HOHFELD WITHOUT RIGHTS Philip Marcus HOHFELD WITHOUT RIGHTS PHILIP MARCUS Thesis, submitted in partial fulfillment of the requirements for the Master degree University of Haifa Faculty of Laws Kislev 5768 November 2007 Copyright Philip Marcus www.philip-marcus.com HOHFELD WITHOUT RIGHTS Philip Marcus HOHFELD WITHOUT RIGHTS PHILIP MARCUS Supervised by Dr. Doron Menashe Thesis, submitted in partial fulfillment of the requirements for the Master degree University of Haifa Faculty of Laws Kislev 5768 November 2007 Approved by…………………………. Date…………… (Supervisor) Approved by…………………………. Date…………… (Chairperson of LL.M. Committee) Copyright Philip Marcus www.philip-marcus.com HOHFELD WITHOUT RIGHTS Philip Marcus CONTENTS Abstract p. V Introduction p.1 Section 1 HOHFELD’S METHOD AND CONTRIBUTION The problem of terminology p. 6 Hohfeld’s method and analysis p. 8 Absentees from the tables; emotionally toned words p. 11 Section 2 THE WORD RIGHT: MEANINGS What is right? What is a right? p. 14 A word on duties and obligations. p. 18 Section 3 THE HISTORY OF MODERN RIGHTS DISCOURSE Ancient legal systems p. 20 Canon Law and Magna Carta p. 25 Influence of the Jewish Tradition p. 34 From the seventeenth century p. 36 Section 4 TYPOLOGY OF RIGHTS p. 56 Copyright Philip Marcus www.philip-marcus.com HOHFELD WITHOUT RIGHTS Philip Marcus Section 5 THE RIGHTS DISCOURSE p. 61 Support for the rights analysis p. 62 The critical movements p. 76 Some other criticisms of the rights discourse p. 82 Responses to criticism of the rights agenda p. 92 Section 6 RIGHTS ANALYSIS – REPLACEABLE p. 97 The Jewish Legal System, based on Obligations - Mitzvot between Man and God, and between Man and His fellow p.102 Section 7 EXAMPLES OF ANALYSIS – RIGHTS OR DUTIES IN THE LAW RELATING TO CHILDREN AND PROPERTY LAW Children p. 108 Property p. 116 CONCLUSION : WHAT IS TO BE DONE? p. 126 BIBLIOGRAPHY p. 129 APPENDIX DECLARATION OF THE RIGHTS OF MAN - FRANCE, 1789 p. 137 CONSTITUTION OF THE UNITED STATES OF AMERICA p. 138 AMENDMENTS TO THE CONSTITUTION – THE BILL OF RIGHTS p. 147 Copyright Philip Marcus www.philip-marcus.com HOHFELD WITHOUT RIGHTS Philip Marcus HOHFELD WITHOUT RIGHTS PHILIP MARCUS Abstract Keywords: Jurisprudence, Rights, Hohfeld, Jewish Law, Legal History. Rights discourse has become an important factor in legal analysis. However, even those who criticize it have not proposed any alternative to the use of rights as the principal idea behind all legal relations. Wesley Newcomb Hohfeld, in his articles Some Fundamental Legal Conceptions as Applied in Judicial Reasoning drew attention to the failure of analysis based on rights and duties alone properly to describe legal relations, and proposed eight concepts which would enable clear thinking and proper understanding of legal relations. He also emphasized the need for clear definitions of the terminology used. The objective of this paper is to show that the word “right” has taken on meanings far from the original meaning of the word – correct, proper, deserved – and as a result legal analysis has been distorted. After a historical and philological survey, and a critical view of the rights discourse now current, I show that the Jewish legal system, as a comprehensive system of law, does not have any need of the term “rights” in its modern sense, being based on duties and obligations, and provides an example of an alternative method of legal analysis. Examples, drawn from decided cases in the fields of property law and the law relating to children, are brought to show that analysis on the basis of obligations is not only adequate, but also leads to more appropriate solutions. Copyright Philip Marcus www.philip-marcus.com HOHFELD WITHOUT RIGHTS Philip Marcus HOHFELD WITHOUT RIGHTS INTRODUCTION It is taken as axiomatic by legal thinkers throughout the western world that the fundamental unit for describing legal relations is a right. I shall attempt to show that the word “right” in English, with its cognates in other languages, has become progressively detached from the idea of “the right”, that is, what is correct, fitting or proper, and has taken on a life of its own with damaging results. This paper is part of a larger work, in which I propose that the growth of the phenomenon of “rights talk” is a result of historical and political influences, and has caused distortions, some of them very serious, in the way we look at life and at each other, as well as manifest flaws and mistakes in the constitutions of states, international treaties, statute law and judicial decisions. This paper will critically discuss the analysis of rights by Wesley Newcomb Hohfeld, in his articles, which appeared in the Yale Law Journal some 90 years ago under the title Some Fundamental Legal Conceptions as Applied in Judicial Reasoning1, (hereinafter Hohfeld). Hohfeld showed that what are commonly referred to in legal literature, and even more so in common parlance, as “rights” are usually