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Rights Modelling

Published online by Cambridge University Press:  08 February 2017

David Frydrych
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Abstract

This paper has four aims. First it distinguishes two kinds of philosophical accounts of the ‘formal’ features of rights: models and theories. Models outline the ‘conceptually basic’ types of rights (if indeed a given model deems there to be more than one), their differences, and their relationships with duties, liabilities, etc. Theories of rights posit a supposed ultimate purpose for all rights and provide criteria for determining what counts as ‘a right’ in the first place. Second, the paper argues that Monistic rights models (ones positing only a single basic type of right) are under-inclusive. They wrongly exclude and cannot explain relevant data, i.e., ordinary and legal linguistic practices. The third aim is to show that certain Pluralistic models are over-inclusive in terms of what they count as ‘rights’. Fourth, the paper begins to touch upon, but does not provide, criteria for determining what counts as ‘a right’. Two candidate factors will be addressed.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 30 , Issue 1 , February 2017 , pp. 125 - 157
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2017 

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References

1. The philosophical literature often refers to rights and related concepts as ‘normative positions’. This suggests peoples’ and institutions’ identities and/or statuses within a normative system or domain (a legal system, a corporation, etc.). It is also a slightly controversial term, as some philosophers deny that some such positions (e.g., liberties and powers) constitute ‘norms’ on the grounds that they do not guide or regulate behaviour. See, e.g., Wellman, Carl, Real Rights (Oxford: Oxford University Press, 1995) at 8 [Wellman (1995)].Google Scholar

2. A popular idea in analytic philosophy is that concepts are (often) complex and decomposable into more basic ones. This paper takes no stance on whether this is true of most concepts. It simply employs the phrase “conceptually basic” as a useful term of art and a description of certain concepts in rights models. Again, some models explain many legal and moral rights in terms of ‘complexes’: composites of the model’s more basic concepts, e.g., a claim + a power + a liberty, etc.

3. Wesley Newcomb Hohfeld “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23:1 Yale LJ 16 [Hohfeld, FLC #1]; Wesley Newcomb Hohfeld, “Fundamental Legal Conceptions As Applied In Judicial Reasoning” (1917) 26:8 Yale LJ 710 [Hohfeld, FLC #2]. Hohfeld used the term ‘privilege’ rather than ‘liberty’, but it has become commonplace (for better or ill) to use ‘liberty’ instead.

4. The term ‘ligation’ comes from Albert Kocourek, “Wanted: Phrase for Legal Capabilities and Restraints” (1923) 9 ABA J 25 at 26. Years before Hohfeld, John Salmond posited four basic kinds of rights and four correlative positions for each. The general term for the four kinds of rights, popularised and modified by Hohfeld, is also ‘rights’. Moreover, complexes (aggregations of the different kinds into one larger unified construct) are also called ‘rights’. While Salmond noted the lack of a generic term for the other four correlative positions (duty, liability, etc.) he failed to coin one. John Salmond, Jurisprudence, or The Theory of the Law, 1st ed (London: Stevens & Haynes, 1902) at 195 [Salmond]. While there is no common term, ‘ligation’ is the least bad option. Kocourek was a Sanction Theorist, holding that all rights must be enforceable, and thus all of their correlative positions must be subject to sanctions for non-conformity. My usage of ‘ligation’ excises that element: not all ligations are obligations, let alone ones subject to sanction for non-conformity. Pavlos Eleftheriadis calls those four ‘legal negations’. Pavlos Eleftheriadis, Legal Rights (Oxford: Oxford University Press, 2008) at 123. However, this seems to miss the positions’ affirmative qualities, e.g., the requirement to act in a duty, to have one’s position changed in a liability, etc. The same problem applies to Pierre Schlag’s distinction between ‘entitlements’ and ‘disablements’. Pierre Schlag, “How to Do Things with Hohfeld” (2015) 78 Law & Contemp Probs 185 at 188. Other scholars divide Hohfeld’s eight terms into four ‘advantages’ and four ‘burdens’, but Hohfeld himself shows why many liabilities are desirable and even sometimes advantageous. See Hohfeld, FLC #1, supra note 3 at 54 n 90. The same might be said for the other three kinds of ligations.

5. Hohfeld, FLC #1, supra note 3 at 36. In fact, Hohfeld did define his terms.

A right is one’s affirmative claim against another, and a privilege [liberty] is one’s freedom from the right or claim of another. Similarly, a power is one’s affirmative “control” over a given legal relation as against another; whereas an immunity is one’s freedom from the legal power or “control” of another as regards some legal relation. Ibid at 55.

Section iii touches upon the confusion generated by Hohfeld’s contradictory remarks about his concept of ‘a claim’; particularly whether, as shall be explained there, it is an ‘active’ or ‘passive’ kind of normative position.

