The Hohfeldian Analysis of Rights

Abstract

This article is about Wesley Newcomb Hohfeld's famous analysis of one of the most basic concepts used in law and in ethics: the concept of a right. Hohfeld urged that usages of the term "right" are ambiguous between two senses of the word: persons have rights to do things and rights to have things done for them. Although Hohfeld died 100 years ago, he remains today one of the world’s most influential legal theorists, and his systematic analysis of the two concepts of a right remains importantly relevant today. This article seeks both to celebrate Hohfeld's achievement exactly a century after his death in October of 1918, and to inspire a new generation’s interest in his work and in the issues that his work timelessly informs. The article thus: (1) systematically explicates the Hohfeldian analysis of rights, explicating both logical extensions of what Hohfeld himself wrote, as well as relations of the Hohfeldian system to the modern deontic logic not available to Hohfeld during his day; (2) defends the Hohfeldian analysis from two forms of criticism popular in the rights literature that have developed over the past century; and (3) critiques the Hohfeldian analysis by rejecting one of its most central tenets and replacing it with an alternative logic of rights that is not vulnerable to this critique. These three tasks correspond to the three major subdivisions of the article. The article concludes with a split verdict on Hohfeld: an acceptance of the Hohfeldian analysis of the rights we have to others doing things for us, and a partial rejection and replacement of the Hohfeldian analysis of the rights we have to do things.