[U10] Types of rights



Module: Values


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§1. Hohfeld

We talk a lot about rights in ordinary life and in politics and current affairs. We say that other people have violated our rights or that certain rights should be given more adequate protection. But what exactly do we mean by "right"? If we do not clarify this important concept, it is likely there will be confusion and misunderstanding.

Wesley Newcomb Hohfeld (1879-1918) was the author of a few seminal essays on the analysis of rights. Hohfeld was writing mainly about legal rights, the rights that are prescribed by the legislation. However, his insightful analysis can be applied to rights in general. He published his theory in the groundbreaking article "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" in the Yale Law Journal in 1913. He died 5 years later in 1918 at the age of 38.

§2. Four types of rights

Hohfeld proposed that rights can be classified into four categories. In the explanations below, A and B are persons and X is a situation:

1. Claim-rights - A has a claim-right against B with regard to X just in case B has a duty to A to bring about X.

Example: B borrowed $100 from A. So A has a claim right against B that B returned $100 to A.

2. Privileges (liberties) - A has a privilege against B to X just in case B has no claim right against A not to X.

Example: If A the right (against the Japanese Government) to stay in Japan, then this is a privilege. It means that the Japanese Government has no claim-right against A that he leaves the country. Or in other words, A has no duty to the Japanese Government that he leaves Japan.

3. Powers (authority rights) - A has a power over B with respect to X just in case he can change B's rights with regard to X.

Example: The librarian has the power over a student with regard to the use of the library. Normally a student has the right to use the library. But if a student is noisy then the libarian has the power to take away that right and stop the student from using the library.

4. Immunities - A has an immunity against B with respect to X just in case B has no power over A's rights with respect to X.

Example: Diplomats are supposed to have diplomatic immunity. If they have committed a crime in their host country, they are immune against arrests and legal prosecution. In other words, the police would have no power over them. (They can still be expelled though.)

Notice that these four kinds of rights are related to each other, at least in the following ways:

  • A claim-right corresponds to the absence of a privilege - Suppose A has a claim-right against B that B performs some action K. Then B does not have the privilege of not doing K. For example, if A lends $10 to B, then A has a claim-right against B that B gives $10 back to A. This implies that B does not have the privilege of not giving $10 to B.
  • A power corresponds to the absence of an immunity - Suppose A has power over B with respect to a certain right of B. Then B lacks immunity against A with respect to that right. An example is that an employer has power over its employees with respect to their rights to enter the company building. The right to enter the building is granted by the employer, and can be taken away as the employer sees fit. This means that the employee lacks immunity against the employer with respect to such a right.

§3. Bundles of rights

In ordinary discussion we tend to think of all rights as having the same nature. The right to privacy, the right to freedom of religion, and property rights, are all taken to be rights of the same kind.

Hohfeld's analysis is an important contribution because first of all, we see that there are four very different kinds of things within the category of rights. Second, his analysis enables us to see that the commonly accepted rights are actually bundles of different rights. To understand "the right to X" is to analyze this right as being composed of one or more of these four basic kinds of rights.

Consider for example the right to a certain piece of property, which turns out to be a package of different rights. Ownership of a piece of land involves at least these rights:

  • Since the land is mine, I have certain privileges as to what to do with it, e.g. grow vegetables. In other words, I have no duty no to use it for growing vegetables.
  • I also have claim-rights against other people that they do not enter without permission, and that they do not interfere with the exercise of my privileges, etc.
  • Ownership also implies that I have a range of powers - the power to give someone else the privilege of using my land, and the power to transfer ownership by selling the land.

§4. Further reading

  • A philosophical article on rights from The Stanford Encyclopedia of Philosophy. See especially section 2.1.
  • There is a very detailed discussion of Hohfeld's analysis in the book The Realm of Rights by Judith Jarvis Thomson.

Consider the following four sentences. Which type of right is being mentioned in each case?

  1. If you signed a contract with a company to sing in a concert, the company has a right to your performance of the contract.
  2. I have the right to use foul language.
  3. Since I am a Korean citizen, the Korean Government has the right to determine whether I have the duty to pay tax.

Many companies issue coupons for customers to redeem certain special offers. For example, a coupon might enable the coupon holder to get a free meal at a restaurant. In such a situation, which of the four kinds of rights does the coupon provide to the customer against the restaurant?

Also, very often such coupons contain clauses such as the following:

This company reserves the final right of decision on all matters concerning the use of this coupon.

Given such a clause, the company can suddenly decide and announce that the coupon is no longer valid. Which of Hohfeld's rights does this "final right" most closely resemble?

In the UK Trade Union and Labour Relations Act 1974, it is stated that:

[E]very worker shall have the right not to be - (a) excluded from membership (b) expelled from membership, of a trade union ... by way of arbitrary discrimination.

What kind of rights are these according to Hohfeld's framework? Spell them out more fully, making explicit to whom these rights are directed against.

Answer the following questions:

  1. Peter does not have the privilege against the hotel to check out after 10am. What can we deduce about the claim-right of the hotel?
  2. "Whenever I have the privilege of doing X, it follows logically that other people have the duty not to interfere with my action." Is this true? (Hint: think about the rules of soccer.)
  3. Boy to girl: "I have the liberty of seeing other girls. So you do not have the right to ask me not to see other girls." What's wrong with this argument?
  4. "The government agrees that I have the freedom of religion. But in order to become a full believer of the Dada religion, I have to travel to Iceland and worship the Strokkur geyser. So the government should buy me an air-ticket to Iceland." What is wrong with this argument?
  5. Many rights have exceptions. The right of liberty and personal safety does not protect you from being attacked when you are threatening somebody else. Can you think of any right or liberty which does not have any exception?
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