Richard Calnan on jurisprudence

In 1913, Professor Wesley Hohfeld of Stanford University wrote an article in The Yale Law Journal called ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’. He followed it up with another article four years later, by which time he had become a professor at Yale University. He died the following year. He was 38.

Everything to do with the law is to do with legal relationships. Hohfeld’s contribution to jurisprudence was to demonstrate that the word right encompasses a number of concepts; and that, in order to avoid confusion, it is important to differentiate between the various ways in which the word is used. He carved up rights into four separate concepts, which he called rights, privileges, powers and immunities. And he did the same for their paired correlatives, which he divided into duties, no-rights, liabilities and disabilities. I am going to talk here about what Hohfeld had to say about rights and privileges.

Two examples will illustrate his position. If you owe me £100, I have a right to receive £100 from you; and you have a duty to pay me £100. I only have that right because you have the corresponding duty.

I might then say that I also have a ‘right’ to walk down the street. But this ‘right’ is of a different kind. Nobody has a ‘duty’ to allow me to walk down the street. It is simply that, in general, no-one has the ‘right’ to prevent me from doing so. Hohfeld considered that this very different legal relationship required a different expression to describe it. I do not have a ‘right’ to walk down the street. What I have is a privilege (now described as a liberty) to do so; and you have no right to prevent me from doing so.

Why is this distinction important? Breaking down what were commonly described simply as rights and duties enables us to see clearly how legal relationships between people are established.

Take an example. People in the public eye demand their right to privacy. The press stands by its right to freedom of expression. Who wins?

The answer will vary across legal systems and times. But Hohfeld enables us to analyse the conflict clearly. The ‘right’ to freedom of expression is not a ‘right’ at all. It is a privilege: a liberty which exists, as a matter of law. I don’t need to justify to you my freedom to write what I want to write. Equally, you have no right to prevent me from saying what I want to say; and, should you want to stop me, you need to point to a legal rule which limits my liberty.

The ‘right’ to privacy is of a different kind. You do not have a ‘liberty’ to be private. You need to find a specific legal rule which prevents me from prying into your affairs.

This is important, because it demonstrates that the liberty of freedom of expression is the default position, and that any limitation on it (in my view a dangerous thing) requires a particular intervention by the law. Freedom of expression and privacy are not equal. Freedom of expression will win unless the law intervenes to limit it. That changes the balance of the discussion, and that is one of the reasons why we still need Hohfeld almost a century on.