8/10/2021 Hohfeldian Analysis of Rights* | The American Journal of Jurisprudence | Oxford Academic

The Hohfeldian Analysis of Rights

Heidi M Hurd  ,
Michael S Moore

The American Journal of Jurisprudence, Volume 63, Issue 2,

December 2018, Pages 295–354,
https://doi.org/10.1093/ajj/auy015
Published:
07 December 2018

Abstract
The article both explicates and evaluates (partly defends
and partly critiques) the Hohfeldian analysis of legal
rights particularly insofar as that analysis is extended to
embrace moral rights as well as legal rights. Hohfeld is
seen as distinguishing rights to do things (liberties or
privileges) from rights to have things done for or to one
(claim-rights). Only the second have correlative duties,
the first having as its correlative only the absence of a
right that the actor not do that which he has a privilege to
do. Hohfeld's analysis is seen to understate the
importance of rights for moral theory in two ways: as to
liberty-rights, there is no sphere of freedom of action that
it is the correlative duty of others to respect; and as to
claim-rights, these appear to be no more than the reflex of
a more basic, correlative duty. The article seeks to
reinvigorate the role of rights in moral theory first, by
substituting a more robust notion of liberty rights in
replacement of Hohfeld's notion, and second, by showing
that his analysis of claim rights, properly understood,
does not make rights the mere reflex of more basic,
correlative duties.

Subject:
Jurisprudence and Philosophy of Law
Issue Section:
Articles

© The Author(s) 2018. Published by Oxford University Press on behalf of

University of Notre Dame. All rights reserved. For permissions, please email:
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