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Fundamentality, interdefinability, and circularity

Three ideas on Hohfeld examined
María Beatriz Arriagada Cáceres
This article is a translation of:
Fundamentalidad, interdefinibilidad y circularidad

Abstract

According to the way it has been generally understood, the Hohfeldian analysis of subjective legal positions is in line with these three implied ideas: (i) all Hohfeldian concepts are fundamental, (ii) none of these concepts can be defined without referencing its relation to another concept of the same scheme, and (iii) Hohfeld's analysis is circular. The aim of this paper is to discuss these ideas, which I have called, respectively: (i) the thesis of fundamentality, (ii) the thesis of interdefinability, and (iii) the thesis of circularity. I will show that although from a logical point of view these three theses are true, they presuppose a set of premises Hohfeld does not make explicit: (a) right, duty, privilege, and no-right are first-order positions, while power, liability, immunity and disability are second-order positions; (b) duty, privilege, power, and disability are active positions, while right, no-right, liability, and immunity are passive positions; and (c) privilege, no-right, disability, and immunity are purely negative positions (as opposed to those of duty, right, power and liability), in the sense that they lack conceptual autonomy. I will argue that the analysis of these implicit premises allows us to understand that Hohfeld assumes a point of view that transcends the strictly logical, and when we emphasize the practical utility of Hohfeldian concepts, the three theses under consideration (i, ii and iii) are false.

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1 Introduction

  • 1 Margolis and Laurence 1999: 5.
  • 2 Preferring the connective model does not imply that we should renounce the idea, common to reductiv (...)
  • 3 An analysis oriented toward reducing concepts to other more basic or simpler concepts can be combin (...)

1Discussions regarding the structure of concepts are often determined by an implicit agreement with one of two different models: (i) the reductive or containment model, in which concepts are complex structures composed of other more basic concepts and (ii) the connective, inferential model, in which concepts are complex structures related with other concepts through a type of inferential disposition.1 The fact that these two models are different does not mean that they are incompatible or exclusive; 2 it also does not mean that they cannot be combined. 3

  • 4 Two essays with the same title were published in 1913 and 1917; Hohfeld 2010 [1913] and 2010 [1917] (...)

2The question about the structure of legal concepts has a classic and very influential answer in Hohfeld’s model.4 One of the main characteristics of this model is that it combines reductive and connective analyses.

  • 5 The following synonyms will be used in an interchangeable manner, unless otherwise indicated: “righ (...)

3Hohfeld (2010 [1913]: 35-36 and 64) identifies eight fundamental legal concepts to which all other legal concepts could be reduced. He analyses them connectively, using a diagram with four jural correlatives (right/duty, privilege/no-right, power/liability, immunity/disability) and four jural opposites (right/no right, privilege/duty, power/disability, immunity/liability).5 This diagram is illustrated in Table 1:

Correlatives

right

duty

privilege

no-right

power

liability

immunity

disability

Opposites

right

no-right

privilege

duty

power

disability

immunity

liability

Table 1: Jural correlatives and jural opposites

4The reductive character of this analysis can be appreciated via the moment Hohfeld (2010 [2013]: 27 and 64) considers that more complex legal concepts or relations, like the conditional sales of personalty or agency relations, can be adequately explained if they are reduced to the concepts of right and duty, privilege and no-right, power and liability, and immunity and disability. These are “the legal elements that enter into all types of jural interests”; “the lowest generic conceptions to which any and all ‘legal quantities’ may be reduced”.

  • 6 See, for example, Guastini 2016: 84 and Spaak 2003:90.

5As Halpin observed (1985: 436), Hohfeld sustains that these eight concepts are comprehensive and sufficient in the sense that all legal positions can be expressed in them. In fact, today there exists a broad consensus that all, or almost all, subjective legal situations or positions can be reduced to different combinations or aggregates of the eight elemental, or Hohfeldian fundamental, situations.6

6This reductive orientation is combined with a willingness to establish the connections that exist between these eight fundamental concepts . Their simplified expression in terms of relations (correlatives and opposites) between two people, would even allow us to explain the so-called rights in rem and those rights that we assume individuals have in opposition to all other people. In this respect, Hohfeld (2010 [1917]: 65-96) clarifies that there are no rights over things and no rights against all people because they can both be explained in terms of multiple relations between determined individuals. The same is applicable to privileges, powers, and immunities.

7Hohfeld (2010 [1913]: 36) explicitly aims at explaining all strictly fundamental legal relations through a scheme of correlative and oppositional relations. To justify this connective analysis, he affirms that since these relations are, after all, sui generis, attempts at formal definition will always be unsatisfactory or completely useless.

  • 7 I use this denomination only as a type of abbreviation, because this thesis doesn’t simply affirm t (...)

8According to the manner in which it has generally been understood, Hohfeld’s analysis is linked to three implied theses. I will call these theses: (i) the fundamentality thesis, (ii) the interdefinability thesis,7 and (iii) the circularity thesis. These are expressed in the following manner:

  1. All Hohfeldian concepts are fundamental.

  2. None of these concepts can be defined without referencing its relation to another concept in the same scheme.

  3. Hohfeld’s analysis is circular.

9This paper will discuss these theses. In the second section, I will argue that from a strictly logical point of view concerning the internal structure of the model of Hohfeld’s analysis, the three enunciated theses are true only if they are formulated in the following manner: (i) all Hohfeldian legal concepts are fundamental in the sense of being irreducible, that is, they cannot be logically reduced to other simpler concepts, nor are they logically reducible to each other; (ii) none of these concepts can be defined without referencing other concepts that, within the same scheme, are correlative or oppositional, that is, their logical equivalents or their logical contradictions; and (iii) from a logical point of view, Hohfeld’s analysis is circular.

10In the third section of this paper I will make explicit the assumptions that are implicit in Hohfeld’s analysis. I will argue that this analysis assumes that: (i) right, duty, privilege, and no-right are first-order positions and power, liability, immunity, and disability are second-order positions; (ii) the positions of duty, privilege, power, and disability are active and the positions of right, no-right, liability, and immunity are passive; and (iii) privilege, no-right, disability, and immunity are, in contrast to duty, right, power, and liability, purely negative positions in the sense that they lack conceptual autonomy. I will show that: (i) the distinction between first-order and second-order positions supposes a distinction between two types of legal norms and a distinction between two types of legal acts; (ii) the distinction between active and passive positions presupposes that all correlative relations are constituted by a position that is definable in relation to a position-holder’s conduct or acts and a position that cannot be defined in relation to its position-holder’s conduct or acts, but rather in relation to its correlative position-holder’s conduct or acts; and (iii) the four purely negative Hohfeldian positions assume an ambiguous use of the concept of negation, without providing a clear or definitive justification.

11In the fourth part of this paper, I will show that the analysis of these implicit suppositions allows us to understand how Hohfeld assumes a point of view that transcends the strictly logical view of the internal structure of his analysis to focus on the practical utility of his concepts, that is, the way in which this model responds to the expectations of those who can use it. I will argue that from this point of view, the three theses under discussion are false because: (i) the correlative concepts of privilege and no-right and the correlative concepts of disability and immunity, considered as purely negative, are not fundamental, in the sense that they are derived concepts. In other words, their legal meaning cannot be understood without referencing the correlative concepts of duty and right and the correlative concepts of power and liability that are, on the other hand, fundamental, in the sense of being primitive - their legal meaning can be understood without referencing derived concepts; (ii) derived concepts cannot be defined without referencing their relation with primitive concepts, which in contrast, can be defined without referencing their relation to derived concepts; and (iii) from the point of view of the practical utility of Hohfeldian concepts, Hohfeld’s analysis is not circular because the primitive concepts constitute the only starting point for his analysis.

2 Considering Hohfeldian concepts from a logical point of view

12Strawson (1992: 17-20 and 22-23) has described the model of connective analysis as one in which the appropriate comprehension of each concept from a network or system can only be obtained by understanding its relation to other concepts in that system. One of the advantages of adopting this model is that there is no reason to worry about circularity, and consequently, about concluding that it is impossible to completely define a concept without referencing another concept from the same system. In this context, Strawson makes plain that “irreducible” does not mean (nor imply) “simple.” A concept may be complex, in the sense that its explanation requires the establishing of its connections with other concepts, but also, and at the same time, it may be irreducible in the sense that it cannot be defined, without circularity, in relation to those other concepts with which it is necessarily related.

13This is one way of understanding Hohfeldian concepts. According to Halpin (1985: 436), Hohfeld argues that all of his scheme’s concepts are fundamental, and in this manner he tries to put forth the idea that they are all irreducible, since they cannot be broken down into more basic concepts and so can only be expressed in terms of their reciprocal relationships.

14Hohfeld (2010 [1913]: 27, 36 and 64) does effectively say that the concepts of right, duty, privilege, no-right, power, liability, immunity, and disability are the “lowest generic conceptions to which any and all ‘legal quantities’ may be reduced,” “´the basic conceptions of the law,” “the strictly fundamental legal relations,” or “the lowest common denominators of the law.”

15If these affirmations are interpreted as the eight concepts being irreducible, in the sense that they cannot be reduced to (or defined in terms of) other more basic legal concepts, Hohfeld would then have had no other choice but to establish them as being in reciprocal relationships, and as a consequence, his analysis would be circular. The three theses that we are discussing would be implicated in the following manner:

  1. The eight Hohfeldian concepts are fundamental, in the sense of being irreducible, which means that they cannot be reduced to (or defined in terms of) other more basic legal concepts.

  2. Since they are irreducible, none of them can be defined without referencing their relationships with other concepts from the same scheme.

  3. As none of them can be defined without referencing their relationships with other concepts of the same scheme, Hohfeld’s analysis is inevitably circular.

16However, it is important to point out that even if Hohfeldian concepts are irreducible, that does not imply that they are absolutely irreducible or that it is impossible to reduce them. The legal concept of duty, for example, could be reduced to the empirical concept of the probability of sanction. On the other hand, saying that none of the Hohfeldian concepts can be defined without referencing its relationship to another concept from the same scheme, also does not imply that it is impossible to define them in another manner. Similarly, positing that Hohfeld’s analysis is circular doesn’t imply that his concepts cannot be analysed in a non-circular manner.

17First, we should remember that after identifying the eight legal concepts he considered fundamental, Hohfeld (2010 [1913]: 36) justifies his decision to analyse them in a scheme of correlative and oppositional relationships based on the belief that efforts at formal definition would always be unsatisfactory, or even completely useless. Due to the fundamental nature of these concepts, connective analysis for Hohfeld is not the only option, but it is the best option.

  • 8 See, for example: Kramer 2000 [1998]: 8.
  • 9 Rainbolt 2010: 4.

18Second, it is also important to remember hat the connective option that supposedly determines the circularity of his analysis is limited to only two types of logical relations. From a strictly logical point of view, Hohfeld’s strategy was to show that correlative terms are two legal positions than entail each other and that opposites terms are two legal positions that negate each other. 8 In other words, correlatives are logical equivalents and opposites are logical contradictories.9

19According to Hohfeld (2010 [1913]: 38 y 2010 [1917]: 73), if an individual has a right against another individual who shall not do a certain act, the correlative (and equivalent) situation is that the second individual is under the duty, towards the first, to not do that act. The right of the first individual is only one phase of the total relation between both parties and the duty of the second individual is another phase of the same relation. The whole “right-duty” relation may be viewed from different angles.

20The same can be said about other Hohfeldian correlative concepts. In relation to powers and liabilities, Hohfeld (2010 [1913]: 55-60) states, for example, that if A mails a letter to B offering to sell him/her a former’s land and such letter is duly received, then a power has been created as regards B and a correlative liability as regards A. A’s liability is just the correlative of power and a power is nothing but the correlative of liability. As related to other concepts, Hohfeld (2010 [1913]: 39 y 60) posits that the correlative of the privilege of an individual to do a certain act is the no-right of another individual that the first does not perform that act, and that the correlative of an immunity or exemption is a disability (no-power).

  • 10 Kramer 2000 [1998]: 26. An even stronger proposal is that correlatives are simply synonyms; Ross 20 (...)

21Since correlativity in Hohfeld just means mutual entailment, none of the implied elements in the relationship have priority over the other. The existence of one is a necessary and sufficient condition for the existence of the other.10

  • 11 Williams 1956: 1144-1145; Singer 1982, p. 987; Rainbolt 1993: 95; Cruz Parcero 2007: 33-34 (footnot (...)

22Correlatives represent two sides of the same coin, in the sense that they express only one relation, but from two different points of view. Consequently, the two diverse statements that refer to this relationship are logically equivalent.11 Saying that X has a right against Y that Y do Z, is equivalent to saying that Y has a duty to X that Y do Z. Saying that X has a power against Y that X change Y’s legal position or situation, is equivalent to saying that Y has a liability with respect to X that X change Y´s legal situation.

  • 12 Kramer 2000 [1998]: 24, 30-31, 35, 40.

