HOHFELD ON PRIVILEGES AND LIBERTIES

Daniel Simão Nascimento

doi:10.5216/phi.v24i1.48949

Abstract

Wesley Newcomb Hohfeld was an American jurist who published a series of articles between 1909 and 1917 that were very important for 20th century analytical philosophy of right. In these articles, Hohfeld analyzed how jurists and judges alike use the word ‘right’ to speak of the rights of groups and individuals. Since he presented his articles, it has been commonplace among ‘hohfeldian specialists’ to distinguish rights into four groups: privileges, or claims, powers and immunities. This paper has four sections. In section I, I present Hohfeld’s notion of privilege and point to a difficulty that has long been known by specialists, namely, that there are actually two significantly different legal relations that this notion is supposed to cover. In section II, I analyze and criticize the way (Wenar 2005) proposes we should define these two legal relations. In section III, I do the same with suggestion proposed by (Moritz 1960, 1073). In section IV, I present my own suggestion about how we should understand them.

Highlights

Wesley Newcomb Hohfeld was an American jurist who published a series of articles between 1909 and 1917 that were very important for 20th century analytical philosophy of right and established Hohfeld as a major precursor to the
According to Hohfeld, the word ‘right’ is used in juridical contexts to name several different juridical relations, there are some basic meanings of the word, each of those basic meanings express a clear and simple juridical fact and all rights are complex juridical facts made up of the agglutination of these simple juridical facts
We find a second and most important passage about privileges a few pages ahead, when Hohfeld outlines his general conception of privilege

Summary

Introduction

In the example last put, whereas X has a right or claim that Y, the other man, should stay off the land, he himself has the privilege of entering on the land; or, in equivalent words, X does not have a duty to stay off. We can say that according to Hohfeld an individual A has a legal claim against another when this other has a legal duty to to do something4.

Results

Conclusion