No-Claims

Michael Green

There is renewed interest in the categorization of fundamental legal relations offered by Wesley Newcomb Hohfeld.¹ McBride’s article is about the two problem children among the Hohfeldian relations—the liberty and, especially, the no-claim. Although his article is technical, it has significant consequences concerning our understanding of the nature of permissions (legal and moral).

Before introducing his argument—and the fascinating larger debate within which it is situated²—a Hohfeldian primer is needed. Here is the Hohfeldian table of legal relations with the disambiguating terms that many Hohfeld scholars now use in brackets:

One quick note about terminology: Like virtually all current Hohfeld scholars, McBride uses claim, instead of Hohfeld’s term right, for the first primary entitlement. (And, like most of them, he uses liberty instead of privilege for the second.) This use of claim allows right to be reserved as a generic term for all four entitlements: claims, liberties, powers, and immunities. But for the correlative of a liberty, McBride sticks with Hohfeld’s term no-right. Having changed right to claim, however, consistency would recommend using no-claim. Indeed, with right reserved as a generic term for all the entitlements, no-right is misleading, because someone with a no-claim can still have a right, such as a liberty. There has been a recent movement to using no-claim for this reason.³ I therefore use no-claim here, even though McBride (and the other participants in the debate of which he is a part) still use no-right.

We can focus on the primary relations. Assume that I have contracted with a workman to do work on my land. I thereby have a claim with respect to him to go on my land. And, correlatively, he has a duty to me to go on my land. This correlativity of claims and duties generates the following biconditional:

I have a claim with respect to the workman to go on my land if and only if the workman has a duty with respect to me to go on my land.

Furthermore, what McBride (following Matthew Kramer) calls the duality of duties and liberties generates the following biconditional:

The workman has a duty with respect to me to go on my land if and only if it is not the case that the workman has a liberty with respect to me not to go on my land.

Notice that in the duality biconditional, there is both external and internal negation on the right side: it is not the case that the workman has a liberty with respect to me not to go on my land. This is an identifying feature of logical duality.⁴ From the duality biconditional, we can conclude that because the workman does not have a duty to me not to go on my land, he has a liberty with respect to me to go on my land. And because he has a duty to me to go on my land, he lacks a liberty with respect to me not to go on my land.

Now for no-claims. Notice that concerning the correlativity biconditional for claims/duties, the content that the correlative relations modify is the same:⁵

I have a claim with respect to the workman to go on my land if and only if the workman has a duty with respect to me to go on my land.

But when Hohfeld introduces no-claims as the “correlatives” of liberties, in the liberty/no-claim biconditional, the no-claim has the negated content of the liberty:⁶

The workman has a liberty with respect to me to go on my land if and only if I have a no-claim with respect to the workman not to go on my land.

One question this brings up is exegetical. Was this a fumble on Hohfeld’s part? Did he mean to say something like:

The workman has a liberty with respect to me to go on my land if and only if I have a no-claim with respect to the workman concerning his going on my land.

There is an explanation of why he made this mistake. He meant “no-right” (here “no-claim”) as a neologism to capture the legal relation I have to the workman when he has a liberty with respect to me to go on my land. It is a new word with its own meaning. It does not mean “no claim”—that is, the absence of a claim. It is true that, given the duality of duties and liberties, the workman has a liberty with respect to me to go on my land if and only if he has no duty to me not to go on my land. And, given the correlativity of duties and claims, that means that he has a liberty with respect to me to go on my land if and only if I have no claim against him not to go on my land. But we are talking about a no-claim (with a hyphen) not the absence of a claim. Hohfeld arguably forgot that.

Another reason to treat Hohfeld as making a mistake here is that he spoke of a no-claim as the relationship a plaintiff has to a defendant when failing to state a claim.⁷. Assume that the workman has a liberty with respect to me to go on my land. That liberty would cause me to fail to state a claim if I sued him concerning his going on my land—not if I sued him concerning his not going on my land.

But another question is whether the unamended Hohfeldian framework is still superior. And that takes us into a broader debate about the nature of permissions—for liberties and no-claims are fundamentally permissive relationships. Standing in the background is whether Hohfeldian liberties are deontic nothings—solely the absence of duties—as Heidi Hurd and Michael Moore argue.⁸ If so, it makes no sense to speak of their correlatives. Sure, deontic relations (such as claims) have correlatives. But the absence of deontic relations doesn’t. For Hurd and Moore, if the workman has a liberty with respect to me to go on my land, all that means is that I have no claim with respect to him not to go on my land. It does not mean that I have a mysterious relation (a no-claim) with respect to him concerning his going on my land.

The Hurd/Moore approach explains why Hohfeld spoke of a no-claim has having the negated content of the liberty with which it is correlated. But it does so at the cost of denying the genuine existence of both liberties and no-claims.

To see why liberties and no-claims do have genuine existence, at least in the law, assume that the workman and I are New Yorkers, our act of contracting was in New York, and my land is in New York. Uzbekistan does not, and maybe cannot, legally regulate us. It neither gives the workman a legal duty to go on my land nor a legal liberty not to go on my land. Thus, the following duty/liberty biconditional would not obtain, because its left side would be false and its right side true:

The workman has an Uzbek legal duty with respect to me to go on my land if and only if it is not the case that the workman has an Uzbek legal liberty with respect to me not to go on my land.

