Correlativity

Law and Philosophy 28 (6):537 - 584 (2009)
Abstract
In a celebrated article, published nearly a century ago, Wesley Newcomb Hohfeld endeavored to elucidate the various types of jural relations. Hohfeld’s scheme has been justly regarded as a seminal contribution to analytical jurisprudence, and has stimulated lively debate since. This Essay aims to refute one of Hohfeld’s fundamental and most influential theses: the axiom of right–duty correlativity. To do so, it employs the simplest refutation strategy in first-order logic, namely providing a valid counterexample. Part I discusses earlier attempts to do likewise, and explains why they failed. For the most part, previous illustrations of ostensibly standalone rights or standalone duties neglected relevant parties who could owe the correlative duties or hold the correlative rights, respectively. Part II puts forward a simple argument: There are abstract duties in private law that ban certain types of conduct without reference to specific victims. Those duties are not necessarily correlative with rights, although their breach may generate secondary duties with corresponding rights. In particular, tort law allows plaintiffs to recover for harm caused by breach of duty that occurred before they acquired legal personality. This is tantamount to recognizing duties that are not correlative with rights, and therefore invalidates the correlativity axiom.
Keywords No keywords specified (fix it)
Categories (categorize this paper)
Options
 Save to my reading list
Follow the author(s)
My bibliography
Export citation
Find it on Scholar
Edit this record
Mark as duplicate
Revision history Request removal from index
 
Download options
PhilPapers Archive


Upload a copy of this paper     Check publisher's policy on self-archival     Papers currently archived: 9,357
External links
  • Through your library Configure
    References found in this work BETA

    No references found.

    Citations of this work BETA

    No citations found.

    Similar books and articles
    Peter Vallentyne (2002). Equality and the Duties of Procreators. In David Archard & Colin Macleod (eds.), Children and Political Theory. Oxford University Press.
    Jack Donnelly (1982). How Are Rights and Duties Correlative? Journal of Value Inquiry 16 (4):287-294.
    David M. Douglas (2011). A Bundle of Software Rights and Duties. Ethics and Information Technology 13 (3):185-197.
    David Miller (2005). Reasonable Partiality Towards Compatriots. Ethical Theory and Moral Practice 8 (1-2):63 - 81.
    Gary Seay (2005). Euthanasia and Physicians' Moral Duties. Journal of Medicine and Philosophy 30 (5):517 – 533.
    James Fieser (1992). The Correlativity of Duties and Rights. International Journal of Applied Philosophy 7 (2):1-7.
    J. L. A. Garcia (2007). Health Versus Harm: Euthanasia and Physicians' Duties. Journal of Medicine and Philosophy 32 (1):7 – 24.
    Analytics

    Monthly downloads

    Added to index

    2009-04-27

    Total downloads

    14 ( #95,238 of 1,088,810 )

    Recent downloads (6 months)

    1 ( #69,666 of 1,088,810 )

    How can I increase my downloads?

    My notes
    Sign in to use this feature


    Discussion
    Start a new thread
    Order:
    There  are no threads in this forum
    Nothing in this forum yet.