23The correlativity of legal positions is not, for Hohfeld, a contingent conclusion obtained from empirical data, but rather a stipulative definition. Correlativity is an axiom, and this is nothing more than a tautology for anyone who adheres to Hohfeldian definitions.12

24An analysis of oppositional relationships has the same definitional and axiomatic character. According to Hohfeld (2010 [1913): 39), a privilege or a liberty is the mere negation of a duty the content or tenor of which is precisely opposite of the privilege in question. This means, as Williams (1956: 1135-1142) has shown, that a Hohfeldian liberty is the denial of the duty of doing something (liberty not) or the denial of the duty of not doing something (liberty). In Rossian terms (2000 [1968]: 165), permission to omit an action means that there is no obligation to perform that action, and permission to perform an action means that there is no obligation to omit it.

25Stating that someone has the Hohfeldian privilege of not doing X (of abstaining from X) is equivalent to saying that he/she has no duty to do X, and saying that someone has the Hohfeldian privilege to do X is equivalent to saying that he/she has no duty not to do X (to abstain from X).

26Since the negation of a duty implies the negation of a correlative right, the position of privilege implies a no-right. Affirming that X has a privilege against Y that X not do Z is equivalent to affirming that Y has a no-right on X that X do Z. Affirming that X has a privilege against Y that X do Z is equivalent to affirming that Y has a no-right on X that X not do Z.

  • 13 In the Spanish version of this article, I stated that an immunity denies a liability of opposite co (...)

27Something similar could be said about the relation immunity/disability. Hohfeld (2010 [1913): 60) states that a power bears the same general contrast to an immunity that a right does to a privilege or liberty. An immunity is one´s freedom from the legal power of control of another as regards some legal relation. This means that immunity is the negation of a liability. However, unlike what happens with privilege, an immunity denies a liability of the same content, not a liability of opposite content.13

28Saying that X has an immunity against Y is equivalent to saying that X is not liable with respect to Y. As the negation of a liability implies the negation of the correlative power or competence, the situation of immunity implies that of disability. Saying that X has an immunity against Y, (or, what would be the same, saying that X is not in a position of liability with respect to Y) is equivalent to saying that Y is incompetent (does not have the power) to alter X’s legal situation.

  • 14 See, for example: Spaak 2003: 90 and Lindhal 1977: 203.

29This logical perspective supports the conclusion that all Hohfeldian concepts are on the same level and are interdefinable in terms of their correlatives and opposites.14

  • 15 For example, the interdefinability of the three normative operators (permitted, prohibited, and obl (...)

30The conclusion that all concepts are on the same level points to the fact that Hohfeldian concepts are not reciprocally reducible; that is to say, no Hohfeldian concept can be logically reduced to another Hohfeldian concept. Halpin (1985: 443) refutes this conclusion, sustaining that the concepts of privilege and no-right are reducible to the negation of the concepts of duty and right. This would seem to show that the Hohfeldian concepts of privilege and no-right, and not those of duty and right, are superfluous and so could not be considered fundamental. From this perspective, the notion that all Hohfeldian concepts are on the same level would not hold up. But Halpin is confusing “logically reducible” and “logically interdefinable.”15­­

31The conclusion that all Hohfeldian concepts are interdefinable in terms of their correlatives and opposites connotes that none of these concepts can be defined without referring to those other concepts that, within the scheme, are their logical equivalents or contradictions. The conclusion that follows from all of this is that Hohfeld’s analysis is circular.

32The theses that we are discussing can be considered true if they are formulated in the following manner:

  1. All of the Hohfeldian legal concepts are fundamental in the sense of being irreducible; that is, they cannot be logically reduced to other more basic concepts and are not reducible to each other.

  2. None of these concepts can be defined without referencing other concepts that, within the same scheme, are their correlatives or their opposites; that is, their logical equivalents or contradictions.

  3. From a logical point of view, Hohfeld’s analysis is circular.

3 The implicit underpinnings of Hohfeld’s analysis

  • 16 I am grateful to Professors Cristina Redondo and Giovanni Ratti for their help in clarifying this p (...)
  • 17 This type of affirmation isn’t circular because the term “right” is used on two different discursiv (...)

33Hohfeld’s discourse is not ascriptive, but descriptive of subjective legal positions.16 The object of his analysis is constituted by statements, formulated by jurists and judges, that try to describe the legal positions that the norms of a legal order ascribe to a determined class of subjects. I mean that when it is stated, for example, that a certain class of subjects has a right to Z, it means that in the legal order there is a norm that ascribes to that class of subjects the right to Z. 17

34What Hohfeld (2010 [1913]: 35-36) is trying to do is show that in this context the terms “right” and “duty” are frequently used to designate different situations that should be distinguished: right (or right in its strict sense); privilege, power and immunity, and duty (or duty in its strict sense), no-right, liability and disability. Situated in this manner, among propositions about norms that ascribe legal positions to subjects, Hohfeld’s analysis presupposes a series of implicit underlying assumptions.

35Hohfeldian scholars have contributed to completing this task, especially through efforts to show that Hohfeldian positions can be classified into two groups. From a first perspective, it is considered that right, duty, privilege, and no-right are primary or first-order positions, while power, liability, immunity, and disability are considered secondary or second-order positions. From a second perspective, it is affirmed that the positions of right, privilege, power, and immunity are active, while the positions of duty, no-right, liability, and disability are passive. From a third perspective, it is considered that privileges, no-rights, immunities, and disabilities are, in contrast to those of rights, duties, powers, and liabilities, purely negative positions.

36The coexistence of these three classifications does not constitute a problem because they are not incompatible, but rather, complementary. However, upon closer examination of each of these perspectives, omissions, errors, and doubts are discovered, which must be resolved. The third section of this paper is dedicated to this task, with the goal of making explicit the implicit assumptions in Hohfeld’s analysis.

37The first part of this section explores the first of these classifications; specifically, seeking to clarify and provide complementary information about the criteria that support it. I will argue that the differentiation between two diverse families within the Hohfeldian scheme (positions and relations of a first order and positions and relations of a second order) is fundamentally based on two distinctions implied or presupposed in Hohfeld’s analysis. The first is between two types of legal norms, while the second is between two types of legal acts.

38In the second part of this section I will critically analyse the second classification. In particular, I will discuss the criteria that supports it, as well as, and consequently, the composition of each of the families that originate from these criteria. According to this classification, the Hohfeldian positions of right, privilege, power, and immunity are active, in the sense of being positive, favourable or advantageous, while the Hohfeldian positions of duty, no-right, liability, and disability are passive, in the sense of being negative, unfavourable, and disadvantageous. Refuting the evaluative nature of this classificatory criteria and identifying a new criteria that is values-neutral and strictly formal – that would appeal to how a legal position is defined, by referring to its position-holder’s conduct or acts (active) or the correlative position-holder’s conduct or acts (passive) –, will help to discard the idea that the active and passive Hohfeldian positions make up two families, and also to reformulate the composition of each one of these families. I will argue that, in agreement with these proposed criteria, duties, privileges, powers, and disabilities are active positions, while rights, no-rights, liabilities, and immunities are passive positions.

39Finally, in the third and last part of this section, the third classification will be analysed. Specifically two forms of understanding the purely negative character or the lack of conceptual autonomy that is attributed to the Hohfeldian concepts of privilege, no-right, immunity, and disability will be reviewed: (i) as concepts that describe the content of legal norms, and (ii) as concepts that describe the absence of these norms. I will argue that in explaining these concepts, Hohfeld ambiguously uses the concept of negation and cannot offer a clear and definitive justification for this ambiguity. This could be because these concepts are founded (a) on the assumption that the legal systems that ascribe the analysed positions are complete and coherent, or (b) on the thesis that there is no pragmatic difference between situations constituted by a lack of norms and situations constituted by norms, or (c) on simply not recognizing the doubts and problems that said ambiguity produces.

3.1 First-order and second-order Holfeldian positions and relations: two types of legal norms and two types of legal acts

40Hohfeldian legal positions and relations are usually classified into two different families. The positions of right, duty, privilege, and no-right are considered primary, or of a first order, and the positions of power, liability, immunity and disability are considered secondary, or of a second order.

  • 18 Keep in mind that Ross also thinks the positions of the first family are modalities of norms of con (...)

41Guastini (2016: 84-87) states that the first family’s situations are primary because they represent the content of common norms of conduct that discipline citizens’ behaviours. The second family’s situations, however, are secondary because they represent the content of norms about the legal production that disciplines modalities that create and modify the norms of conduct, which, in turn, give way to primary situations. The first family’s situations have a logical priority over those of the second family’s.18

42In a similar sense, although without referencing the norms that compose them, Wenar (2005: 230-233) understands that the positions of either family are being distinguished by their object. Privileges and rights are, in a strict sense, first-order positions because they are over objects, like the privilege of an individual to not move his/her body or his/her right to not be touched. Powers and immunities are, on the other hand, second-order positions because they refer to the positions of a primary order.

43What these authors apparently do not recognize is that the first-order positions can, although not necessarily, refer to second-order position and that these last positions can, although not necessarily, give way to other second-order positions.

44Kramer (2000 [1998]: 20) recognizes this when he affirms that: (i) some first-order relations applied directly to people’s conduct and social intercourse without the mediation of any second-order relations, and (ii) all second-order relations apply directly to people’s entitlements and only indirectly (but crucially) to people’s conduct and social intercourse. In the same manner, Rainbolt (2010: 3) sustains that powers, liabilities, immunities and disabilities are second-order relations because they necessarily concern the ability or inability to make changes in other Hohfeldian relations. Rights, duties, liberties (privileges) and no-rights are, on the other hand, first-order relations because they do not necessarily concern changes in other Hohfeldian relations.

45However, what these authors fail to clearly distinguish are the two different types of acts that legal positions and legal relations, from either family, can or must be defined in relation to, nor do they relate this distinction to the two different types of norms.

  • 19 On both of these related distinctions, see, among others, Hart 2012 [1961], chapters III and V and (...)

46To clarify the criteria that allow us to differentiate between the two families within the Hohfeldian scheme, we must first note that there are two relevant distinctions that underlie Hohfeldian analysis (or, in this sense, that this analysis anticipates). The first distinction is between two types of norms: (i) regulative or prescriptive norms and (ii) norms of competence or about legal production. The second distinction is between two types of legal acts, which, by stipulation, I will call: (i) non-normative legal acts and (ii) normative legal acts.19

  • 20 This theoretical discussion is much more extensive because among the authors that believe that comp (...)
  • 21 There is way of grasping a rule that is exhibited, from case to case of application in what we call (...)

47Although, in this paper, I cannot delve too deeply into the debate that accompanies this effort to distinguish between two types of norms,20 the criteria used to map out the distinctions implicit in Hohfeldian analysis have to do with the way in which the different norms are related to the conducts that they refer to, and this is expressed in the very different consequences that derive from their observance/following or their inobservance/not-following:21

  1. Regulative norms are those that qualify, in a legal system, the doing or the not-doing of determined acts, or the consequence or no-consequence of determined ends, as a result of which, from their observance or inobservance, their validity or invalidity does not follow.

  2. Competence norms are those that determine or constitute, in a legal system, the possibility of producing, modifying, or overturning valid legal norms or participating in their production, modification or overturning, as a result of which, the consequence of following them is validity and the consequence of not following them is invalidity.

  • 22 When in this definition I say that regulative norms “qualify”, I mean they “order” or “permit” it t (...)
  • 23 In this sense, the Hartian argument about the impossibility of assimilating the notions of nullity (...)

48The first part of the definition of regulative norms coincides with the characterization that Von Wright (1963: 7-8 and 70-92) makes concerning prescriptions and regulations, except for the fact that here the content of the norms is not only restricted to acts and activities, since normative authority can qualify the obtaining, or the abstention of obtaining, certain ends.22 The second part of the definition is negative. It alludes to the consequences that don’t follow from the observance or inobservance of the regulative norms because not all regulative norms, not even those that establish obligations, impose sanctions. 23

  • 24 For another, closely related, definition, see: Arriagada 2017.
  • 25 Orunesu 2012: 119-120; Guastini 2001: 60; Kelsen 1991 [1960]: 201-208; Ross 2009 [1968]:96.
  • 26 Kelsen 1991 [1960]: 159-161 y 151-157; Ross 1961: 116-117 y 2009 [1968]: 124, 168-169; Atienza and (...)

49The definition of competence norms24 assumes that: (i) a norm is legally valid when it has been produced in conformity with the (competence) norms that, in a legal system, determine the possibilities of producing it25 and (ii) competence is nothing more that the possibility that certain norms in a legal system attribute to a subject (body or individual) the possibility of producing or participating in the production of valid legal norms, in the conditions determined by these same norms.26 This definition includes norms that determine the competent subjects for producing norms in a determined material scope of regulation and those norms that determine the conditions for the exercise of that competence (the procedure that must be followed and the content limits that the resulting norms cannot go beyond).

  • 27 In terms of corporal movement: González Lagier 1995: 261.
  • 28 As proposed by Ferrajoli 2011 [2007]: 464-465, a similar distinction can be made between informal ( (...)