What is more, there might be legal systems in which both a legal duty to φ and a legal liberty not to φ coexist. Conflicts between legal duties and liberties in the same legal system might occur, just as some believe that there can be conflicts of legal duties in the same system. The duty/liberty biconditional would not obtain because, in that system, its left side (the workman has a legal duty with respect to me to go on my land) would be true but the right side (it is not the case that the workman has a legal liberty with respect to me not to go on my land) would be false.

Indeed, not only might there be such a legal system, the United States arguably is such a system. Assume Texas enacts a statute, according to which a woman who aborts a fetus has a duty of compensation to the fetus’s estate and its heirs (excluding her). California, in refusing to enact such a statute, gives the woman a liberty with respect to the fetus’s estate and its heirs not to compensate. Under current views about states’ concurrent lawmaking power,⁹ both laws could apply to a Texan who got an abortion in California.

I offer these possibilities to show the importance of McBride’s topic. This is far from a merely technical debate. He argues, I think rightly, for understanding liberty/no-claim correlativity as having the same character as claim/duty correlativity.¹⁰ That would generate the following biconditional:

The workman has a liberty with respect to me to go on my land if and only if I have a no-claim with respect to the workman concerning his going on my land.

He calls this the “dual” reading, because it gives claims/no-claims the same duality as duties/liberties.¹¹

I will not offer the details of McBride’s argument in favor of the dual reading. His colleague at the National University of Singapore, Andrew Halpin, is a leading proponent of the unamended Hohfeldian approach (which McBride calls the strict Hohfeldian view). McBride assesses it and his dual alternative for consistency, comprehensiveness, and simplicity. He concludes that the strict Hohfeldian and his dual reading are equally coherent and comprehensive. (For the record it is very helpful to have the strict Hohfeldian view given this—partial—defense.) But he argues that, concerning simplicity (and elegance), the dual reading wins. I think he is right.

But my primary goal here is to identify the larger debate within which McBride’s argument is situated. McBride does not question these duality biconditionals:

The workman has a duty with respect to me to go on my land if and only if it is not the case that the workman has a liberty with respect to me not to go on my land.

I have a claim with respect to the workman to go on my land if and only if it is not the case that I have a no-claim with respect to the workman concerning his not going on my land.

But his position concerning the liberty/no-claim correlativity biconditional can lead one to question whether these duality biconditionals obtain at all.

1. E.g., Shyam Balganesh, Ted Sichelman & Henry Smith, Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries, Cambridge U. Press (2018). Hohfeld’s framework was introduced in Wesley Newcomb Hohfeld, Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L. J. 16 (1913).
2. Much of this has been in the pages of The American Journal of Jurisprudence. Heidi M. Hurd & Michael S. Moore, The Hohfeldian Analysis of Rights, 63 Am. J. Juris. 295 (2018); Heidi M. Hurd & Michael S. Moore, Replying to Halpin and Kramer: Agreements, Disagreements and No-Agreements, 64 Am. J. Juris. 259 (2019); Matthew H. Kramer, On No-Rights and No Rights, 64 Am. J. Juris. 213 (2019); Andrew Halpin, Choosing Axioms of Correlativity, 64 Am. J. Juris.. 225 (2019); Andrew Halpin, No-Right and its Correlative, 65 Am. J. Juris. 147 (2020); Mark McBride, The Dual Reality of No-Rights, 66 Am. J. Juris. 39 (2021). See also Andrew Halpin, On Kno-rights and No-rights, 46 Revus (2022).
3. Some examples are the articles on rights and legal rights in the Stanford Encyclopedia of Philosophy. Hohfeld himself used the term “no-claim” at least once. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale L. J. 710, 750 (1917).
4. An example is the logical duality of necessity and possibility: P is necessary if and only if it is not the case that not-P is possible.
5. This is also true of the correlativity biconditionals for power/liability and immunity/disability.
6. Hohfeld, supra note 1, at 33 (“the correlative of X’s [liberty] of entering himself is manifestly Y’s ‘no-right’ that X shall not enter”). Hohfeld says the same thing elsewhere. Id. at 35; Wesley Newcomb Hohfeld, The Relations Between Equity and Law, 11 Mich. L. Rev. 537, 553 (1913).
7. E.g., Hohfeld, supra note 6, at 553.
8. See Hurd & Moore, supra note at 2.
9. E.g., Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981).
10. And the power/liability and immunity/disability relationships.
11. As we have seen, the duality of duties and liberties generates the following biconditional: The workman has a duty with respect to me to go on my land if and only if it is not the case that the workman has a liberty with respect to me not to go on my land. There is external and internal negation on the right-hand side of the biconditional. To preserve the duality of claims and no-claims, we must accept the following biconditional: I have a claim against the workman to go on my land if and only if it is not the case that I have a no-claim concerning his not going on my land.