Rights, Duties, Liabilities, and Hohfeld
14 Pages Posted: 26 Apr 2007
This essay engages with Jaffey's recent contribution to Legal Theory on the nature of no-prior-duty remedial obligations. Jaffey's use of a right-liability relation and his challenge to Hohfeld's analytical scheme are rejected as unsound. An alternative model distinguishing three pathways to account for remedial obligations and other legal consequences is proposed. This draws on the Hohfeldian scheme but extends it to permit the full expression of reflexive liabilities, mutually correlative liabilities, and the operation of non-human conditions. The proposed approach also recognises a weaker form of a Hohfeldian power, which is required in considering the way that the law deals with the allocation and realisation of risk. It is mentioned in passing that the analytical discussion within the essay may have implications for the law of tort, restitution, and how particular conceptions of property are established in society.
Keywords: Hohfeld, Jaffey, liability, power, remedial obligation, risk, negligence, restitution, property
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