50As any human conduct can be described in purely physical terms or in terms of body movement, that is, without being interpreted,27 the classificatory criteria of legal acts implicit in Hohfeldian analysis is whether their performance and the consequences that follow due to their performance, have been or not been determined by competence norms:28

    • 29 For example, crossing the street, driving a car, or arresting a person.

    Non-normative legal acts are those whose performance and the consequences that follow from the performance, have not been determined by competence norms. These acts can be performed, described and understood without referencing any norms, but they can be qualified by regulative legal norms.29

    • 30 The actions that a legal order provides, for example, when granting a will or dictating a law or a (...)

    Legal acts are normative (creating, modifying, or overturning norms) when their performance and the consequences that follow from their performance have been determined by competence norms, in the sense that they can only be performed, described, and understood in accordance with them.30

  • 31 For example: Ross 2009 [1968]: 131 and Atienza and Ruiz Manero 2004: 84.
  • 32 Ross 2009 [1968]: 131.
  • 33 Kelsen 1991 [1960]: 132; Hart 2012 [1961]: 29 and 120; Bulygin 2015 [1992]: 276.

51None of this impedes that once defined, normative acts can be qualified by regulative norms. It’s one thing to confer a competence or a normative power, but quite another to regulate the exercise of that competence or power.31 Exceeding competence norms produces invalidity. Violating norms of conduct involves liability, like other violations of obligation.32 The power to produce norms can also be simultaneously obligatory or permitted.33

  • 34 An analysis that highlights the implicit use of these two distinctions in the Hohfeldian model and (...)

52The implicit use that Hohfeld makes of these distinctions justifies the differentiation between two families of legal positions that exist within his scheme of correlatives and opposites. Hohfeldian concepts presuppose concepts of regulative norms, competence norms, normative legal acts, and non-normative legal acts. The concepts or positions of right, duty, privilege, and no-right are explained in terms of regulative norms and acts that can be normative or non-normative. The concepts and positions of power, liability, immunity, and disability are explained in terms of competence norms and normative acts.34

53As Duarte d’Almeida (2016: 558-559) observes, from this point of view, these two families of concepts are independent in the sense that a statement that affirms or denies a position in one of the families does not imply a statement that affirms or denies a position in the other. In this sense, for example, the legal power of making changes in legal relations does not entail the liberty or privilege of making or not making these changes; one can be under the duty not to exercise one’s power, as much as under the duty to exercise it.

  • 35 Additionally, it should be clarified that saying that these two families of Hohfeldian concepts are (...)

54Effectively, and in a similar manner to how Hohfeld (2010 [1913|: 39, 43 and 58) affirms that from the mere existence of liberties it does not follow that third parties are under a duty not to interfere, he also affirms that it is necessary to carefully distinguish between the legal power, the physical power to do the things necessary for the exercise of the legal power, and the privilege of doing these things, if such privilege does really exist. It may or may not. 35

55The positions of right and duty are instituted by regulative norms and can have as an object non-normative legal acts. In this case they are first-order positions because the acts that constitute their object can be performed, described and understood without referencing any norms. The positions of privilege and no-right that negate these position of right and duty refer to the same object and, consequently, are also of the first order.

56The positions of power and liability are instituted by competence norms that have as an object normative acts. As these acts cannot be performed, described or understood without referencing the norms that determine their performance and the consequences that follow, the positions of power and liability are, at least, of a second order. They are second order if they refer to normative acts that create, modify or eliminate first-order positions. They are third order if they refer to normative acts that create, modify or eliminate secondary order positions, and so on. The positions of immunity and disability, that oppose the positions of power and liability, refer to the same object, and so, also have the same level of hierarchy.

57The positions of right and duty instituted by regulative norms can refer to normative acts, in which case they are, at least, of a third order. They are third order if they qualify normative acts that are an object of second-order positions that create, modify or eliminate first-order positions. They are fourth order if they qualify normative acts that are the object of third order positions that create, modify or eliminate second-order positions, and so on, successively. The positions of privilege and no-right, that oppose the positions of right and duty, refer to the same object and consequently also have the same level of hierarchy.

58The hierarchy of a Hohfeldian position or relation depends on the type of act to which it refers. A position or relation is first order if it has for an object a non-normative act. A position or relation that has as an object a normative act will be second, or superior orders, depending on the hierarchy of the position or relation that the normative act creates, modifies or eliminates.

59This explains how the Hohfeldian positions and relations of the first family can be (though not necessarily) first order and that those of the second family cannot be first order because they are, at least, second order.

3.2 Hohfeldian active and passive positions: the Hohfeldian thesis of correlativity

  • 36 Following Hohfeld, it is common that one usually talks about subjective legal positions or situatio (...)

60Hohfeld (2010 [1913]: 35-36) shows that the expressions “right” and “duty” are frequently used when designating diverse situations that should be differentiated in order to avoid confusion. This well-recognized and valued exercise in disambiguity36 has given way to the interpretation that Hohfeld would have tried to differentiate two families within his scheme of analysis: one family of active positions and one family of passive positions, as seen in Table 2:

Active positions

right – privilege – power – immunity

Passive positions

duty – no-right – liability - disability

Table 2: The usual division of the positions in active and passive

61However, this interpretation adopts diverse forms from which diverse conclusions follow. Some examples will serve well as illustrations.

62Carrió (1992: 9-10 and 13-15), for example, states that Hohfeld’s central idea was establishing two families of expressions or words linked with the pairing of the terms right and duty, in ways both obscure and complex. The language of law allows each one of these terms to preside over a family of related words whose relations between each other are not clearly defined. Examining an abundant quantity of current uses would have permitted Hohfeld to note the modalities hidden by the indiscriminate use of the word “right” are active and the modalities hidden by the indiscriminate use of the word “duty” are passive.

63Hierro (2000: 355-356) partially attributes to Hohfeld the ability to begin to conceive rights in a wider sense and more in tune with the habitual uses developed in legal language. Today we would know that that which we name as “rights” are different positions or situations of a subject whose conduct is regulated by norms, and that the idea that these are “rights” implies the conviction, even from the internal point of view within norms, that these are all situations that favour the subject’s capacity to act. In juxtaposition, we find the different situations that we call “duties” as being implicitly considered to be negative because they limit the subject’s capacity to act.

64It is worth emphasizing here that from the moment Hohfeld recognized this outlook concerning jurist’s actual use of these terms, an openly values-based consideration of Hohfeldian legal positions has been developed.

  • 37 See, for example: Vega 2015: 140-146.
  • 38 Vega 2015: 140-146.

65It is assumed, for example, that Hohfeld’s positional concepts are formulated in concordance with the assumption that rights, privileges, powers, and immunities are active positions, in the sense of being positive, favourable, or advantageous, and that duties, no-rights, liabilities, and disabilities are passive positions, in the sense of being negative, unfavourable, or disadvantageous. This basic polarity, essential to Hohfeld’s thinking, would appear to show the presence of an intrinsic values-based element within his scheme.37 From this point of view, neither the rules that confer power nor the regulative rules, by themselves, would allow us to understand how the positions’ justifications operate as a background or foundational aspect. In this sense, then, we must go beyond the rules when responding to the question of what justifies or legitimizes that some positions are active or positive and others are passive or negative.38

66What a values-based consideration of Hohfeldian positions overlooks is that the idea that these express determined values or legitimate interests is incompatible with the structural and formal character of Hohfeld’s analysis, whose objective is precisely to avoid the common tendency of confusing positions or situations that law ascribes to certain classes of subjects with goods or interests that these positions protect.

67Hohfeld’s (2010 [1913]: 27) starting point lies in warning us about the importance of distinguishing between purely legal relations versus the physical and mental facts that call such relations into being; legal elements versus non-legal elements when considering any problem. This warning is identical to Kelsen’s (1987 [1923]: 507 y 539-540): the law is not substance (what is protected), but form (the protection). In Guastini’s (2016 [2014]: 83) terms, a subjective legal position or situation is just the subjective dimension of a norm, which is to say it is just what the norm ascribes to a subject, for example, a right or a duty.

  • 39 Ross 2012 [1958]: 1-5, Carrió 1992: 19-20 and Nino 1980: 165-168.
  • 40 Much like how the conceptual elucidation cannot be effected independently from the elaboration of t (...)
  • 41 Kramer 2000 [1998]: 22.
  • 42 In this sense, see: Kramer 2000 [1998]: 7. The debate between theories of will and of interest is a (...)

68The concepts used for referring to these positions should be distinguished from the extra-legal foundations that justify their attribution by the norms of law. Elucidating these concepts and their reciprocal relations is a task for analytically conceived law theory. Justifying the justice or convenience that determined subjective positions are or are not attributable by the legal order to certain classes of subjects, is a task for the political philosophy of law.39 This does not mean that there is no relation between these two tasks.40 As Hohfeld’s project, more than being empirical or substantive, is analytically purifying and definitional, it cannot be empirically refuted, nor it is susceptible to moral objections.41 However, the neutrality of its analytical framework is precisely what serves to show the substantive differences within different political-moral theories.42

69From an exclusively formal and thus neutral in this sense perspective, the Hohfeldian positions can be classified as being active or passive, but the classificatory criteria and the members that belong to these two categories are very different. Ergo, it is not appropriate to say that they constitute two “families”.

  • 43 I thank Professor Claudio Agüero for suggesting this metaphor.

70The key to understanding this resides in the Hohfeldian thesis of correlativity. Since for Hohfeld, correlativity means mutual implication, the correlative concepts express one relation from two different angles or points of view and the two statements that can refer to them are logically equivalent. This explains why Hohfeld assumes that all correlative relations are constituted by an active legal position and a passive position, which function like a battery’s two poles. 43

71A legal position is active if it is defined by referencing its position-holder’s conduct or acts. In contrasting form, a legal position is passive when it is not defined by referencing its position-holder’s conduct or acts, but rather by referencing the correlative legal position-holder’s conduct or acts. In this context, it is not strange that passive positions are always defined in relation to the active positions that are their correlatives.

72Once we have correctly formulated the classificatory criteria, it is inappropriate to talk about two families, although we can simply say that duties, privileges, powers, and disabilities are active positions, while rights, no-rights, liabilities, and immunities are passive positions.

Active positions

duty – privilege – power – disability

Passive positions

right – no-right – liability - immunity

Table 3: Reformulation of the habitual division

3.2.1 Duties and rights

73Saying that X has against Y a right that Y do Z is equivalent to saying that Y has a duty to X to do Z because the position of right is passive and the position of duty is active. The position of right is passive because it is not defined by referencing its position-holder’s conduct, but by referencing the correlative duty position-holder’s conduct. The position of duty is, in contrast, active because it is defined by referencing its position-holder’s conduct. For this reason, Hohfeld (2010 [1913]: 37-38) defines the concept of right or claim simply as an invariable correlative of the concept of duty or obligation that, in exchange, admits to being defined, without referencing the concept of right, as that which you should or should not do.

  • 44 On the distinction between active and passive rights, see: Cruz Parcero 2007: 24.
  • 45 Wenar 2005: 229-230.
  • 46 Duarte d’Almeida 2016: 556.
  • 47 Williams 1956: 1145.

74Effectively, Hohfeldian rights are not active rights to do anything, but passive rights of respecting a situation or receiving something from someone else.44 A claim-right can entitle its bearer to protection against harm or paternalism, or to provision in case of need, or to specific performance of some agreed-upon, compensatory, or legally or conventionally specified action.45 Rights allude to actions or omissions of the correlative duty position-holder. There is no such thing as someone’s right to do or refrain from doing anything.46 A statement that a person has a right to do something means that he/she has a right in the strict sense, not to be interfered with in doing it.47 A statement that affirms that someone has the right to not do something means that another person is obligated to not demand that he or she does it.

  • 48 According to Kelsen, not all cases of legal obligation suppose the existence of a reflex, subjectiv (...)
  • 49 For more discussion on this topic see, for example: Hart 1982: 183-185.

75The Hohfeldian concept of rights is, in this sense, identical to the concept of reflex-right identified by Kelsen (1991 [1960]: 139-134 and 147) who, rejecting the distinction between personal rights and rights in rem, plainly states that what is usually called exercise or enjoyment of rights is really only the correlative obligation. However, in opposition to Kelsen, Hohfeld doesn’t offer any pronouncements about the possibility of existing duties that are not correlative with rights.48 Consequently, he doesn’t weigh in on whether it is possible or not to consider that indirect or absolute obligations, like those that are generally imposed by criminal law, are correlative to rights.49

  • 50 Kramer 2000 [1998]: 23 and Rainbolt 2010: 3.
  • 51 In this same sense, see: Wellman 2002: 174.
  • 52 In Duarte d’Almeida (2016: 560-561) there is a questioning of the comprehensive character of Hohfel (...)

