Consider the following two statements:

• In English law, I have the right to walk myself and my dog around the edges of the farmer’s field where the public footpath is marked but I must not walk across the middle and destroy the crops.
• At the entrance to the field, there is a sign which says: “No horseriding”.

I come to you and ask for your advice about whether I am allowed to ride a camel around the edges of the field. What is your advice?

The two statements I made are indicative of two different building blocks of law. Let’s take the second statement first. The sign “No horseriding” is, of course, shorthand for a more detailed legal rule which will be set down in a local byelaw. According to H.LA. Hart, a judge or anyone else trying to interpret that law should carry out the exercise of interpretation in two stages. 

The first stage is to identify whether the action I am proposing to carry out is clearly prohibited by the rule. In Hart’s terms, does my proposed action fall within the core of the rule? So, if I turned up with a shire horse or a Shetland pony and asked if I could ride those in the field, the answer would clearly be no. 

If it is not clearly prohibited by the rule, Hart says that the next stage is to consider whether the action falls within the penumbra, within the gray area where the rule could be interpreted one way or another. In the gray area, Hart says, the interpreter must reason by analogy from the core cases and may even have regard to the purpose for which the rule seems to have been made. If the purpose of the rule is to prevent the destruction of the farmer’s crops, we might reason that riding a donkey or a camel or an elephant or a cow would be just as destructive and therefore those actions are prohibited. In the case of a penal statute, we might adopt a stricter interpretation but a common law rule banning horseriding might reasonably be interpreted by a judge as also banning the riding of any other animals.

The other set of building blocks is rights. The definitive exposition of this approach to law was given by the American legal theorist Wesley Hohfeld in 1919. Hohfeld argued that when we talk about rights, we are using an umbrella term which actually describes four very different kinds of things, four different types of legal advantage.

Before turning to Hohfeld’s analysis of rights, let’s set out how Hart analysed rules. Hart thought that all legal systems consist of two kinds of rules. One kind of rules, which Hart somewhat confusingly calls primary rules, tell subjects what they can do and what they cannot do. The other kind of rules, which Hart calls secondary rules, identify the persons and procedures by which primary rules can be properly issued. Hart thought that holding the entire system together was what he called a rule of recognition. The rule of recognition is the rule which identifies the sources of law, the people and procedures who can issue primary rules. The rule of recognition is, in most legal systems, either incredibly complex or it is, to put it bluntly, simply a symbol or a fiction.

The first kind of thing is what Hohfeld calls a privilege, and what I am going to call a liberty-right. We might also call these negative freedoms. A classic example of this would be the right to freedom of worship or the right to freedom of speech.

The second kind of right is a claim-right. These are positive claims such as the right to an education or the right not to be abused.

Those two kinds of right are quite easy to understand. Liberty-rights and claim-rights are examples of what Hart claims “primary rules”, i.e. they are rules which require that people act in certain ways or do not act in certain ways. The other two kinds of rights are more difficult, or at least, I find them more difficult to understand. The other two kinds of right relate to what Hart calls “secondary rules” because they specify how agents can introduce or change others’ liberty-rights and claim-rights or are prohibited from asserting their liberty-rights and claim-rights.

Hohfeld’s third kind of right are powers, for example, the right of the federal government to demand taxes is really the power that the federal government has to impose taxes.

Hohfeld’s fourth kind of right are immunities, for example, the immunity which Members of the British Parliament enjoy from being prosecuted or sued for anything said in the debating chamber. Another example is the immunity which American citizens enjoy from being ordered to kneel before the cross, to prostrate themselves in prayer, or to give the Nazi salute.

Hohfeld’s next key claim is that each of these different kinds of rights has a corresponding obligation, or to put another way, if person A enjoys one of these rights then person B necessarily owes the corresponding obligation. This claim is known as the correlativity principle. It is the idea that rights and obligations are like two sides of the coin.

So, if we go through our examples again:

• If I have a right to freedom of worship, then you have no right to prevent me from worshipping or not worshipping in the way that I choose.
• If I have a right to an education, then someone has a duty to provide me with that education.
• If the federal government has the power to impose taxes, then those subject to that power have a liability to pay federal taxes.
• If a Parliamentarian is immune from prosecution for anything said in the debating chamber, then the prosecuting authorities are disabled from bringing a prosecution in respect of such statements.

To sum up: liberty-rights correlate to no rights; claim-rights correlate to duties; powers correlate to liabilities; and immunities correlate to disabilities.

There are interesting and important questions about whether Hohfeld’s correlativity principle holds, and about whether claim-rights have priority over duties or vice versa or whether both arise together. You will have to make up your mind about those questions as your studies continue.

The explanation of the different types of rights I have given is too simplistic. Rights such as the right to private property are in fact bundles of the different types of rights. Hohfeld’s claim is that by identifying the privilege, the claim, the power and the immunity aspects of these rights we will be better able to see where their limits lie.

Although there are challenges in applying Hohfeld’s scheme in practice, it has the clear advantage that Hohfeld conceptualises rights in terms of relationships. He highlights that when someone has a right that is always a right against either some other person or persons in particular or against the world at large. Rights are not things which belong to me, as if they were items of property, they are normative aspects of our social relations.

In terms of the sign “No horseriding”. That sign exists because my local Council has the power to put up such signs and to enforce the prohibitions contained in them. The sign then helps to define my liberty-right to proceed around the famer’s field and defines the extent of the farmer’s duty to let me.