legal relations of a different kind. I intend to go further than Hohfeld and show that all legal relations can be described in terms other than “rights”. I propose to show, 1 (1913-14) 23 Yale L.J. 16 and (1917) 26 Yale L.J.710 (hereinafter – Hohfeld ). However for the sake of convenience I shall refer to the book in which the articles were published, under the same title, with a foreword by Arthur L. Corbin and an introduction by Walter Wheeler Cook. (New Haven, Yale University Press, 1919 and since reprinted). Copyright Philip Marcus www.philip-marcus.com HOHFELD WITHOUT RIGHTS Philip Marcus using some of Hohfeld’s methodology, that the word right is superfluous and unnecessary, and for the very reasons that Hohfeld suggested, legal analysis would be better off without it. I shall also seek to show that a legal system based on duties or obligations is not only possible, drawing on the Jewish legal system as a fully developed system containing all the mechanisms necessary in modern society, but will also bring great advantages and eliminate the defects of rights talk and rights domination. I am deeply grateful to many people who have assisted me in preparing this paper: especially to my supervisor Dr Doron Menashe of the Faculty of Law at Haifa University; and to my former lecturer in Jurisprudence at University College London, Professor Michael Freeman and to Professor Fania Oz- Salzberger at Haifa University, who helped me in referring me to lines of enquiry; to many friends and acquaintances who heard me out when I suggested the ideas which form the basis of this work; and particularly to my father, Jack Marcus of blessed memory, who, more than any of my teachers, taught me how to think independently and question even the most basic assumptions, and my wife Miriam, who not only tolerated my absences from home when researching and writing, but also proofread and corrected the text. Copyright Philip Marcus www.philip-marcus.com HOHFELD WITHOUT RIGHTS Philip Marcus Section 1 HOHFELD’S METHOD AND CONTRIBUTION The problem of terminology Hohfeld started his analysis with the following statement: “One of the greatest hindrances to understanding, the incisive statement, and the true solution of legal problems frequently arises from the express or tacit assumption that all legal relations may be reduced to “rights” and “duties”, and that these latter categories are therefore adequate for the purpose of analysing even the most complex legal interests… Even if the difficulty related merely to inadequacy and ambiguity of terminology, its seriousness would nevertheless be worthy of definite recognition and persistent effort towards improvement; for in any closely reasoned problem, whether the legal or non-legal, chameleon-hued words are a peril both to clear thought and to lucid expression. As a matter of fact, however, the above-mentioned inadequacy and ambiguity of terms unfortunately reflect, all too often, corresponding paucity and confusion as regards actual legal conceptions.”2. As Corbin points out in his foreword 3, “No word in any language has a ‘true’ meaning, or an ‘objective’ meaning, or a ‘legal’ meaning, which everyone is obliged to adopt at his peril, in his conversation, his letters, his contracts, his statutes, or his constitutions.”4 2 Hohfeld, p. 35. 3 Hohfeld, p. viii. 4 Corbin continues “There is peril, however, in this common multiple usage of important words; it very frequently, especially when it occurs in a contract, a court opinion, or a statute, causes misunderstanding, litigation, conflict, and inconsistent decisions. This is demonstrated in Hohfeld’s articles published in this volume. It is demonstrated in the continued disputes and conflicts in the interpretation of our contracts, our statutes and our Constitution. That Constitution declares that no state shall deprive citizens of the United States of their ‘privileges and immunities.’ Does anyone know what these words mean? The founding Copyright Philip Marcus www.philip-marcus.com HOHFELD WITHOUT RIGHTS Philip Marcus Hohfeld 5 quotes Holland’s Jurisprudence , who, speaking of “the well known sort of ambiguity inherent in the Latin ‘Ius’, the German ‘Recht’, the Italian ‘Diritto’, and the French ‘Droit’,” used to indicate both “law” as such and “a right” considered as a concrete relation created by law, points out that “the identity of terms seems irresistibly to suggest an identity between the ideas which are expressed by them”. Hohfeld calls this “the principle of linguistic contamination”. Words have layers of meaning, and each of us brings to the interpretation of a word his own experiences of past uses and contexts of the word. Oliver Wendell Holmes complained that “law is full of phraseology drawn from morals” and suggested banishing from the law “every word of moral significance”.6 Since Hohfeld and Corbin and Holmes wrote their comments, the Communist and Nazi regimes have risen and fallen.