Correlation and Constitutional Rights

Forthcoming in Without Trimmings: The Legal, Moral, and Political Philosophy of Matthew Kramer (Mark McBride & Visa A.J. Kurki eds., Oxford University Press).

29 Pages Posted: 9 Oct 2020

See all articles by Laura Donohue

Laura Donohue

Georgetown University Law Center

Date Written: August 20, 2020

Abstract

Skepticism among American scholars about the value of analytic legal positivism stems in part from the pervasiveness of private law in analytic jurisprudence. Wesley Hohfeld’s influential framework proves little different: although he claims that the jural relations apply to constitutional entitlements, he relies on private law for their exposition. Matthew Kramer’s scholarship clarifies and develops Hohfeld’s framework and draws greater attention to its application in the public realm. This chapter advances the discussion by examining the application of the Hohfeld-Kramer framing to constitutional law in particular, demonstrating the weaknesses in assuming that the private law model can be sustained without more careful exposition. Such entitlements are held in res publica, with the result that the entitlement-holder also bears a duty of non-infringement. It identifies a new category of ‘dignities’, which act as a shield for claim-rights and highlights the nature of ‘purported rights’, where the state, holding the power of enforcement, structurally lacks the impetus to prosecute (its own) constitutional breach.

Keywords: Constitutional analysis, constitutional law, duty, Matthew Kramer, Hohfeld, Hohfeldian analysis, immunity, rights, liberty, power, Public Law

Suggested Citation

Donohue, Laura, Correlation and Constitutional Rights (August 20, 2020). Forthcoming in Without Trimmings: The Legal, Moral, and Political Philosophy of Matthew Kramer (Mark McBride & Visa A.J. Kurki eds., Oxford University Press)., Available at SSRN: https://ssrn.com/abstract=3678024 or http://dx.doi.org/10.2139/ssrn.3678024

Laura Donohue (Contact Author)

Georgetown University Law Center ( email )

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