Abstract
One of the major concerns of W.N. Hohfeld’s seminal work on the nature of legal rights was with the need to ensure conceptual clarity in our analysis of individual legal relationships. Hohfeld therefore took care to stress, when presenting his scheme of jural opposites and correlatives, that:
One of the greatest hindrances to the clear understanding, the incisive statement, and the true solution of legal problems frequently arises from the express or tacit assumption that all legal relations may be reduced to ‘rights’ and ‘duties’, and that these latter categories are therefore adequate for the purpose of analyzing even the most complex legal interests …2
Hohfeld complained that ‘the term “rights” 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; and this looseness of usage is occasionally recognised by the authorities’,3 and concluded his essay with the assertion that ‘the deeper the analysis’ of legal relationships using a scheme of opposites and correlatives, ‘the greater becomes one’s perception of fundamental unity and harmony in the law’.4 In other words, a rational ordering of the law requires clear conceptual analysis — something which is lacking, as Hohfeld took care to stress through his use of examples from the cases, where the term ‘right’ is used to describe any relationship in which one party holds some sort of interest, regardless of whether that interest actually imposes a correlative duty on another.
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Notes
W.N. Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’, in W.W. Cook (ed.), Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven: Yale University Press, 1923), p. 35.
Ibid., pp. 35–64; Hohfeld’s second article, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’, in the same volume, deals specifically with judicial usage of the concepts of rights in rem and rights in personam. For further discussion of the will theory of rights, Hohfeldian analysis of rights and public law, see N.E. Simmonds, ‘Rights at the Cutting Edge’, in M.H. Kramer, N.E. Simmonds and H. Steiner, A Debate Over Rights: Philosophical Enquiries (Oxford: Clarendon Press, 1998), pp. 142–5.
For accounts of contrasting normative theories of rights in public law, see C. Harlow and R. Rawlings, Law and Administration (London: Butterworths, 2nd edn, 1997);
M. Loughlin, Public Law and Political Theory (Oxford: Clarendon Press, 1992).
In Canadian law, in relation to the scope of application of the Charter of Rights and Freedoms, see further: Retail, Wholesale and Department Store Union v. Dolphin Delivery [1986] SCR 573; Dale Gibson, The Law of the Charter: General Principles (Toronto: Carswell, 1986), pp. 89–93, 110–18;
Peter Hogg, Constitutional Law of Canada (Toronto: Carswell, 3rd edn, 1992), pp. 836–9.
In US law, in relation to the ‘state action’ principle, see Laurence Tribe, American Constitutional Law (New York, Foundation Press, 2nd edn, 1988), pp. 1699–703.
See, variously, C. Harlow, ‘“Public” and “Private” Law: Definition Without Distinction?’ (1980) 43 MLR 241;
M. Taggart (ed.), The Province of Administrative Law (Oxford: Hart, 1997);
J. Allison, A Continental Distinction in the Common Law (Oxford: Clarendon Press, 1996);
D. Oliver, Common Values and the Public-Private Divide (London: Butterworths, 1999).
See N. Bamforth, ‘The Public Law-Private Law Distinction: a Comparative and Philosophical Approach’, in P. Leyland and T. Woods (eds), Administrative Law Facing the Future: Old Constraints and New Horizons (London: Blackstone, 1997);
G. Samuel, ‘Public and Private Law: A Private Lawyer’s Response’ (1983) 46 MLR 558.
In relation to the exclusivity rule in English public law, see Lord Woolf MR, ‘Public Law-Private Law: Why the Divide? A Personal View’ [1986] PL 220.
See further N.E. Simmonds, The Decline of Juridical Reason: Doctrine and Theory in the Legal Order (Manchester: Manchester University Press, 1984), ch. 9;
Peter Cane, ‘Public Law and Private Law: a Study of the Analysis and Use of a Legal Concept’, in J. Eekelaar and J. Bell (eds), Oxford Essays in Jurisprudence: Third Series (Oxford: Clarendon Press, 1987).
See Sir Stephen Sedley, Freedom, Law and Justice (London: Sweet & Maxwell, 1999), lecture 2; ‘Public Law and Contractual Employment’ (1994) 23 ILJ 201;
see also Sir John Laws, ‘Public Law and Employment Law: Abuse of Power’ [1997] PL 455.
See, for example, P. Birks, An Introduction to the Law of Restitution (Oxford: Clarendon Press, rev. edn., 1989), chs 1 and 2.
H.W.R. Wade and C.F. Forsyth, Administrative Law (Oxford, Clarendon Press, 7th edn, 1994), pp. 718–29.
See also the apparent contrast between public and private law rules in relation to the granting of licences and to the tendering process: J. Beatson, ‘Public Law Influences in Contract Law’, in J. Beatson and D. Friedmann (eds), Good Faith and Fault in Contract Law (Oxford: Clarendon Press, 1995), pp. 282–3.
See, for example, the discussion of unilateral and bilateral liberties in Professor H.L.A. Hart’s Essays on Bentham (Oxford: Clarendon Press, 1982), pp. 166–9.
See, for example, Dworkin’s categorization of the First Amendment: R. Dworkin, A Matter of Principle (Oxford: Clarendon Press, 1986), p. 376.
See further Ronald Dworkin, Law’s Empire (London: Fontana, 1986).
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Bamforth, N. (2001). Hohfeldian Rights and Public Law. In: Kramer, M.H. (eds) Rights, Wrongs and Responsibilities. Palgrave Macmillan, London. https://doi.org/10.1057/9780230523630_1
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