THEORIES OF RIGHTS: HOHFELD AND THE INTEREST/WILL DEBATE

I. Wesley Hohfeld

A. Analytical table of jural relations

1. The comprehensiveness of the Hohfeldian relations

(a) The relations apply to the performance of any action or to the

existence of any state of affairs (such as the possession of
assets, including physical and psychological welfare) or to the
nonperformance of any action.

(b) The relations can obtain between any person and any number of
other people (ranging from one person to the indefinite group of
people who make up the world at large)

RIGHT LIBERTY POWER IMMUNITY

DUTY NO-RIGHT LIABILITY DISABILITY

2. First-order jural relations

(a) RightDuty. The holder of a right is normatively protected

(with the backing of the state, if necessary) against the
interference or uncooperativeness of one or more other people.
Anyone vis--vis whom the right obtains is under a duty to
comply with its terms, whether the terms call for
noninterference or for assistance.

(b) LibertyNo-Right. The holder of a liberty is free of any

duty to some other person(s), with regard to the act or omission
or state of affairs covered by the liberty. Everyone vis--vis
whom the liberty is held has no right that would limit the
liberty-holder's freedom in the area of conduct covered by the
liberty, though everyone may well have a liberty to interfere
with the exercise of that freedom.

(c) A liberty can be surrounded by a perimeter of rights, which

serve to protect ones ability to exercise the liberty (as Bentham,
Hart, and Hillel Steiner have recognized).

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 (d) Liberties do not entail rights, and rights do not entail liberties.
To illustrate the latter point, consider an example involving
fishermen and a factory.

(i) My specifications of the contents of the relevant legal

positions are accurate, even though theyre not uniquely
accurate.

(ii) The factory owner has a right to commit a wrong

i.e., a right against interference with his commission of a
wrong.

(iii) The nature of the remedy (damages versus injunctive

relief) doesnt affect my point, especially because the
type of remedy is contingent.

(e) Potential for conflicts between duties (example of contract for

nonpayment and statute for payment to elderly parents)

3. Higher-order jural relations

(a) PowersLiabilities. The holder of a power can change or

cancel other people's entitlements and his own entitlements.
The bearer of a liability is exposed to amplifications or shifts or
reductions in his or her entitlements.

i. Shifts in one's entitlements are frequently not unpleasant;

a promisee can benefit greatly from the rights vested in
him by a promisor. See Hohfeld, p 60 n90. The
explanation here is that the distinctive functions of the
second-order entitlements are defined in a purely non-
evaluative and descriptive manner.

ii. Note the contrast with rights, the identification of which

inevitably rests on evaluative assumptions. (Example of
duty-to-support-one's-parents and duty-to-inform-on-
one's-parents.)

(b) ImmunitiesDisabilities. The holder of an immunity is not

exposed to the exercise of a power within the domain covered
by the immunity. In that domain, everyone vis--vis whom the
immunity obtains is disabled from changing the immunity-
holder's entitlements.

i. Most of the entitlements conferred by so-called bills of

rights are immunities.

ii. Immunities must accompany other entitlements to

prevent them from being meaninglessly hollow.

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 (c) The relationship between the power/liability axis and the
immunity/disability axis is precisely similar to the relationship
between the liberty/no-right axis and the right/duty axis. Just as
a liability is the absence of an immunity, and a disability is the
absence of a power, so a no-right is [obviously] the absence of a
right, and a duty is the absence of a liberty.

(d) Note that rights are logically parallel to immunities and that
liberties are logically parallel to powers.

B. Some clarificatory remarks

1. Purificatory and axiomatic, not substantive and empirical. Hohfelds

table is a formal framework of deontic logic, rather than an attempt to
prescribe or postulate the substance and the distribution of entitlements.
It is therefore not susceptible to empirical refutation.

2. Existential or analytical priority versus justificational focus: right-based

and duty-based moral/political theories are justificational doctrines that
are fully compatible with the thesis of the correlativity of rights and
duties

3. Neutral between the Interest Theory and the Will Theory of rights

(a) Interest Theory

(i) Necessary though insufficient for the holding of a legal right

by X is that the duty correlative to the right, when actual,
normatively protects some aspect of Xs situation that on
balance is typically beneficial for a being like X (namely, a
human individual or a collectivity or a nonhuman animal).

