The Ontology of Liberties, Reconciling Reinach and Hohfeld

The year 1913 saw the publication of two foundational works of legal theory: Hohfeld’ s ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’1 and Reinach’s –A Priori Foundations of Civil Law–. Reinach and Hohfeld both argue that the category of right should be divided between claim rights (for instance, claims that ensue from promises) and liberty rights (for instance, freedom of trade). Both characterize claim rights in a very similar manner, emphasizing that claims are necessarily correlated with an obligation of a counterparty. But they disagree on the topic of liberties. Hohfeld assumes from the outset that all rights are relations and maintains consequently that all liberties have correlatives. He calls these correlatives‘no-rights’, for lack of a better term. Reinach, for his part, maintains that in contrast to claims, liberties essentially lack correlatives and counterparties, which is why he calls them ‘absolute rights’. Who is right? Do liberties have or lack correlatives? I argue that both Reinach and Hohfeld overgeneralized an initially correct insight: Reinach is right, pace Hohfeld, that some liberties are absolute, but wrong that all are. Hohfeld is right, pace Reinach, that some liberties have no-rights as correlatives, but wrong that all liberties have such correlatives. The argument will be developed as follows. After having stressed some striking similarities between Reinach’s and Hohfeld’s ontologies of rights in Section 8.1, I characterize in Section 8.2 the notion of legal correlatives in terms of converse relations. Section 8.3 explains why duties of noninterference cannot be the legal correlative of liberties, a point on which Reinach and Hohfeld agree. I next present in Section 8.4 Hohfeld’s proposal according to which the correlative of liberties are no-rights, and defend it against three objections. Section 8.5 argues, this time against, that some liberties, in particular property rights, lack counterparties. Reinach’s proposal according to which liberties have no correlatives is presented in Section 8.6 and criticized in Section 8.7. Finally, in Section 8.8, I propose an encompassing ontology of rights which welcomes both relative and absolute liberties.