There is also a long philosophical history of those who attribute a ‘strict sense’ of the word ‘right’ or phrase ‘a right’. Grotius, for example, did so in the seventeenth century for his notion of a right as a kind of normative power. Hugo Grotius, I De Jure Belli ac Pacis (1625) at 1.5. English and German nineteenth century pluralist modellers in turn distinguished amongst the different basic normative positions they adjudged to be ‘rights’ (e.g., a claim, a liberty, a power, etc.) by deeming one to be the strict sense thereof. See Roscoe Pound, ‘Rights’ in Jurisprudence, vol 4 (Minnesota: West, 1959) [Pound (1959)]; Salmond, supra note 4 at 219-36. Perhaps some did so based on per genus et differentiam definitions, treating their candidate strict senses of ‘a right’ as the basis for understanding the rest.

6. Modellers, both pluralistic and monistic, present various conceptions of (the kind of) a right that is correlative to a duty (‘RCTD’). See the Appendix for further explication. The differences amongst these conceptions, though, are not as great as sometimes made out to be. Space does not allow for a full explication of all their similarities and differences, but here are some poignant ones. First, despite my ‘RCTD’ label, some modellers deny that rights always have correlatives on the grounds that a right is conceptually, and even sometimes temporally, prior to duties. (These modellers nonetheless believe that duties can always be affixed to such rights.) See, e.g., Henry Terry, Some Leading Principles of Anglo-American Law Expounded with a View Towards its Arrangement and Codification (Philadelphia: T & J W Johnson & Co, 1884) at 93; Neil MacCormick, “Rights in Legislation” in Peter Hacker & Joseph Raz, eds, Law, Morality and Society: Essays in Honour of HLA Hart, (Oxford: Clarendon Press, 1977) [MacCormick (1977)]. Second, some characterise rights as reasons rather than as normative positions. E.g., Joseph Raz, ‘The Nature of Rights’ in The Morality of Freedom (Oxford University Press, 1986) [Raz (1986)]. Third and fourth, it is debated whether Hohfeld’s schema is able to account for prima facie rights (and duties) and the qualities of ‘force’ or ‘weight’. Michael Steven Green and blog commentators, ‘Why No Deontic Logic?’ (Prawfsblawg 12 October 2007), online: http://prawfsblawg.blogs.com/prawfsblawg/2007/10/why-no-deontic-.html. Fifth, some scholars argue that rights are not claims, but are rather (sometimes) defended by claims. See, e.g., Anthony Honoré, “Rights of Exclusion and Immunities against Divesting” (1960) 34 Tulane L Rev 453 at 456-57 [Honoré (1960)]. Matthew Kramer successfully shows that Hohfeld’s schema is compatible with the first four views. Matthew Kramer, “Rights Without Trimmings” in Matthew Kramer, ed, A Debate Over Rights: Philosophical Enquiries (Oxford: Oxford University Press, 1998) at 23-29, 36-49 [Kramer (1998)].

Unlike Hohfeld’s conceptually basic ‘claim’, HLA Hart’s ‘right-correlative-to-an-obligation’ is actually a complex. It is a composite of liberties and powers: the capacity to enforce or waive a correlative legal duty, which includes legal permissions to undertake either option. HLA Hart, ‘Legal Rights’ in Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982) at 180-91 [Hart (1982)]. Joseph Raz’s conception of a right is similar to a Hohfeldian claim insofar as it marks its holder as the intended beneficiary of a correlative duty-bearer’s action or forbearance, but differs insofar as (a) the right is a reason, predicated upon some interest or other of the holder, which has the qualities of force or weight, and (b) it is justificatorily prior to the duty (my right is the reason for your duty). Raz (1986); Joseph Raz, ‘Legal Rights’ in Ethics in the Public Domain, revised ed, (Oxford: Oxford University Press, 1994 [Raz (1994)].

7. Sumner, Wayne, The Moral Foundations of Rights (Oxford: Clarendon Press, 1987) at 32–33 [numbering added].Google Scholar

8. Kramer (1998), supra note 6 at 13-14; Matthew Kramer & Hillel Steiner, “Theories of Rights: Is There a Third Way?” (2007) 27 Oxford J Leg Stud 281 at 295-99 [Kramer & Steiner (2007)].

9. See, e.g., Wellman, Carl, A Theory of Rights: Persons Under Laws, Institutions, and Morals (New Jersey: Rowman & Littlefield, 1985) [Wellman (1985)] at 59-60, 80, 92; Wellman, (1995), supra note 1 at 7–8.Google Scholar

10. Specifically, Rainbolt believes that Hohfeldian claims and immunities are rights, while powers and liberties are not. However, he also thinks there are many kinds of rights complexes, including power-rights and liberty-rights, but only so long as a claim or immunity serves as a component. George Rainbolt, The Concept of Rights (Dordrecht: Springer, 2006) at xi-xii, 30-39 [Rainbolt (2006)].