(ii) Neither necessary nor sufficient for the holding of some

specified legal right by X is that X is competent and
authorized to demand or waive the enforcement of the
duty that is correlative to the right.

(b) Will Theory: Both necessary and sufficient for the holding of
some specified legal right by X is that X is competent and
authorized to demand or waive the enforcement of the duty that
is correlative to the right.

(c) Hohfeldian claims can be combined with powers of

enforcement, but do not have to be hence, strict neutrality in
the Interest/Will dispute

II. The Will Theory: amplification and criticism

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A. Three stages at which powers of waiver/enforcement are held by a right-holder

1. Before the violation of a duty

2. In the aftermath of the violation of a duty

3. In the aftermath of successful legal proceedings against the violator

B. Shortcomings of the Will Theory: some question-begging but powerful objections

1. No rights against being murdered or rendered comatose

2. No rights under the criminal law

3. No minimum-wage law rights

4. No rights for children, senile people, lunatics, comatose people, dead

people, future generations, animals

5. No unwaivable fundamental rights

C. An objection to the Will Theory that is not question-begging: powers of

enforcement are typically absent at the first stage.

1. Two default rules for enforcement or waiver of duties

a. A default rule under which the non-exercise of a power-of-enforcement in

the aftermath of a violation of a duty will result in the non-effectuation of
the duty

b. A default rule under which the non-exercise of a power-of-waiver in the

aftermath of a violation of a duty will result in the effectuation of the duty

c. Suppose that John breaches a duty which he owes to Mary. Mary does
nothing that would count as her exercising either a power of enforcement
or a discrete power of waiver. Now, either the duty will be enforced or it
will be unenforced. There is no intermediate upshot whereby the duty is
neither enforced nor unenforced. If the breached duty is enforced, then the
applicable default rule is of the second type outlined above. If the duty is
instead left unenforced, then the applicable default rule is of the first type
outlined above.

2. Four situations

a. Two situations under a default rule of the first kind

i. Suppose that, as a result of contravening a duty owed to Mary,

John is now liable to be sued successfully by her. That is, he has
incurred what Hohfeld designated as a liability. Suppose initially
that Mary has two years within which she can exercise her power
to sue John in order to enforce the duty which he has breached. If

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 she exercises that power, she will alter his current legal positions.
If she does not exercise her power of enforcement within the two-
year period, Johns liability to be successfully sued will cease to
exist. In such circumstances, the non-exercise of the power of
enforcement is an exercise of a power of waiver at the point when
sufficient time for the exercise of the power of enforcement has
run out. Moreover, Mary might hold a discrete power of waiver
whereby she can remove Johns liability before the expiration of
the two years. If so, she holds a power of enforcement and a
power of waiver until she exercises one of them (either before the
two-year period has elapsed or as it elapses). We can fittingly
characterize those powers as paired.

ii. Particularly important is whether Johns liability to be

successfully sued is of a limited duration or not. In the unlikely
event that the liability is temporally unlimited, the non-exercise of
Marys power of enforcement willfor an indefinite periodnot
alter anyones legal positions. Given as much, her non-exercise of
her power of enforcement is not itself an exercise of a power of
waiver. Any exercise of a power has to involve a change in
someones legal positions, yet the non-exercise of Marys power
of enforcement does not produce any such change when Johns
liability is of an unlimited duration. In such circumstances, her
power of enforcement is not accompanied by any power of
waiver. Of course, even when Johns liability is not temporally
limited, Mary might hold a discrete power of waiver that enables
her to terminate the liability at any particular time. Unless she
does possess an independent power of that sort, however, her
power of enforcement will be singular rather than paired.

