Rights, Duties, Liabilities, and Hohfeld

Abstract

This article engages with Jaffey's recent contribution on the nature of no-prior-duty remedial obligations. Jaffey's use of a right-liability relation and his challenge to Hohfeld's analytical scheme are rejected as unsound. An alternative model distinguishing three pathways to account for remedial obligations and other legal consequences is proposed. This draws on the Hohfeldian scheme but extends it to permit the full expression of reflexive liabilities, mutually correlative liabilities, and the operation of nonhuman conditions. The proposed approach also recognizes a weaker form of a Hohfeldian power, which is required in considering the way that the law deals with the allocation and realization of risk.

The Rights Network: 100 Years of the Hohfeldian Rights Analytic

“…For instance, the combination of Claim-Rights with Power-Rights is a useful device for conceptualizing the role of consent in the Rights Analytic. Similarly, we might explain how infringing an individual's Privilege-Right to φ might create a secondary Claim-Right to rectify the harm incurred (Halpin 2007). Most importantly, at this stage we are afforded a means of deconstructing any assertion to a right.…”

“…If I were to default on my payments, the mortgagor would have the Privilege-Right to sell the house, thereby extinguishing the Immunity-Right held in this regard. Halpin considers the Claim-Right of a dock owner (D) against another (C) mooring their boats at his dock (Halpin 2007). In the event of peril caused by a violent storm that Claim-Right is extinguished and C would hold a Privilege-Right to dock.…”

The Rights Network: 100 Years of the Hohfeldian Rights Analytic

“…For instance, the combination of Claim-Rights with Power-Rights is a useful device for conceptualising the role of consent in the Rights Analytic. Similarly, we might explain how infringing an individual's Privilege-Right to φ might create a secondary Claim-Right to rectify the harm incurred (Halpin 2007). Most importantly, at this stage we are afforded a means of deconstructing any assertion to a right; it will either:…”

“…However, unlike a Privilege-Right which is found in the first tier and so operates over objects, a Power-Right operates over other rights (Hohfeld 1964, 51). 11 As Wenar notes, 'We have not only privileges and claims, but rights to alter our privileges and claims, and rights that our privileges and claims not be altered. (Wenar 2005, 230)' It is, therefore, a device for altering one's own or another's rights.…”

“…10 Notably, there are derogations from and qualifications to this. 11 It may be termed a legal 'ability' -this is useful terminology as it helps to understand the scope of the incident. 12 It should be noted that the choice to sell one's house, to begin with, appears to be a combination of an authorisation Power-Right to waive one's rights to ownership and an Immunity-Right from being compelled to waive one's rights to ownership.…”