View source for The Hohfeldian Analytical Framework

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[[Category:Manuel Toscano]]
[[Category:Hohfeld’s typology of rights]]
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{{DES | des = According to Hohfeld, "the term 'right' tends to be used indiscriminately to cover what in a given case may be a  privilege, a power, or an immunity, rather than a right in the strictest sense". | show=}}
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{{Text |

 
 8 as a mere synonym with ÒprivilegeÓ (Hohfeld 1919: 42), and most contemporary scholars follow him; even if they commonly prefer the term ÒlibertyÓ to ÒprivilegeÓ, they are referring to the same Hohfeldian position (Finnis, 1980; Sumner 1987; Kramer 1998). Henceforward I will follow Thomson in reserving ÒlibertyÓ for the kind of complex right consisting in a privilege along with a claim. It is merely a stipulation to prevent confusion, but nothing hinges on this terminological choice. So understood, liberties are not simple aggregation of Hohfeldian positions, but they take a characteristic shape. Borrowing Herbert HartÕs well known expression, the claim works as a sort of Òprotective perimeterÓ for the privilege, as in our example above, shielding the exercise of the privilege against some unwelcome interferences.
2
 Adapting HartÕs idea, Carl Wellman has suggested that all rights display a similar structural pattern: legal and moral rights are clusters of Hohfeldian positions in which we can always discern the existence of a core protected by a number of associated normative positions (Wellman 1997: 7). In our example of a liberty, the privilege constitutes the core, the claim being the  protective shield. Obviously, this is a very simple pattern, for all the four Hohfeldian incidents may constitute the core and various combinations of them the periphery of cluster-rights. So far, we have considered claims and privileges only. These are first-order normative positions in HohfeldÕs account. Claims and duties, privileges and no-duties, refer to actions. By contrast, powers and immunities are second-order legal positions. Not being concerned directly with actions,
2
Actually, Hart speaks of a liberty protected by a perimeter of duties, though not necessarily made up of claims specifically related to the privilege (Hart 1982: 171ff.).

 
 9 they are about other legal positions, more precisely, the ability or inability to change legal relations. Nevertheless, although at a different level, power and immunity have the same relationship to each other as claims and privileges. According to Hohfeld, a power is the ability to change oneÕs own or anotherÕs legal position, to the effect of creating, altering, or cancelling a Hohfeldian incident. The correlative  position is someoneÕs liability to have his legal relation changed by the person holding the power, and the opposite is the inability to make such a change. Thus A holds a power regarding B, if A can change by his acts some of BÕs Hohfeldian first-order positions, as claims or privileges. Very often, a person exerts power over himself, changing his own legal position. A good example is a promise, for by making a  promise of doing p the promisor creates a duty towards the  promisee of doing p. In the same way, property rights or contractual rights typically include powers too. Indeed,  powers can also affect second-order positions as powers and immunities. Taking this into account, if PW stands for a  power, A the powerÕs holder, B the person who is liable to AÕs power, and x is the Hohfeldian position affected, whereas L means to be liable, a power can be defined as follows: (3) Def. power: PW
[A, B, x]
!
 L
[B, A, x]
 The last Hohfeldian position is immunity. An immunity is correlative to the inability to change the holderÕs legal  position, the opposite being to be liable to such a change. Obviously, such inability is the same as the lack of power to make such changes. Thereby, A holds an immunity against B in the case that B lacks the power to alter AÕs legal position, whereas the opposite would be if A were liable to BÕs power.
 
 10  Naturally, if a person had a power over himself, in the same way it would also be perfectly possible that he held an immunity against himself. So, immunities are necessary for understanding the notion of inalienable rights. In short, if I represents the immunity, this legal relationship can be expressed in the following way: (4) Def. immunity: I
[A, B, x]
!
ÂPW
[B, A, x]
 To summarize, in HohfeldÕs account all assertions about rights can be explained in terms of these four legal positions, or a collection of them, without remainder (Finnis 1980: 199). Generally, most rights we talk about are cluster-rights containing several of these Hohfeldian positions. So, my  property rights on my apartment, for example, typically involve the privilege of using it, claims excluding others from accessing the apartment without permission, and powers to  permit others to get into, rent, or sell it. Besides, while HohfeldÕs analysis was confined to legal talk and judicial reasoning about rights, it is apt to be extended to moral and  political talk about rights. And last, in order to appreciate the  practical significance of rights, we have to retain the centrality of claims, or Òrights in the strictest senseÓ, and duties in the whole picture. For privileges are defined by the absence of correlative claims. As second-order positions, powers are the ability to alter claims and privileges, as well as other powers and immunities. And, in parallel, immunities imply the lack of correlative powers to alter a Hohfeldian incident.
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