Claim rights and liberty rights
Encyclopedia
Some philosophers
and political scientists
make a distinction between claim rights and liberty rights. A claim right is a right
which entails responsibilities, duties, or obligations on other parties regarding the right-holder. In contrast, a liberty right is a right which does not entail obligations on other parties, but rather only freedom or permission for the right-holder. The distinction between these two senses of "rights" originates in American jurist Wesley Newcomb Hohfeld
's analysis thereof in his seminal work Fundamental Legal Conceptions, As Applied in Judicial Reasoning and Other Legal Essays.
Liberty rights and claim rights are the inverse of one another: a person has a liberty right permitting him to do something only if there is no other person who has a claim right forbidding him from doing so; and likewise, if a person has a claim right against someone else, that other person's liberty is thus limited. This is because the deontic
concepts of obligation and permission are De Morgan dual; a person is permitted to do all and only the things he is not obliged to refrain from, and obliged to do all and only the things he is not permitted to refrain from.
is to assert that you have permission to speak freely; that is, that you are not doing anything wrong by speaking freely. But that liberty right does not in itself entail that others are obligated to help you communicate the things you wish to say, or even that they would be wrong in preventing you from speaking freely. To say these things would be to assert a claim right to free speech; to assert that others are obliged to refrain (i.e. prohibited) from preventing you from speaking freely (that is, that it would be wrong for them to do so) or even perhaps obliged to aid your efforts at communication (that is, it would be wrong for them to refuse such aid). Conversely, such claim rights do not entail liberty rights; e.g. laws prohibiting vigilante justice (establishing a legal claim right to be free thereof) do not thereby condone or permit all the acts which such violent enforcement might otherwise have prevented.
To illustrate, a world with only liberty rights, without any claim rights, would by definition be a world wherein everything was permitted and no act or omission was prohibited; a world wherein none could rightly claim that they had been wronged or neglected. Conversely, a world with only claim rights and no liberty rights would be a world wherein nothing was merely permitted, but all acts were either obligatory or prohibited. The assertion that people have a claim right to liberty – i.e. that people are obliged only to refrain from preventing each other from doing things which are permissible, their liberty rights limited only by the obligation to respect others' liberty – is the central thesis of liberal
theories of justice
.
has certain powers to modify some of U.S. citizens' legal rights, inasmuch as it can impose or remove legal duties. Immunities, conversely, are claim rights regarding the modification of first-order rights, e.g. U.S. citizens have, per their Constitution
, certain immunities limiting the positive powers of the U.S. Congress to modify their legal rights. As such, immunities and powers are often subsumed within claims and liberties by later authors, or grouped together into "active rights" (liberties and powers) and "passive rights" (claims and immunities).
These different types of rights can be used as building blocks to explain relatively complex matters such as a particular piece of property. For example, a right to use one's computer can be thought of as a liberty right, but one has a power right to let somebody else use your computer (granting them a liberty right), as well as a claim right against others using the computer; and further, you may have immunity rights protecting your claims and liberties regarding the computer.
Philosophy
Philosophy is the study of general and fundamental problems, such as those connected with existence, knowledge, values, reason, mind, and language. Philosophy is distinguished from other ways of addressing such problems by its critical, generally systematic approach and its reliance on rational...
and political scientists
Political science
Political Science is a social science discipline concerned with the study of the state, government and politics. Aristotle defined it as the study of the state. It deals extensively with the theory and practice of politics, and the analysis of political systems and political behavior...
make a distinction between claim rights and liberty rights. A claim right is a right
Rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
which entails responsibilities, duties, or obligations on other parties regarding the right-holder. In contrast, a liberty right is a right which does not entail obligations on other parties, but rather only freedom or permission for the right-holder. The distinction between these two senses of "rights" originates in American jurist Wesley Newcomb Hohfeld
Wesley Newcomb Hohfeld
Wesley Newcomb Hohfeld was an American jurist. He was the author of the seminal Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays .During his life he published only a handful of law journal articles...
's analysis thereof in his seminal work Fundamental Legal Conceptions, As Applied in Judicial Reasoning and Other Legal Essays.
