The Hohfeldian Analysis

Immunity and disability

A has an immunity against B means B lacks the power to alter A's position; correlatively B is under a disability.

This is what makes a human right different from an ordinary legal right, and it is the most useful thing in the chapter. An ordinary legal right can be repealed by the body that made it; a constitutional or treaty right is protected against that body, which is a disability in the legislature and an immunity in the holder. The non-derogable rights in article 4(2) of the Covenant are immunities in the strongest form the framework can produce: even in a public emergency threatening the life of the nation, the State has no power to touch them.

The table to memorise

How to read it. The correlative is the same relation seen from the other side, so it is always true at the same moment. The opposite is what the person does not have, so the two cannot both be true of the same person in the same respect.

Using it on the instruments

Three worked applications, and they are the ones an examiner is most likely to reach for.

"Everyone has the right to work", UDHR article 23(1). Is this a claim-right against the State to be given a job? Almost certainly not, and Hohfeld shows why the question is badly put. The article contains several relations at once: a privilege to work, which nobody may make unlawful; a claim-right to free choice of employment, correlative to a duty in the State not to direct labour; a claim-right to just and favourable conditions of work, correlative to duties of regulation; and a claim-right to protection against unemployment, whose content is set by article 6 of the Covenant on Economic, Social and Cultural Rights read with progressive realisation. Separating them dissolves an argument that is otherwise interminable.

Freedom of expression. As a privilege it means only that the speaker owes no duty of silence. As a claim-right it means the State owes a duty not to interfere and, under ensure, a duty to protect the speaker from private interference. The whole difference between a formal and an effective freedom is the difference between these two relations.

Non-derogable rights. Article 4(2) of the Covenant on Civil and Political Rights provides that no derogation may be made from articles 6, 7, 8(1) and (2), 11, 15, 16 and 18. In Hohfeld's terms the individual has an immunity and the State a disability: not a duty it might breach, but an absence of power to alter the position at all. [Derogation and the Non-Derogable Core] takes the list.

Worked example

A statute provides that a journalist may publish freely; that no person may compel a journalist to disclose a source; that the Government may by notification require any publisher to register; and that the guarantee in the first clause may not be amended except by a two-thirds majority.

Take the four clauses in order, and each is a different relation.

The first clause creates a privilege. The journalist owes nobody a duty not to publish. Note what it does not do: it imposes no duty on anyone else, so a private party who prevents publication breaches nothing under this clause.

The second creates a claim-right. The journalist may demand that others not compel disclosure, and the correlative duty falls on everyone. This is the clause that would be cited against a private employer as much as against the State.

The third creates a power in the Government and a liability in publishers. The publishers are not under a duty until the notification issues; they are liable to be placed under one. That distinction matters for the timing of any challenge: before notification there is nothing to disobey.

The fourth creates an immunity and a disability. The ordinary legislature cannot alter the first clause, so the journalist's position is protected against the body that would otherwise have power over it. This is the clause that makes the guarantee more than a statute.

The lesson the example teaches. A single provision usually creates several relations, and most confusion in rights argument comes from asserting one and being answered on another. A candidate who can say "that is a privilege, and what you need is a claim-right" has said something precise where most answers say something loud.

What it does NOT mean

Hohfeld is not a theory of which rights we ought to have. It is an analysis of the relations, and it is neutral between a liberal and an authoritarian legal order.

A privilege is not a weak right. It is a different relation, and many important freedoms are privileges plus protective claim-rights.

A liability is not a duty. It is exposure to having one's position changed.

And the analysis does not replace the instruments. It is a tool for reading them, and an answer that gives the table without applying it to an article has done half the work.

Quick revision

• Four relations, four correlatives: claim-right / duty; privilege / no-right; power / liability; immunity / disability.
• Four opposites: claim-right and no-right; privilege and duty; power and disability; immunity and liability.
• Two levels: claim-right and privilege govern primary conduct; power and immunity govern legal change.
• The privilege point: a privilege is the absence of a duty, not the presence of a claim, so it is consistent with a State that does nothing to protect you. Article 2(1) of the ICCPR converts liberties into claims with the word ensure.
• The immunity point: an ordinary legal right can be repealed by its maker; a constitutional or treaty right places a disability on that maker. Article 4(2) of the ICCPR is the strongest form: no derogation from articles 6, 7, 8(1) and (2), 11, 15, 16 and 18 even in a public emergency.
• The method: on any provision, ask which of the four relations it creates, and expect a single provision to create several.

