The Value of Hohfeldian Neutrality When Theorising About Legal Rights
In Mark McBride (ed), New Essays on the Nature of Rights (Hart Publishing), Forthcoming
27 Pages Posted: 20 Jan 2017 Last revised: 25 Jan 2017
Date Written: January 16, 2017
This chapter considers three locations where the neutrality of Hohfeldian analysis can be found: representing both sides to a legal dispute before a court; legal doctrinal theory (theory developed to elucidate a doctrinal area of law); and, guild ideology (referring to ways in which practitioners reflect upon and articulate their own practice). This preliminary discussion leads into the central thesis of the chapter, that there is a fourth location of neutrality in theorising legal rights. The implications of this fourth type of neutrality are then explored, including the controversial inference that the theoretical pursuit of the nature of a legal right is misguided in seeking a uniform understanding of that nature and the rights that fall under it.
As an alternative to a uniform theory of legal rights (as promoted in the will-interest debate and its more recent progeny), the chapter proposes what is loosely introduced as a dispute theory of rights, and more accurately described as a theoretical framework for identifying and understanding the characteristics of legal rights across the vast variety of instances that exists. As well as focusing on legal disputes, this approach relies upon a dual-level Hohfeldian scheme of analysis whereby individual legal relations as the outcome of a legal dispute are connected to the normative or doctrinal outlook regarding the aggregate position to which those legal relations are attached, within a particular society or jurisdiction.
In order to flesh out this account, material is provided in the chapter on: the key elements of Hohfeld’s analytical scheme; the interaction and interdependence between legal relations and aggregate levels of analysis within a dual-level Hohfeldian scheme of analysis; an illustration of the value of this scheme of analysis in dealing with property; the contrast between the dispute theory approach and established theories of rights; an example of that contrast in considering a particular iteration of Leif Wenar’s theory of rights; and, the possibility of expanding the scheme of analysis to a triple-level analytical scheme, incorporating grander theoretical ambitions that need not be concerned with the details of legal disputes. In conclusion, it is suggested that the value of the approach proposed here is to provide the theoretical space to discuss alternative sets of legal rights and alternative normative justifications for legal rights; and it is suggested that, although the legal domain of rights differs from moral and political domains in certain respects, there are grounds for prioritising a theory of legal rights.
Keywords: Hohfeld, Hohfeldian analysis, Hohfeldian aggregate, property theory, theories of rights, will-interest debate, Wenar’s theory of rights
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