A Hohfeldian analysis of the Bill of Rights

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

In the scholarship on rights, one name is pre-eminent: Hohfeld. Despite this, there

are two ways in which the Hohfeldian analysis of rights remains underappreciated.

The rst is that it is commonly assumed that the Hohfeldian analytic system applies

only to private-law rights. The second is that South African lawyers remain mostly

unfamiliar with the Hohfeldian analytic system. By providing a Hohfeldian analysis

of the South African Bill of Rights, this article aims to set the record straight in both

respects.

Hohfeld – Bill of Rights – r ights analysi s

I INTRODUCTION

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

is replete with rights. 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 might be surprised to learn that

we know — in the strong sense here of an empirical discovery — the

logical structure (even if not quite the function2) of rights. Hohfeld is

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

that the logical analysis of rights 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 deepest gratitude extends to Matthew Kruger, who took time o the

rigours of pupillage to contribute probing comments on the article, and to

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

assumpt ions. Any errors rema in mine alone.

† BSocSc LLB LLM (Cape Town). Advocate of the High Court of South

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

1 I contacted the convenors of jurisprudence and legal philosophy courses

around the country. Of the fteen 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 might sometimes be referred to in lectures, and only one other

responded that he was included in 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 rights is to give its holder normative control over another, and the

interest theory, according to which the primary function of rights is to further

the right-holder’s interests. 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 Freedom (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 primary 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 determine

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

analytic system is partly extensional: it validates certain inferences and

invalidates certain others. And, because South African 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 rights in the Bill of Rights,

namely equality, life, property, housing, and just administrative action.

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

alternatives, the dierent interpretations of that right are displayed in

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

concludes with thoughts on the usefulness of the Hohfeldian analysis to

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

understanding of the Hohfeldian system has worthwhile benets for the

pedagogy, jurisprudence and adjudication of public-law rights.

II THE HOHFELDIAN ANALYTIC SYSTEM

Hohfeld noticed that lawyers often use the term ‘right’ indiscriminately

to refer to entitlements 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 terms which form the atomistic conceptions of his

framework. In his words:

‘The strictly fundamental legal relations are, after all, sui generis; and thus

it is that attempts at formal denitions are always unsatisfactory, 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 exemplify their indiv idual scope

and applicat ion in concrete cases.’5

What we are accordingly given are the relations between the various

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

plete Hohfeldian analytic system:

3 Hohfeldian neutrality entails that we should remain agnostic as between

dierent st ructural interpretations 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 and subtleties if a theological question was at stake, but capable of

splitting a hair four ways on 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

obligationno-claim liability disability

Figure 1: The Hohfeldian analytic system6

There are thus eight Hohfeldian incidents,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 relations between sentences ascribing incidents and only

indirectly with relations between those incidents.8 A sentence ascribing

some Hohfeldian incident 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 all equivalent statements, we need only explain 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 distinguish to and

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

6 Hohfeld used the term ‘privilege’, but ‘liberty’ has become common in 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 largely synonymous, but duties can be

seen as obligations that arise from some position, status, or role. See R B Brandt

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

7 Leif Wenar ‘The nature of rights’ (2005) 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’Almeida ‘Fundamental legal concepts: The Hohfeldian

framework’ (2016) 11 Philosophy Compass 554 at 555; Lars Lindahl 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 to A not to φ. This is why some

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

10 Subject to the disclaimers below, I will write each incident in the form:

R(A, B, φ), where R is the relevant atomic right — e g a claim — held by A,

again st B, to φ.

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