Choosing Axioms of Correlativity
Forthcoming in American Journal of Jurisprudence
34 Pages Posted: 18 Jul 2019
Date Written: July 17, 2019
This article provides an axiomatic approach to distinguishing different usages of correlativity, complementing a scheme of intelligibility for correlativity developed in an earlier article. A general concern addressed in this article is how a choice of axiom affects the logic governing the relationships between those subject to legal or moral normative systems. A number of practical issues are considered as being capable of illumination from an understanding of correlativity: (a) the different legal positions of parties actually held under the law; (b) the existence of legal disputes between opposing parties; (c) the use of legal reasoning to resolve those disputes. In addition, Hurd and Moore’s practical agenda for an understanding of correlativity within their recent article is examined, as requiring: (i) the recognition of “active rights” (protected liberties) as a particular case of (a), and (ii) the absence of “moral combat” or normative conflict – in the moral arena, at least.
An investigation of Hurd and Moore’s disagreement with Hohfeldian correlativity, in terms of a choice of axioms, occupies a central part of this article. Detailed critical consideration is provided of six basic steps found in Hurd and Moore’s approach: three negative steps, ascribing theoretical positions to Hohfeld that Hurd and Moore wish to amend or depart from; and three positive steps taken towards vindicating their stated objectives of avoiding moral combat and providing recognition to active rights.
The general evaluation of Hurd and Moore’s approach finds it defective in both its representations of Hohfeld and its own practical and technical claims. The present article concludes that the actual state of any normative system, moral or legal, can best be captured by the finer-grained analysis of correlativity that Hohfeld’s scheme of analysis provides. Supplementary discussion is provided on a number of topics encountered in reaching this conclusion, including the role of Hurd’s “Correspondence Thesis” within Hurd and Moore’s correlativity axiom for permission (liberty/privilege); the relationship between the correspondence thesis and a set of compossible rights; the compatibility between a logic of correlativity and deontic logic; and, the relationship between moral and legal normative systems, or, our perceptions of them.
Keywords: correlativity, deontic logic, correspondence thesis, compossible rights, Hohfeld, Hurd and Moore
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