Liberty rights and claim rights are the inverse of one another: a person has a liberty right permitting him to do something only if there is no other person who has a claim right forbidding him from doing so; and likewise, if a person has a claim right against someone else, that other person's liberty is thus limited. This is because the deontic
Deontic logic
Deontic logic is the field of logic that is concerned with obligation, permission, and related concepts. Alternatively, a deontic logic is a formal system that attempts to capture the essential logical features of these concepts...
concepts of obligation and permission are De Morgan dual; a person is permitted to do all and only the things he is not obliged to refrain from, and obliged to do all and only the things he is not permitted to refrain from.
Overview
A person's liberty right to x consists in his freedom to do or have x, while a person's claim right to x consists in an obligation on others to allow or enable him to do or have x. For example, to assert a liberty right to free speechFreedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
is to assert that you have permission to speak freely; that is, that you are not doing anything wrong by speaking freely. But that liberty right does not in itself entail that others are obligated to help you communicate the things you wish to say, or even that they would be wrong in preventing you from speaking freely. To say these things would be to assert a claim right to free speech; to assert that others are obliged to refrain (i.e. prohibited) from preventing you from speaking freely (that is, that it would be wrong for them to do so) or even perhaps obliged to aid your efforts at communication (that is, it would be wrong for them to refuse such aid). Conversely, such claim rights do not entail liberty rights; e.g. laws prohibiting vigilante justice (establishing a legal claim right to be free thereof) do not thereby condone or permit all the acts which such violent enforcement might otherwise have prevented.
To illustrate, a world with only liberty rights, without any claim rights, would by definition be a world wherein everything was permitted and no act or omission was prohibited; a world wherein none could rightly claim that they had been wronged or neglected. Conversely, a world with only claim rights and no liberty rights would be a world wherein nothing was merely permitted, but all acts were either obligatory or prohibited. The assertion that people have a claim right to liberty – i.e. that people are obliged only to refrain from preventing each other from doing things which are permissible, their liberty rights limited only by the obligation to respect others' liberty – is the central thesis of liberal
Liberalism
Liberalism is the belief in the importance of liberty and equal rights. Liberals espouse a wide array of views depending on their understanding of these principles, but generally, liberals support ideas such as constitutionalism, liberal democracy, free and fair elections, human rights,...
theories of justice
Justice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
.
Second-order rights
Hohfeld's original analysis included two other types of right: besides claims (or rights proper) and liberties (or privileges), he wrote of powers, and immunities. The other two terms of Hohfeld's analysis, powers and immunities, refer to second-order liberties and claims, respectively. Powers are liberty rights regarding the modification of first-order rights, e.g. the U.S. CongressUnited States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
has certain powers to modify some of U.S. citizens' legal rights, inasmuch as it can impose or remove legal duties. Immunities, conversely, are claim rights regarding the modification of first-order rights, e.g. U.S. citizens have, per their Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, certain immunities limiting the positive powers of the U.S. Congress to modify their legal rights. As such, immunities and powers are often subsumed within claims and liberties by later authors, or grouped together into "active rights" (liberties and powers) and "passive rights" (claims and immunities).
These different types of rights can be used as building blocks to explain relatively complex matters such as a particular piece of property. For example, a right to use one's computer can be thought of as a liberty right, but one has a power right to let somebody else use your computer (granting them a liberty right), as well as a claim right against others using the computer; and further, you may have immunity rights protecting your claims and liberties regarding the computer.
See also
- ConstitutionalismConstitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- Rule according to higher lawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
- Negative and positive rightsNegative and positive rightsPhilosophers and political scientists make a distinction between negative and positive rights . According to this view, positive rights permit or oblige action, whereas negative rights permit or oblige inaction. These permissions or obligations may be of either a legal or moral character...
- Freedom versus licenseFreedom versus licenseIn moral and legal philosophy, there exists a distinction between the concepts of freedom and license. The former deals with the rights of the individual; the latter covers the expressed permission for more than one individual to engage in an activity.As a result, freedoms usually include rights...
- Wesley Newcomb HohfeldWesley Newcomb HohfeldWesley Newcomb Hohfeld was an American jurist. He was the author of the seminal Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays .During his life he published only a handful of law journal articles...
External links
- The Form of Rights: The Hohfeldian Analytical System, Rights section 2.1, Stanford Encyclopedia of Philosophy
- Claim Rights & Liberty Rights, Human Rights section 3b, Internet Encyclopedia of Philosophy
- The Difference Between a Right and Liberty, Professor William E. May