Anser Unit 1legal Right in a Wider Sense

UNIT 1- LEGAL R IGHT IGHT- HOHFELDIAN ANALYSIS LEGAL RIGHT IN A WIDER SENSE

As already intimated, the term "rights" tends to be used indiscriminately to cover what in a given case may be a privilege, a power, or immunity, rather than a right in the strictest sense; and this looseness of usage is occasionally recognized by the authorities.The analysis of Salmond was carried further by Hohfeld. He analysed it with greater accu racy. Hohfeld‟s description of relations between various forms of legal entitlements reflects truths on

features of legal rights. Countless references thereof  prove Hohfeld‟s great influence on analytical jurisprudence. Hohfeld‟s contribution is mostly contained in two articles published in the Yale Law Journal in 1913 and 1917 respectively. The one published in 1913 and entitled ‟‟Some Fundamental Legal Conceptions as Applied in

Judicial Reasoning is one of the most cited articles in law reviews in general. ’’

It is important to point out that Hohfeld had not expected the article to be a revolutionary theoretical contribution to the legal science. On the contrary, his motifs had been primarily pedagogic, i.e. he had intended to show that developments in the field of jurisprudence and in the field of legal pedagogy had to be connected. Hohfeld‟s intention was to emphasize the educational effects of a clear analytical opinion

on legal issues. He denied that the article, as may be suggested by its title, represented “a merely philosophical inquiry as to the nature of law and legal relations”, but its main purpose was to “emphasize

certain oft neglected matters that may aid in the understanding and in the solution of practical, everyday problems of law”.

Hohfeld did reveal that his articles “are intended more for the law school students than for any other class of readers”.

Three types of relationships/jural relations:1. Jural correlatives/ correspondents (vertical arrows) 2. Jural opposites/ negations ( cross arrows) 3. Jural contradictories (horizontal arrows)

UNIT 1- LEGAL R IGHT IGHT- HOHFELDIAN ANALYSIS Jural Relations

The eight fundamental legal conceptions resulted from Hohfeld's dissatisfaction with the idea that all the jural relations can be reduced to rights and duties. That was singled out as the main obstacle to comprehension and successful resolution of legal issues. According to Hohfeld, there are eight fundamental legal conceptions. Those fundamental legal conceptions are  sui generis, which means that all the attempts aimed at creating a formal definition are not only dissatisfying  but also useless. The most satisfying approach is to lay down various jural relations in a scheme of “opposites” and “correlatives” and, then, to proceed with stating examples of their individual scope and

application in concrete cases. Hohfeld saw $every jural relation as a relation between two persons. His notions might be  presented in a slightly modified version of Glanville Williams‟ Williams‟ table:

Right (claim)

Duty

Liberty (privilege)

No Claim

Power

Immunity

Liability

Disability

UNIT 1- LEGAL R IGHT IGHT- HOHFELDIAN ANALYSIS The vertical arrows couple jural correlatives, ‟‟two legal positions that entail each other‟‟ whereas the diagonal arrows couple jural opposites, ‟‟two legal positions that deny each other‟‟. The latter expression is solely Hohfeld‟s while Williams and a large number of other authors call

 jural contradictories‟‟. them ‟‟ jural Every pair of correlatives must always exist together. Person A as part of the pair cannot have a right if other person B has no duty. None of the pairs of opposites can exist together. If person A has a right, he cannot have a no-right in relation to the same subject matter and the same person.

Hohfeld based his analytical system on earlier Salmond‟s system. Salmond identified three jural relations. According to Salmond, the notion of right was used in a wider sense in order to indicate “any advantage or benefit which is in any manner conferred upon a person by a rule of law”.

Those rights are divided into different categories: (1) Rights in the strict sense , which are defined as interests protected by the law by imposing its duties with respect to the rights upon other persons, (2) Liberties defined as “interests of unrestrained activity” and (3) Powers “when the law actively assists me in making m y will effective”.

Salmond found no generic term which would be correlative to right in a wider sense, and would include all the burdens imposed by the law. Nevertheless, he, correlative to those three categories of advantages or benefits, singled out three types of legal burdens: duties, disabilities and liabilities. Salmond also made a table of “correlatives” but he did not pay much attention to the “opposites”.

On the other hand, Hohfeld cleared out the relation between the eight fundamental legal conceptions by inventing different terms for the correlatives of liberties and powers and by designing the relations between the opposites.