11. See, e.g., Raz, Joseph, The Authority of Law, 2nd ed (Oxford: Oxford University Press, 2011) at 158-59 [Raz 2011]; Raz (1994), supra note 6 at 255–57.Google Scholar

12. E.g., Jeremy Waldron, “A Right to Do Wrong” (1981) 92 Ethics 21 at 23.

13. For example, Raz is concerned by (what he takes to be) a dubious inclination to seek moral and social analogues to legal rights enforcement mechanisms, which may not obtain—even for certain legal rights too. Raz (1994), supra note 6 at 255-57.

14. Although the ‘model-theory’ characterisation is novel, noting that there are two different sorts of philosophical explanations of rights is not. Instead of ‘models’ and ‘theories’, Leif Wenar divides them in terms of ‘forms’ and ‘functions’. Leif Wenar, “Rights”, online: Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/rights/ accessed 1 January 2016 [Wenar (2015)]. That distinction is unhelpful because both terms work equally well in either category. For example, one could say it is the function of a power to change parties’ normative positions, while it is the function of all rights to protect right-holders’ interests. Alon Harel distinguishes two kinds of accounts as governing the ‘nature’ and ‘role’ of rights respectively. Alon Harel, “Theories of Rights” in Martin P Golding & William Edmundson, eds, The Blackwell Guide to the Philosophy of Law and Legal Theory (Singapore: Blackwell, 2007) at 192. This too is unhelpful because either category can be labelled ‘role’: we could say that each Hohfeldian position serves a distinct role, while the Interest Theory posits that a right’s role is to protect some aspect of a right-holder’s well-being.

15. See, e.g., Kramer (1998), supra note 6 at 61. A Debate Over Rights is the most extensive treatment to date of rights theories. Unfortunately, there is no extensive treatment of the various models. The best option for some introductory treatments are: Nigel Simmonds, Central Issues in Jurisprudence, 4th ed (London: Sweet & Maxwell, 2013); Wenar (2015), supra note 14; Rainbolt, supra note 10.

16. Hohfeld himself probably had no theory of this kind in mind when constructing his schema. See John Finnis, Natural Law and Natural Rights, 2nd ed (Oxford: Oxford University Press, 2011) at 202-03, 465 n 32; Kramer (1998), supra note 6 at 61 n 23, 62.

17. To clarify, not all modifications made to models are based on ‘theoretical’ considerations. For example, the intra-Hohfeldian disagreement about whether to use the label ‘liberty’ or ‘privilege’ for Hohfeld’s basic position, or whether these mark two different concepts, does not rest on theoretical bases.

18. Much ink has been spilled trying to show errors in the Hohfeldian conceptions of a liberty, a power, etc. Even granting that such arguments evidence certain conceptual difficulties for Hohfeldians, they do not ipso facto count as good arguments for the view that any and all conceptions of a liberty, a power, etc., do not or cannot constitute distinct kinds of ‘rights’.

19. Honoré (1960), supra note 6 at 456.

20. Ibid.

21. Ibid at 457.

22. The difference between ‘active’ and ‘passive’ kinds of rights is whether the position entitles its holder to act (an active right), or whether someone else owes the position-holder some action, forbearance from action, or is incompetent to act (a passive right). See, e.g., Salmond, supra note 4 at 225.

23. ‘[A] philosophical definition of ‘a right’, like those of coercion, authority, and many other terms, is not an explanation of the ordinary meaning a term. It follows the usage of writers on law, politics and morality who typically use the term to refer to a subclass of all the cases to which it can be applied with linguistic propriety. Philosophical definitions of rights attempt to capture the way the term is used in legal, political and moral writing and discourse. (I refer of course to what philosophers commonly do, whether they know it or not. I do not wish to deny that some understand their enterprise in other ways.) They both explain the existing tradition of moral and political debate and declare the author’s intention of carrying on the debate within the boundaries of that tradition. At the same time they further that debate by singling out certain features, as traditionally understood, for special attention, on the grounds that they are the features which best explain the role of rights in moral, political, and legal discourse. It follows that while a philosophical definition may well be based on a particular moral or political theory (the theory dictates which features of rights, traditionally understood, best explain their role in political, legal and moral discourse), it should not make that theory the only one which recognizes rights. To do so is to try to win by verbal legislation’. Raz (1986), supra note 6 in the article-cum-book-chapter ‘The Nature of Rights’ at 165-66 (certain internal citations embedded into the quote).

