JURISPRUDENCE-CONCEPTUAL ANALYSIS OF RIGHTS ( INCLUDING HOHFELDIAN ANALYSIS OF RIGHTS) скачать в хорошем качестве

JURISPRUDENCE-CONCEPTUAL ANALYSIS OF RIGHTS ( INCLUDING HOHFELDIAN ANALYSIS OF RIGHTS)

Rights occupy a central place in jurisprudence. At the most basic level, a right may be defined as a legally or morally recognised entitlement—something that an individual is justified in claiming against others or against the state. Rights structure relationships. They define what one person may demand and what another must respect. They lie at the heart of constitutional law, human rights discourse, property systems, and public law adjudication. Without a theory of rights, constitutional interpretation becomes conceptually unstable. Historically, the language of rights did not emerge fully formed. Classical thinkers such as Cicero spoke in terms of justice and natural order, but not always in the modern vocabulary of subjective rights. Medieval scholastic thinkers, especially Aquinas, grounded rights in natural law—understood as participation in divine reason. Early modern social contract theorists transformed the discourse. Locke argued that individuals possess inherent rights to life, liberty, and property prior to the formation of the state, and that government exists to protect those rights. Rousseau, while emphasising the general will, still treated fundamental liberties as essential to human dignity. Bentham, by contrast, rejected natural rights as “nonsense upon stilts,” insisting that rights exist only through law. This tension between moral and legal conceptions of rights remains foundational in jurisprudence. Two dominant theoretical models attempt to explain the nature of rights: the Will Theory and the Interest Theory. The Will Theory, sometimes called the Choice Theory, emphasises autonomy. A right gives its holder control—the power to enforce, waive, transfer, or release a claim. It is rooted in Kantian moral philosophy, which treats persons as ends in themselves. Under this view, law protects the sphere of individual self-determination. The advantage of this theory is conceptual clarity: it explains contract, litigation, and property transfer. Its weakness lies in its exclusionary implications. If rights depend on the capacity to exercise choice, what of children, persons with disabilities, or those lacking legal competence? The Interest Theory provides a broader foundation. It defines a right as the protection of an important interest sufficient to impose duties on others. Joseph Raz’s formulation captures this: a right exists where an individual’s interest is a sufficient reason to hold another under a duty. This theory accommodates vulnerable persons and aligns with welfare rights such as health and education. However, it risks diluting rights into general policy interests if not carefully constrained. No conceptual discussion of rights is complete without Wesley Hohfeld’s analytical scheme. Hohfeld demonstrated that the word “right” is used ambiguously in legal discourse. He distinguished four basic legal relations: claim, privilege (or liberty), power, and immunity—each with correlatives and opposites. A claim-right correlates with a duty. If A has a claim, B owes a duty. A privilege or liberty correlates with a no-right. One is free to act; others have no claim to prevent it. A power correlates with liability. The holder can alter legal relations. An immunity correlates with disability. Others lack the power to alter one’s legal position. Hohfeld’s contribution lies in precision. Courts often conflate these categories. For example, freedom of speech is sometimes described as a “right,” but analytically it contains claims against state interference, privileges to speak, powers to form associations, and immunities from legislative overreach. Without Hohfeld’s framework, constitutional adjudication risks conceptual confusion. Rights may also be classified in several ways. In rem rights bind the world at large, such as property rights. In personam rights bind specific individuals, such as contractual claims. Negative rights require non-interference; positive rights require provision or action. Human rights claim universality; legal rights depend on jurisdiction. Some rights are individual; others are collective, such as cultural or indigenous rights. The practical strength of conceptual analysis emerges when applying Hohfeld’s scheme to constitutional provisions. Under Ghana’s 1992 Constitution, Chapter 5 rights contain layered entitlements. The right to personal liberty includes a claim against unlawful detention, a privilege of movement, judicial powers affecting status, and immunities against indefinite custody. Equality under Article 17 involves claim-rights against discrimination, powers to litigate, and immunities against legislative erosion. Property rights under Article 20 contain claims against arbitrary deprivation, powers of transfer, privileges of enjoyment, and immunities from unconstitutional expropriation.