Test yourself

1. Set out the four relations with their correlatives and opposites. A claim-right in A is correlative to a duty in B and its opposite is a no-right; it is what people usually mean by a right in the strict sense, and the right in article 7 of the Covenant on Civil and Political Rights that no one shall be subjected to torture is an example, the correlative duty being a forbearance by the State. A privilege or liberty in A means A owes B no duty not to act, its correlative is a no-right in B and its opposite is a duty. A power in A means A can alter B's legal position by an act, its correlative is a liability in B, meaning exposure to change rather than obligation, and its opposite is a disability; examples in this paper are the power to make a reservation to a treaty, the power to derogate under article 4 of the Covenant, and the power of a legislature to enact a limitation under article 29(2) of the Universal Declaration. An immunity in A means B lacks power to alter A's position, its correlative is a disability in B and its opposite is a liability. Claim-right and privilege operate on primary conduct; power and immunity operate on legal change.

2. Why is the privilege distinction the one that does most work in this paper? Because it separates a formal freedom from an effective one. A privilege is the absence of a duty: to say that I have a privilege to speak is to say only that I owe nobody a duty to stay silent, and that is entirely consistent with a State that stands by while others silence me, since no duty falls on anyone else at all. A claim-right is different in kind, because it puts somebody under a duty, and the duty may be a forbearance by the State or a positive duty to protect me from private interference. The instruments are drafted to create claim-rights rather than mere privileges, and the operative word is in article 2(1) of the Covenant on Civil and Political Rights, by which each State Party undertakes to respect and to ensure the rights. Respect answers the forbearance; ensure is what converts the liberty into a claim and generates the protective duty. A candidate who can say that a claimant needs a claim-right where they have been offered a privilege has identified the real dispute.

3. What does the analysis show about the difference between a human right and an ordinary legal right? That the difference lies in the immunity. An ordinary legal right exists at the pleasure of the body that created it: the legislature that enacted it has power to repeal it, so the holder is under a liability, exposed to having the position changed at any time. A constitutional or treaty right places a disability on that body and gives the holder an immunity, so the right is protected against the very authority that would otherwise dispose of it. That is what entrenchment does in Hohfeldian terms, and it explains why rights are put in constitutions and treaties rather than left to ordinary legislation. The strongest form the framework produces is article 4(2) of the Covenant on Civil and Political Rights, which permits no derogation from articles 6, 7, 8(1) and (2), 11, 15, 16 and 18 even in a public emergency threatening the life of the nation: as against those rights the State has not a duty it might breach but no power at all.

4. Take apart the sentence "everyone has the right to work". Badly put as a single question, and Hohfeld shows why. Article 23(1) of the Universal Declaration contains several distinct relations. There is a privilege to work, meaning the person owes nobody a duty to refrain, which is what makes a prohibition on a class working objectionable. There is a claim-right to free choice of employment, correlative to a duty in the State not to direct labour, which is the provision that speaks to forced labour and to caste-based occupational restriction. There is a claim-right to just and favourable conditions of work, correlative to duties of regulation owed by the State and enforced against employers. And there is a claim-right to protection against unemployment, whose content is set by article 6 of the Covenant on Economic, Social and Cultural Rights read with the progressive realisation formula in article 2(1). What there is not is a claim-right against the State to be given a particular job. Separating the relations dissolves an argument that is otherwise interminable, because the person asserting the right and the person denying it are usually talking about different relations.

5. A statute lets journalists publish freely, forbids compelled disclosure of sources, empowers the Government to require registration, and entrenches the first clause. Analyse each clause. The first creates a privilege: the journalist owes nobody a duty not to publish, but no duty is imposed on anyone else, so a private party who prevents publication breaches nothing under that clause. The second creates a claim-right: the journalist may demand that others refrain from compelling disclosure, and the correlative duty falls on everyone, which is why this clause could be invoked against a private employer as readily as against the State. The third creates a power in the Government and a liability in publishers, and the distinction matters practically, because until the notification issues the publishers are not under a duty at all but merely exposed to being placed under one, so there is nothing yet to disobey and any challenge must be framed accordingly. The fourth creates an immunity in the journalist and a disability in the ordinary legislature, which is what makes the first clause more than a statute. The general lesson is that a single provision usually creates several relations at once, and most confusion in rights argument comes from asserting one relation and being answered on another.