Raz remarks cannot be squared with his presentation of the structure of legal officials’ reasoning processes using rights in that chapter’s companion paper ‘Legal Rights’, reprinted in Raz (1994), supra note 6. Regardless, Raz does not adhere to his own stated methodology. Those two book chapters, his most important writings on rights, are devoid of citations to moral, political, and legal philosophical works about rights (let alone citations to standard legal texts). Even if he had complied, though, why should moral and political philosophical conceptions of rights predominate over examples of rights found in legal practice? What is the point of modelling rights and theorising about them if not to help explain real world legal, moral, and institutional practices, and lay linguistic usages and practices? Why do those data/explananda not take priority over, say, a possibly obscure and possibly misguided moral philosopher from 1850?

24. Raz (1986), supra note 6 at 166; Raz (1994), supra note 6 at 254.

25. Raz (1994), supra note 6 at 275. Cf Raz (1986), supra note 6 at 167; Kramer (1998), supra note 6 at 13-14.

26. For example, R Robinson, Sam Coval & Joseph Smith, “The Logic of Rights” (1983) 33 UTLJ 267 at 269: ‘No person can be said to have a right to do that which he can always be prevented from doing or forced to do. The mere negation of a duty to do and not to do is a necessary, but not a sufficient, condition of a right to do. The other person must also have a duty not to interference with you in doing it’.

27. MacCormick, Neil, Institutions of Law: An Essay in Legal Theory (Oxford: Oxford University Press, 2008) at 127 [MacCormick (2008)].Google Scholar

28. See Raz (1994), supra note 6 at 267; Wellman (1985), supra note 9 at 44-46, 50, 68-69, 80.

29. See Eleftheriadis, supra note 4 at 7. On only tokens of Hohfeldian claims counting as rights see, e.g., Rowan Cruft, “Rights: Beyond Interest and Will Theory” (2004) 23 Law & Phil 347 at 356; Leif Wenar, “The Nature of Rights” (2005) 33 Philosophy and Public Affairs 223 at 243-46 [Wenar (2005)]. On only token powers counting as rights, see, e.g., Kramer (1998), supra note 6 at 103; Finnis, supra note 16 at 226-27. On only token immunities counting as rights, see, e.g., Hart (1982), supra note 6 at 191.

30. Kenneth Campbell, Book Review of Real Rights and The Proliferation of Rights by Carl Wellman (2001) 110:439 Mind 881 at 884 [Campbell (2001)]. Cf Kenneth Campbell, “The Variety of Rights” in Rex Martin & Gerhard Sprenger, eds, Challenges to Law at the End of the 20th Century: Rights: Proceedings of the 17th World Congress of the International Association for Philosophy of Law and Social Philosophy (IVR), Bologna, June 16-21, (Stuttgart: F Steiner Verlag, 1995) at 22. Campbell is probably not a Monist, but just a more restricted pluralist, as he seems to think that both liberties and RCTDs are ‘rights’. It is also unclear whether Campbell thinks that an immunity is a marker of another party’s incapacity, or something else, and in what sense he thinks that an immunity itself could be ‘a capacity’.

31. Campbell (2001), supra note 30 at 884.

32. Guido Calabresi & Douglas Melamed, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral” (1972) 85 Harv L Rev 1089 at 1090-91.

33. Kramer & Steiner (2007), supra note 8. Cf Gopal Sreenivasan, “A Hybrid Theory of Claim-Rights” (2005) 25 Oxford J Leg Stud 257; Wenar (2005), supra note 29.

34. Wenar (2005), supra note 29 at 238.

35. Ibid at 243.

36. This seems to diverge from Steiner’s earlier views about rights being claims or immunities. See, e.g., Steiner, Hillel, An Essay on Rights (Oxford: Oxford University Press, 1994) at 61 n 9.Google Scholar

37. Kramer & Steiner (2007), supra note 8 at 295.

38. Ibid at 295-96.

39. Ibid at 296.

40. Ibid.

41. Ibid.

42. Ibid.

43. Ibid at 296-97.

44. Ibid at 297-98. The following portions of the argument were omitted for brevity’s sake. ‘To be sure, a claim must be accompanied by immunities against most types of divestiture if it is to count as a genuine right at all…. However, the lesson to be drawn here is not so much that concomitant immunities against divestiture are necessary for a claim’s status as a genuine right; instead, the presence of such immunities is necessary for a claim’s status as a genuine entitlement or legal position of any sort’ (ibid at 297). Kramer contrasts ‘genuine’ entitlements with merely ‘nominal’ ones, which are nevertheless also real positions within a legal system, but it is hard to square these remarks with Kramer’s earlier view about claims being ‘nominal’ if unprotected by powers. Kramer (1998), supra note 6 at 8-9, 34, 46, 63-65, 100, 106; Matthew Kramer, “On the Nature of Legal Rights” (2000) 59 Cambridge LJ 473 at 476-77, 481-82. Perhaps he abandoned it, though. Further, there are good reasons to think this argument reflects Kramer’s view and not Steiner’s as it is hard to reconcile with latter’s Will Theory of rights.

