Correlation and Constitutional Rights

Abstract

Abstract Skepticism among American scholars about the value of analytic legal positivism derives in part from the pervasiveness of private law in analytic jurisprudence. Wesley Hohfeld’s influential framework proves little different: although he claims that the jural relations apply to constitutional entitlements, he relies on private law for their exposition. Matthew Kramer’s scholarship clarifies and develops Hohfeld’s schema and draws greater attention to its application in the public realm. This chapter advances the discussion by examining the application of the Hohfeld-Kramer framing to constitutional law, demonstrating weaknesses in assuming that the private law model can be sustained without more careful exposition. Such entitlements are held in res publica, with the result that the entitlement-holder also bears a duty of non-infringement. It identifies a new category of “dignities,” which act as a shield for claim-rights and highlights the nature of “purported rights,” where the state, holding the power of enforcement, structurally lacks the impetus to prosecute (its own) constitutional breach.