David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
Law and Philosophy 28 (6):537 - 584 (2009)
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||Philosophy Logic Political Science Social Sciences, general Law Theory/Law Philosophy Philosophy of Law|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
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.
H. Sheinman (2003). Tort Law and Corrective Justice. Law and Philosophy 22 (1):21-73.
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.
David Lyons (1970). The Correlativity of Rights and Duties. Noûs 4 (1):45-55.
Added to index2009-04-27
Total downloads33 ( #106,349 of 1,781,276 )
Recent downloads (6 months)1 ( #295,025 of 1,781,276 )
How can I increase my downloads?