Posts Tagged ‘jurisprudence’


“All men are created equal, that they are endowed by their Creator with certain unalienable Rights that among these are Life, Liberty and the Pursuit of Happiness”. Indian constitution also recognizes similar rights for its citizens under the fundamental rights chapter. Hohfeld is an American legal theorist who analysed how a law gives rights and corresponding duties to a person. This paper analyses the Fundamental rights enshrined by the constitution to its citizens based on Hohfeldian theory.

Hohfeldian theory of rights

Hohfeld distinguishes four elements or incidents with incident being a right on its own.

  • Claims
  • Privileges
  • powers

Ram holds a claim-right against Rahim to wash Ram’s scarf if and only if Rahim has a duty to Ram to wash Ram’s scarf. Rahim owes this duty to Ram, in particular. His duty is “directed toward” him. In this case Ram, himself, will presumably benefit, but that need not be the case. If Ram holds a claim-right against Rahim to wash Ram’s sister’s scarf, then Rahim still owes this duty to Ram, not to Ram’s sister. He owes this duty to Ram even if Ram hates both her sister and the scarf, although Ram probably has the power to waive her claim-right. A claim-right always has one or more correlative duties. It can be a duty to act, as in Rahim’s case, or to refrain from action: John holds a claim-right against peter to keep off his grass if and only if john has a duty to peter to keep off his grass. The absence of a duty is a privilege. Sita has a privilege-right to sing “Priya” if and only if Sita has no duty not to sing “Priya.” A license to practice medicine gives one a legal privilege-right to do so. Claims and privileges define all the actions that are forbidden, permitted, or required. The two remaining incidents (powers and immunities) are second-order incidents: they specify rights and duties regarding the creation, destruction, and modification of other incidents. Rahul has a power-right under a set of rules if and only if those rules give him the ability to alter someone’s Hohfeldian incidents (his own or someone else’s). If Rahul is a police officer directing traffic, then the legal rules give him a power-right to alter, by means of a hand gesture, a driver’s privilege-right to cross the intersection. If Ramya promises to cook Priya dinner, then Ramya exercises her power-right (under the moral rules of promising) to grant Priya a claim-right against Ramya to cook dinner. The opposite of a power is immunity. If Narendra lacks the ability to alter one of Sunny’s Hohfeldian incidents under a set of rules, then Sunny has immunity against Narendra with respect to that incident. Imagine that Sunny is a teenaged minor child and Narendra is his father. Narendra orders Sunny to mow the lawn every summer, which gives Sunny a duty to mow the lawn. When Sunny reaches legal adulthood, he acquires immunity against Narendra’s orders: Narendra loses the legal power to impose such duties on Sunny by means of orders. Hohfeld depicts the relationships between the incidents with two charts, which include some terminology that Hohfeld invented for the sake of logical completeness:


  • If someone has a claim, then she lacks a nonclaim.
  • If someone has a privilege, then she lacks a duty.
  • If someone has a power, then she lacks a disability.
  • If someone has immunity, then she lacks a liability.


  • If someone has a claim, then someone else has a duty.
  • If someone has a privilege, then someone else has a nonclaim.
  • If someone has a power, then someone else has a liability.
  • If someone has immunity, then someone else has a disability.

Fundamental Rights in India compared with Hohfeldian Incidents

The incidents can combine into various complex rights, such as Fundamental rights provided by the Indian Constitution. Ramesh’s Fundamental rights Consists of the following,

Ramesh has a privilege to form association or unions. He has no duty not to form association or unions.

  • Ramesh has a claim right to form associations or unions. The state has a duty not to infringe upon this claim right.
  • Ramesh has various powers over these claim-rights.
    1. If he is a railway coolie he can use this right and form an association along with his friend Danny.
    2. He has every right to renounce this membership of association with friend Danny whenever he wants
  • He can transfer his rights of membership to any other citizens.

If the state prohibits Ramesh from forming association without his consent then it is infringing his right. If the state is not justified in doing so, then philosophers would say that it does not just infringe his right, but the state violates them. If violation of rights is for special reasons, like in the interest of security of state, then it would be called justified infringement.











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