade Union and Labour Relations Actwhich states that '[E]very worker shall have the right not to be - a excluded from membership b expelled from membership, of a trade union He tells us  that the provision gives every worker a right which, in turn, gives rise to a variety of different legal protections sundry Hohfeldian entitlements and to a host of diverse legal relations.
Prima Facie this is at odds with Hohfeld's analysis which stipulates that each right must be one side of a single mutually entailed jural relationship.
The second point of contention is that MacCormick holds that the right, as a ground of a duty, provides the justification or reason for advancement of a particular set of legal protections as considered necessary. In contrast to this is Hohfeld's analysis which depicts rights and legal protections as arising in the relationships of correlativity or mutual entailment. As regards the first point of contention, MacCormicks's assertion does not debunk Hohfeld's analysis in any way.
Importantly, this is not an anti-Hohfeldian criticism at all. If section 5 1 was shown to a non-Hohfeldian judge he would probably find it somewhat ambiguous and would use the term 'right' in a non-Hohfeldian manner.
For instance, he may use the term 'right' in the sense of immunity in that a worker may be immune from having his legal relations altered through expulsion from membership given the appropriate legal doctrine and possibly other assumptions. After all, there are numerous practices where the term 'right' is employed in a non-Hohfeldian manner. Such a criticism is therefore incapable of either validating or belying Hohfeld's analysis especially since MacCormick himself acknowledges  that the diverse entitlements in s.
Importantly, one needs to appreciate that when we are using the term 'right' in a non-Hohfeldian manner it does not mean that our talk of rights is in some substantive way flawed. It would arguably help to achieve greater precision and clarity in our discourse of rights if the non-Hohfeldian terminology was eschewed altogether in favour of the Hohfeldian vocabulary, but I would not suggest that there is anything fundamentally wrong with it.
Rather, my allegation is that it is usually the anti-Hohfeldian talk of rights that is misguided, especially in instances where it is directed at denying Hohfeld's postulations of correlativity between rights and duties etc.
As far as the second point of contention is concerned, on the face of it this is an anti-Hohfeldian criticism. It seeks to attack Hohfeld's regimentation of rights into distinct categories and atomic relationships, in so far as that regimentation fails to provide for a justification or reason for creating a particular set of legal protections.
But is it a criticism at all? Hohfeld, it will be remembered, is only concerned with the relationships of mutual entailment Correlativity Axiom and not any sort of justification of rights.
A question can be asked: Perhaps one could submit that to exclude external justificatory considerations would be to misrepresent the actual character of legal reasoning with rights. Take section 5 1 for instance. Once we have identified the rights of employees, should we, in conferring the protections on employees that those rights embody, give consideration to any countervailing considerations which may tell us not to give any specific form of protection?
I argue we should not, because it would be likely, as Simmonds points out,  that the court will not engage in solving the questions relating to the balancing of interests or the advancement of socially desirable goals as far as the understanding of the nature of rights at the cutting edge is concerned.
Instead, the courts are much more likely to concern themselves with the technicalities of the legal doctrine which is free from an evaluative or justificatory exercise concerning other countervailing factors. Thus, the above criticism is again misguided in that it fails to properly appreciate Hohfeld's conception of jural relations as one that never intended to be concerned with anything else but the relationships of mutual entailment. I argue that the rival analyses which concern themselves with various justificatory exercises in relation to rights are misguided in so far as they do not truly represent our conventional practices involving the understanding of the nature of rights.
Rather it is the conceptual analysis, true by definition, based on the correlativity axiom, that provides for our true conception of the nature of our jural relationships.
It thus reflects our conventional practices in relation to rights. If I am right, it follows that Hohfeld's analysis of rights is an extremely pertinent tool for dealing with situations such as that contained in section 5 1it does not require the judge to immerse himself in the complexities of justificatory exercise or balancing of interests and is a straightforward mechanism which a judge can use to everyone's satisfaction. Kant's View and the Conflation of Permissibility and Inviolability Kant presents another anti-Hohfeldian view whereby a conflation of permissibility and inviolability is necessary for the understanding of the nature of rights.
For Kant, this means that possession of a right would entail a number of different consequences. It follows that if X possesses a right, the actions performed within the scope of the right must be both permissible and legally inviolable. The former means that if X has a right to do P, this action must be allowed despite the fact that it may in some way be undesirable. The latter means that when X is exercising his right to do P, the law will prevent others from interfering with X's action.
This is in contradiction with Hohfeld's analysis in two respects; first, the permissibly of X's action amounts to a Hohfeldian liberty to do P, while the inviolability legal protection amounts to a possession of a claim-right by X which entitles him to a protection against interference.
In this section I illustrate, using Hohfeld's analysis of rights, that Kant's view fails to accommodate the complexities of actual legal doctrines and does not adequately depict our practices in relation to rights. I do this by reference to Quinn and Leathem. The case concerns the situation where Leathem, in the course of his butchery business, employed a number of non-union workers.
