"You have the right to remain silent"
is a phrase that you may have heard if you watch a lot of cop shows or if you have been
arrested, I guess. You might have also heard people talk about constitutional
rights or employment rights or human rights, but what are rights? Kind of seems
like an important question to know the answer to if we want to say that we have
rights and that other people need to respect them. In the philosophy of law
there's one ruling model of human rights that's pretty widely accepted. It was
discovered by Wesley Hohfeld so it's called the Hohfeldian Analysis, and I
If you've ever
studied any biology or you know anything about the structure of DNA then this is
going to be really really easy for you because the Hohfeldian Analysis is like the DNA of
rights. In DNA there are four nucleotide bases: G, C, A & T. In the Hohfeldian Analysis
rights have four building blocks: claims, duties, liberties, and
no-claims. And these are called the Hohfeldian Incidents. In DNA, guanine only bonds with
cytosine and thymine only bonds with adenine. In the Hohfeldian Analysis, if I
have a claim you have a duty. So let's say I have a right to life. The
structure that right is that I have a claim on you not to kill me and you have
a corresponding duty not to kill me. Our next pair is liberties and no-claims. If I am
at liberty to do something you have no claim on me not to do it: you can't
impose duties against me doing that. So for instance if I am liberty to travel
anywhere I like you have no claim on me to stay where you want me to stay. Just
like in DNA,
incidents only bond with their corresponding incident. According to the
Hohfeldian Analysis, every right can be broken down in this way. To have a right
is to be in a relation to another person
about some action. Always there are three elements: you, the other person, and the action
that you're both talking about. Kind of like a Christmas cracker:
you're each holding an end and there's a toy in the middle that's the reason you're both
there.
So that's the first stage of the Hohfeldian Analysis, but there is a level two. Level
one dealt with so-called first order rights: those are the rights you're
probably familiar with. But some lucky people have second order rights: those
are the rights to change and tinker with the first-order rights. So for instance
if you were the president of the United States would have the power to create or
nullify rules that other people had to follow. That would be your second order
right as president. And these are the rights that are really interesting and
it's important to know how they work because they're the rights that the people who
run your life have to mess with you. Like in the first level, this time we have
four incidents, and this time they are power, liability, immunity, and disability. The
best way to explain how they work is by looking at the military. So the captain
of the ship can create duties for the crew: the captain has the power to create
duties, the crew are at liability to have their duties changed. The captain can't
give orders to the admiral, so the animal has immunity the captain has disability.
Again, the
incidents bond in pairs, just like DNA: power with liability, immunity with
disability. And that, boys and girls, is the Hohfeldian Analysis!
Now if you very clever you already have spotted that I used the word 'duty' a
lot back there, like if "I have a claim you have a duty." What's the nature of that duty? Is it a moral one or
just a legal one. Because the question of whether rights can give you moral duties
or whether rights are just a legal construction is a big, big debate. Well the clever thing about the Hohfeldian
Analysis is that whichever side of that debate your own you can still use it.
Whether you think that the nature of duty with respect to rights is moral or
just legal you can still break down rights using Hohfeld's technique. If you like,
whatever the molecular structure of the four nucleotide bases of DNA is, it's still
true that they bond together in the pairs that they do. Now it's important to
understand what the Hohfeldian Analysis is. It's not like a scientific theory where we can do an experiment and see whether or not it's correct. In fact some
people have argued that it's actually unfalsifiable, which in science is a dirty
word. Hohfeld actually defined human rights as having these relations and having these
incidents, so if we want to know whether his idea was any good we need to ask, 'Is it useful for
understanding the way we use and talk about rights?' Earlier on I said that the Hohfeldian Analysis is widely
accepted, but not universally. Some philosophers like Onora O'Neil and Brian Kin Ting Ho think that it has its limits. They think
that there are some rights which can't be broken down into that three-part relation
with the two people in the action, the Christmas cracker model. We'll have to go into the specifics of their
ideas another time, but Brian was actually one of my lecturers in the
philosophy of law. So the cutting edge of legal philosophy, even though the Hohfeldian Analysis has stood for almost a century, might be about to tell Wesley Hohfeld
to jog on. What do you think? Is the Hohfeldian Analysis useful for understanding the way we talk
about human rights? Are there any rights that you can think of that don't fit Hohfeld's model?
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