A Hohfeldian analysis of the Bill of Rights

• Citation: (2022) 139 SALJ 577
• Author: du Plessis, Q.
• DOI: https://doi.org/10.47348/SALJ/v139/i3a5
• Published date: 25 August 2022
• Date: 25 August 2022
• Pages: 577-622

577

https://doi.org/10.47348/SALJ/v139/i3a5

A HOHFELDIAN ANALYSIS OF THE BILL OF

RIGHTS*

QUENTIN DU PLESSIS†

Member of the Johann esburg Bar

In the scholarship o n rights, one name i s pre-eminent: Hohf eld. Despite this, the re

are two ways in which th e Hohfeldian analysis of r ights remains u nderappreciat ed.

The rst is th at it is commonly assum ed that the Hohfeldian a nalytic system applie s

only to private-l aw rights. The se cond is that South Af rican law yers remain mostly

unfamiliar with th e Hohfeldian analyti c system. By providing a Hoh feldian analysis

of the South Afr ican Bill of Right s, this article ai ms to set the record straight in bot h

respects.

Hohfeld – Bil l of Rights – r ights analysi s

I IN TRO DUC TION

The Constit ution of the Republic of South Af rica, 1996 (‘the Constit ution’)

is replete with r ights. To understand it one could do worse, therefore,

than to understand what a ‘right’ is. Based on the syllabi of our various

law schools ,1 South African lawyers m ight be sur prised to learn that

we know — in the strong sense here of an empir ical discovery — the

logical structure (even if not qu ite the funct ion2) of right s. Hohfeld is

the America n legal theorist cred ited with this discover y, and it is after h im

that the logical analysis of right s is known: rights are to be divided into

four atomic components, or ‘Hohfeldian incidents’, each and all of which

can combine to form complex ‘molecular’ rights.

The aim and st ructure of this ar ticle, accordingly, are as follows. Part II

explicates the Hohfeldian analytic system. Part III discusses generally

some of the benets of the system, particularly as applied to public law.

* My d eepest gra titude ext ends to Matt hew Krug er, who took time o the

rigour s of pupilla ge to contribute probing comments on the article, and to

Leo Boonzaier, who (on short notice) prov ided necessary resistance to latent

assumpt ions. Any errors rema in mine alone.

† BSocSc L LB LLM (Cape Town). Advocate of the High Court of Sout h

Afric a. https://orcid.org/0000-0001-9763-8980.

1 I conta cted the convenors of ju risprudence and lega l philosophy cou rses

around the country. Of the f teen contacted, twelve responded. Of these, none

could conr m that Hohfeld is include d in their core syllab us, only two responded

that he mig ht sometimes be referred to i n lectures, and only one other

responded th at he was included i n at least one non-core course.

2 The pr imary contende rs are the wil l theory, according to w hich the primar y

function of r ights is to give its holder nor mative contr ol over another, and the

interest theory, accordin g to which the pri mary function of r ights is to further

the right -holder’s interest s. For a classic st atement of the former, see H L A Hart

Essays on Bentham (1982) 183. For a cla ssic statement of the lat ter, see Joseph Raz

The Morality of Fr eedom (1986) 166.

(2022) 139 SALJ 577

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578 (2022) 139 TH E SOUTH AFRICA N LAW JOURNAL

https://doi.org/10.47348/SALJ/v139/i3a5

I argue that there are three primar y benets. First, the Hohfeldian

analytic system is universal: any conception of any right can be analysed

within the Hohfeldian analytic system. Secondly, the Hohfeldian analytic

system is neutral: application of the system does not by itself determ ine

which interpretation of a right is to be preferred. Thirdly, the Hohfeldian

analytic system is pa rtly extensional: it validates cer tain inferences and

invalidates certain others. And, because South A frican courts and lawyers

are not accustomed to drawing the Hohfeldian distinctions, I show how

they have, on occasion, fallen into fallacy. Part IV then proceeds to

apply the Hohfeldian system to some of the r ights in the Bill of Rights,

namely equality, life, proper ty, housing, and just admin istrative action.

Where the ana lysis of a part icular right prov ides for incompatible str uctural

alternatives, the dierent interpret ations of that r ight are displayed in

Hohfeldian terms, but no attempt is made to resolve the dispute.3 Part V

concludes with thoughts on the usefu lness of the Hohfeldian analysis to

disputes about the core content of distinct rights. I suggest that a proper

understanding of the Hohfeld ian system has worthwhile benets for the

pedagog y, jurisprudence and adjudication of public-law rights.

