Rights Flashcards
What was Hohfeld
Legal realist
Hohfelds rights - complexity etc
No internal complexity, always correlative, always have peremptory force
What are Hohfeld’s 4 rights and their correlatives
Right: Duty
Liberty: No right
Immunity: Disability
Power: Liability
Problems with Hohfeld’s analysis
Works well for private law, but not public / criminal law so well
Worrying conclusion that leads from Hohfeld’s analysis
Basically, what judges are doing is not divining pre existing rights (that bit’s simple), but making important decisions based on policy and social considerations. The analysis removes the curtain in front of the Wizard of Oz.
McCormick’s criticism of Hohfeld’s theory
Scottish Succession laws - example of a right being a REASON for imposition of a duty (wrong though - reference to offices not people)
Will theory - complexity etc
Internal complexity, always correlative, peremptory force
Will theory champions
Kant, Hart
Will theory basic premise
A right is an item of moral power / choice over another - can be waived
When does Hart recognise rights
He’s a positivist so doesn’t recognise natural rights - only when positively created, rule of recognition
IF there is a natural right, what is it according to Hart
Equal right of all men to be free - natural state - presupposed by our own ability to voluntarily limit freedom eg via contract
What does Hart think about children and rights
They probably don’t have them (no autonomy), but that’s no biggie - rigjhts are only a small part of the moral discourse
Problem with the will theory
If there are rights that can’t be waived (like the right not to be murdered) then does that mean they aren’t actually rights? (My answer: they can’t be waived IN LAW, but plenty of people think they can be - Dignitas)
What are the nature of rights according to Kant
Justification for the use of coercion. Domains of equal liberty
What did Bentham think of natural rights?
Nonsense upon stilts
