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12 - Hohfeldian Analysis and the Separation of Rights and Powers

from Part IV - Hohfeldian Complexities

Published online by Cambridge University Press:  14 July 2022

Shyamkrishna Balganesh
Affiliation:
Columbia Law School
Ted M. Sichelman
Affiliation:
University of San Diego School of Law
Henry E. Smith
Affiliation:
Harvard Law School, Massachusetts
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Summary

At the time he wrote, Wesley Hohfeld seemed to be of the view that longstanding conceptual confusions that had blocked progress in legal thought – particularly confusions about legal rights – would soon be put to rest. If so, rights have proved a tougher nut to crack than he expected. Indeed, the difficulty of providing an adequate account of rights has led many scholars, including scholars who share Hohfeld’s aptitude and aspirations for analytic philosophy, to lose sight of a distinction central to his project, namely, the distinction between a right (“claim right”) and a power. Or so we argue in Section 12.2.

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Wesley Hohfeld A Century Later
Edited Work, Select Personal Papers, and Original Commentaries
, pp. 366 - 385
Publisher: Cambridge University Press
Print publication year: 2022

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