Professor Wesley Newcomb Hohfeld, a graduate from University of California gave the concept of analyzing legal rights. Professor Hohfeld has contributed mostly to the field of Jurisprudence. He simplified the term right by analyzing several core concepts in law.
Professor Hohfeld has proposed that the different meanings of the term right are often expressed in a single sentence. This uncertainty in the language indicates a lack of precision in thought and the conclusions that are derived in turn. His broke the meaning of rights into eight unique concepts. These terms are defined with respect to one another to eliminate the presence of any ambiguity. The four pairs of opposites and correlatives exist as mentioned below.
WHAT IS A RIGHT?
A right is an interest protected and enforced by law. In law it is mostly applied to property in its restricted sense, but it is often used to designate power, prerogative, and privilege. The words ‘right’ or ‘privilege’ have a variety of meanings, like ‘a legal claim to do’, ‘legal power’, ‘authority,’ ‘immunity granted by authority’. A man has several rights over both tangible and intangible objects. He also possesses rights as a person.
Rights can be divided into 4 different kinds:
- Rights in the strict sense
The correlatives of each of these rights are:
RIGHTS IN STRICT SENSE
Each and every right has a corresponding duty. When a right is invaded, a duty is violated. This implies that if A enjoys a right against B, then B is duty bound to respect this right.
Positive and Negative rights– A positive act relates to a positive right whereas any abstinence from it would constitute a negative right.
‘Rights in rem’ and ‘Rights in personam’– Both these terms have been derived from civil law. A ‘right in rem’ is a right that exists against the entire world whereas a ‘right in personam’ is against a specific individual. ‘Rights in rem’ are considered as negative rights whereas ‘rights in personam’ are usually positive in nature.
Proprietary and Personal rights– The former is concerned with value while the latter is not. Value, in the case of proprietary rights, is derived from estate, property etc and personal rights are associated with status, reputation.
LIBERTY AND NO-RIGHTS
Liberty is defined as the exercise of a right without the interference of law. By adding all the rights and duties across relationships, the degree of liberty can be determined. A perfect liberty is one where no one has any exclusive right to restrain the occurrence of a given act.
Liberty does not mean interference with others like liberty to free speech on public affairs does not grant a person the right to publish defamation. Likewise one has the liberty to self-defense against violence but no right is conferred to engage in revenge against the person who inflicted the injury.
Liberty is exercise of unrestrained activity permitted under law. The primary difference between liberty and rights in strict sense is that things we do for ourselves are termed as liberty whereas things which others do in our respect are classified as rights in strict sense.
No-right is the correlative of liberty. It means absence of a right. The term ‘no-right’ basically implies that a certain person does not have a right against another individual in a particular respect.
Another example in this context is that when an alien who has no duty not to enter a foreign country i.e. he has liberty to enter. The authorities have a no-right against him i.e. they may not have any right in the strict sense though they may still possess a liberty to refrain him from entering. [i]
POWERS AND LIABILITIES
Another set of legal rights come in the form of powers. Example- power to make a will, the power to take legal action against someone, the power to sell a property if the mortgagee does not receive the money from the mortgagor etc. Power determines legal relations and gives rise to either ‘authority’ or ‘capacity’. ‘Authority’ is the exertion of power over others whereas ‘capacity’ is power exerted over oneself.
Powers and rights in the strict sense are different because in the latter case, a corresponding duty always exists which is absent in the former case. Example- right to create a will does not result in a corresponding obligation for someone else.
Private or Public powers– Private powers are exercised by individuals. Public powers lie with state agencies or instruments that carry out public functions. Example- powers exercised by the judiciary, legislature and executive.
Liability is defined as the alteration of a person’s legal rights by the person exercising power. Examples- the determination of a lease by reentry of the landlord places a liability on the tenant, one against whom a judgement has been passed is liable to have a decree of execution etc.
Liability is not concerned with the fruitful or unfruitful result in any given case. For instance, a person committing a tort is duty bound to pay compensation and is liable for an action to be brought against him/her as well. However, someone who is not a tortfeasor is not under any duty to pay compensation but is equally liable for an action to be instituted, that in all probability will fail, as no grounds exist.
Liability can also be seen as an advantage or benefit. A person who professes to transfer his property as a gift through the exercise of power, the person entitled to the gift has a liability to receive it. [ii]
IMMUNITIES AND DISABILITIES
Another category of rights is immunity from legal power. The relationship between immunity and power is identical to that of liberty and right in the strict sense. Immunity implies a complete lack of liability.
Disability, the correlative of immunity, is better known as inability and signifies the absence of power. The legal maxim ‘Nemo dat quod non habet’ means that no person can transfer a better title in property than what is possessed by oneself, is an expression of disability.[iii]
In this article some of the most important principles of Hohfeld’s analysis of rights and his work is the essential tool for gaining not only a conceptual but a practical understanding of the nature of rights. Hohfeld’s work consists of a deep analysis by which he sought to reflect the ideas that people hold about rights. Although analytical in its nature, Hohfeld’s analysis is of fundamental practical value.
Author Details: Prapti Bhattacharya (2nd year student at Asian Law College, Noida)