45. Kramer & Steiner (2007), supra note 8 at 295.

46. See also Kramer (1998), supra note 6 at 22-23.

47. Kramer & Steiner (2007), supra note 8 at 296.

48. Hohfeld, FLC #1, supra note 3 at 20.

49. Ibid at 31: ‘Recognizing, as we must, the very broad and indiscriminate use of the term, “right,” what clue do we find, in ordinary legal discourse, toward limiting the word in question to a definite and appropriate meaning. That clue lies in the correlative “duty,” for it is certain that even those who use the word and the conception “right” in the broadest possible way are accustomed to thinking of “duty” as the invariable correlative’. Hohfeld then proceeds to cite three cases as evidence. Ibid at 31-32.

50. Kramer (1998), supra note 6 at 34 n 14.

51. The Primary-Secondary-Tertiary right distinction is commonplace in legal and philosophical discourse. Primary rights are substantive entitlements, e.g., a right to free speech or to purchase some land. Secondary rights usually authorise their holders to initiate dispute resolution mechanisms (litigation, arbitration, mediation, etc.) when primary rights seem to have been, or are threatened to be, violated (or they authorise holders to waive such processes). However, they can also sometimes be employed outside of such contexts, e.g., as entitling one to undertake self-help remedies. Tertiary rights are used to enforce or waive the binding prescriptions or remedies provided by third party dispute resolution mechanisms like courts.

52. In explicating Jeremy Bentham’s account of liberties, HLA Hart notes the former’s Vested/Naked liberties distinction. ‘Vested’ liberties are those that, however weakly, are directly or indirectly protected by at least some legal RCTDs. For example, one has the liberties to eat or not eat, to stand or sit down, to go inside one’s house or out. These are “liberty-rights” because they are protected, e.g., it is an offence for others to use violence to prevent one for so acting. ‘Naked’ liberties, by contrast, are not protected by RCTDs. Hart (1982), supra note 6 at 172.

53. See, e.g., Salmond, supra note 4 at 122-23, 129; Raz (1994), supra note 6 at 256-57; Rex Martin, A System of Rights (Oxford: Clarendon Press, 1993) at 82-83; Kramer (1998) and (2000), supra my footnote 44.

54. For a different set of responses to Kramer & Steiner’s arguments, see Leif Wenar, “The Analysis of Rights” in Matthew Kramer et al, eds, The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy (Oxford: Oxford University Press, 2008) 251-74.

55. Roscoe Pound, “Legal Rights” (1915) 26 Int J Ethics 92 at 95 (‘Rights in this sense, or powers, as we are now coming to call them….’) [Pound (1915)].

56. Anthony Honoré, “Ownership” in AG Guest, ed, Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 1961). His eleven standard incidents are: 1, a right to possess; 2, a right to use; 3, a right to manage; 4, a right to the income of the thing; 5, a right to the capital; 6, a right to security; 7, an incident of transmissibility; 8, an incident of absence of term; 9, a duty [to prevent] harm; 10, a liability to execution; 11, an incident of residuarity.

57. Wellman (1985), supra note 9 at 86.

58. Hart (1982), supra note 6 at 183-85.

59. Ibid.

60. Wellman (1985), supra note 9 at 92.

61. Ibid at 81-94.

62. Ibid at 54, 95.

63. For example, Campbell (2001), supra note 30; Rainbolt, supra note 10 at 105-09, 242. They also show why Wellman’s concept of ‘dominion’ is underdeveloped. Wellman suggests there are two aspects for identifying the core. Aspect 1: look at the language of legal rights and interpret its meaning (plain meaning, legislative intent, etc.). Aspect 2: look at the matter through the lens of an actual or hypothetical confrontation between two parties under the law. Identify and define the way in which the law might favour a party alleging some right in the face of the contending party. Wellman (1985), supra note 9 at 89-90. There are also two stipulated limiting conditions: 1, the core must be a legal advantage. 2, it must be the sort of legal advantage whereby X can have ‘dominion’. Ibid at 85.

64. Strauder v West Virginia, 100 US 303 (1880).

65. Wellman (1985), supra note 9 at 89.

66. Rainbolt (2006), supra note 10 at 34-39.

67. Ibid at xi, xiii, 118.

68. Ibid at 25, 30. The constraining can be seen via the correlative positions. A duty binds its bearer to act and thus restricts his or her options for action, while a Hohfeldian disability marks one as incompetent to change parties’ relations. But there is a difference between being obligated (not) to act in certain ways and being disempowered to so act. One may act despite being normatively disempowered to do so. The act may be ‘wrongful’, but it is not constraining. For example, a legislature may pass laws that are ultra vires their constitutional competencies; a person may create a will that is not witnessed by the relevant number of parties. The effect is either that the procedures are legally ineffectual, or that they have changed parties’ statuses (citizens, beneficiaries, etc.) in legally-illegal ways. Either way, pace Rainbolt, disabilities are not normative constraints per se and hence immunities do not normative constrain.

