Hohfeld - Case Study & Illustration

Question 1

What is Hohfeld’s theory on the logic of rights essential to?

Answer 1

Achieving justice in society

Question 2

Example 1?

Answer 2

Claim-right and duties are inherent features of tort law.

Question 3

Who does a claim-right exist for?

Answer 3

An individual who has suffered harm due to the action or negligence of another party.

Question 4

What is the claim-right?

Answer 4

The injured party’s entitlement to seek compensation for the damage they have suffered.

Question 5

Who has the duty?

Answer 5

The party responsible for the negligent action

Question 6

What is the duty?

Answer 6

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.

Question 7

What do the Irish courts think of claim-rights and duties in relation to tort law?

Answer 7

They have preserved it

Question 8

What happened in Breslin v Corcoran?

Answer 8

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.

Question 9

What is the outcome of Breslin v Corcoran in relation to Hohfeld’s theory?

Answer 9

In a jural relationship, the only person who could owe the injured victim any duty would be the thief.

Question 10

In light of the case study, does the concept of claim-rights and duties allow justice to be achieved?

Answer 10

Yes

Question 11

Example 2?

Answer 11

Constitutional Liberties.

Question 12

How does a constitutional liberty fit in?

Answer 12

For the most part, where an individual has such a liberty, the government is prevented from interfering with it.

Question 13

What does Article 40.5 provide?

Answer 13

The dwelling of a citizen is ‘inviolable’ and is not to be entered forcibly, save in accordance with law.

Question 14

Isn’t the phrase ‘in accordance with law’ a curtailment on the right?

Answer 14

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.

Question 15

What type of protection are constitutional liberties given?

Answer 15

They are given the highest level of protection by the judiciary and will not be interfered with unless exceptional circumstances exist.

Question 16

Example three?

Answer 16

The power to bring about judicial review

Question 17

Where can this power arise?

Answer 17

Where it could be suggested that the government are abusing their powers.

Question 18

What happened in McGee v Attorney General?

Answer 18

The plaintiff challenged a provision of the law which prohibited the sale or importation of contraception.

Question 19

What right(s) did Mrs McGee claim the prohibition infringed?

Answer 19

The ‘inalienable’ rights of the family, and her right to marital privacy

Question 20

What did the court decide in McGee v Attorney General?

Answer 20

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.

Question 21

What was the consequence of Mrs McGee exercising her power to bring about a judicial review?

Answer 21

She could effectively import contraceptives without risk of criminal sanction.

Question 22

How are powers essential to achieving justice?

Answer 22

Allows individuals to question laws before the courts.

Question 23

Example Four

Answer 23

Parliamentary Privilege - Immunity

Question 24

What does Article 15 provide?

Answer 24

“all official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged.”

Question 25

What are the reasons for parliamentary privilege?

Answer 25

1. Allows the doctrine of the separation of powers to work effectively
2. Ensures that Ministers are free to say anything and are free to produce documents containing anything, free from fear of a challenge in court.

Question 26

What happened in Attorney General v Hamilton?

Answer 26

The immunity was described as being absolute and essential to the democratic process.

Question 27

What case demonstrates that the acts of another person cannot alter an immunity?

Answer 27

O’Brien v Clerk of Dáil Éireann

Question 28

What happened in O’Brien v Clerk of Dáil Éireann?

Answer 28

The challenge he sought to bring before the court was an indirect challenge to utterances of the Dáil and as a result was not justicable.

Question 29

How does this form of immunity benefit the interests of justice?

Answer 29

Ensures that the judiciary cannot curtail the freedom of speech of government ministers. It would be unjust to impose severe restrictions on these freedoms only for certain members of society.