Hohfeld - Case Study & Illustration Flashcards
What is Hohfeld’s theory on the logic of rights essential to?
Achieving justice in society
Example 1?
Claim-right and duties are inherent features of tort law.
Who does a claim-right exist for?
An individual who has suffered harm due to the action or negligence of another party.
What is the claim-right?
The injured party’s entitlement to seek compensation for the damage they have suffered.
Who has the duty?
The party responsible for the negligent action
What is the duty?
To rectify the harm that was caused, or if this cannot happen, to restore the injured party to the position that they would have been in has the actions not occured.
What do the Irish courts think of claim-rights and duties in relation to tort law?
They have preserved it
What happened in Breslin v Corcoran?
The Supreme Court could not logically find that the owner of a car who left the keys in his car’s ignition had a duty towards a person who became injured due to the dangerous driving of the car thief.
What is the outcome of Breslin v Corcoran in relation to Hohfeld’s theory?
In a jural relationship, the only person who could owe the injured victim any duty would be the thief.
In light of the case study, does the concept of claim-rights and duties allow justice to be achieved?
Yes
Example 2?
Constitutional Liberties.
How does a constitutional liberty fit in?
For the most part, where an individual has such a liberty, the government is prevented from interfering with it.
What does Article 40.5 provide?
The dwelling of a citizen is ‘inviolable’ and is not to be entered forcibly, save in accordance with law.
Isn’t the phrase ‘in accordance with law’ a curtailment on the right?
It is, but this involves a separate analysis of a claim-right on the part of the Gardaí and a duty on the dweller to comply.
What type of protection are constitutional liberties given?
They are given the highest level of protection by the judiciary and will not be interfered with unless exceptional circumstances exist.
Example three?
The power to bring about judicial review
Where can this power arise?
Where it could be suggested that the government are abusing their powers.
What happened in McGee v Attorney General?
The plaintiff challenged a provision of the law which prohibited the sale or importation of contraception.
What right(s) did Mrs McGee claim the prohibition infringed?
The ‘inalienable’ rights of the family, and her right to marital privacy
What did the court decide in McGee v Attorney General?
The Supreme Court found that while the overall ban on the sale of contraceptives should remain, the law did infringe her right to marital privacy implied in the constitution.
What was the consequence of Mrs McGee exercising her power to bring about a judicial review?
She could effectively import contraceptives without risk of criminal sanction.
How are powers essential to achieving justice?
Allows individuals to question laws before the courts.
Example Four
Parliamentary Privilege - Immunity
What does Article 15 provide?
“all official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged.”