76It follows, then, that Duarte d’Almeida (2016: 560) is correct when observing that relational character is not a part of the conceptual content of duty when Hohfeld affirms that Y’s duty to stay off X’s land is correlative (and equivalent) to the right that X has against Y that he shall stay off the former’s land. As Hohfeld’s approximation is stipulative and definitional,50 one could respond by saying that his definitions only refer to direct or relational legal positions.51 However, the consequence that follows from this is that Hohfeldian concepts are not comprehensive.52

3.2.2 Powers and liabilities

  • 53 See, for example: Guastini 2016 [2014]: 87.

77What has been stated about rights and duties is also valid for the correlative pair of power and liability, except for the fact that here there is no similar problem related to indirect duties, since the positions of power and liability are both relational. 53

78According to Hohfeld (2010 [1913]: 50-51 and 60), the position of power is that in which the person (or persons) whose volitional control is paramount may be said to have the (legal) power to effect a particular change in the legal relation in question. It is the affirmative control that an individual exercises over another individual and within a given legal relationship.

79Hohfeld (2010 [1913]: 51-55) is primarily thinking about the modification of relations like those between a vendor and a vendee that have complied with all of his/her obligations except for the payment of the last instalment of a conditional sale, between the person that offers and the one who receives a contractual offer, or between the principal and the agent in cases of agency. However, he also admits that agent’s powers are comparable to those of public officers, like the power of a sheriff to sell the property under a writ of execution. For this reason, Ross (2012 [1958]: 168 and 2009 [1968]: 132) is right to suggest that citizens are subjected to the power of legislators in the same way as the one who makes an offer is subjected to the power the recipient, or the way in which inheritors are subjected to the power of the testator.

  • 54 Williams 1956: 1145 y Kramer 2000 [1998]: 21-22.

80Saying that X has the power to perform a normative act that changes Y’s legal situation, is equivalent to saying that Y is liable with respect to X’s power to perform a normative act that changes Y’s situation because the legal position of power is active and the legal position of liability is passive. The position of power or competence is active because, in contrast to liability, it is specified by referencing its position-holder’s conduct or act.54 This explains why Hohfeld (2010 [1913]: 50-60) has defined the concept of liability simply as a correlative of the concept of power, a concept that, as we have seen, can be defined without referencing the concept of liability.

  • 55 It is usually said that to have power is to have the ability of altering the normative situation or (...)

81It is very important that relational character is part of the content of power and liability. We should not confuse ourselves with the idea that the exercise of a power can change the legal situation for the person who exercises it55 because the change in one´s legal situation implies a change in the legal situation of the other and vice versa. According to Hohfeld (2010 [1913]: 51), a property owner has the power to extinguish his/her own legal interests (rights, powers, immunities, etc), through abandonment and, simultaneously and correlatively, has the power to create in other persons privileges and powers relating to the abandoned object, like the power to acquire title to the latter by appropriating it.

3.2.3 Privileges and no-rights, immunities and disabilities

82Similarly, the positions of privilege and no-right, on the one hand, and those of immunity and disability on the other hand, are also correlatives. The position of privilege implies that of no-right and the position of immunity or exemption implies that of disability. In this sense, Hohfeld (2010 [1913]: 39) affirms, for example, that the correlative of an individual’s privilege of doing a certain action is the no-right of another individual that the first individual shall not do that action.

  • 56 Williams 1956: 1145 and Kramer 2000 [1998]: 21-22.
  • 57 Kramer 2000 [1998]: 21-22.
  • 58 Wenar 2005: 233. One thing, however, is important to make clear: liberties or privileges can be com (...)

83Taking this into consideration, liberties (privileges) are like powers because they have to be specified by reference to the liberty-holder’s conduct,56 and immunities are like rights, since they have to be specified by reference to the conduct that the holder of the correlative position (disability) does not have the power of doing.57 In other words, while liberties and powers are exercised, rights and immunities only are merely enjoyed.58

84From this point of view, saying that X has against Y the liberty or the privilege to do Z, is the equivalent of saying that Y has no right on X that X not do Z because the legal position of privilege is active and that of no-right is passive. Affirming that X is disabled from doing a normative act that changes the legal situation of Y, is the equivalent of saying that Y has against X an immunity because the position of disability is active and that of immunity is passive.

85In this context, it is not surprising that Hohfeld (2010 [1913]: 38-39 and 60) has defined the active concept of privilege as the opposite or the negation of the active concept of duty, previously defined, and that in contrast he has defined the passive concept of no-right simply as the correlative of the active concept of privilege. In a similar manner, while the active concept of disability is defined as the opposite or the negation of the active concept of power, previously defined, the passive concept of immunity is defined as the correlative of the active concept of disability, or through an analogy with the active concept of liberty or privilege. The passive concepts are always defined by referencing the active concepts that are their correlatives.

3.3 The purely negative character of the concepts of privilege, no-right, immunity and disability: the Hohfeldian thesis of opposition

  • 59 See footnote 13 in this paper.

86The comparison of privileges with powers and immunities with rights, which we are able to do by applying the idea that privileges are exercised and immunities are enjoyed, bypasses an important difference: unlike the relations of right/duty and power/liability, the relations of privilege/no-right and immunity/disability are considered purely negative. We have seen that, in accordance with Hohfeld, a relation of privilege/no-right is the negation of a relation of duty/right, of a content precisely opposite, and that a relation of disability/immunity is the negation of a relation of power/liability of the same content.59

  • 60 See, especially: Williams 1956 and Halpin 1985.

87Although the use of the concepts of negation and opposition has stimulated quite a few doubts and criticisms,60 what interests us here is pointing out the fact that Hohfeld does not explicitly define, in terms of norms of a legal order, what it means for an individual to be in the positions of privilege, no-right, disability, or immunity.

88What is not clear is if Hohfeld assumes that the relations of privilege/no-right and disability/immunity describe the content of legal norms that, respectively, establish exceptions to the relations of duty/right previously instituted by regulative norms and exceptions to the relations of power/liability previously instituted by competence norms. Or, instead, if he assumes that the relations of privilege/no-right and disability/immunity represent the respective absences of these same regulative and competence norms. As I shall explore in the following section, both interpretations have been defended by Hohfeldian scholars.

89From this first perspective, the relations of privilege/no-right and disability/immunity are not ascribed to subjects by norms. The situation of liberty (privilege), whose correlative is a no-right, and the situation of immunity, whose correlative is a disability, occupy exactly the same places in their respective groups or families because they are, as Hart (1983 [1953]: 35-36, footnote 14 in that paper) suggests, negative cases where there is no law to interfere in if the individual chooses to do or abstain from some action (liberty) or to retain his legal position unchanged (immunity).

  • 61 By criticizing the Von Wright’s effort to define permission (in a strong sense) as something more t (...)
  • 62 In fact, Ross affirms that a permitted act, in contrast with a free act, can be prescribed.
  • 63 See also Ross 2012 [1958]: 164-166 and 168.

90Ross (2009 [1968]:119-125, 128-130, 133-134) appears to be situated in this same line of thinking, explaining legal modalities in relation to the Hohfeldian scheme, and so sustaining that the concept of permission is identical to Von Wright’s weak permission, which simply means that the act is not forbidden.61 This situation, whose correlative is a no-claim (no-right), is distinguished from the situation called “liberty” that occurs every time an act is legally indifferent because it has not been prohibited, nor declared obligatory.62 As the sphere of liberty is defined negatively as everything that is not the object of legal regulation, it would not be possible to enumerate the liberties that a person has, except in the particular ways in which these appear as exceptions to general rules. Despite the fact that Ross presents the situations of immunity and disability as analogues to those of permission and no-claim, in order to describe the first, he uses terms similar to those employed to describe legally indifferent conducts. He affirms that since they are negative terms that cover everything not subject to legal power, it is not possible to enumerate or name specific immunities, except those that appear as exceptions; for example, foreign ambassadors enjoy immunity from the courts or citizens enjoy immunity from the legislature in those areas in which its competence is limited by the Constitution. In summary, according to this author, every person enjoys liberty or immunity against another, as long as this other person doesn’t have a right or a power against the first.63

  • 64 Arriagada 2016: 157.

91In agreement with this interpretation, the Hohfeldian relations of privilege/no-right and disability/immunity refer, respectively, to the absence of regulative norms and the absence of competence norms.64 However, this is not very plausible, at least in relation to privileges and no-rights.

  • 65 As in the case of privileged communications in the law of libels or in the case of privilege agains (...)
  • 66 Williams 1956: 1139-1142 and Rainbolt 1993: 96.

92First, to explain these situations, Hohfeld uses examples of privileges or liberties explicitly ascribed by norms.65 Second, that an action is not prohibited simply means that there is an absence of indirect obligation. Consequently, if a privilege is the mere absence of a prohibition, then the position of privilege would not be relational. Third, and this is probably the strongest reason, it is quite clear that Hohfeldian liberties or privileges do not involve a choice. The liberty that X has against Y to go to church implies that X has no duty with respect to Y to not go to church, but it does not imply that X has no duty with respect to Y to go to church. X can have the liberty of complying with his/her duty to Y.66

93From a second perspective, it is posited that the relations of privilege/no-right and disability/immunity are instituted by norms that establish exceptions to precedence relations of duty/right and power/liability.

94If, for example, X, a land owner, authorizes Y to enter into his/her property, liberating him/her from his/her duty of not entering, we can describe this relation through two equivalent statements: (i) Y has the privilege or liberty of entering into X’s land and (ii) X has a no right on Y that X not enter into his/her property. The relation of privilege/no-right between X and Y constitutes an exception to the relation of right/duty that generally exists between X and Y. The term “generally” alludes to the fact that what is most common is that, between a land owner and a non-land owner, there exists a relation of right/duty.

95The same could be said of the relations of disability/immunity. Citizens are subjected to the general power of the legislature to dictate norms that create, modify, or extinguish their subjective legal positions, but the legislature cannot (it doesn’t have the power) eliminate the right of citizens to not be tortured. In this sense, citizens have an immunity against the power or competence of the legislature to which they are normally subjected.

96Wenar (2005: 226-227 and 232) points in this direction when he affirms that the function of a liberty (privilege) is to confer an exception from a general duty and that the function of an immunity is to confer a protection from a general power. While ordinary citizens have the duty not to break down doors, police officers have a privilege to break down doors (or they have no duty not to break down doors). While Congress has the general power of imposing duties on the citizens, it does not have the power of restricting citizens’ freedom of expression. This immunity protects them from Congress’ general power.

97Citizens’ general duty of not breaking down doors is direct or relational because its correlative is the right of those who live in or on the other side of those doors. In the same manner, Congress’ general power of imposing duties is direct or relational because its correlative is citizens’ liability.

  • 67 Kelsen calls them “positive permissions” and Alexy, “explicit permissions”; Kelsen 1991 [1960]: 29 (...)
  • 68 Guastini 2016 [2014]: 85-86.
  • 69 Guastini 2016 [2014]: 86-87.

98From this point of view, the legal positions of privilege and no-right are ascribed by permissive norms67 that authorize certain subjects to do certain acts, freeing them from compliance with previous obligations and, correlatively, they deny to other subjects rights that were previously conferred.68 On the other hand, the positions of disability and immunity are ascribed by norms that revoke previously conferred powers to certain subjects and, correlatively, they free other subjects from previous liabilities. 69

99This appears to be Rainbolt’s (1993: 94) position, from the moment that he affirms that a rule is a statement that specifies or implies that someone has a claim, a duty, a liberty (privilege), a no-right, a power, a liability, an immunity, or a disability and the legal rule system of a country is the set of all true statements that someone has a legal claim, legal duty, legal liberty, etc.

  • 70 On the problem of under what conditions a norm is special, see: Zorzetto 2013: 389-386.

100In contrast to this interpretation, it could be said that understanding the relations of privilege/no-right and disability/immunity as exceptions from general relations of duty/right and power/liability can be tricky because it is possible that the relations of privilege/no-right and disability/immunity are the general rule and not the exception.70

101The fact that the term “special privileges” is often used, shows, according to Hohfeld (2010 [1913]: 44-46), that just as there can be special legal advantages in favour of an individual or a class of individuals, so too can there exist ordinary or general privileges that the norms establish in favour of any person that finds him/herself in a determined circumstance, like what happens in the case of privileged communications in the law of libel.

  • 71 It is possible that due to having signed a contract, X has, in relation to Y, and in addition to pr (...)

102This point of view allows us to understand that Hohfeld (2010 [1913]: 39) affirms that X, owner of a land, has the privilege of entering the land (and he/she does not have a duty to stay off), and that the correlative of this situation is Y’s no-right that X shall not enter.71 The privilege is general in the sense that all land owners have, in general and due to certain norms, the privilege of entering their lands (and do not have the duty of staying off), except, for example, in the case of there being a contract where they are under the duty to not enter. The general rule is the privilege of entering and the exception is the duty of not entering. However, the privilege can be considered special in the sense that it represents an exception (conferred on land-owners) to the general rule that prohibits entering on lands.

