Comments?
I’d love to hear!The Hohfeldian Classification of Rights
A
good starting place for thinking about rights is with Hohfeld. He was
writing (circa 1919) specifically about rights as they appear in the
law, but it’s easy to carry over the distinctions he made to
thinking about moral rights. (For my purposes, a moral right is just
one that there are sufficiently good moral reaons to have embodied in
the law – or shorter, a moral right is what would be [if present in
a legal system] a morally justified legal right.) Briefly, he said
that there are four different things that are called rights. (I’ll
talk about A and B as two generic parties to a
rights-relation.)
1) There are claim-rights. A has a claim-right to x against B just in case B has a duty to provide A with x.
2) There are liberties. A has a liberty to do x just in case he has no duty not to do x.
3) There are powers. A has a power with respect to B just in case he can unilaterally alter B’s status with respect to B’s rights (in any of these senses) or duties.
4) There are immunities. A has an immunity against B with respect to x just in case B has no power with respect to A’s rights or duties with respect to x.
We can add that
1*) A claim-right held by A against B corresponds to the absence of a liberty on B’s part. B has no liberty to withhold what A has a claim-right (against B) to.
2*) A liberty held by A against B corresponds to the absence of a claim-right by B against A.
3*) A power held by A against B corresponds to the absence of an immunity held by B against A.
4*) An immunity held by A against B corresponds to the absence of a power held by B against A.
If you start applying that framework, e.g., to what we call “the� right to property, you’ll see that a right to property is actually a “bundle� of rights. If I own a piece of land, then I must have certain liberties as to what I can do with it. Moreover, I have a claim-right that you or anyone else (for the simplest case) not interfere with the exercise of those liberties. I also have powers with respect to other parties; for example, I can transfer it to you (under certain conditions). I can also transfer some rights and retain others (leasing, for example). And I have immunities in that my rights with respect to it cannot be altered by others unilaterally.
The general point is that we can’t say what a property right is, or therefore what a person has a right to in having a particular property right, without disaggregating it into claims, liberties, powers and immunities. And the same goes for almost any other right that might be mentioned.
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Rob Bass
rhbass@gmail.com
http://oocities.com/amosapient