b. Two situations under a default rule of the second kind

iii. Let us now investigate what happens under a default rule of the
second kind. Such a rule prescribes that a violated duty is to be
enforced unless a relevant power of waiver is exercised by the
person who has control over the duty. Suppose once again that
John breaches some duty which he has owed to Mary. Given the
existence of the specified default rule, Mary does not hold any
power of enforcement since the enforcement of the duty will
proceed automatically unless she exercises her power of waiver.
Any notion of a legal power of enforcement that accompanies her
legal power of waiver is chimerical in such a situation, since a
putative legal power is no legal power at all if it does not make
any difference to anyones legal positions. Under the second
default rule, John has rendered himself liable to undergo
enforcement proceedings as a result of his breach of duty. Mary
can terminate his liability by exercising her power of waiver, but
otherwise the officials who operate the enforcement mechanisms
of the government will exercise their powers to impose
compensatory or injunctive or restitutionary duties on John. The
transformation of his liability into duties is undertaken by them
rather than by her. If she does not alter his legal status by
waiving his liability, then she herself does not alter his legal status

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 at all. Her non-exercise of her power of waiver is not the exercise
of a power of enforcement, because that non-exercise leaves John
in precisely the position in which he has placed himself: namely,
in a position of being liable to undergo enforcement proceedings.
A Hohfeldian legal power is an ability to effect changes in legal
relations, rather than an ability to leave legal relations as they are.
Consequently, Marys ability to leave Johns legal posture
unmodified is no Hohfeldian legal power at all. Accordingly,
whenever the duty breached by John is governed by a default rule
of the second kind, the power of waiver possessed by Mary is
singular rather than paired. Though a power to enforce that duty
also exists, of course, it is held not by her but by some legal
official(s).

iv. Note that a default rule of the second type, mutatis mutandis, is
also usually applicable to duties before they have been breached.
In this connection, the default rule prescribes that a duty will
remain in force unless someone holding a power to waive it has
exercised that power. Under the sway of such a default rule, no
one has a legal power to retain this or that duty; as has been
remarked, a Hohfeldian legal power is an ability to change some
legal positions, rather than an ability to keep the positions
unchanged. An ability to keep some positions unchanged is a
Hohfeldian immunity rather than a power. Thus, when unviolated
duties are within the sway of a default rule of the second kind (as
is usually the case), a power to waive any such duty is singular
rather than paired.

c. Paragraph iv above deals not with the post-violation stage of

enforceability but instead with the pre-violation stage. At that pre-
violation juncture in any system of private law, each person or his
representative will be vested with powers to waive most of the duties that
are owed to him. However, as paragraph (iv) has indicated, those powers
of waiver are not typically accompanied by any corresponding powers of
enforcement. Typically no power of the latter sort is involved, because
the persistence of a duty through the non-exercise of ones power of
waiver is not itself due to the exercise of a power. A Hohfeldian legal
power is an ability to alter some legal relations, whereas the persistence
of a legal duty is the retention of certain legal relations as they are. Thus,
instead of being due to the exercise of a power, the persistence of a duty is
attributable to an immunity or an array of immunities. It consists in
leaving things as they are, rather than in changing things. In sum, because
a power of enforcement if exercised would transform legal relationships,
the notion of any such power at the pre-violation stage of enforceability is
generally a phantasm since the preservation of a duty at that stage
consists in leaving legal relationships unchanged. Consequently, Mary at
the pre-violation stage of enforceability holds only a power of waiver and
no power of enforcement. (There are some exceptions to this general
point. In England, for example, the owner of a private road typically
needs to take certain steps periodically in order to keep in place the duties
of others to refrain from using the road as a public way. When an owner
takes those steps by obstructing the road annually, for instance he is
exercising a power to preserve the aforementioned duties.)

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 i. Note Steiners conflation of powers and immunities

ii. This objection is particularly important because it is not question-begging.

III. Facets of the Interest Theory

A. Benthams test is needed for limiting the range of actual right-holders: In order to
determine whether someone holds a legal right under a contract or under any other legal
norm, we need to ask what facts are minimally sufficient to constitute a breach of the
contract or norm. If and only if at least one minimally sufficient set of facts includes the
undergoing of a detriment by some person Q at the hands of some other person R who
bears a duty under the contract or norm, Q holds a right correlative to that duty under
the contract or norm.1

B. Claim-rights have to be accompanied by immunities if they are not to be utterly

hollow. The term right is best used for the combination of a claim-right and
sundry immunities against divestiture of the claim-right.