103The consideration of purely negative legal situations as exceptions to more general precedence relations is much more problematic when the relations of disability/immunity are analysed. According to Hohfeld (2010 [1913]: 60-61), the owner of land X has, in addition to the power to alienate it, immunity with respect to anyone else who has not by virtue of special operative facts acquired a power to alienate X’s land. In contrast, X lacks immunity against a sheriff that has been duly empowered by a writ of execution to sell X’s interest and, in the same way, against the agent who has been duly appointed by X to sell the property. X has a liability with respect to the sheriff and with respect to the agent. This example allows us to infer that, in general and due to norms, all property owners have immunity against each of the other individuals who are incompetent to alter his/her legal situation in relation to that property. Immunity is the general rule and liability is the exception.

  • 72 This diverse way of understanding liberties or privileges and immunities (the first as exception an (...)

104This difference between privileges and immunities can also be observed in the diverse ways in which Rainbolt (1993: 95-96) illustrates these two situations. The situation of liberty (privilege) is exemplified by showing that when the owner of a car sells it to another, he/she creates a pass that establishes that this last person does not have the duty of not driving the first’s car next Tuesday. Normally, the second subject has the duty of abstaining from driving the first’s and he/she has the power of changing the duty of the second from a liberty to drive the car. The situation of immunity is illustrated, in exchange, by referencing two individuals that do not know each other. One, a car-owner, has an immunity against the other in the sense that there is nothing that this last person can do to have the liberty of driving the first’s car. The rules of the legal system do not permit her to change her duty to not drive the car into a liberty to drive it. Similarly, a subject has an immunity against another when this last person cannot extinguish the first’s liberty of burning the flag.72

  • 73 Guastini 2016: 85-87.

105Discussion continues about the correct way of understanding the purely negative character of the Hohfeldian relations of privilege/no-right and disability/immunity. As such, it can be admitted, as Guastini (2016 [2014]: 85-87) does, that the terms liberty (privilege), no-right, immunity, and disability are ambiguous because they can be used to describe the content of positive norms that institute these legal situations as much as to describe the absence of these norms.73 What’s more, it is plausible to conclude that Hohfeld uses these terms in an openly ambiguous manner and that nothing appears to indicate that the existence or absence of a norm is a criteria for distinguishing two different types of relations of privilege/no-right and two different types of relations of disability/immunity.

  • 74 I thank professors Álvaro Núñez and Giovanni Ratti for their help clarifying this point.
  • 75 On the possibility that legal systems are incomplete unless they contain a rule of closure that aut (...)
  • 76 If a system is coherent, no state of things is prohibited and, at the same time, permitted in a str (...)

106One possible interpretation is that Hohfeld’s analysis presupposes that the legal systems that ascribe the situations that he analyses are complete and coherent.74 Complete, in the sense that they contain a rule of closure that authorizes one to infer: (i) that, due to the absence of norms that ascribe duties/rights, there exist norms that ascribe privileges/no-rights, and (ii) that, due to the absence of norms that ascribe powers/liabilities, there exist norms that ascribe disabilities/immunities.75 And, coherent, in the sense that: (i) norms that institute a relation of duty/right and norms that institute a contradictory relation, vis-à-vis the first relation, of privilege/no-right cannot simultaneously coexist, and (ii) norms that institute a relation of power/liability and norms that institute a contradictory relation, vis-à-vis the first relation, of disability/immunity cannot simultaneously coexist.76

  • 77 Specifically, between weak and strong permissions; Alchourrón and Bulygin 1991 [1984]: 237.
  • 78 According to Bulygin, it is not the same to add a norm that prohibits an action p in a system where (...)

107This would explain why Hohfeld ignores the fact that, relative to the dynamics of the legal order in contexts where there is a plurality of normative authorities with different competencies according to their hierarchy, there is an important difference between situations where there is an absence of norms and situations that are instituted by norms,77 so that in practice there is no pragmatic equivalence.78

  • 79 I am grateful to Professor Juan Carlos Bayón for having noted this point. Regarding the pragmatic e (...)
  • 80 Echave, Urquijo and Guibourg 2008 [1980]: 155-158.
  • 81 Duarte d’Almeida (2016: 562) sustains this, due to the Hohfeldian position of liberty or privilege.

108Another available interpretation is that Hohfeld’s analysis assumes precisely such an equivalence.79 From this point of view, the fact that a conduct can change from being prohibited to being permitted due to a norm, does not change the expectations of those who are thinking about doing it or have done it.80 This is the same as saying that nothing changes if, from a situation where there is no power or competence to do a determined normative act, we arrive at another wherein said incompetence is declared by a norm that establishes an immunity. The existence or absence of a norm would not imply there being any difference in the normative position of the privilege or immunity position-holder.81

109Another admissible interpretation, and probably the most credible, is that Hohfeld was not aware of the doubts and problems produced by the ambiguity with which he uses the terms considered purely negative. This is because his work was produced long before discussions about if a difference exists, and if so, of what kind, between non-normative situations and situations instituted by permissive norms or norms of disability or incompetence.

110We have seen how privileges and liberties can be considered exceptions. The privilege to drive some else’s car is an exception to the general duty of not driving cars that are not your own, the property owner’s privilege of entering a land is an exception to the general rule of not entering lands and the police officer’s privilege of breaking down doors is an exception to the general rule of not doing so. It has also be observed that considering immunities as exceptions to precedent liabilities is more problematic and that this difference, expressed in works by authors like Ross and Rainbolt, can also be seen in Hohfeld (2010 [1913]: 60-61); particularly when he affirms that a landowner has immunity against any individual who has not acquired, due to special operative facts, the power to alienate the property.

111My impression is that this difference is justified because a relation of disability/immunity can only be considered an exception if it is looked at from the point of view of a general power that certain bodies have when imposing duties upon their citizens. The immunity that a first individual has against another individual that can do nothing to change his/her duty of not driving the first individual’s car into a liberty or privilege of driving it, to extinguish the liberty or privilege of the first person to burn the flag or to sell the land that belongs to the first person as a property-holder, does not constitute an exception.

  • 82 I thank Professor Álvaro Núñez for having helped me to clarify this point.

112The examples that Hohfeld uses repeatedly in these cases suggest that it is possible that he has thought about the relations of privilege/no-right as exceptions to the precedence relations of duty/right instituted by permissive norms and that, on the other hand, he has thought about the relations of disability/immunity as simply all that is not subject to legal power and, for that reason, as situations not instituted by norms.82 Hohfeld’s assumptions would be different, depending on the case: existence of a norm in the case of privileges and no-rights and absence of a norm in the case of disabilities and immunities. This, in my opinion, supports the thesis that Hohfeld did not (or could not) take into account the discussion regarding whether there exists a difference, and of what kind, between non-normative situations and situations instituted by permissive norms or norms of disability or incompetence.

113Until this point, we have covered two plausible readings: (i) Hohfeld ambiguously uses all negative terms, and consequently, any of them can represent the existence of a norm as well as the absence of a norm, and (ii) Hohfeld assumes the existence of norms in the case of privileges/no-rights and the absence of norms in the case of disabilities/immunities. Whether Hohfeld’s analysis presupposes complete and coherent legal systems or subscribes to the idea of pragmatic equivalence between non-normative situations and situations instituted by norms or simply has not taken into account these problems, the relevant conclusion appears to be, as Guastini (2016: 85-86) affirms, that the situations of liberty (privilege), no-right, immunity, and disability lack conceptual autonomy in the sense that they are nothing more than the respective absence of duty, right, liability, and competence. However, this conclusion leaves us without an answer to a very relevant question. In discussion about negative Hohfeldian concepts, why do we assume that these are privilege, no-right, disability, and immunity and not, instead, duty, right, power, and liability?

114If all Hohfeldian concepts are fundamental and interdefinable, and for this reason Hohfeld’s analysis is circular, the concepts that we have considered so far as being “negative” could be the perfect points of entry for our analysis, and so, for entering into the Hohfeldian scheme.

115As it was seen, according to Hohfeld and Hohfeldian scholars, a relation of privilege/no-right is the negation of a relation of duty/right of opposite content, and a relation of disability/immunity is the negation of a relation of power/liability of the same content. But it would be equally correct to say the inverse, that is, that a relation of duty/right is the negation of a relation of privilege/no-right of opposite content, and a relation of power/liability is the negation of a relation of disability/immunity of the same content. The problem concerning the meaning of purely negative Hohfeldian terms would consist, then, in knowing if the relations of duty/right and power/liability describe the content of the legal norms that, respectively, establish exceptions to relations of privilege/no-right and disability/immunity precedent instituted by norms, or if instead, these represent the absence of norms.

116The reason why this way of seeing things is implausible is not found in the logic of the internal structure of the Hohfeldian scheme, but outside of it. To this I dedicate the next, and last, section of this paper.

4 Understanding Hohfeldian concepts through their practical utility

  • 83 I thank Professor Alfonso Ruiz Miguel for having pointed out that in an older version of this paper (...)

117The uncovering and examination of the assumptions in the last section allows us to observe that the model of analysis constructed by Hohfeld assumes a point of view different from the strictly logical that in contrast emphasizes the way this model responds to the expectations of those who can use it.83

118In the second section of this paper it was seen that in the model that Hohfeld proposes to analyse subjective legal positions have a definitional and axiomatic character, in the sense that their definitions (specifically those of correlativity and opposition) are not contingent conclusions obtained from empirical data, but rather authentic stipulations or axioms that, being such, cannot admit empirical refutation. It follows that those who want to use and take advantage of this model would have no other choice but to adhere to its definitions. Does this mean that the conceptual instrument elaborated by Hohfeld lacks contact with the reality of legal practice?

  • 84 According to Carrió, in conjunction with this “moderate” pretence, in Hohfeld’s work one can also i (...)

119The answer is a definitive no. As Carrió (1992: 10-13) explains Hohfeld’s moderate pretension would not have been as much introducing purely stipulative definitions to which all subjective legal situations would have to be reduced, as constructing a coherent and economic conceptual instrument, built from a small group of basic notions. His pretension was really about highlighting, with the necessary precision, the central nucleus of meaning of current expressions used by jurists in their language; maintaining, in a relatively strict manner, those current uses in order to reconstruct the different fundamental legal concepts that fashionable and profuse legal jargon tends to obscure; using the language of jurists as a point of entry for rescuing, without any rigid presuppositions, the uses that effectively mark useful distinctions; showing the different situations that can be hidden through the ambiguous use of the same term or the unity that can be elided through the use of different terms. All of this, even though the task required effecting partial redefinitions in order to limit the imprecise borders of the current legal terms, or introducing new terms in order to contribute to marking distinctions that are effectively made by jurists, but are not adequately recognized by them.84

  • 85 The idea of adapting to current uses comes from Moreso and Vilajosana 2004: 127-129.
  • 86 In this I am following ideas about the extra-systemic conditions of deontic logic, defended by Echa (...)

120How do we reconcile, then, the need to adequately represent85 the current uses of terms among jurists with the need to elaborate a coherent and economic conceptual instrument? The response is that the definitions that support the conceptual instrument elaborated by Hohfeld are stipulative, but not purely stipulative. As with many ideal models, Hohfeld’s has the objective of clearly and precisely reconstructing pre-existing conceptual relations. Hohfeldian legal concepts are not invented. Rather, they are taken from ordinary legal language and reconstructed in a system that assigns precise meanings and linkages through unequivocal relations. By maintaining a certain amount of similarity with the reality that he is trying to reconstruct (current uses by jurists), he proposes a practical utility for his system. Consequently, that this system is useful (in the sense that it responds to the expectations of those who can use it), depends on the conditions and assumptions that transcend its internal structure.86

121This external or extra-systemic point of view allows us to note that the practical utility of the Hohfeldian conceptual system depends on a condition or assumption the identification of which permits us to discuss the idea of fundamentality, and so also the ideas of interdefinability and circularity, without denying its value from the logical point of view of the internal structure of the Hohfeldian analytical model.

122The key to discussing the idea of fundamentality resides in the purely negative character attributed to the Hohfeldian concepts of privilege, no-right, disability, and immunity and that is not attributed to the concepts of duty, right, power, and liability. It is generally accepted that the concepts of privilege, no-right, disability, and immunity lack conceptual autonomy, in the sense of not being anything more than the respective absence or negation of the concepts of duty, right, power, and liability. This alerts us to the fact that there is a circumstance in which not all Hohfeldian concepts are on the same level, and consequently, that not all Hohfeldian concepts are equally fundamental. However, as should be clear, what I are really talking about in this instance are different concepts of fundamentality.

123As it was seen, it is true that Hohfeldian concepts can be considered fundamental in the sense of being logically irreducible. My thesis is that, independently of this, both Hohfeld and Hohfeldian scholars implicitly accept that not all these concepts are equally fundamental but understanding "fundamental" in a different sense. The correlative concepts of duty and right and the correlative concepts of power and liability are fundamental in the sense of being primitive: their legal meaning can be understood without referencing the other four concepts. The correlative concepts of privilege and no-right and the correlative concepts of disability and immunity are not fundamental in the sense that they are derived: their legal meaning cannot be understood without referencing the correlative and primitive concepts of duty and right and the correlative and primitive concepts of power and liability.

