Abstract
In an important article published in 1988, Johan Van der Vyver challenged the prevailing reliance on Wesley Hohfeld’s taxonomy of rights. Hohfeld's division of rights into claims, powers, privileges and immunities, Van der Vyver stresses, is excessively concerned with "inter-individual legal relations” at the expense of the right-holder's relationship to the object of the right. Van der Vyver proposes instead that an assertion of right involves three distinct juridic aspects:• legal capacity, which is "the competence to occupy the offices of legal subject;• legal claim, which "comprises claims of a legal subject as against other persons to a legal object";• legal entitlement, which specifies the boundaries of the right-holder's ability to use, enjoy, consume, destroy or alienate the right in question.This article applies Van der Vyver’s taxonomy to the operations of thirteenthcentury canon law, and demonstrates that Van der Vyver’s analysis provides greater depth than Hohfeld's, in that it considers both the relationship of the person claiming a particular right and the object of that right.
Highlights
In the world of American law schools, Wesley Hohfeld seems to have become the generally accepted foundation for analyses of rights (Hohfeld, 1923)
Van der Vyver's analysis o f rights: a case study drawn from thirteenth-century canon law division of rights into claims, powers, privileges, and immunities enjoys near universal appeal in the United States (Hull, 1995:245-281; Singer, 1982:986 994, 1056-1059)
Van der Vyver's analysis o f rights: a case sfud/ drawn from Ihirteenfh-cenlury canon law a) The competence to occupy the offices o f legal subject, for instance the juridic ability to be a spouse, testator, owner o f property, director of companies, executor or trustee o f an estate, etcetera; and (b) the competence to exercise the functions and to be the bearer o f the rights and obligations emanating from such offices
Summary
In the world of American law schools, Wesley Hohfeld seems to have become the generally accepted foundation for analyses of rights (Hohfeld, 1923). Building on the jurisprudential writings of Jean Dabin (1952); Milhollin (1970) and Herman Dooyeweerd, Van der Vyver sees the term “right” in English (and by extension, subjective ius in Latin) as having three potential meanings. It can signify, first, the legal competence or power one has to exercise a particular “right”; secondly, it may signify the claim one has to a particular “right”; and it may signify the bundle of “entitlements” that comprise the particular right. This article intends to employ Van der Vyver’s analysis of rights as a means of studying the juridic structure of thirteenth-century canon law.. The canonistic rights-vocabulary (much like the modem English rightsvocabulary) does not make consistently clear the structural distinction between the claim portion of a right and the underlying entitlement
Sign-in/Register to view highlights & summary Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a callDisclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.
