For some time now we’ve been coming across statements and claims that exhibit an incredible amount of confusion concerning what Wesley Newcomb Hohfeld (1879-1918) called “fundamental legal conceptions” in his posthumous classic work, Fundamental Legal Conceptions as Applied in Judicial Reasoning (1919), a snappy and descriptive title if we ever saw one.
|Wesley Hohfeld (1879-1918)|
What we’ve been seeing are statements that appear at first glance to be opposites, but are in reality making the same mistake, just from different starting points. From the one starting point, the “liberal” end of the spectrum, we hear that some things are rights, but are not absolute rights. From the “conservative” end of the spectrum we hear that rights are absolute.
The “liberal” position is that because rights are not absolute, they cannot be either held or exercised absolutely. Possession and exercise of any right depends on the needs of the State (although, to make it softer, people holding this position usually say “community,” which has the same connotation as “State” in this context).
The “conservative” position is that because rights are absolute, they can be exercised absolutely, without let or hindrance of any kind. Anything less is an infringement of someone’s rights.
Both positions confuse having a right with exercising a right, to say nothing of not being entirely clear on what, exactly, a right is in the first place. Nor is this a recent phenomenon, as Hohfeld’s analysis makes clear.
Of course, actual flesh-and-blood people take whichever position, “liberal” or “conservative,” best suits their needs at the moment, sometimes even imputing different meanings to the same term in the same sentence without notice or warning. Consistency is not generally recognized these days as any kind of virtue. Not when inconsistency is so useful.
To explain, let’s steal from the Wikipedia entry on old Wes. As it stated when we accessed it on Thursday, March 6, 2014,
“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.”
In English, all Hoheld was saying is that we can’t use the term “right” imprecisely and expect to be understood, or even to understand. If we use a term without defining it correctly, and are not consistent in our use of the term, all we’ve done is create a mess.
Hohfeld’s analysis, remarkably enough for someone who attended Harvard Law School, necessarily implies the existence of absolutes. After all, if something is not absolutely what it is, it cannot be defined in any meaningful sense, and Hohfeld’s analysis depends completely on the assumption that a thing, specifically a right, can and must be defined precisely.
|"On the reasons and statements of the philosophers themselves"|
In other words, if you’re trying to argue a law case (or anything else) fairly, you can’t go around changing definitions to suit yourself, without reference to the real meaning of a term, or how your opponent is using it. The moment you say something to the effect that, “Well, that may be how you define that term, but I define it thus-and-so, therefore you are a liar and a thief,” you’ve already lost the argument, even before your opponent starts beating you with a club for calling him a liar and a thief. As G. K. Chesterton pointed out in Saint Thomas Aquinas: The “Dumb Ox” (1933),
“[T]he principle stands, or ought always to have stood established; that we must either not argue with a man at all, or we must argue on his grounds and not ours. We may do other things instead of arguing, according to our views of what actions are morally permissible; but if we argue we must argue ‘on the reasons and statements of the philosophers themselves’.”
This is the first principle of reason, the “principle of identity,” that we’ve discussed on this blog before — and why, although our readers are obviously extremely intelligent and the topics of great moment at this critical time in history, our readership just doesn’t seem to be growing as fast as it really ought . . . and why those books you see over to the right there are not on the New York Times bestseller list.
The principle of identity is the “positive” way of expressing the first principle of reason. The “negative” way of expressing the first principle of reason is the “principle of contradiction,” that nothing can both “be” and “not be” at the same time and under the same conditions.
The principle of identity is, “That which is true is as true, and is true in the same way, as everything else that is true.” The principle of identity is, in a sense, an acknowledgement that a thing “is” its definition. If you disconnect the thing from its definition and start inserting your own special meanings that not everyone agrees to or is even aware of, you’re cheating. That’s arguing unfairly, and you’re being dishonest.
|The Great Defunct Economist|
This is, in fact, what John Maynard Keynes did with his economic theories. By claiming that the State has the power to “re-edit the dictionary” when it came to defining specific contractual rights, Keynes not only assumed a more than godlike power on the part of the State, he abolished what it means for anything to mean anything. That is, if we accept the absurdities of Keynesian economics . . . .
Our main point here, however, is that when someone starts prating about “rights,” it’s a good idea to know what the terms are supposed to mean in the context, and to get everyone in the discussion to agree to those meanings, if only for the sake of the argument. Only then can some meaningful discussion take place. Otherwise, you’re just wasting everybody’s time.
Since what a right means is the point of this discussion, we’ll define it in the next posting in this series.