Hohfeldian Rights

I want to talk a bit about rights theory. The most widely accepted schema for understanding the nature of rights was developed by American jurist Wesley Hohfeld.

The Hohfeldian Schema is extremely useful because it seems to be exhaustive and because it allows us to map the logical relations between different kinds of rights.  According to the Hohfeldian Schema, there are four basic kinds of right:

Liberties (liberty-rights): A liberty or liberty-right (sometimes called a privilege) has the following form: A has a liberty to φ if and only if A has no duty not to φ. For example, I have a right to use my own possessions, if I so choose and as I so choose.  This is a liberty-right.

Claims (claim-rights): A claim or claim-right has the following form: A has a claim that B φ if and only if B has a duty to A to φ. For example, I have a right against everyone not to be murdered by them. Children have a claim-right to be taken care of by their parents.  And in contracts, I have a claim upon the one I contract with to fulfill his part of the deal, on the assumption I fulfill mine, e.g. I have a right to require a person P who has hired my for services, which I have rendered, to be paid for services rendered.

Powers (power-rights): A power or power-right has the following logical form: A has a power if and only if A has the ability to alter her own or another’s Hohfeldian right. For example, a sailor may have no particular duties to fulfill at the moment, but the ship’s captain has the power-right to order the sailor to do things, e.g. scrub the deck.  When someone has a power-right he has an ability to alter another’s situation from e.g. not-having-a-duty-to-φ to having-a-duty-to-φ, or from having-a-liberty-to-φ to not-having-a-liberty-to-φ.  The sailor had no responsibility to scrub the deck until he was ordered to do so. His situation was changed by the captain’s order, because the captain of the ship has the power to give such orders. Similarly, everyone on the ship might have a liberty to be on deck, unless the captain orders everyone off the deck.

Immunities (immunity-rights): An immunity or immunity-right has the following form: B has an immunity if and only if A lacks the ability to alter B’s Hohfeldian rights. For example, no one has a right to command me accept Islam; so, I have a general immunity-right not to be forced to accept Islam.

An immunity of A is a disability of B to alter A’s situation, just as a power of A is an ability of A to alter B’s situation.

Hohfeldian rights can be expressed in the following schemata with regard to A alone and as between A and B:

Oppositions:

  1. If A has a Liberty then A lacks a Duty.
  2. If A has Claim then A lacks a No-claim.
  3. If A has a Power then A lacks a Disability.
  4. If A has an Immunity then A lacks a Liability.

Correlatives:

  1. If A has a Liberty then one, some, or all persons B have a No-Claim.
  2. If A has a Claim then one, some, or all persons B have a Duty.
  3. If A has a Power then one, some, or all persons B have a Liability.
  4. If A has an Immunity then one, some, or all persons B have a Disability.

Remember SJW Mizzou professor Melissa Click ordering members of the media out of the “safe space” which the protestors had set up on public property?

MelissaClick

What she did wrong can easily by explained in Hohfeldian terms.  She was giving orders.  She was asserting a power-right over another person’s liberty-right.  She was, in effect, acting as if she had a Power to (rightfully) revoke a citizen’s Liberty to be in a public area.  If she really did have such a Power, then she could generate a Claim over the reporter, who would have a Duty to obey.  For example, people have a Liberty to be in their own cars; however, police officer has a Power to order you to “step out of the vehicle.” Since a police officer has lawful authority, that is, he really does have a Power to in this case, your Liberty can be suspended and replaced with a Duty to the order.

The core issue with Melissa Click is that she had no authority whatever to order a fellow citizen out of a public area, much less to threaten to back up her spurious claim-of-a-Power with force.

Like most SJWs, Professor Click goes on endlessly about “privilege.” Well, this is what that  looks like: she is essentially acting as if she were a member of an aristocratic class that has a Power to order around the commoners.  But as it happens, we Americans, just as citizens, are all EQUAL under the law.  Therefore, nobody as any Hohfeldian Power to alter another’s Hohfeldian Incidents.  You can’t simply cancel or override my rights, at your pleasure. And neither can Melissa Click.  She was eventually fired over this incident, and entirely rightly so.  The fact that she made a threat was actually criminal; her actions generated a Claim-right on the part of the threatened reporter to have her answer for her actions by law.  The point to notice, though, is that her wrongdoing was not simply in the threat (although that is an even more severe kind of wrongdoing)—but in the bogus attempt to exercise a Hohfeldian Power over someone, a Power she did not and does not have.

A lot of SJW nonsense involves attempting to lay claim to bogus Hohfeldian Incidents, particularly Powers and Claims. They seem to believe that being offended gives them a Power-right to revoke someone else’s Liberty-right of free speech, or a Claim-right to limit other people’s Liberty-rights, such that other people have a Duty not to say or do certain things that the SJW personally deems bad or offensive. Fortunately, it is still the case that all free citizens in the Western world have an Immunity-right to these bogus claims (and in the traditions of natural rights, everyone has such, even in places where these rights are not actually recognized).  If someone objects to your Liberty-right to be in a public place with them, they have a Liberty-right to leave; they do not have a Power-right to revoke your Liberty-right to be there, or a Claim-right to have you leave the area.

Positive and Negative Rights

Some rights theorists distinguish between positive and negative Rights.  A positive right is a right to something, e.g. some good or service, whereas a negative right is a right to non-interference.  The problem with this simply binary distinction is that it seems to fail to capture all the Hohfeldian rights and has far less logical power in mapping relations between persons.  Additionally, it seems that Hohfeldian powers or liberties are neither positive or negative, since they involve one’s rights as pertaining to one’s own actions, whereas the positive/negative distinction always involves interaction.  My liberty-right to use my computer as I see fit is correlated with all B’s no-claim on me, but it is not identical to my right not to be interfered with; rather my liberty-right to φ gives me a claim-right that B not interfere with my φ-ing and a duty of B not to interfere with my φ-ing.

All things considered, the positive/negative distinction adds nothing of value to the Hohfeldian Schema of rights, and is therefore unnecessary.

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3 comments on “Hohfeldian Rights

  1. Andrew Brew says:

    This seems like a useful (and comprehensive) schema, but I find myself wondering how far these map onto natural rights. The description of Mr. Hohfeld as a jurist is perhaps a clue. The first two (liberties and claims) I have no problem with as natural rights. The other two (powers and immunities) seem to me to be only positive rights – not positive rather than negative, as in your last paragraph, but posited by law. Is that the case, or can you give an example of a power-right that is natural?

    This is so a fortiori for immunity rights. Even the example you give, of not being obliged to convert to Islam, seems to me not so much an immunity as a denial of your would-be converter’s having a power-right in the first place, over anybody. Or have I missed something?

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  2. Andrew Brew says:

    I have partly answered my own question. Parents have a natural power-right to curtail the liberties of their children, at least as long as they remain children. As the children grow to adulthood, does this right atrophy, or is it in turn curtailed by a growing immunity-right on the part of the adult child?

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