C. Purely vicarious interests are not sufficient as the basis for an attribution of a right;
see the 2007 article by Kramer & Steiner.

D. Interest Theorists readily recognize the conferral of rights by the criminal law and
by minimum-wage laws.

IV. The Interest Theory does not rule out the holding of legal rights by animals and dead
people and future persons and infants and comatose people and lunatics and senile
people and foetuses. (The Will Theory rules out the holding of such rights by such
beings, while acknowledging of course that many of those beings do and should enjoy
various legal protections.)

A. But the Interest Theory does not per se logically commit its proponents to the
thesis that the aforementioned creatures are potential holders of legal rights. [It
answers the conceptual question favorably but not determinatively.]

B. One further set of inquiries, a set of moral inquiries, is needed. To what classes
of beings can interests of the germane sorts be properly attributed?

1. To see the need for this additional question, we should ponder the
difference between a law against assault and a law against walking on the
grass (or a law against the defacement of beautiful paintings or the
destruction of majestic buildings).

2. The key point is to distinguish between beings for whom legal protections
are established and beings merely in relation to which legal protections
are established. Beings of the former sort are beings of ultimate value;
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Ihaveslightlysacrificedaccuracyforthesakeofreadabilityinthisformulation.Thephrase
undergoingofadetrimentshouldreallybeundergoingofsomedevelopmentthatistypically
detrimentalforahumanbeing.

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 they are subjects rather than merely objects, and are the beings for whom
value exists as such.

(a) Instrumental value

(b) Intrinsic or inherent value

i. Consequence-independence

ii. Experience-independence

(c) Ultimate value: tre pour soi, the furtherance of whose interests is of
intrinsic value

3. A question about the sorts of interests rather than the attributability of

interests

(a) Conception of interests is broad enough to allow the attribution

of interests to many inanimate entities as well as all plants and
animals.

(b) Disentangles moral and conceptual questions, and allows us to

ascribe interests to beings (such as goldfish) that are nonetheless
not designated as potential holders of legal rights

4. This inquiry is distinct from questions about the ways in which various
beings should be treated.

(a) Thus, for example, the following two theses are perfectly
compatible:

(i) Legal norms that shield foetuses against abortions and

experimentation have endowed the foetuses with legal
rights.

(ii) Foetuses should be largely or wholly devoid of legal

protection against abortions and experimentation, at least
in the early stages of the foetuses development.

(b) Similarly compatible are the following two theses:

(i) Trees should be legally safeguarded against a number of

injurious practices.

(ii) The law's securing of arboreal welfare does not consist in

the holding of any legal rights by the trees.

(c) In other words, the question whether various beings are potential
holders of legal rights is separate from the question whether any

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 or all of those beings should actually be legally protected.

5. The inappositeness of the rights bring with them responsibilities

objection

(a) Animals can bear duties even if they cant fulfill them.

(b) Animals susceptible to domestication can fulfill some duties.

(c) The slogan badly misunderstands the nature of right-duty

correlativity.

6. What is the benchmark or touchstone for gauging the germaneness of

interests? Mentally competent human adults are the point of reference.

7. What are some possible factors that might serve as bases for
distinguishing between beings that are and beings that are not potential
holders of legal rights?

(a) Factors to distinguish between beings for whom legal protections

are established and beings in relation to which such protections
are established

(b) Animateness; sentience; capacity for pain/pleasure; possibly some

degree of sophistication

(c) Groups of human beings and certain types of human beings must
be considered separately

(i) Interests of groups connnected to interests of individuals

(qua individuals and qua collectivity)

(ii) Infants and senile people and foetuses and lunatics are
fairly clear-cut, even without our taking account of their
membership in the human species.

(iii) Comatose people: ongoing membership in the human

species (and also moral assimilability of current existence
to earlier or later periods of their existence)

(iv) Dead people: aftermath of each person's existence

(presence in other people's lives) is morally assimilable for
a certain period to the time of his or her existence

(v) Future persons

<> Anticipated existence morally assimilable to

eventual existence; solicitude of current persons is
the key

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<> Problems of individuation

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