Arguably, Wesley Newcomb Hohfeld is the greatest legal theorist America has ever produced. In 1913, the Stanford University Professor submitted to the Yale Law Journal an article that changed the architectonic plates of legal theory. In point of fact, the Yale president understood the breakthrough. This university president, when the idea was explained him by his son, exclaimed excitedly, “That means we can define liberty.” Needless to say, Hohfeld became a Yale professor (but he was already there at the time of the president’s exclamation). Hohfeld’s eight terms, and their logical relations, can take time to master, but are worth every effort.
In the legal field, “when it comes to inquiring into the concept of rights the beginning of wisdom lies” in Wesley Newcomb Hohfeld’s analytical scheme of eight terms. Before Hohfeld, much legal discourse was mired in confusion due to the polysemic nature of legal terms.
As an example, take a contract. Does it refer to the agreement itself or the duties imposed by the agreement?
As Hohfeld sees it, most of our troubles, “as regards legal terminology,” stem from the reality that many of our terms “were originally applicable only to physical things; so that their use in connection with legal relations is, strictly speaking, figurative or fictional.” But the primary obstacle “to the clear understanding … and the true solution of legal problems” is usually due to the assumption that “all legal relations may be reduced to ‘rights’ and ‘duties’, and that” these terms are thus “adequate” for analytical purposes.
Hohfeld disagrees with this assumption, showing that the term “right” has been used to convey four distinct categories: right, privilege, power, and immunity. (More often, these are listed as claim-right, liberty-right, power-right, and immunity-right.)
These are contrasted with their “jural opposites”: no-right, duty, disability, and liability. Under Hohfeld’s scheme, it is not proper to speak of a “right” to fire off one’s firearm, but it is a liberty-right or a privilege (these two terms being interchangeable), “so long as he does not violate or infringe anyone’s rights in doing so.” Nor is it proper to speak of having a right to divorce a spouse or bequeath an inheritance, for these are “powers.”
For clarification, the four terms that are usually confused with the single term “right” can be defined in the following way:
- Claim-Right: Person A is under a duty to do act-X in relation to B; thus, B has a claim against A.
- Liberty-Right: Person A is free to do or not do something; B owes no duty to A, nor A to B.
- Power-Right: Person A has a power do act-X; A is free to do an act that alters the legal position of B.
- Immunity-Right: Person A is not subject to B’s power to change another’s legal position.
A “right in the strictest sense” is the claim upon another regarding an enforceable duty. This Hohfeldian relationship is defined and delimited by its opposite, no-claim, and its correlate, duty. The example he gives is as follows: Person A has a claim that person B refrain from trespassing on A’s land. Thus, B is under an obligation, a duty, towards A to so refrain. Every duty has a corresponding right, and every right has a corresponding duty. Thus, each duty implies a right, and each right, a duty. Only two kinds of duties can exist, an action to, or a refraining from, thus, positive and negative respectively.
The second fundamental legal conception is a liberty-right, which is likewise defined and delimited by its correlate and opposite. A privilege is “merely a permission to do an act which, without such permission,” it would violate another’s right. The correlate to a privilege (synonymous with liberty) is no-claim, so that person A has the privilege, or liberty, to do X, where B has no claim on A to do or not do X. By way of example, A has the privilege to own and use a 1988 Ford Pick-up, in regards to B, for B has no claim on A, in the sense that A would have a duty to, or a duty to not, use or own this truck. This is admittedly an awkward example but is helpful to understand that matters like using our own property at will is not a right, but a privilege in the Hohfeldian sense, yet it can and often does exist alongside a claim-right.
A claim-right (what Hohfeld calls a strict right) and a liberty-right can be (and normally are) coupled. If A owns a Ford truck, as private property, this means that A has a claim on B to not interfere with that property. But this duty to not interfere is only based on the claim-right that exists regarding private property. The privilege-right to own and use the truck is attached to no corresponding duties on B. On this juridical relationship, suppose B is the manufacturer. A’s privilege-right is not infringed if B chooses not to produce or sell any. These examples can be continued, but the point is that private property usually comes with both a “strict” right and a privilege-right, and these should not be confused.
Another way a privilege-right can be connected to a claim-right would be a promise. Suppose person A promises to give B compensation in exchange for labour. A has the liberty to make or not make the promise, and once the promise has been made, B now has a claim on A (assuming the duties have been fulfilled). However, these are two different Hohfeldian rights, each with unique content. In fact, the rights, privileges, powers, and immunities of legal personhood exist in a complex relationship which the legal person is the bearer of.
These two sets of relations, the right/duty correlation and the right/no-claim opposition (as a single Hohfeldian unit), and the liberty/no-claim correlation and the liberty/no duty opposition (also a single unit) are first-order normative relations, in contrast to second-order.
We now look at the second-order relations.
A “power” is able to create rights and duties, for it alters the relationship of another person. This is just as we have seen with a promise (paralleled in the legal sphere by a contract), which is able to change the relations between parties, thus creating first-order relations. By contrast, an immunity is being not subject to a power. The correspondent to a power is a liability; I have the power to put my child up for adoption, the child is liable to be so placed up for adoption. However, a child that is not my own is not susceptible to my attempt to put him up for adoption, thus, as he relates to me, in this regard, he has immunity. I have no power to change the relationship of a child that is not my own in such a manner.
This all-too-brief introduction should be seen as a guide to come back to; clarity in communication is paramount. Thus, the following grid is provided to help understand and reference for those seeking to bring clarity out of the reigning chaos.
Citations & References Hohfeld, Fundamental Legal Conceptions, p. x.
 Manuel Toscano, ‘The Hohfeldian Analytical Framework’, Varieties of Liberalism, (2014), (p. 2),
 Hohfeld, Fundamental Legal Conceptions, p. 31.
 Hohfeld, Fundamental Legal Conceptions, p. 30.
 Hohfeld, Fundamental Legal Conceptions, p. 35.
 Hohfeld, Fundamental Legal Conceptions, p. 36.
 Hohfeld, Fundamental Legal Conceptions, p. 48.
 Thompson, ‘The Rights Network: 100 Years of the Hohfeldian Rights Analytic’, p. 4.
 Hohfeld, Fundamental Legal Conceptions, p. 50.
 Image taken from Research in progress: report on the ICAIL 2017 doctoral consortium, https://link.springer.com/article/10.1007/s10506-018-9220-6
Robert J. McPherson IISee More Essays
Robert J. McPherson II is a graduate of RC Sproul’s Reformation Bible College with an honors degree in theology. He has an MA in Philosophy from the University of Buckingham; conducting research under the guidance of Sir Roger Scruton. His thesis is on personal responsibility and social justice.