霍菲尔德的法律概念分析学说

表：法律概念澄清
上下相 反
Right（請 Privilege（豁 求權） 免或自由） Power（形成 Immunity（不 權或權力） 受拘束）
Liability（受拘 No-right Duty（義務） Disability （無請求 （無形成權） 束） 權）
Power（形成 Immunity（不 權或權力） 受拘束）
甲有上， Right（請 Privilege（豁 乙有下 求權） 免或自由）
Duty（義 No-right（無 務） 請求權）
Liability（受 Disability（無 拘束） 權力）
請求權和自由
• Some philosophers and political scientists make a distinction between claim rights and liberty rights. A claim right is a right which entails responsibilities, duties, or obligations on other parties regarding the right-holder. In contrast, a liberty right is a right which does not entail obligations on other parties, but rather only freedom or permission for the right-holder.
權利的性質
• Editorial work was undertaken to complete the revisions and the book was published with the inclusion of the manuscript notes that Hohfeld had left, plus seven other essays.
法律概念分析 霍菲爾德
楊智傑 老師
生平
• Wesley Newcomb Hohfeld (1879-1918) was an American jurist. He was the author of the seminal Fundamental Legal Conceptions, As Applied in Judicial Reasoning and Other Legal Essays, published in 1919. • During his life, he published only a handful of law journal articles. At his death, the material forming the basis of Fundamental Legal Conceptions was derived from two articles in the Yale Law Journal (1913) and (1917) that had been partially revised with a view to publication.
ቤተ መጻሕፍቲ ባይዱ
「權利」一詞的混用
• Hohfeld noticed that even respected jurists conflate various meanings of the term right, sometimes switching senses of the word several times in a single sentence. He wrote that such imprecision of language indicated a concomitant imprecision of thought, and thus also of the resulting legal conclusions. In order to both facilitate reasoning and clarify rulings, he attempted to disambiguate the term rights by breaking it into eight distinct concepts. To eliminate ambiguity, he defined these terms relative to one another, grouping them into four pairs of Jural Opposites and four pairs of Jural Correlatives.
八個概念
• Jural Opposites:
– 1. Right/No-Right 2. Privilege/Duty – 3. Power/Disability 4. Immunity/Liability
• Jural Corelatives:
– 1. Right/Duty 2. Privilege/No-Right – 3. Power/Liability 4. Immunity/Disability
權力和豁免
• The other two terms of Hohfeld's analysis, powers and immunities, refer to second-order liberties and claims, respectively. Powers are liberty rights regarding the modification of first-order rights, e.g. the U.S. Congress has certain positive powers to modify some of U.S. citizens' legal rights, inasmuch as it can impose or remove legal duties. Immunities, conversely, are claim rights regarding the modification of first-order rights, e.g. U.S. citizens have, per their Constitution, certain negative immunities limiting the positive powers of the U.S. Congress to modify their legal rights. As such, immunities and powers are often subsumed within claims and liberties by later authors.
• The work remains a powerful contribution to modern understanding of the nature of rights and the implications of liberty. To reflect this continuing importance, a chair at Yale University is named after him, which is currently held by Jules Coleman.