Normative Positions: Against the Dual View

Abstract Wesley Hohfeld’s (1913; 1917) framework of legal positions is an example of a largely successful theoretical inquiry with practical consequences, including for legal argumentation. But it remains the object of intense debate. As has long been clear, Hohfeld’s original account needs amendment. His tables display four pairs of what he termed “opposites”: duty/liberty, claim-right/no-right, power/disability, and liability/immunity. Yet there is no single notion of “opposition” that applies across all pairs. In the latter two pairs, “opposition” can be explained in terms of logical contradiction. But not in the former two. One simple way—first proposed by Williams (1956) and Fitch (1967)—of addressing this worry is to substitute “liberty not” for “liberty” as the relevant predicate. This allows us to explain “opposition” as logical contradiction across all pairs. In recent years, though, a different proposal has emerged. Kramer (2019; 2024) and McBride (2021; 2024) think we should recognise two kinds of “opposites”. Under their view—the “Dual” View, as McBride calls it, and I will too—we retain “liberty” as the relevant predicate, and treat duty/liberty and claim-right/no-right as pairs of logical duals rather than contradictories. In this paper, I argue against the Dual View on meta-theoretical grounds: parsimony (given identical explanatory power), elegance, and teachability.