Contents:
1. The Form of Rights: The Hohfeldian Analytical System
2. Claims
3. Powers
4. Immunities
5. Opposites and Correlatives
6. Molecular Rights
7. Active and Passive Rights
8. Negative and Positive Rights
What is the relationship between the concept of human rights applied in post-Human Rights Act black letter law in the UK?
1. The Form of Rights: The Hohfeldian Analytical System
What is the relationship between the concept of human rights applied in post-Human Rights Act black letter law in the UK with reference to Professor Hohfeld’s understanding of the definition of rights?
To understand the exact meaning of any assertion of a right, we need to understand more precisely how rights are constructed and what they do.
The four basic components of rights are known as “elements” of rights which are the privilege, the claim, the power, and the immunity. Each of these have a distinctive logical form, and the incidents fit together create complex “molecular” rights.
You have a right to pick up a shell that you find on the beach. This right is a privilege:
A has a privilege to φ if and only if A has no duty not to φ.
To say that you have a right to pick up the shell is to say that you have no duty not to pick it up. You will not be violating any duty not to pick up the shell should you decide to do so. Similarly your right to sit in an empty seat in the cinema, and your right to paint your bedroom red, are also privileges. Privilege-rights mark out what their bearer has no duty not to do. When a US President invokes “executive privilege” to resist an assertion that he has a duty not to conceal evidence, he is invoking a Hohfeldian privilege. Similarly, a license endows its holder with a privilege to engage in the licensed activity. (Some scholars on rights have preferred to speak of “liberties” instead of “privileges” (e.g., Steiner 1994, 59–60). Others have given these two terms different definitions (e.g., Thomson 1990, 53–55). To avoid confusion, this entry will always use “privilege” and never “liberty” to refer to the incident defined above.)
2. Claims
A contract between employer and employee confers on the employee a right to be paid his wages. This right is a claim:
A has a claim that B φ if and only if B has a duty to A to φ.
The employee has a claim that the employer pays him his wages, which means that the employer has a duty to the employee to pay those wages. As seen in the definition and the example, every claim-right correlates to a duty in (at least) one duty-bearer. What is distinctive about the claim-right is that a duty-bearer's duty is “directed at” or “owed to” the right-holder.
Not all claim-rights are created by voluntary actions like signing a contract; and not all claim-rights correspond to duties in just one agent. For example, a child's claim-right against abuse exists independently of anyone's actions, and the child's claim-right correlates to a duty in every other person not to abuse her. This example of the child's right also illustrates how a claim-right can require duty-bearers to refrain from performing some action (i.e., that “phi” can be a negative verb such as “not abuse her”).
3. Powers
Privileges and claims define what Hart called “primary rules”: rules requiring that people perform or refrain from performing particular actions (Hart 1961). Indeed the primary rules for all physical actions are properly analyzed as privileges and claims. Were we to know all the privileges and claims that there are regarding physical actions, we would know for every possible physical action whether that action was permitted, required or forbidden.
Two further Hohfeldian incidents define what Hart called “secondary rules”: rules that specify how agents can introduce, change, and alter primary rules.
The Hohfeldian power is the incident that enables agents to alter primary rules:
A has a power if and only if A has the ability within a set of rules to alter her own or another's Hohfeldian incidents.A ship's captain has the power-right to order a midshipman to scrub the deck. The captain's exercise of this power changes the sailor's normative situation: it imposes a new duty upon him and so annuls one of his Hohfeldian privileges (not to scrub the deck). Similarly, a promisor exercises a power-right to create in the promisee a claim that the promisor will perform a certain action. The promisor's exercise of her power-right to promise creates in the promisee a claim that the promisor do what she promised to do. Or again, a neighbor waives his claim that you not enter his property by inviting you into his home. Ordering, promising, waiving, sentencing, buying, selling, and abandoning are all examples of acts by which a rightholder exercises a power to change his own Hohfeldian incidents or those of another.
Powers can alter not only “first-order” privileges and claims, but “second-order” incidents as well (Sumner 1987, 31). An admiral, for example, has the power-right to relieve a captain of her power-right to command a ship. Rights to alter the authority of others are, as we will see, definitive of all developed legal and political systems.
4. Immunities
The fourth and final Hohfeldian incident is the immunity. When A has the ability to alter B's Hohfeldian incidents, then A has a power. When A lacks the ability to alter B's Hohfeldian incidents, then B has an immunity:
B has an immunity if and only if A lacks the ability within a set of rules to alter B's Hohfeldian incidents.
The United States Congress lacks the ability within the Constitution to impose upon American citizens a duty to kneel daily before a cross. Since the Congress lacks a power, the citizens have an immunity. This immunity is a core element of an American citizen's right to religious freedom. Similarly, witnesses in court have a right not to be ordered to incriminate themselves, and civil servants have a right not to be dismissed after a new government comes to power. All of these rights are immunities, corresponding to an absence of a power in some other party to alter the rightholder's normative situation in some way.
