| Popis: |
According to the way it has been generally understood, the Hohfeldian analysis of subjective legal positions is in line with these three implied ideas: (i) all Hohfeldian concepts are fundamental, (ii) none of these concepts can be defined without referencing its relation to another concept of the same scheme, and (iii) Hohfeld's analysis is circular. The aim of this paper is to discuss these ideas, which I have called, respectively: (i) the thesis of fundamentality, (ii) the thesis of interdefinability, and (iii) the thesis of circularity. I will show that although from a logical point of view these three theses are true, they presuppose a set of premises Hohfeld does not make explicit: (a) right, duty, privilege, and no-right are first-order positions, while power, liability, immunity and disability are second-order positions; (b) duty, privilege, power, and disability are active positions, while right, no-right, liability, and immunity are passive positions; and (c) privilege, no-right, disability, and immunity are purely negative positions (as opposed to those of duty, right, power and liability), in the sense that they lack conceptual autonomy. I will argue that the analysis of these implicit premises allows us to understand that Hohfeld assumes a point of view that transcends the strictly logical, and when we emphasize the practical utility of Hohfeldian concepts, the three theses under consideration (i, ii and iii) are false. |
