I want to continue the theme of last week’s blog about language and the meaning of words but in a much more specific context. I have been worrying about the way in which despite the use of words that imply we have ever more freedoms and choice we are in fact losing rights and being ever more curtailed in our freedoms. We encounter assertions of rights as we encounter sounds: persistently and in great variety.
Wesley Hohfeld died at 40, he was Professor of Law at Harvard and his published work consists of one slim book with a long title Fundamental Legal Conceptions as Applied in Judicial Reasoning. This book was one of my study texts in my third year at university and it exercised a very profound influence on my thinking.
Hohfeld created a very precise analysis which distinguished between fundamental legal concepts and then identified the relationships between them. His analysis of rights is a framework of elegance and simplicity revealing that most familiar rights, such as the right to free expression or the right of private property, have a complex internal structure. Such rights are ordered arrangements of basic components, much in the same way that most molecules are ordered arrangements of chemical elements.
Hohfeld identified four basic “elements” of Rights; Privileges, Claims, Powers and Immunities. Each of these has a distinctive logical form, and the incidents fit together in characteristic ways to create complex “molecular” rights. Each of the incidents—the privilege, claim, power, and immunity—can be a right when it occurs in isolation but each Right has an opposite and a correlative. Hohfeld was primarily concerned with legal rights but his analysis extends equally well to moral and ethical questions.
That is probably more than enough Jurisprudence for anyone who is not a lawyer but I wanted to explain the background to my thinking that prompted this blog.
Most people who are not lawyers or philosophers would probably define ‘Right’ as meaning ‘what is just or fair’ but this is not the same as our modern subjective sense of ‘a Right’. So why is this important? Isn’t what we mean by ‘a Right’ clear enough for all practical purposes? Well I would argue that it isn’t that each and every one of us needs to have a precise and clear understanding of what we mean when we talk of ‘rights.’
This is really a development of the point at which I ended last week’s blog; the way in which the language we speak limits us to the modes of perception already inherent in that language. The form or label comes to be not merely a useful reference in a catalogue system but a limit and constraint on our thinking and we are vulnerable to other people shifting that meaning without our being aware of it. Hohfeld identifies ‘Privilege’ as the type of right that is contained in the idea that I have NO DUTY NOT TO DO IT. In other words there is no infringement of another’s rights in any sense in my painting my bedroom in black and red stripes or picking up a shell on the beach. What is being steadily and in my opinion rapidly eroded is this type of right and it is going unnoticed in the white noise created by the multiplicity of assertions of rights and counter rights.
Now nobody is going to take away my ‘right’ to paint my bedroom but they are enacting legislation that will curtail and control the way I act in public. I have no duty not to walk down the High Street wearing a hoodie but my privilege to do this may now be curtailed if it causes annoyance or nuisance, similarly if I stand outside the chip shop talking to a group of friends I may be the recipient of an order preventing me from doing this in future because it causes annoyance or nuisance. These terms lack any legal precision and are so broad and generalized that they could be used to catch a vast range of everyday behaviours to an extent that may have serious implications for the rule of law. These terms replace the previous test of anti-social behaviour namely behaving in a manner likely to cause harassment, alarm or distress. A far more restrictive test than annoyance or nuisance; under the new definition protesters, buskers, preachers, and young people just hanging out with friends could find themselves on the wrong side of the law. These are laws which are capable of extraordinary abuse in the same way as the notorious ‘sus’ laws were and they will no doubt be applied equally inequitably. I doubt very much whether anyone will hand me out an injunction for wearing a hoodie but if I was sixteen and black they might well.
What worries me is that people don’t recognise the infringement of perfectly acceptable rights that this entails. Understanding the framework of rights and the way they build on and interlock with each other is key to preventing their erosion by stealth.