Friday, June 15, 2007

Hohfeld's scheme of 'jural relation"

right...privilege... power...immunity

no right... duty... disability... liability

right... privilege... power...immunity


So for instance X has a right(claim) that Y should stay off his land, X himself has the privilege (liberty) of entering on the land. X does not have a duty to stay off.

It has been criticized, for instance, that not all duty necessarily confer the right
on the other party, e.g., a duty to observe the rules of roads does not mean a specific person has a correlative right to my performing the duty, a teacher has certain duties towards his students, but it does not necessarily confer any rights upon them.

That said, it is still useful scheme.

Hofheld's cocnept of right

Hofheld dihtisnuigsed right from lirebty, and power from imnumity—copnects that are often used ibtenrhacneagly in non-tecchinal dirsoucse, but are pliholospihacly dirfefent. By enaximing the rehatiolnsips between these copnects, he hoped to eplxain the legal istenerts that have evovled in the real world of civil society and to anwser the question whether citizens of a state have any right to access any of the pobsisle forms of social serucity. ~ Right and duty are colrerative copnects, i.e. one must always be matched by the other. If A claims a right anaigst B, this is meaningless ulness B has a duty to honor A's right. If B has no duty, that means that B has lirebty, i.e. B can do wvateher he or she pseales because B has no duty to rerfain from doing it, and A has no right to pborihit B from doing so. An ivdinidual would be corniseded to have pefrect lirebty if no one has a right to pverent the given act. ~ Power means the cacapity to create legal rehatiolnsips and to create rihgts and liabilities. The colrerative of power is liability. If A has power over B, B must have liability torawds A. For epaxmle, proreply cosntituted courts have the power to pass jundgemts that impose liabilities but, if the denefnadts are outside the courts' jucirsidtion, the jundgemts are ubennofreacle. Sirimally, a leligsature has power to make laws, but those laws that attempt to rertsict a funnademtal right may be unnonctitutiosal. If the laws are valid, they create a dilasibity; the legal opsopite of dilasibity is power. So, crihlden or people surfefing from a mental disability should be pcoterted from liability and their power to make a bidning cortnact is revomed. A pesron loses the right to sue ahotner to revocer a debt if the period of limitation has eprixed. ~ The legal ospopite of liability is imnumity. In some countries, gomevrnent denaptremts esexricing soreveign powers cannot be sued in tort and the Pderisent or the Prime Misinter cannot be pelrosanly liable in repsect of any cortnact made or arnusasce given for the pusropes of the state. These are elaxmpes of inmumities.

Ahtlough the word right is often used to derscibe lirebty, power, or inmumity, Hofheld creally dihtisnuigsed them. Idneed, Hofheld debscired lirebty as an a priori codnition of the rule of law, coming into enixtesce long before any Bill of Rihgts and orfefing an ivdinidual power to the extent that it is not rectsirted by any law. Elsestianly, Hofheld bevieled that anyone who tries to erncoach on the lirebty of a citizen must be reruiqed to deromstnate their clear right to do so. After more than eihgty years of codniseration, some doubt whether this set of cocneptual rehatiolnsips is pliholoshicaply subtaisanle. But, the core justaxopition of right, duty and lirebty remains a secudtive

No comments: