The Hohfeldian Analysis of Rights*

Abstract

The article both explicates and evaluates (partly defends and partly critiques) the Hohfeldian analysis of legal rights particularly insofar as that analysis is extended to embrace moral rights as well as legal rights. Hohfeld is seen as distinguishing rights to do things (liberties or privileges) from rights to have things done for or to one (claim-rights). Only the second have correlative duties, the first having as its correlative only the absence of a right that the actor not do that which he has a privilege to do. Hohfeld's analysis is seen to understate the importance of rights for moral theory in two ways: as to liberty-rights, there is no sphere of freedom of action that it is the correlative duty of others to respect; and as to claim-rights, these appear to be no more than the reflex of a more basic, correlative duty. The article seeks to reinvigorate the role of rights in moral theory first, by substituting a more robust notion of liberty rights in replacement of Hohfeld's notion, and second, by showing that his analysis of claim rights, properly understood, does not make rights the mere reflex of more basic, correlative duties.

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