124The reason for this is not found in the internal structure of the scheme of logical relations proposed by Hohfeld, but in the possibility that this schema is useful for those who may want to use it. If this scheme took as its starting point the concepts of privilege/no-right and disability/immunity, its potential users would be confused because, from the perspective of how real legal orders work, the comprehension of these concepts presupposes the respective understanding of the primitive concepts of duty/right and power/liability. The primitive character of the concepts of duty, right, power, and liability and the derived character of the concepts of privilege, no-right, disability, and immunity is a presupposition of the practical utility of Hohfeld’s conceptual instrument.

125This idea is not at all strange and can be traced to the efforts to show that for legal systems to comply with their function of guiding conduct, the most important thing is not that they establish permissions but instead obligations and prohibitions. The fundamental character of the normative modality of obligation is justified, as Ross (2009 [1968]: 155) affirms, because if there were no norms of obligation there would be no normative meaning whatsoever. What is permitted does not provide any guidance for conduct, unless permission is taken as an exception to a norm of obligation. In this same vein, Echave, Urquijo, and Guibourg (2008 [1980]: 157-158] sustain that permission is inconceivable without prohibition, in the same way that silence does not exist without noise, or uncle without nephew. Although it is logically possible to construct a theoretical system on the basis of permissions, normative orders only offer utility when they prohibit and because they prohibit, since, if there is no idea of limitation, it is not possible to qualify its absence.

  • 87 Of course, here I am ignoring the Rossian idea that the concepts of power, liability, immunity, and (...)

126It appears that it could be said that the same about the other family of Hohfeldian situations, even when the relations of disability/immunity are the general rule and those of power/liability, the exception. If there were no norms that instituted powers and liabilities, immunities and disabilities would not make any normative sense.87 Disability is inconceivable without competence for the simple reason that if the idea of competence is missing, it is impossible to qualify its absence. Disability and immunity are, like privilege and no-right, derived concepts. Power and liability are, like duty and right, primitive legal concepts.

127This distinction between primitive and derived concepts not only allows us to look at the problem of fundamentality from a new perspective, it is also the basis for refuting the idea of interdefinability, according to which none of the Hohfeldian concepts can be defined without referencing its relation to other concepts in the same scheme. My thesis is that derived concepts cannot be defined without referencing primitive concepts, but primitive concepts could be defined without referencing derived concepts.

  • 88 Section 3.2.

128Although defining primitive concepts without referencing derived concepts is more complex than understanding their legal meaning, Hohfeld’s analysis does not permit us to discard this possibility. This is because Hohfeld (2010 [1913]: 36) does not affirm that it is impossible to define his scheme’s concepts without referencing their correlatives and oppositions. However, the most important reason is that Hohfeld’s analysis consists precisely in defining: (i) active primitive concepts (duty and power) without referencing any other concept, (ii) active derived concepts (privilege and disability) from their relationship with active primitive concepts, and (iii) passive concepts (right, liability, no-right, and immunity) with reference to their respective active correlatives (duty, power, privilege, and disability), as it was seen.88

129A close study of Hohfeld’s analytical exercise allow us to note that while the active concept of duty can be defined, or at least presented, without referencing its relation with the active concept of privilege, this last concept is always defined by referencing the first. Hohfeld does not affirm that a privilege is what one can do, or not, and that duty is the opposite of privilege, that is, the negation of a privilege of a content precisely opposite to the duty in question. According to Hohfeld (2010 [1913]: 37-39), a duty is that which one ought or ought not to do, and a privilege is the opposite of a duty, that is, the negation of a duty of content precisely opposite the privilege in question. Similarly, Hohfeld defines the active concept of power without referencing its relation to the active concept of disability, and this last concept is defined by referencing its relationship with the first. According to Hohfeld (2010 [1913]: 50-51, 58, 60), a power is the position in which a subject is found when the performance of a change in a legal relation depends upon his/her will, and a disability is nothing more than the opposite of a power, a no-power.

130Paying close attention to the sequencing of Hohfeld’s analysis allows us to observe that the active primitive concepts (duty and power) and their respective passive correlatives (right and liability) are defined and at least presented before the active derived concepts (privilege and disability) and their respective passive correlatives (no-right and immunity). This refutes the idea of circularity. Hohfeld’s analysis is not circular because one must start from the primitive concepts.

131Spaak (2003: 90) appears to point in the same direction when, in passing, he affirms that although, logically speaking, all Hohfeldian concepts are on the same level and interdefinable, the concepts of duty and competence (power) are the natural points of departure when explaining the importance of the eight concepts. According to this author, we could say that duty and competence are, in this sense, the two fundamental modes of legal regulation, but “fundamental” here does not mean irreducible, rather, primitive.

132If the primitive concepts (right, duty, power, and liability) can be understood and defined without referencing their relationship with the derived concepts (no-right, privilege, disability, and immunity), then the primitive concepts are the starting point for Hohfeld’s analysis and consequently the obligatory starting point for understanding his analysis.

133The reason for all of this, in my opinion, is pretty simple. If law is not substance (what is normed or regulated), but rather form (norms), it should be asked how law norm or regulate? The answer is that it does so fundamentally (primitively), establishing relations of duties/rights and powers/liabilities. Nothing more, nothing less.

134It could be said, then, that the Hohfeldian concepts are fundamental and interdefinable, and that Hohfeld’s analysis is circular only in the obvious and purely logical sense that if a relation of privilege/no-right is definable as the opposite or the negation of a relation of duty/right, then a relation of duty/right is definable as the opposite or the negation of a relation of privilege/no-right. But we should not lose sight of the fact that this vantage point obscures how the real legal orders that can be analysed within the Hohfeldian schema function, and how, from this point of view, these relations are not on the same level. The appropriate understanding of the legal meaning of a negative concept such as privilege cannot be obtained by understanding its relation with the concept of duty if the appropriate understanding of the concept of duty is only obtained by understanding its relationship with privilege.

135It is important to distinguish the logical point of view from the practical utility point of view when dealing with Hohfeldian concepts, and it is important to understand that both are present in Hohfeld’s analysis.

136In the scheme presented in Table 4 I illustrate the Hohfeldian relations of a first and a second order. The correlative relations are represented with the biconditional symbol (). As each one of these relations involves an active concept and a passive concept, the active concept is always the first and is put in bolded font. The oppositional relations are represented by the contradiction symbol (), and as can be observed, all of these involve two active concepts or two passive concepts. As indicated, the concepts in the first row are primitive and those in the second row are derived:

Acknowledgments.— This paper is a product of research financed by the Fondo Nacional de Desarrollo Científico y Tecnológico, FONDECYT research project, N°11150372 "Análisis de la tensión entre el concepto y el fundamento de los derechos fundamentales a partir de las ideas de Fernando Atria sobre las diferencias entre los derechos civiles y políticos y los derechos sociales". A rough draft of this paper was presented in the conference, “Conceptos jurídicos: la invención del derecho”, August 17-18, 2017, Law Departments of the Universities Diego Portales and Alberto Hurtado, Santiago, Chile and a more advanced version of that rough draft was discussed in the Seminar “Área de Filosofía del derecho,” Universidad Autónoma de Madrid. I thank the following for their key observations on this text: Claudio Agüero, Sebastián Agüero, Juan Carlos Bayón, Daniel González Lagier, Álvaro Núñez, Giovanni Ratti, Cristina Redondo, Alfonso Ruiz Miguel, and Silvia Zorzetto. I also thank the anonymous reviewers of the journal Revus for their observations and criticisms, which helped to significantly improve this paper. Finally, I would like to thank the General Editor of this journal for his thoughtful and valuable suggestions, but above all, his inexhaustible patience and genuine commitment to the process of improving this work. Any errors or omissions are the sole responsibility of the author.

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Bibliography

Carlos E. ALCHOURRÓN, and Eugenio BULYGIN, 1975 [1971]: Introducción a la metodología de las ciencias jurídicas y sociales. Spanish translation by the authors. Buenos Aires: Astrea.

Carlos E. ALCHOURRÓN, and Eugenio BULYGIN, 1991 [1983]: Definiciones y normas. Carlos E. Alchourrón y Eugenio Bulygin, 1991: Análisis lógico y derecho. Madrid: Centro de Estudios Políticos y Constitucionales. 439-463.

Carlos E. ALCHOURRÓN, and Eugenio BULYGIN, 1991 [1984]: Permisos y normas permisivas. Carlos E. Alchourrón y Eugenio Bulygin, 1991: Análisis lógico y derecho. Madrid: Centro de Estudios Políticos y Constitucionales. 215-238.

Robert ALEXY, 2007 [1984]: Teoría de los derechos fundamentales. Spanish transl. by Carlos Bernal Pulido. Madrid: Centro de Estudios Políticos y Constitucionales.

María Beatriz ARRIAGADA, 2014: El concepto hohfeldiano de derecho subjetivo. Revista de Ciencias Sociales (2014) 65. 13-45.

María Beatriz ARRIAGADA, 2015: Las cortes constitucionales frente a los “derechos civiles y políticos”. Una mirada desde la teoría analítica del derecho. Revista española de derecho constitucional (2015) 105. 105-136.

María Beatriz ARRIAGADA, 2016: Conceptos de derecho subjetivo. Eunomía-Revista en Cultura de la Legalidad (Universidad Carlos III de Madrid) (2016) 11. 152-162.

María Beatriz ARRIAGADA, 2017: Normas de competencia y normas acerca de a competencia. Eludiendo las reglas constitutivas. Revista Doxa (2017) 40 (de próxima publicación).

Manuel ATIENZA and Juan RUIZ MANERO, 2004: Las piezas del derecho Barcelona: Ariel.

Juan Carlos BAYÓN, 2009: Sobre el principio de prohibición y las condiciones de verdad de las proposiciones normativas. Eugenio Bulygin et al., Problemas lógicos en la teoría y práctica del derecho. Madrid: Fundación Coloquio Jurídico Europeo. 27-73.

Eugenio BULYGIN, 2015 [1992]: On norms of competence. Essays in legal philosophy. Eds. Carlos Bernal, Carla Huerta, Tecla Mazzarse, José Juan Moreso, Pablo E. Navarro and Stanley Paulson. New York: Oxford University Press. 272-283.

Gaetano CARCATERRA, 1979: La forza costitutiva delle norme. Rome: Bulzoni.

Gaetano CARCATERRA, 2014: Le norme costitutive. Torino: Giappichelli.

Genaro CARRIÓ, 1992: Nota preliminar. Wesley Hohfeld (1992) [1913]: Conceptos jurídicos fundamentales. Spanish transl. by Genaro Carrió. México D.F: Fontamara. 7-21.

Amedeo G. CONTE, 1989: Filosofia del linguaggio normativo I, Studi 1965-1981. Torino: Giappichelli.

Amedeo G. CONTE, 1995: Filosofia del Linguaggio Normativo II, Studi 1982-1994. Torino: Giappichelli.

Amedeo G. CONTE, 2001: Filosofia del linguaggio normativo III, Studi 1995-2001. Torino: Giappichelli.

Juan Antonio CRUZ PARCERO, 2007: El lenguaje de los derechos. Ensayo para una teoría estructural de los derechos. Madrid: Trotta

Jean DABIN, 2006 [1955]: El derecho subjetivo. Spanish transl. by Francisco Javier Osset. Granada: Comares.

Luís DUARTE D’ALMEIDA, 2016: Fundamental Legal Concepts: The Hohfeldian Framework. Philosophy Compass (2016) 11/10; pp. 554-569.

Delia ECHAVE, María Eugenia URQUIJO y Ricardo GUIBOURG, 2008 [1980], Lógica, proposición y norma. Buenos Aires: Astrea.

Luigi FERRAJOLI, 2011 [2007], Principia iuris. Teoría del derecho y de la democracia. Spanish transl. by Perfecto Ibáñez, Carlos Bayón, Marina Gascón, Luis Prieto Sanchís y Alfonso Ruiz Miguel. Madrid: Trotta.

John FINNIS, 2000 [1980]: Ley natural y derechos naturales. Spanish transl. by Cristóbal Orrego. Buenos Aires: Abeledo Perrot.

Åke FRÄNDBERG, 2009: An essay on Legal Concept Formation. Concepts un law. Eds. Jaap Haage y Dietmar Von der Pfordten. Dordrecht: Springer. 1-16.

Daniel GONZÁLEZ LAGIER, 1995: Acción y norma en G.H. Von Wright. Madrid: Centro de Estudios Políticos y Constitucionales.

Riccardo GUASTINI, 1999 [1996], Distinguiendo. Estudios de teoría y metateoría del derecho. Spanish transl. by Jordi Ferrer. Barcelona: Gedisa.

Riccardo GUASTINI 2001: Cinco observaciones sobre validez y derogación. Discusiones (2001) 2. 59-63.

Riccardo GUASTINI 2016 [2014]: La sintaxis del derecho. Spanish transl. by Álvaro Núñez Vaquero. Madrid: Marcial Pons.

