法律概念分析霍菲尔德课件

1、法律概念分析霍菲尔德,法律概念分析霍菲爾德,楊智傑 老師,法律概念分析霍菲尔德,生平,Wesley Newcomb Hohfeld (1879-1918) was an American jurist. He was the author of the seminal Fundamental Legal Conceptions, As Applied in Judicial Reasoning and Other Legal Essays, published in 1919. During his life, he published only a handful of law journa

2、l articles. At his death, the material forming the basis of Fundamental Legal Conceptions was derived from two articles in the Yale Law Journal (1913) and (1917) that had been partially revised with a view to publication.,法律概念分析霍菲尔德,權利的性質,Editorial work was undertaken to complete the revisions and t

3、he book was published with the inclusion of the manuscript notes that Hohfeld had left, plus seven other essays. The work remains a powerful contribution to modern understanding of the nature of rights and the implications of liberty. To reflect this continuing importance, a chair at Yale University

4、 is named after him, which is currently held by Jules Coleman.,法律概念分析霍菲尔德,權利一詞的混用,Hohfeld noticed that even respected jurists conflate various meanings of the term right, sometimes switching senses of the word several times in a single sentence. He wrote that such imprecision of language indicated a

5、 concomitant imprecision of thought, and thus also of the resulting legal conclusions. In order to both facilitate reasoning and clarify rulings, he attempted to disambiguate the term rights by breaking it into eight distinct concepts. To eliminate ambiguity, he defined these terms relative to one a

6、nother, grouping them into four pairs of Jural Opposites and four pairs of Jural Correlatives.,法律概念分析霍菲尔德,八個概念,Jural Opposites: 1. Right/No-Right 2. Privilege/Duty 3. Power/Disability 4. Immunity/Liability Jural Corelatives: 1. Right/Duty 2. Privilege/No-Right 3. Power/Liability 4. Immunity/Disabili

7、ty,法律概念分析霍菲尔德,表：法律概念澄清,法律概念分析霍菲尔德,請求權和自由,Some philosophers and political scientists make a distinction between claim rights and liberty rights. A claim right is a right which entails responsibilities, duties, or obligations on other parties regarding the right-holder. In contrast, a liberty right is

8、 a right which does not entail obligations on other parties, but rather only freedom or permission for the right-holder.,法律概念分析霍菲尔德,權力和豁免,The other two terms of Hohfelds analysis, powers and immunities, refer to second-order liberties and claims, respectively. Powers are liberty rights regarding the

9、 modification of first-order rights, e.g. the U.S. Congress has certain positive powers to modify some of U.S. citizens legal rights, inasmuch as it can impose or remove legal duties. Immunities, conversely, are claim rights regarding the modification of first-order rights, e.g. U.S. citizens have,

10、per their Constitution, certain negative immunities limiting the positive powers of the U.S. Congress to modify their legal rights. As such, immunities and powers are often subsumed within claims and liberties by later authors.,法律概念分析霍菲尔德,我國對權利的分類,權利：請求權 債權 特權：自由（支配權） 所有權 權力：形成權（包括形成權和交易權） 一方意思表示發生一

11、定法律效果 經濟部允許公司成立 豁免：抗辯權 未還押金、不還屋,法律概念分析霍菲尔德,舉例,Hohfeld argued that right and duty are corelative concepts, i.e. the one must always be matched by the other. If A has a right against B, this is equivalent to B having a duty to honour As right. If B has no duty, that means that B has liberty, i.e. B ca

12、n do whatever he or she pleases because B has no duty to refrain from doing it, and A has no right to prohibit B from doing so. Each individual is located within a matrix of relationships with other individuals.,法律概念分析霍菲尔德,自由的內涵有多大,By summing the rights held and duties owed across all these relation

13、ships, the analyst can identify both the degree of liberty an individual would be considered to have perfect liberty if it is shown that no-one has a right to prevent the given act and whether the concept of liberty is comprised by commonly followed practices, thereby establishing general moral prin

14、ciples and civil rights.,法律概念分析霍菲尔德,物權和債權區分是假的,Hohfeld defines the corelatives in terms of the relationships between two individuals. In the theory of in rem rights, there is a direct relationship between a person and a thing. Real rights are in this respect unlike claim rights or rights in personam

15、, which by nature must be exercised against a person; the best example being when someone is owed money by another.,法律概念分析霍菲尔德,沒有所謂的物權,Hohfeld demonstrates that this way of understanding rights in general is wrong. In particular, Hohfeld demonstrates that there is no such thing as a legal relation b

16、etween a person and a thing, since a legal relation always operates between two people. As the legal relations between any two people are complex, it is helpful to break them down into their simplest forms.,法律概念分析霍菲尔德,應該是有無對世效力的區分,Hohfeld replaces the concept of “right in personam” by “paucital righ

17、t” and right in rem by a compound or aggregate of multital rights. Rights held by a person against one or a few definite persons are paucital (or “in personam”), and rights held by a person against a large indefinite class of people are multital (or “in rem”). A contract right is paucital (or in per

18、sonam) because it can only be enforced against the specific parties to the contract. A property right is multital (or in rem) because a landowner has the right to exclude not only specific people from his land but the “whole world.”,法律概念分析霍菲尔德,物權是很多權利的集合,The landowner has many rights, privileges, po

19、wers, and immunities; his multital rights are composed of many paucital rights. For example, the owner has a right that others do not step on his land but there is not just one such right against a mass of persons (the community), but many separate although usually identical paucital rights with thi

20、s content (as many instances as there are people in the community). This is what Hohfeld calls multital” rights.,法律概念分析霍菲尔德,自由的概念,Consider also the definition of liberty. In Hohfeldian analysis, liberty is defined by an absence both of a duty and of a right. B is free because he has no obligation to

21、 recognise any of As rights. That does not deny that B might decide to do what A wants because that is the essence of liberty. Nor does it deny the possibility that B might accept a duty to A to give a benefit to C. In that situation, C would have no right and would have to rely on A to enforce the duty.,法律概念分析霍菲尔德,自由的概念是選擇,The truth is that liberty is significant from both a legal and a moral point of view because only liberty ensures that an individual has control over his or her choices on whether and how to act. If s