Quinn intended to force Leathem to sack his non-union workers and instead employ only union workers. To achieve this Quinn threatened a strike at a shop of one of Leathem's customers to force him to terminate his trade with Leathem. In the course of his judgment Lord Lindley made the following observation: He had the ordinary rights of a British subject.
He was at liberty to earn his own living in his own way, provided he did not violate some special law prohibiting him from so doing, and provided he did not infringe the rights of other people. This liberty involved liberty to deal with other persons who were willing to deal with him. 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.
He uses the term 'liberty' ' The liberty does not entail a correlative duty. If it does then it would mean it also entails a claim-right as a correlative to someone else's duty. This cannot be right. And, indeed, Leathem merely had a Hohfeldian liberty correlative to a no-right to trade, he did not have a claim-right as I could well interfere with his business by, for instance, opening up a rival shop in the same street.
We see that when Lord Lindley says that Leathem's 'right' Hohfeldian liberty placed correlative duties on Quinn, he must be contemplating wrongly a claim-right. This provides an example where one can see how, by not applying Hohfeld's analysis, a distinguished judge gets it spectacularly wrong.
Indeed, business competition would be legally impermissible if company X's 'right' to trade and earn profits entailed a correlative duty on company Y not to interference with X's running of the business, earning profits etc. This shows the pertinence of Hohfeld's analysis in that, if applied, such quandaries would be avoided.
Under the Kantian analysis of rights we could reconstruct the passage as Lord Lindley seemingly does in the following manner: Leathem had a right to run his butchery business because such action was permissible.
The exercise of his right is juridically inviolable, because it is protected against interference by law. I have already noted that the Kantian analysis is misleading because it is wrong to say that a mere permissibility of an action entails a duty on others not to interfere. Permissibility is at most a mere Hohfeldian liberty in the sense that the person has no duty not to perform the action.
Jural relationship - Wikipedia
A more serious problem with the Kantian view is the conflation of permissibility and inviolability. Conflation arises from the fact that in Kant's view of internal complexity, a single concept of a 'right' entails both permissibility Hohfeldian liberty and inviolability Hohfeldian claim-right as a correlative to duties incumbent on other specifiable persons.
Such conflation is wrong because rather than offering a clear line of sight as to how the judge should deal with the issue it adds fog into the context of what the issue of the case is. If Hohfeld's analysis is applied it is absolutely clear that Leathem's liberty does not entail any incumbent duties on others - and this must be right.
If not, then we could potentially outlaw much of reasonable business competition. Such straightforward clarity is obtained given the stipulative nature of Hohfeld's work.
For him, rights are discrete, atomic elements, which are distinct and separable from other rights-elements. Hohfeldian language gives a precise tool for identifying the issue in the case and then describes with precision the effect of the decision in relation to that issue.
The Kantian notion of 'right' is based on the idea that the internal logic of the right must be worked out through legal reasoning. In this case, the judge would apply such a meaning to the concept of right as he thinks fit given the particular situation.
Perhaps the judge would take into account broader considerations of social policy and justice. Quinn v Leathem shows that this is, in fact, not always true. Indeed in Lord Lindley's use of the Kantian notion of right we can see that he is appealing to logic, rather than the broader question of justice etc. Therefore, we can relate to Hohfeld's analysis to expose weakness in Kant's conflation of permissibility and inviolability because such conflation does not in fact represent scope for adequate legal reasoning, as Kant intended it to be the proponent of the theory of greater good.
It follows that as a result of conflation of permissibility and inviolability the judge is more likely to find himself confused as to what meaning he ought to attach to the term 'right' and with what consequences.
What will result is not deductive reasoning, as envisaged by Kant, but rather unnecessary confusion caused by the equivocations between distinct meanings of the term 'right'. Thus, the conflation of inviolability and permissibility, as the basis of Kant's internal complexity of the right, is neither desirable, nor indeed necessary, and Hohfeld's analysis should be preferred given its precision and clarity.
MacCormick and the Return to the Internal Complexity I have shown above that Kant's view ascribes to rights internal complexity.
Hohfeld's view, in contrast, ascribes to rights peremptory force,  but no internal complexity. However, analysis developed by MacCormick and Raz seeks to restore internal complexity of a right, but at the expense of making the peremptory force of a right less important. In response, I argue that Hohfeld's analysis of rights deals with the specifics of clarification of the nature of our rights, because for too long it has been confused with the justification of rights in terms of various moral or other considerations.
The problem with MacCormick's analysis of rights is that it returns to the situation pre-Hohfeld, where there is a confusion of the nature of rights with the justification of rights. When considering the nature of rights it is apparent that rights are peremptory in nature, whereby the determined rights-elements are used as a tool to justify the existence of rights, moral or legal.
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