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.
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| 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.
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| "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.
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| 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.