69. Ibid at 35.

70. See, e.g., Salmond, supra note 4 at 190-91; Hohfeld, FLC #1, supra note 3 at 38; Hohfeld, FLC #2, supra note 3 at 717; Hart (1982), supra note 6 at 191 (we only call immunities ‘rights’ when they protect against adverse changes, not advantageous ones).

71. MacCormick (1977), supra note 6 at 202; Sumner, supra note 7 at 32; Kramer & Steiner (2007), supra note 8 at 290.

72. For example, Wellman (1985), supra note 9 at 25-27.

73. Rudolph von Jhering, Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung, vol 3, 6th ed (Leipzig: Breitkopf und Härtel, 1924) at 351-53, cited in Hart (1982), supra note 6 at 180.

74. For example, Henry McCloskey, “Rights—Some Conceptual Issues” (1976) 54:2 Australasian J of Philosophy 99.

75. For example, Lars Lindahl, “Stig Kanger’s Theory of Rights” in Ghita Holmström-Hintikka et al, eds, Collected Papers of Stig Kanger with Essays on His Life and Work, vol 2 (Dordrecht: Kluwer Academic, 2001) at 162-63.

76. ‘Entitlement analyses hold that rights are entitlements; duties, powers, and so far are various ways of protecting entitlements. A difficulty with such views is becoming clear what an entitlement is as distinct from its various protections’. Michael Bayles, Hart’s Legal Philosophy: An Examination (Dordrecht: Kluwer Academic, 1992) at 141-42.

77. Jeremy Bentham, Of the Limits of the Penal Branch of Jurisprudence, ed by Philip Schofield (Oxford: Clarendon Press, 2010) [Bentham (2010)]. This preliminary presentation mostly follows HLA Hart (1982), supra note 6 (particularly the chapters ‘Legal Duty and Obligation, ‘Legal Rights’, and ‘Legal Powers’), but see also Lars Lindahl, Position and Change: A Study in Law and Logic (Dordrecht: D Reidel, 1977) at 198-203. Even so, more work must be done to elaborate Bentham’s model.

78. Bentham (2010), supra note 77 at 79-80. Take away the notion of punishment and you deprive the words duty, right, power, etc., of all meaning. Ibid at 145.

79. Ibid at 300. ‘The notion of command leads to that of duty: that of duty to that of right: and that of right to that of power’ (ibid at 317). ‘If it be any other part [who will benefit from the compelled action], then is it a duty owing to some other party: and then that other party has at any rate a right: a right to have this duty performed: perhaps also a power: a power to compel the performance of such duty’ (ibid at 317). ‘Right is either naked or armed with power’ (ibid at 317 n 1). ‘Wherein consists the exercise of such a right? In the demanding of the services only, or in the demanding and receiving them accordingly?’ (ibid at 300 n 2).

80. Ibid at 80, 301. Both are ‘enforced services’. Hart (1982), supra note 6 at 168.

81. Bentham, supra note 77 at 150 (in the footnote that commences on 148), 75-76

82. Every power is a right, but not every right is a power (ibid). Powers can be ‘corroborated’ (i.e., protected by some other normative position, e.g., by a correlative duty), or ‘uncorroborated’ (i.e., not so protected). Ibid at 314.

83. Ibid at 79 n “a”, 149 n. Aka ‘autocheiristic’ power. Ibid at 103 n 1.

84. Ibid at 42 n “b”. Hart on Bentham’s imperation power: ‘a power to procure persons to act in conformity with a command or prohibition by providing motives influencing their will, and it does so in either of two main ways: by threatening punishment if the act is not done or by offering reward if it is done’. Hart 1982, supra note 6 at 200-01. Hart is probably correct to identify Bentham’s contrectation and imperation powers as being what usually are called ‘liberties’ or ‘permissions’. Hart 1982, supra note 6 at 197, 200.

85. ‘[I]f a certain use of freedom is itself a hindrance to freedom in accordance with universal laws (i.e., wrong), coercion that is opposed to this (as a hindering of a hindrance to freedom) is consistent with freedom in accordance with universal laws, that is, it is right. Hence there is connected with right by the principle of contradiction an authorization to coerce someone who infringes upon it.’ Immanuel Kant, Metaphysics of Morals, translated by Mary Gregor (Cambridge: Cambridge University Press, 1996) at 6:231, page 25. ‘Right and authorization to use coercion therefore mean one and the same thing’ (ibid at 6:232, page 26). Kant calls this the ‘strict’ or ‘narrow’ sense of a right, but notes that people also think of a right in a ‘wider’ sense, of which there are two true or alleged’ kinds: equity (right without coercion) and right of necessity (coercion without a right). Ibid at 6:232-6:235, pages 25-28.

