호펠드의 권리범주에 대한 법철학적 연구(Ⅰ)

Abstract

Hohfeld characterized the fundamental legal conception with the categories of four rights, for examples, ‘claim-rights’, ‘liberty-rights’, ‘power’, and ‘immunities’. His classical analysis about the categories of four rights produced the jural relation of opposition and correlation. He produced four distinct types of jural relation, that is, fundamental legal conception(rights category /jural opposites/jural correlatives; claim-right/no-right/duty; privilege/duty/no-right; power/disability/liability; immunity/liability/disability). We use the single term ‘right’ to cover four quite different entitlements. But Hahfeld thought that the different usage of the term ‘right’ caused confusion. He himself called claim-rights ‘rights in the strict sense’ Because only claim-right has the correlation to duty. Hohfeld characterized a right as a relation between two persons. If A is the right-holder, B has a duty. So all rights are not rights in rem(rights to a thing) but rights in personam. My study on Hohfeld’s rights resides in the distinct between claims and privileges. Privilege means the absence of duty. Hohfeld’s central goal was to clarify the fundamental difference between legal liberties and legal rights. Hohfeld demonstrated that it was a logical error to deduce rights from liberties. Hofeld suggested that there is an unprotected domain within legal system. It means the division(splitting) between permissible activities and inviolability, or between permissibility and empowerments that is the basic these of will theory according to Kantian rights-theory. A legal power is usually defined as the legal ability to change a legal relation. To possess an immunity is to be not subject to another’s power. In Hohfeld’s analysis, immunity stands to powers as liberty-right(privilege) stands to claim-right. To possess an immunity is to be free of another’s power. Hohfeld did not see his analysis of rights as resolving of questions that might interest the formalist scholar. For in this respect, Hohfeld is regarded as a forerunner of the American legal realist. Some critics who depart from Hohfeldian scheme, see the rights as the complex system. Indeed, I think that rights must be analysed and identified as complex assemblages of Hohfeldian rights-category.