A. K. W. HALPIN, 1858: Hohfeld’s conceptions: From eight to two. The Cambridge Journal (1958), Vol. 44. 3. 435-457.

H.L.A HART, 1983 [1953]: Definition and Theory in Jurisprudence. Hart, H.L.A, 1983: Essays in jurisprudence and philosophy. New York: Oxfor University Press. 21-48.

H.L.A HART, 1955: ¿Are there any natural rights? The Philosophical Review (1955) Vol. 64. 2.175-191.

H.L.A HART, 1982: Legal Rights. Essays on Bentham. Studies in Jurisprudence and Political Theory, New York: Oxford University Press.162-193.

H.L.A HART, 2012 [1961]: The concept of law (Third Edition). Oxford: Oxford University Press.

Liborio HIERRO, 2000: ¿Qué derechos tenemos? Revista Doxa (2000) 23. 351-375.

Wesley HOHFELD, 2010 [1913]: Some fundamental legal conceptions as applied in judicial reasoning. Fundamental legal conceptions as applied in judicial reasoning. Ed. Walter Wheeler Cook, W. New Haven/London: Yale University Press. 23-64.

Wesley HOHFELD, 2010: [1917]: Fundamental legal conceptions as applied in judicial reasoning. Fundamental legal conceptions as applied in judicial reasoning. Ed. Walter Wheeler Cook, W. New Heaven/London: Yale University Press. 65-114.

Rudolph Von IHERING, 2011 [1865]: El espíritu del derecho romano en las diversas fases de su desarrollo. Spanish transl. by Adolfo Posada. Granada: Comares.

Hans KELSEN, 1987 [1923]: Problemas capitales de la teoría jurídica. Spanish transl. by Wenceslao Roces. México D.F: Porrúa.

Hans KELSEN, 1991 [1960]: Teoría pura del Derecho, (2ª edición). Spanish transl. by Roberto Vernengo. México D.F: Porrúa.

Mathew KRAMER, 2000 [1998]: Rights without trimmings. Mathew H. Kramer et al., 2000 [1998]: A debate over rights. New York: Oxford University Press. 7-111.

Lars LINDHAL, 1977: Position and Change. A Study in Law and Logic. Dordrecht: Springer.

Neil MACCORMICK, 1988 [1975]: Los derechos de los niños: una prueba de fuego para las teorías de los derechos”. Anuario de Filosofía del Derecho (1988) 5. 293-305. Spanish transl. by Mercedes Carreras and A. Luis Martínez-Pujalte.

Eric MARGOLIS, and Stephen LAURENCE, 1999: Concepts. Core readings. Cambridge (Massachusetts): MIT Press.

José Juan MORESO 2004: Prólogo. Maribel Narváez, Wittgenstein y la teoría del derecho. Una senda para el convencionalismo jurídico. Madrid: Marcial Pons.

José Juan MORESO and José María VILAJOSANA, 2004: Introducción a la teoría del derecho. Madrid: Marcial Pons.

Carlos NINO, 1980: Introducción al análisis del derecho. Buenos Aires: Astrea.

Carlos NINO 1989 [1984]: Ética y derechos humanos. Un ensayo de fundamentación. Buenos Aires: Astrea.

Karl OLIVECRONA 2013 [1962]: Lenguaje jurídico y realidad. Spanish transl. by Ernesto Garzón Valdés. México D.F: Fontamara.

Claudina ORUNESU, 2012: Positivismo Jurídico y sistemas constitucionales. Madrid: Marcial Pons.

Juan Ramón PÁRAMO, 2000: Derecho subjetivo. El derecho y la justicia. Eds. Ernesto Garzón Valdés y Francisco Laporta. Madrid: Trotta. 367-394.

George W. RAINBOLT (1993): Rights as Normative Constraints on Others. Philosophy and Phenomenological Research (1993) Vol. 53.1.93-111.

George W. RAINBOLT, 2010: The concept of rights. Dordrecht: Springer.

Joseph RAZ, 1999 [1975]: Practical reason and norms. New York: Oxford University Press.

Joseph RAZ 1995 [1994]: Rights and Individual Well-Being. Ethics in the public domain: Essays in the Morality of Law and Politics. New York: Oxford University Press. 44-55.

Alf ROSS, 2012 [1958]: On law and justice. New Jersey: Lawbook Exchange, Ltd.

Alf ROSS, 1991 [1961]: On the Concepts “State” and “State Organs” in Constitutional Law. Scandinavian Studies in Law (1961) vol.5. 111-129.

Alf ROSS, 2009 [1969]: Directive and norms. New York: Humanities Press.

Corrado ROVERSI, 2014: Conceptualizing institutions. Phenomenology and the Cognitive Sciences (2014) vol 13, 1. 201-215.

Juan RUIZ MANERO, 2005: Algunas concepciones del derecho y sus lagunas. Fernando Atria et al., 2005: Lagunas en el derecho. Madrid: Marcial Pons. 103-126.

Juan RUIZ MANERO, 2010: Seguimos discutiendo sobre permisos y concepciones del derecho. Revista Doxa (2010) 33. 297-306.

Frederick SCHAUER, 1991: Playing by rules. A Philosophical Examination of Rule-Based Decision-Making in Law and in Life. Ney York: Oxford University Press.

John SEARLE, 1964: How to derive “ought” from “is”. The Philosophical Review (1964) vol. 73, 1. 43-58.

John SEARLE, 2011 [1969]: Speech acts. An essay in the philosophy of language. New York: Cambridge University Press.

John SEARLE 1995: The construction of social reality. New York: Free press.

Joseph Willliam SINGER, 1982: The legal rights debate in analytical jurisprudence from Bentham to Hohfeld. Winsconsin Law Review (1982). 975-1059.

Torben SPAAK, 2003: Norms tan Confer Competence. Ratio Iuris (2003) Vol. 16.1. 89-104.

Torben SPAAK 2009: Explicating the Concept of Legal Competence. Concepts in law. Eds. Jaap Haage y Dietmar Von der Pfordten. Dordrecht: Springer. 67-80.

Peter STRAWSON, 1992: Analysis and metaphyiscs. An introduction to philosophy. New York: Oxford University Press.

Jesús VEGA, 2015: El sujeto de derecho y la relación jurídica. De las modalidades deónticas a las posiciones jurídicas de Hohfeld. Conceptos básicos del derecho. Coord. Daniel González Lagier. Madrid: Marcial Pons. 113-147.

Carl WELLMAN, 2002: Legal rights. Rights and Duties. Conceptual Analyses of Rights and Duties. Ed. Carl Wellman. NewYork/London: Routledge. 171-179.

Georg VON WRIGHT 1963: Norm and action. A logical enquiry. London: Routledge & Kegan Paul.

Georg VON WRIGHT, 1975 [1971]: Explanation and understanding. London: Routledge & Kegan Paul.

Leif WENAR, 2005: The nature of rights. Philosophy & Public Affairs (2005) Vol.33, 3. 223-252.

Leif WENAR 2008: The Analysis of Rights. The legacy H.L.A Hart. Eds. Mathew H. Kramer, Claire Grant, Ben Colburn y Antony Hatzistavrou. Oxford: Oxford University Press. 251-273.

Bernhard WINDSCHEID 1946 [1862]: Lehrbuch des pandektenrechts. Rudolf Von Ihering, 1946 [1862]: La dogmática jurídica. Spanish transl. by Enrique Príncipe y Satorres. Buenos Aires: Losada.

Glanville WILLIAMS, 1956: The Concept of Legal Liberty. Columbia Law Review (1956) Vol.56.8. 1129-1150.

Silvia ZORZETTO, 2013: La redundancia lingüística y las normas especiales. Algunos usos del principio lex specialis. Revista Doxa (2013) 36. 387-415.

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Notes

1 Margolis and Laurence 1999: 5.

2 Preferring the connective model does not imply that we should renounce the idea, common to reductive analysis, that there are basic or irreducible concepts; Strawson 1992: 20-28.

3 An analysis oriented toward reducing concepts to other more basic or simpler concepts can be combined with an analysis that mainly focuses on the connections between those concepts that make up a conceptual network within a given area of study; Moreso 2004: 19-20.

4 Two essays with the same title were published in 1913 and 1917; Hohfeld 2010 [1913] and 2010 [1917]. The following texts highlight the classic character of Hohfeld’s analysis: Carrió 1992: 21; Páramo 2000: 375; Frändberg 2009: 8, Vega 2015: 125 and Guastini 2016 [2014]: 84. On his importance and influence, see: Kramer (2000) [1998]: 7; Wellman 2002: 171-173; Moreso and Vilajosana 2004: 129; Wenar 2008: 253; Duarte D’Almeida 2016: 554-555.

5 The following synonyms will be used in an interchangeable manner, unless otherwise indicated: “right/claim,” “duty/obligation,” “privilege/liberty,” “no-right/no-claim,” “power/competence,” and “immunity/exemption”.

6 See, for example, Guastini 2016: 84 and Spaak 2003:90.

7 I use this denomination only as a type of abbreviation, because this thesis doesn’t simply affirm that Hohfeldian concepts are interdefinable or definable in terms of their reciprocal relations.

8 See, for example: Kramer 2000 [1998]: 8.

9 Rainbolt 2010: 4.

10 Kramer 2000 [1998]: 26. An even stronger proposal is that correlatives are simply synonyms; Ross 2009 [1968]: 120.

11 Williams 1956: 1144-1145; Singer 1982, p. 987; Rainbolt 1993: 95; Cruz Parcero 2007: 33-34 (footnote number 19 in this work). “One relation is correlative to another if and only if it is true that: (i) both relations have the same content, (ii) the object of the first is the subject of the second relation, and (iii) the object of the second relation is the subject of the first relation, then the relations are logically equivalent”; Rainbolt (2010): 2.

12 Kramer 2000 [1998]: 24, 30-31, 35, 40.

13 In the Spanish version of this article, I stated that an immunity denies a liability of opposite content. I thank Professor Jorge Rodríguez for having called my attention to this error.

14 See, for example: Spaak 2003: 90 and Lindhal 1977: 203.

15 For example, the interdefinability of the three normative operators (permitted, prohibited, and obligatory) means that the norms “Permitted p,” “Not prohibited p,” and “Not obligatory not p” are logically equivalent and mean the same thing. Permitted and prohibited, as operators of these norms, are two contradictory concepts; Alchourrón and Bulygin 1975 [1971]:173 and 175. This does not mean that the concept of permission is reducible to the negation of the concept of prohibition. I am grateful to Professor Daniel González Lagier for having called my attention to this difference. Another manner of attacking the thesis of fundamentality without abandoning a logical point of view is affirming that it is not true that all Hohfeldian concepts are on the same level and that they are logically irreducible because the concepts of competence, liability, immunity, and disability are logically reducible to the concepts of right, duty, liberty (privilege), and no-right. Ross (2009 [1968]: 118-120], for example, declares that the concepts of right, duty, liberty (privilege), and no-right are modalities of norms of conduct, while competence, liability, immunity, and disability are modalities of norms of competence. Since, according to his reasoning, norms of competence are logically reducible to norms of conduct because norms of competence make it obligatory to act according to the norms of conduct that have been created according to the procedure laid down in them, any norm of competence can, through logical transformation, be expressed without change of meaning by any of the four modalities of the norms of conduct. In this manner, the person that is subject to the power or competence of a second person is the same person that is under obligation to obey the norms created by him in the correct manner. There is not time or space to discuss this thesis, but this observation would not change the fact that the concepts that belong to each of these groups are interdefinable in terms of their correlatives and their opposites, that is, in terms of their logical equivalents and contradictions. The concepts of right, duty, liberty (privilege), and no-right are interdefinable in the same way that the concepts of competence, liability, immunity, and disability also are.

16 I am grateful to Professors Cristina Redondo and Giovanni Ratti for their help in clarifying this point.

17 This type of affirmation isn’t circular because the term “right” is used on two different discursive levels: first, on the level of normative propositions, and second, on the level of norms. While norms ascribe rights, the normative propositions describe the norms or the rights ascribed by the norms. In this same vein, Alchourrón and Bulygin 1975 [1971]: 173-174, distinguish between the norms that establish obligations, prohibitions, and permissions and the normative propositions that describe the obligations, prohibitions, and permissions established by the norms.

18 Keep in mind that Ross also thinks the positions of the first family are modalities of norms of conduct and that those of the second family are modalities of norms of competence. However, in accordance with this line of thinking, the second are logically reducible to the first. So, on the basis of logical transformation, any norm of competence modality can be expressed by any norm of conduct modality without changing its meaning. See footnote 15 of this paper.

19 On both of these related distinctions, see, among others, Hart 2012 [1961], chapters III and V and Bulygin 1992.

20 This theoretical discussion is much more extensive because among the authors that believe that competence norms are different and not reducible to regulative norms, it is common to find the consideration that they are part of a wider genre of what are called constitutive or determinative rules See, among others: Von Wright 1963: 6-7 and 1975 [1971]: 151-152; Searle 1964, 2011 [1969]: 33-42 and 1995; Ross 2009 [1968)]: 53-57; Raz 1999 [1975]: 108-111; Alchourrón and Bulygin 1991 [1983]; Schauer 1991: 6-7, González Lagier 1995: 246-264. On constitutive norms, see also Conte 1989, 1995 and 2001; Carcaterra 1979 and 2014 and Roversi 2014.