86. Alois von Brinz, Lehrbuch der Pandekten, 1rst ed (Erlangen: Andreas Deichert, 1857).

87. Ibid at 49-50 (§ 23).

88. Ibid.

89. Ibid.

90. Brinz, supra note 86 at 52 (§ 24). Compare JS Mill: ‘When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education and opinion’. John Stuart Mill, Utilitarianism (London: Parker, Son, and Bourn, 1863) at 78 [emphasis added].

German jurists in the second half of the nineteenth century debated the relationships amongst: (i) recht, anspruch, and a right/cause of action (sometimes distinguished by the terms klag or klagrecht) and (ii) ‘the’ German concept of a cause of action to the Roman actio. See, e.g., Bernhard Windscheid, Lehrbuch des Pandektenrechts (Düsseldorf: Julius Buddeus, 1867) at 81, 89-93 (§ 37 n 1, §§ 43-44).

91. William Markby, Elements of Law: Considered with Reference to Principles of General Jurisprudence (Oxford: Clarendon Press, 1871) at 49-57.

92. Ibid at 50.

93. Ibid.

94. Ibid at 51.

95. Ibid at 57.

96. Ibid at 49.

97. Ibid at 50. For the Absolute-Relative duties distinction, see Austin, infra note 138 at 5.

98. Ernst Bierling, Zur Kritik der Juristischen Grundbegriffe, vol 2 (Gotha: Friedrich Andreas Berthes, 1877-83) at 32-73.

99. Ibid at 39-40, 40 n (§ 141). Bierling holds that, of the three concepts expressed in ordinary language by the term ‘a right’—Rechtsanspruch, Dürfen, and Können—only the first warrants the ‘scientific title’ of a ‘subjective right’. Ibid at 74 (§ 160).

100. Ibid at 50 (§ 147), as translated in Lindhal, supra note 77 at 196.

101. Ibid (and ibid). Roscoe Pound translates Bierling here as: “capacity in pursuance of certain provisions of the positive law, to produce determinate legal consequences through legal transactions”. Pound (1915), supra note 55 at 111.

Cf August Thon, who notes four distinct senses of ‘subjektiven rechts’—Normenschutz (normative protection), Anspruch, Befugniss, and Genuss. August Thon, Rechtsnorm und Subjektives Recht: Untersuchungen zur Allgemeinen Rechtslehre (Weimar: Hermann Bohlau, 1878) at ch 5-7. Thon also holds that, of these four concepts, only anspruch truly deserves the title of ‘a subjective right’. Ibid at v-vi. Cf Wilhelm Schuppe, Der Begriff des subjektiven Rechts (Breslau: Wilhelm Koebner, 1887).

102. Terry, supra note 6, in the chapter ‘Duties and Rights in General’.

103. Ibid at 87. ‘[T]he violation of a mere correspondent right does not give a cause of action; for that a violation of a protected right is necessary’ (ibid at 99, emphasis added).

104. Ibid at 97.

105. Ibid at 90. Permissive right vs. legal power: One may be under a duty not to do an act without being made legally incapable of doing it. Ibid.

106. Ibid at 100.

107. Ibid at 101.

108. Ibid at 85-87.

109. ‘Legal Rights’ and ‘The Kinds of Legal Rights’ in Salmond, supra note 4. Cf Anthony Dickey, “Hohfeld’s Debt to Salmond” (1971) 10 UWA L Rev 59.

110. Salmond, supra note 4 at 231, 234.

111. Ibid at 219, 220, 221, 223. The power to enforce via instituting legal proceedings is not essential to the conception of a legal right. (Unenforceable legal rights are ‘imperfect’ cases, though.) Ibid at 223. Nevertheless, ‘there can be no right unless there is someone from whom it is claimed…’ (ibid at 224). ‘I enjoy my rights through the control exercised by it over the acts of others on my behalf’ (ibid at 235). On a right being an interest, see Rudolph von Jhering and Bierling. For Pound’s nuanced criticism of that notion, see infra note 126.

112. Ibid at 231.

113. Ibid at 236.

114. Ibid.

115. Ibid at 234 n 1.

116. Ibid at 235. ‘1. Rights (stricto sensu)—what others must do for me. 2. Liberties—what I may do for myself. 3. Powers—what I can do as against others. 4. Immunities—what others can not do as against me’ (ibid at 238).