5. Opposites and Correlatives
Hohfeld arranged the four incidents in tables of “opposites” and “correlatives” so as to display the logical structure of his system. In order to fill out the tables he added some further terminology. For instance, if a person A has a claim, then A lacks a “no-claim” (a no-claim is the opposite of a claim). And if a person A has a power, then some person B has a “liability” (a liability is the correlative of a power).
6. Molecular Rights
Each of the “atomic” incidents—the privilege, claim, power, and immunity—can be a right when it occurs in isolation. And as mentioned above these atomic incidents also bond together in characteristic ways to form complex rights. Following, for example, is part of the “molecular” structure of the property right that you have over your computer:
Part of the “Molecular” Structure of a Property Right
In the figure, the “first-order” rights are your legal rights directly over your property—in this case, your computer. The privilege on this first level entitles you to use your computer. The claim correlates to a duty in every other person not to use your computer.
The “second-order” rights are your legal rights concerning the alteration of these first-order rights. You have several powers with respect to your claim—you may waive the claim (granting others permission to touch the computer), annul the claim (abandoning the computer as your property), or transfer the claim (making the computer into someone else's property). Also on the second order, your immunity prevents others from altering your first-order claim over your computer. Your immunity, that is, prevents others from waiving, annulling, or transferring your claim over your computer. The four incidents together constitute a significant portion of your property right.
Of course all of these incidents are qualified: you have no privilege to strike others with your computer, or to use your computer to hack into someone else's machine; and your immunity may not entirely block out the state's power of expropriation (if for example the computer becomes evidence in a criminal case). These qualifications to the incidents carve the contours of your property right, but they do not affect its basic shape.
There may also be more incidents associated with ownership than shown in the figure above. Wellman (1985, 1995) describes each right as having a “defining core” surrounded by “associated elements” which may be present or absent in a particular case. Your property right, for instance, may also be protected by a qualified third-order immunity against the government altering your second-order rights over your property (for example, under the “Takings Clause” of the Fifth Amendment to the US Constitution the government cannot simply annul your right to sell a parcel of your land).
7. Active and Passive Rights
The distinction between active and passive rights (Lyons 1970) maps neatly onto the Hohfeldian incidents. The privilege and the power are “active” rights that concern their holders' own actions. The claim and the immunity are “passive” rights that regulate the actions of others. Active rights are signaled by statements of the form “A has a right to φ”; while passive rights are signaled by statements of the form “A has a right that B φ” (in both of these formulas, “φ” is an active verb).
A naval captain has an active privilege-right to walk the decks and an active power-right to order that the ship set sail. A player in a chess tournament has a passive claim-right that his opponent not distract him, and a professor has a passive immunity-right that her university not fire her for publishing unpopular views.
8. Negative and Positive Rights
A distinction between negative and positive rights is popular among some normative theorists, especially those with a bent toward libertarianism. The holder of a negative right is entitled to non-interference, while the holder of a positive right is entitled to provision of some good or service. A right against assault is a classic example of a negative right, while a right to welfare assistance is a prototypical positive right (Narveson 2001).
Since both negative and positive rights are passive rights, some rights are neither negative nor positive. Privileges and powers cannot be negative rights; and privileges, powers, and immunities cannot be positive rights. The (privilege-) right to enter a building, and the (power-) right to enter into a binding agreement, are neither negative nor positive.
It is sometimes said that negative rights are easier to satisfy than positive rights. Negative rights can be respected simply by each person refraining from interfering with each other, while it may be difficult or even impossible to fulfill everyone's positive rights if the sum of people's claims outstrips the resources available.
However, when it comes to the enforcement of rights, this difference disappears. Funding a legal system that enforces citizens' negative rights against assault may require more resources than funding a welfare system that realizes citizens' positive rights to assistance. As Holmes and Sunstein (1999, 43) put it, in the context of citizens' rights to state enforcement, all rights are positive. Moreover, the point is often made that the moral urgency of securing positive rights may be just as great as the moral urgency of securing negative rights (Shue 1996). Whatever is the justificatory basis for ascribing rights—autonomy, need, or something else—there might be just as strong a moral case for fulfilling a person's right to adequate nutrition as there is for protecting that person's right not to be assaulted.
What is the relationship between the concept of human rights applied in post-Human Rights Act black letter law in the UK with reference to Professor Hohfeld’s understanding of the definition of rights?
As previously mentioned the normative theories merely seek to answer what is morally just and right and the criteria by which the law should be evaluated. Thus, for instance according to Rawls, “rights” are given account of in his 1st principle of justice stating that “Each person is to have an equal right to the most extensive basic liberty.”Which are the “political liberty to vote and run for office, freedom of speech and assembly, liberty of conscience, freedom of personal property and freedom from arbitrary arrest.“And according to Dworkin, rights “trump” non-right objectives, such as increasing national wealth.
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