21 There is way of grasping a rule that is exhibited, from case to case of application in what we call “following the rule” and in what we call “going against it”; Wittgenstein 2009 [1953], paragraph 201. The most well-known version of this argument is found in Hart 2012 [1961]: 33-35.

22 When in this definition I say that regulative norms “qualify”, I mean they “order” or “permit” it to be.

23 In this sense, the Hartian argument about the impossibility of assimilating the notions of nullity and sanction is incomplete; see: Hart 2012 [1961]: 33-35.

24 For another, closely related, definition, see: Arriagada 2017.

25 Orunesu 2012: 119-120; Guastini 2001: 60; Kelsen 1991 [1960]: 201-208; Ross 2009 [1968]:96.

26 Kelsen 1991 [1960]: 159-161 y 151-157; Ross 1961: 116-117 y 2009 [1968]: 124, 168-169; Atienza and Ruiz Manero 2004: 83.

27 In terms of corporal movement: González Lagier 1995: 261.

28 As proposed by Ferrajoli 2011 [2007]: 464-465, a similar distinction can be made between informal (natural) acts and formal (artificial) acts.

29 For example, crossing the street, driving a car, or arresting a person.

30 The actions that a legal order provides, for example, when granting a will or dictating a law or a judicial sentence, can only be performed, described, and understood in accordance with the norms that define the powers for validly granting a will and validly dictating a law or sentence.

31 For example: Ross 2009 [1968]: 131 and Atienza and Ruiz Manero 2004: 84.

32 Ross 2009 [1968]: 131.

33 Kelsen 1991 [1960]: 132; Hart 2012 [1961]: 29 and 120; Bulygin 2015 [1992]: 276.

34 An analysis that highlights the implicit use of these two distinctions in the Hohfeldian model and its importance in the differentiation of two diverse groups of legal positions is found, with some nuances, in Arriagada 2014: 15-19 and 2016: 155-157. Vega tells us about the Hohfeldian scheme that underlies the conceptual distinction between natural acts and institutional acts (similar to what I propose here) and that this is related to the distinction between primary regulative norms and secondary competence norms. However, he is wrong about some fundamental questions that will be discussed in this paper. For example, he classifies the Hohfeldian positions as active and passive, in the sense of positive or favourable and negative or unfavourable and considers that Hofeldian liberty (Hohfeldian privilege) creates obligations that don’t interfere in the subjects that are in the correlative position of no-right; Vega 2015: 125-146.

35 Additionally, it should be clarified that saying that these two families of Hohfeldian concepts are independent, in this context, does not imply any assertion in the context where the discussion is whether the second-order positions are logically reducible to the first-order positions (see footnote 15). Affirming that the power to perform an act does not imply the privilege of perform it belongs in a different category of analysis, not related to affirmations like, “any second-order position can, based on logical transformations, be expressed, without changing its meaning, by any of the first-order positions.” In this manner, the concept of power is logically reducible to the concept of duty, and saying that a person is subject to the competence of another is the same as saying that he/she has the obligation to obey that other.

36 Following Hohfeld, it is common that one usually talks about subjective legal positions or situations, instead of talking indiscriminately about rights and duties. See, for example: Moreso and Vilajosana 2004: 139; Vega 2015: 113 and Guastini 2016 [2014]: 83 and ss. It is also common to say that Hohfeld distinguishes diverse understandings of “right”; for example: Hart 1983 [1953]: 35-36 (foot note number 15 in this work); Nino 1980: 207; Rainbolt 1993 and Wenar 2005. The fact that Hohfeldian terminology has discovered and eliminated serious ambiguities in the term “rights” justifies its virtually universal use; Rainbolt 2010: 1.

37 See, for example: Vega 2015: 140-146.

38 Vega 2015: 140-146.

39 Ross 2012 [1958]: 1-5, Carrió 1992: 19-20 and Nino 1980: 165-168.

40 Much like how the conceptual elucidation cannot be effected independently from the elaboration of the normative theory in whose framework that concept operates, valuing cannot take place without the previous conceptual identification of what is valued; a process of mutual adjustments is needed; Nino 1989 [1984]: 12-13. On the other hand, one of the characteristics of conceptual analysis is that, while that this offers explanations about the way in which specialists use concepts of general application within their field, it also shows us the relations that exist between the specialized discipline and other intellectual and human issues; Strawson 1992: 10-14.

41 Kramer 2000 [1998]: 22.

42 In this sense, see: Kramer 2000 [1998]: 7. The debate between theories of will and of interest is a confrontation between two different perspectives about the extra-legal grounds to confer subjective rights; Arriagada 2014: 27-39 and 2016: 154. The most well-known exponents of this debate are: Windscheid (1946 [1862]: 219 and ss) and Ihering (2011 [1865]: 816 and 821) and, later, Hart (1962 [1953]: 117-119; 1955 and 1982: 183-188) and some of his disciples (MacCormick 1988 [1975], Raz 1995 [1994]: 44-55). A good summary of this discussion can be found in: Finnis 2000 [1980]: 231-233. For a description of both theories and mixed theories, see: Dabin 2006 [1955]: 67-94. An explication of the deficiencies of each theory and the underlying ideas that both share can be found, respectively, in Wenar 2005 and 2008.

43 I thank Professor Claudio Agüero for suggesting this metaphor.

44 On the distinction between active and passive rights, see: Cruz Parcero 2007: 24.

45 Wenar 2005: 229-230.

46 Duarte d’Almeida 2016: 556.

47 Williams 1956: 1145.

48 According to Kelsen, not all cases of legal obligation suppose the existence of a reflex, subjective right: Kelsen 1991 [1960]: 141. In the same sense, also see: Ross 2000 [1968]: 165 and Guastini 2016 [2014]: 86.

49 For more discussion on this topic see, for example: Hart 1982: 183-185.

50 Kramer 2000 [1998]: 23 and Rainbolt 2010: 3.

51 In this same sense, see: Wellman 2002: 174.

52 In Duarte d’Almeida (2016: 560-561) there is a questioning of the comprehensive character of Hohfeldian concepts, as they cannot cover indirect obligations.

53 See, for example: Guastini 2016 [2014]: 87.

54 Williams 1956: 1145 y Kramer 2000 [1998]: 21-22.

55 It is usually said that to have power is to have the ability of altering the normative situation or oneself or another; see, for example: Wenar 2005: 231. n

56 Williams 1956: 1145 and Kramer 2000 [1998]: 21-22.

57 Kramer 2000 [1998]: 21-22.

58 Wenar 2005: 233. One thing, however, is important to make clear: liberties or privileges can be compared with powers or competences from this point of view, but keeping in mind that while the concept of privilege includes the privilege of doing a legal act (positive) as well as the privilege of abstaining from doing it (negative), the concept of power is always positive. A power is always the possibility of doing a normative act. In the Hohfeldian scheme it is not possible to contemplate power as possibly not doing a normative legal act. An explanation for how Hohfeldian privilege works is developed in the section 3.3 of this paper. On the other hand, and as seen there, from the perspective of liberty or privilege as a purely negative concept, these are not comparable to the concepts of power or competence.

59 See footnote 13 in this paper.

60 See, especially: Williams 1956 and Halpin 1985.

61 By criticizing the Von Wright’s effort to define permission (in a strong sense) as something more than the negation of an obligation, Ross argues that a permissive legal rule is a modificatory exception to a prohibition, and that for this reason it is interpretable as the negation of an obligation.

62 In fact, Ross affirms that a permitted act, in contrast with a free act, can be prescribed.

63 See also Ross 2012 [1958]: 164-166 and 168.

64 Arriagada 2016: 157.

65 As in the case of privileged communications in the law of libels or in the case of privilege against self-crimination; Hohfeld 2010 [1913]: 44-46. However, it should be noted that while the first example can be considered a relational position, understanding that its correlative is the no-right of the slandered or defamed individual, in the second example one cannot devise who would be in the correlative position of no-right.

66 Williams 1956: 1139-1142 and Rainbolt 1993: 96.

67 Kelsen calls them “positive permissions” and Alexy, “explicit permissions”; Kelsen 1991 [1960]: 29 and 68 and Alexy 2007 [1984]:197.

68 Guastini 2016 [2014]: 85-86.

69 Guastini 2016 [2014]: 86-87.

70 On the problem of under what conditions a norm is special, see: Zorzetto 2013: 389-386.

71 It is possible that due to having signed a contract, X has, in relation to Y, and in addition to privilege, the duty to enter the building. These situations are compatible because they have the same content.

72 This diverse way of understanding liberties or privileges and immunities (the first as exception and the second as general rule) is consistent with the fact that Rainbolt does not make immunities comparable to liberties, but to rights. One of his principal ideas is that rights and immunities imply normative limits and restrictions to the actions of others because their correlatives (duties and disabilities) are, in and of themselves, limits or restrictions; Rainbolt 1993: 97-98.

73 Guastini 2016: 85-87.

74 I thank professors Álvaro Núñez and Giovanni Ratti for their help clarifying this point.

75 On the possibility that legal systems are incomplete unless they contain a rule of closure that authorizes infering, due to the very fact that the norm that prohibits certain conducts does not belong to the system (the existence of a permission in a weak sense), belonging to the system of the norm that permits that conduct (the existence of a permission in a strong sense), see Alchourrón and Bulygin 1975 [1971]:179. In a complete system the distinction between strong and weak permissions disappears because all of the states of things are regulated, in the sense of being prohibited or permitted in a strong sense, so that there do not exist states of permitted things, in a weak sense, that are also and at the same time permitted in a strong sense; Alchourrón and Bulygin 1991 [1984]: 220.

76 If a system is coherent, no state of things is prohibited and, at the same time, permitted in a strong sense; consequently, there are no states of things that are permitted in a strong sense that are also not permitted in a weak sense. Both concepts are superimposed upon one another; Alchourrón and Bulygin 1991 [1984]: 220.

77 Specifically, between weak and strong permissions; Alchourrón and Bulygin 1991 [1984]: 237.

78 According to Bulygin, it is not the same to add a norm that prohibits an action p in a system where p is not prohibited versus in a system that contains a norm that permits p. While in the first system no inconsistency would be produced, in the second there would be an inconsistency; Bulygin 2010: 287.

79 I am grateful to Professor Juan Carlos Bayón for having noted this point. Regarding the pragmatic equivalence between non-prohibition and positive permission, strong and expressed, see, at least: Ruiz Manero 2005: 118-119, Bayón 2009 and Ruiz Manero 2010.

80 Echave, Urquijo and Guibourg 2008 [1980]: 155-158.

81 Duarte d’Almeida (2016: 562) sustains this, due to the Hohfeldian position of liberty or privilege.

82 I thank Professor Álvaro Núñez for having helped me to clarify this point.

83 I thank Professor Alfonso Ruiz Miguel for having pointed out that in an older version of this paper, this point of view about Hohfeldian concepts was not clear and sufficiently differentiated from another point of view, that I will call a logical point of view, taking into account that, from my perspective, law is form. His observations in this respect obligated me to improve my thinking regarding this point of view and what is formulated here is the result of that reflection.

84 According to Carrió, in conjunction with this “moderate” pretence, in Hohfeld’s work one can also identify a “maximal” pretence of isolating eight fundamental legal concepts that would constitute the minimum common denominators to which all conceivable legal relations could be reduced. Said in another way, Hohfeld would have tried to provide eight near unique and exclusive genres that would allow us to define, with the addition of specific case differences, all imaginable legal concepts. This maximal pretence, according to Carrió, would be exposed to many criticisms. One of them, of course, is that Hohfeld’s conceptual instrument is not capable of explaining indirect obligations, like those in section 3.2.1 of this paper.

85 The idea of adapting to current uses comes from Moreso and Vilajosana 2004: 127-129.

86 In this I am following ideas about the extra-systemic conditions of deontic logic, defended by Echave, Urquijo and Guibourg 2008 [1980]: 145-148.

87 Of course, here I am ignoring the Rossian idea that the concepts of power, liability, immunity, and disability are logically reducible to the concepts of right, duty, liberty (privilege), and no-right (see footnote 15 in this paper).

88 Section 3.2.

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References

Electronic reference

María Beatriz Arriagada Cáceres, « Fundamentality, interdefinability, and circularity  », Revus [Online], in print | 2018, Online since 12 September 2018, connection on 17 November 2018. URL : http://journals.openedition.org/revus/4173 ; DOI : 10.4000/revus.4173

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About the author

María Beatriz Arriagada Cáceres

PhD in Law (University of Chile). Professor and researcher, Facultad de derecho, Universidad Diego Portales, Santiago (Chile). Researcher, Centro de investigaciones de filosofía del derecho y derecho penal, Escuela de derecho, Universidad de Valparaíso (Chile).

Address: Avenida República 112 – Comuna de Santiago – Santiago de Chile – Chile.

E-mail: maria.arriagada [at] udp.cl

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