117. Ibid at 218.

118. Ibid at 236.

119. Ibid.

120. Ibid.

121. William Galbraith Miller, The Data of Jurisprudence (Edinburgh: W Green & Sons, 1903) at 131. Cf ibid at 50-51.

122. See Hohfeld, FLC #1, supra note 3 at 30.

123. Ibid at 55. Despite his definitions, the reader is advised to note Hohfeld’s inconsistent usage of his conceptions. For example, are liberties and immunities freedoms from others’ claims or powers, or do they instead mark the other parties’ lack of claims or powers? So to with a claim: does one claim with a Hohfeldian claim, or is it a passive position?

124. Hohfeld, FLC #1, supra note 3 at 42 n 59.

125. See Pound (1915), supra note 55; Pound (1959), supra note 5, especially at 70-71, 75.

126. Pound (1915), supra note 55 at 93; Pound (1959), supra note 5 at 70. Why not define the stricto sensu case as ‘a claim’? ‘If we define [it] in terms of claim, we put in the foreground the idea of interest, whereas we are defining something conferred by law to make the interest effective (ibid at 70).

127. Pound (1959), supra note 5 at 81.

128. Pound (1915), supra note 55 at 101; Pound (1959), supra note 5 at 58.

129. Pound (1959), supra note 5 at 71.

130. Pound (1915), supra note 55 at 97-98, 100; Pound (1959), supra note 5 at 78-81.

131. See Hart (1982), supra note 6.

132. Ibid at 173-74.

133. Ibid.

134. Ibid at 188.

135. Ibid. Being ‘enabled by the law either to do actions physically affecting other persons or things, or to bring about changes in the legal positions of others or of themselves, or of both themselves and others’ (ibid at 194).

136. Ibid at 184.

137. Ibid at 191.

138. Ibid at 159-60. Cf ibid at 266. Cf John Austin: ‘Right;—the capacity or power of exacting from another or others acts or forbearances;—is nearest to a true definition’. John Austin, ‘Lecture XVI’ in The Province of Jurisprudence Determined, vol 2, 2nd ed (London: J Murray, 1863) at 63. Compare also JS Mill: ‘It is part of the notion of duty in every one of its forms that a person may rightfully be compelled to fulfil it. Duty is a thing which may be exacted from a person, as one exacts a debt. Unless we think it can be exacted from him, we do not call it his duty’. Mill, supra note 90 at 71.

139. Hart (1982), supra note 6 at 183-84; Hillel Steiner, “Working Rights” in Matthew Kramer, ed, A Debate Over Rights (Oxford: Oxford University Press, 1998) at 240, 240 n 14.

140. See MacCormick (1977), supra note 6; MacCormick (2008), supra note 27.

141. MacCormick (1977), supra note 6 at 200-01.

142. Ibid at 205; MacCormick (2008), supra note 27 at 129.

143. MacCormick (2008), supra note 27 at 129.

144. Ibid at 129.

145. Raz (1986), supra note 6 at 180-81, 196; Raz (1994), supra note 6 at 33, 35-36.

146. On rights as reasons, see, e.g., Raz (1986), supra note 6 at 169, 181; Raz (1994), supra note 6 at 46. On rights as sufficient but not necessary grounds, see, e.g., Raz (1986), supra note 6 at 181,183-84, 188, 192, 193, 202; Raz (1994), supra note 6 at 31. On rights grounding other normative positions (duties, liberties, etc.), see, e.g., Raz (1986), supra note 6 at 167-68, 170-71; Raz (1994), supra note 6 at 31, 46, 268. On the existential, justification, and logical relations between rights and duties, see Raz (1986), supra note 6 at 170-71, 180-81, 196; Raz (1994), supra note 6 at 33, 35-6. On rights being contingently protected by other positions, see Raz (1986), supra note 6 at 181; Raz (1994), supra note 6 at 256-58, 266-67. On there being but one basic kind of right, see, e.g., Joseph Raz, Concept of a Legal System: An Introduction to the Theory of Legal System, 2nd ed (Oxford: Oxford University Press, 1980) at 179-81; Raz (1986), supra note 6 at 176 (rights are nothing but the grounds of duties), 180, 188.

147. Joseph Raz, Practical Reason and Norms, 2nd ed (Oxford: Oxford University Press, 1999) at 89-91; Raz (2011), supra note 11 at 117 n 4.

148. Raz (2011), supra note 11 at 117 n 4.

149. Raz (1994), supra note 6 at 275.

150. Ibid at 241.

151. Raz (1986), supra note 6 (1986) at 168 n 1.

152. Raz (1994), supra note 6 at 40.

153. Raz (1986), supra note 6 at 170-71, 196.

154. Ibid at 210-13; Raz (1994), supra note 6 at 32-40.