UNIT 1- LEGAL R IGHT IGHT- HOHFELDIAN ANALYSIS CLAIM AND DUTY (‘YOU OUGHT’)

Salmond has used the word „right‟ at the place of claim. But since this word has a wider meaning, thus its use may create confusion. Therefore, the word „claim‟ has been used. Claim

indicates what one can force another to do, or to refrain from doing. The person who can so force is said to have a duty. Hohfeld himself suggested the word, „claim‟. He did not deal at lengths with this relation,

 believing that the nature of claim and duty was sufficiently clear. This was perhaps rather a facile assumption. He did, however, point out that the duty to claim lies in duty, which is a prescriptive  pattern of behavior. A claim is, therefore, simply a sign that some person is ought ou ght to behave in a certain way. Sometimes the party benefitted by the pattern of conduct is able to bring an action to recover compensation for its non-observance, or he may be able to avail himself of more indirect consequences. At other times, he can do nothing. The correlation of claim and duty is not perfect, nor did Hohfeld assert that it was. Every claim implies the existence of correlative duty, since it has no content part from the duty. That statement „X has a claim‟ is vacuous; but the statement, „X has a claim that Y ought to pay him $ 10‟ is meaningful because its content derives from Y‟s duty. On the other hand, whether every

duty implies a correlative claim is doubtful.

Austin admitted that some duties have no

correlative claims, and he called these „absolute duties‟. His examples involve criminal law.

Salmond, on the other hand, thought that every duty must have a correlative claim somewhere. Allen supported Austin. Professor G.L. Williams treats the dispute as verbal. Duties in criminal law are imposed with reference to, and for the benefit of, members of society, none of whom has claims correlative to these duties. As far as their functioning is concerned, it is immaterial whether the claims are in the crown, the Crown in Parliament, or whether there are a re any claims. Statutory duties furnish other examples. It rests on the interpretation of each statute whether the duties created by it are correlative to an y claims in the persons contemplated by the duties. It was held in Ar bon v. An der der son,  (1943) 1 All ER 154, that even if there had been a  breach of the. Prison Rules 1933 which had been made under the Prison Act 1898, S. 2, a  prisoner affected by such a breach had no action since he had no claim. The decision in Bowmaker L td. v. Tabor, (1941) 2 KB I creates a difficulty. The Courts (Emergency Powers) Act 1939, S. i (2), for-bade hire-purchase firms to retake possession of

UNIT 1- LEGAL R IGHT IGHT- HOHFELDIAN ANALYSIS things hired without first obtaining leave of court. The claim to damages was conferred by the statute on any hire purchaser from whom goods were retaken without the necessary leave having  been obtained. In this case the defendant purchaser consented to the plaintiffs retaking  possession of the article hired, and they did so without obtaining leave of court. The plaintiffs later sued the defendant for arrears of rent, which had accrued up to the time of the retaking, and the defendant counterclaimed for damages under the statute. The Court of Appeal held that he was entitled to damages. This means that there was a duty to pay damages, which was correlative to the claim to receive them. The duty not to retake possession without leave of court was, as the Court pointed out, imposed in the public interest and not for the benefit of an individual. The defendant, therefore, could not absolve the plaintiffs from it. The inference is that the claim was not in him. The further question as to why the defendant's consent to the plaintiffs' course of action did not debar him from exercising his claim to damages was answered by the Court on the ground that consent, or volenti non fit injuria, is no defence to a breach of this kind of statutory obligation. Conduct is regulated by the imposition of duties. Claims may assist in achieving this end,  but if it can be otherwise achieved, there is no reason why wh y the mere fact that Y is under a duty with regard to X should confer upon X, or anyone else for that matter, a corresponding claim. There is nothing to prevent it being the law that every breach of duty, of whatsoever sort, shall be dealt with by the machinery of the state. Such a state of affairs, though possible, would be inconvenient, for it would stretch state machinery to breaking point. Where duties are of private concern, the remedies are best left to individuals to pursue in the event of their breach. Above all, it is expedient to give aggrieved persons some satisfaction, usually by way of compensation. Every system of law has to decide which breaches of duties shall be taken up by the public authorities on their own motion, and which shall be left to private persons to take up or not as they please. The distinction between 'public' and 'private' law is quite arbitrary. It would seem, therefore, that there is no intrinsic reason why claims should be a necessary concomitant of duties. Indeed, some modem writers, for different reasons, reject the whole idea of claim as redundant. If non-correlative duties .are accepted, they do not fit snugly into the Hohfeldian scheme.

UNIT 1- LEGAL R IGHT IGHT- HOHFELDIAN ANALYSIS