II THE HOHFELDIAN ANALYTIC SYSTEM

Hohfeld noticed that lawyers often use the term ‘rig ht’ indiscriminately

to refer to entitlement s of distinct kinds. On his analysis, having a ‘right’

can refer to one of four atom ic components,4 each and all of which can, in

turn, combine to form complex molecular rights. Hohfeld, however, did

not dene any of the ter ms which form the atomistic conceptions of his

framework. In his words:

‘The stric tly fund amental legal relat ions are, af ter all, sui generis; a nd thus

it is that att empts at form al den itions are a lways unsat isfactor y, if not

altogethe r useless. According ly, the most promising l ine of procedure seems

to consist in e xhibiting al l of the various rela tions in a scheme of “opposites”

and “correlat ives” and then proceeding to exem plify t heir indiv idual scope

and applicat ion in concrete cases.’5

What we are accord ingly g iven are the relations between the var ious

incidents as wel l as examples of their application. Here, then, is the com-

plete Hohfeldian a nalyt ic system:

3 Hoh feldian neut ralit y entail s that we should remain ag nostic as bet ween

dierent st ructural interpretat ions of the same r ight.

4 Cf Umberto Eco Baudolino (tr Wi lliam Weaver) (2002) at 33: ‘[T]he Latins,

though they wer e barbarian s, were extremely compl icated, hopeless when it ca me

to ne points a nd subtletie s if a theologic al question wa s at stake, but capable of

splitting a hair four ways o n matters of law.’ (Empha sis supplied.)

5 Wesley Newcomb Hohfeld ‘Some f undamental lega l conceptions as applied

in judicia l reasoning’ (1913) 23 Yale LJ 16 at 30.

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A HOHFELDI AN ANALYSIS OF THE BI LL OF RIGHTS 579

https://doi.org/10.47348/SALJ/v139/i3a5

Jural Op posites claim freedom power immun ity

no-claim obligation disability liability

Jural Cor relatives cl aim freedom power immun ity

obligation no-claim liability disability

Figure 1: The Hohfeldia n analytic system6

There are thus eig ht Hohfeldian i ncidents,7 four of which are the atomic

rights, and the other four of which are their respective correlatives,

or ‘disentitlements’.

The table is however somewhat misleading, since it is directly con-

cerned with rel ations between sentences ascribing incidents and only

indirectly with relat ions between those incidents.8 A sentence ascribing

some Hohfeldian i ncident to some person A is equivalent to a sentence

ascribing the correlative of that incident to a specic person B and

equivalent to a sentence denying the opposite of that incident to A.9

Since these are a ll equivalent statements, we need on ly explai n four

Hohfeldian incidents — the claim, freedom, power, and immunity — for

a complete understanding of the whole system.

Each Hohfeldian incident is a three-place relation between two (sets

of) legal subjects, A and B, with respect to a given act, φ.10 In Roman-

law terms, each Hohfeldian incident accordingly constitutes a species of

vinculum iuris. To distinguish one incident from another, Hohfeldian

analysis is therefore never enough — we also need to distingu ish to and

over whom the incident applies, and in respect of wh ich act. The last

6 Hohfeld used the term ‘pr ivilege’, but ‘liberty’ has become common i n the

legal and ph ilosophical lite rature. I follow the Const itution’s clear terminolo gical

preference for ‘f reedom’. Further, fol lowing our Roman-Dut ch heritage, I prefer

‘obligation’ over ‘dut y’. The concepts are la rgely synony mous, but duties c an be

seen as oblig ations th at arise f rom some position, status, or r ole. See R B Brandt

‘The concepts of obl igation and duty’ (1964) 73 Mind 374 at 387.

7 Leif Wenar ‘T he nature of r ights’ (20 05) 33 Philosophy & Public A airs 223

prefers the ter m ‘Hohfeldian incide nt’, whereas Hohfeld pref erred ‘jura l relation’.

8 See Luís Duarte d’Al meida ‘Funda mental leg al concepts: The Hohfeldian

framework ’ (2016) 11 Philosophy Compass 554 at 555; Lars Lindah l Position and

Change: A Study in La w and Logic (1977) 27.

9 A caveat: A sen tence ascribing a f reedom to A to φ is equivalent to a sentence

denying a n obligation to A not to φ, and a se ntence ascribing a n obligation to A to

φ is equivalent to a sentence denying a freedom t o A not to φ. This is why some

scholars prefer to speak of a ‘f reedom not’.

10 Subject to the di sclaimer s below, I will write each incident in the form:

R(A, B, φ), where R i s the relevant atom ic right — e g a cl aim — held by A,

again st B, to φ.

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