duty to let me do x but also no one – not even the legislature – has a
power to alter that situation.’^13
A different example is found in the idea of ‘due process’. Law
courts, evidently, have powers to alter the rights of those found
guilty. Many of the rights which come under the heading of rights
to a fair trial in accordance with the due processes of law, can be
best understood as immunities, as protections against arbitrari-
ness or excess in the use of those powers. Thus one aspect of the
right of silence is best understood as an immunity against the
power of juries to draw the inference of guilt or self-serving
concealment against defendants who refuse to testify at their trial.
Generic rights and specific rights
Hohfeld’s analysis was a virtuoso enterprise. Its success, in forcing
us to think through the logical implications of rights claims,
throws up a further problem. Declarations and charters, as well as
common usage, list rights in very general terms: life, property, wor-
ship, association, health-care, education, to list a few. We know
that matters are much more complicated than this. We know that
the central terms, ‘life’, ‘property’, etc. are serving almost as slo-
gans for a complex constellation of Hohfeldian privileges, claims,
powers and immunities, in any concrete employment. If we ask, in
respect of the positive assignment of rights in any specific legal
system, what, say, the right of private property amounts to, we may
be given volumes of legal textbooks, detailing case and statute law
- all with the proviso that things will have changed since publica-
tion: check the latest Law Reports. This is the state of affairs with
respect to positive law. Add to it the complexities of unenforceable
positive morality concerning private property. This would
lengthen the library shelves were it to be codified – which, of
course, it could not be. When should we say ‘Please.. .’ and ‘Thank
you’ and when not?
As philosophers, it looks as though we are faced with two alter-
natives: Is there in some sense a generic right to be defended or
opposed – in this case the right to private property – or do we need
to justify, severally, each of a number of specific rights (which may
have the character of liberty rights, claim rights, powers or
RIGHTS