Hohfeld’s Right Analysis











 Application of Hohfeld’s Right Analysis

Hohfeld’s right analysis has been applied in a number of legal texts documented in most of the common library resources. The application of the analysis in these legal texts depicts that analytical jurisprudence is not only academic but has practical value. Some of these texts include judgements, statutes and regional treaties. This essay considers how the Hohfeld’s right analysis has been applied in modern law of negligence and in the media law.

According to Hohfeld right analysis, there are eight fundamental legal conceptions: Right Privilege, Power, Immunity, Duty, No-right, Liability and Disability[1]. These conceptions are critical in solving concrete legal problems. According to Hohfeld the legal concepts are the basis on which legal relationships between two legal entities are determined. As a result, concrete legal problems involve a balancing of these relationships. The eight concepts are either linked or opposite to each other. The concept of right, privilege, power or immunity is linked to a correlative – duty, no-right, liability and disability. Hohfeld describes this linkage as jural correlative. What this means is that a person with a right is owed a duty. Equally, there are jural opposites. The jural opposite of the concept of right is no right, privilege is no duty, and power is disability while immunity is liability. In Hohfeld’s right analysis therefore, the concern of legal text is to create a balance these concepts[2]. The balance created in law of negligence judgements and media law can clearly demonstrate how the right analysis has been applied to create the balance.

In the leading case of Donoghue v Stevenson for example, the question before the court was whether the defendant owed the plaintiff a duty of care. This is the case that established the modern law of negligence. In this case, the plaintiff consumed a bottle of ginger beer and ice cream bought by a friend. The plaintiff could not see clearly the content inside since the bottle was opaque. After consuming, she poured the remainder and found a decomposed snail. She suffered personal injury as a result. In the judgement, the court developed the test necessary to justify negligence: one, the defendant owes the plaintiff a duty of care; two, the defendant must breach that duty; three, the damage was a result of the breach? And four, the damage is not too remote.

These tests, in Hohfeld terms, reflect the correlation between the legal concept of right and that of duty. It can therefore be seen from the case that Lord Atkin interpreted the “rule that you are to love your neighbour” with the rule that “you must not injure your neighbour”. The case depicts a clear balance between individual rights and the duty of care. According to the judgement, individuals have a duty not to injure their neighbours. In Hohfeld’s right analysis, individuals are owed a duty of care by their neighbours. Thus, in analytical jurisprudence, ignoring that duty amounts to a breach of duty. This is the line that the courts, as seen from various judgements relating to the law of negligence, use to balance when individual injure their neighbours. The balance of the concept of right and duty helps the judges to determine how to apportion blame and award damages.

The other area where the application of the Hohfeld right analysis can be seen is in media law. The medial law, in the UK for example, is a host of various legislations. While these legislations such as the Human Right Act 1998 are designed to safeguard the media right to freedom of expression, they are also balanced by legislations protecting individual liberties such as the right to privacy. The media freedom of expression therefore has to be tempered with the duty not to defame or libel.  Article 10 of HRA 1998 for instance rules that “everyone has the right to freedom of expression. This right include freedom to hold opinions and to receive and impart information and ideas without interference by public authority”. The media rely on this provision to secure its right to broadcast freely. However, like Hohfeld theory of jural correlative portends, certain rights may come with certain duties. In this case, the media also shoulders the duty not to defame or libel. Individual have their right for their privacy not to be invaded by the media.

The body of the media law in the United Kingdom, as in many parts of the world, illustrates how the courts and legislations try to balance this conflicting interest. Several cases in the UK courts have shown how the court tries to balance this conflicting interest[3]. The balance is clinical example of how Hohfeld right analysis is applied in various judgements. In Yeo v Times Newspapers[4] for example, the claimant unsuccessfully pursued the claim of defamation against Times Newspapers Limited. The claims of defamation and the right of media to freedom of expression illustrate, like Hohfeld found, the difficult balance on which the court must create on legal relationships. Thus while the media has the right to freedom of expression, it also has a liability not to defame. In Yeo v Times Newspapers therefore, the court had to weigh whether the right to freedom of expression outweighed the duty not to defame. To determine this balance, the court relied on Reynolds privilege that “protects publication of defamatory matter to the world at large where (i) it was in the public interest that the information should be published and (ii) the publisher has acted responsibly in publishing the information”[5]. This shows how Hohfeld right analysis has a practical value in determining legal relationships.




















Cook, Walter, ‘Hohfeld’s Contributions to the Science of Law’, [1919] 28 The Yale Law Journal 8, pp721-738

Cullison, Alan, ‘A Review of Hohfeld’s Fundamental Legal Concepts’,  [1967] 16 Clev, - Marshall L. Rev. , pp. 559-573

Cases and Statutes

Defamation Act 2013

Flood v Times Newspapers Ltd [2012] UKSC 11

Human Right Act 1998

Jameel (Mohammed v Wall Street Journal Europe Sprl [2006] UKHL 44

 Yeo v Times Newspapers Ltd [2015] EWHC 3375

[1] Walter Cook, ‘Hohfeld’s Contributions to the Science of Law’, [1919] 28 The Yale Law Journal 8, pp721-738, at 725

[2] Alan Cullison, ‘A Review of Hohfeld’s Fundamental Legal Concepts’,  [1967] 16 Clev, - Marshall L. Rev. , pp. 559-573, at 564


[3] Jameel (Mohammed v Wall Street Journal Europe Sprl [2006] UKHL 44; Yeo v Times Newspapers Ltd [2015] EWHC 3375

[4] Yeo v Times Newspapers Ltd [2015] EWHC 3375

[5] Flood v Times Newspapers Ltd [2012] UKSC 11, at para 2; Defamation Act 2013

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