Rights, liberties and duties: reformulating Hohfeld’s scheme of legal relations?

Brown, Vivienne (2006). Rights, liberties and duties: reformulating Hohfeld’s scheme of legal relations? In: Holder, Jane and O'Cinneide, Colm eds. Current legal problems 2005, Volume 58. Oxford, UK: Oxford University Press, pp. 343–367.

DOI: https://doi.org/10.1093/clp/58.1.343

Abstract

In this paper I raise some questions about the internal coherence of Hohfeld’s scheme of legal relations and in so doing I show that additional conceptual 'rights' resources may be identified. The dialectical strategy of my argument is thus to accept Hohfeld’s emphasis on the importance of analytical clarity in specifying the different legal relations and their logical properties, but I attempt to show that Hohfeld’s scheme actually elides certain key notions and thereby compresses the conceptual range of rights and duties. In particular, I identify the notions of a 'directly-protected active right' and a 'non-correlative duty', notions which are not available to Hohfeld's scheme yet which are commonly used in everyday rights discourse. I thus provide philosophical/conceptual support for two key terms in everyday rights discourse which legal philosophers, following Hohfeld, have mistakenly taken to be incoherent.

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