Disagreement and confusion have beset Hohfeld’s no-right from its emergence over a hundred years ago until present times, with recent important contributions to the discussion coming from Heidi Hurd and Michael Moore, and Matthew Kramer. This article aims to dispel the confusion over no-right by drawing attention to three straightforward points, and by providing a more careful examination of a neglected source of complexity associated with liberty as the correlative of no-right. The straightforward points emerge from consideration of the practical significance of a no-right as both a negation and a correlative within Hohfeld’s scheme; the important difference between the practical significance of a normative position and the theoretical status of the concept representing that position; and, the relationship between logical duals and contradictories as applied to normative positions. The scene is then set for working through the complexity associated with liberty as the correlative of no-right. This involves recognizing a connection between the normative positions of Hohfeld’s analytical scheme and the deontic operators of deontic logic. The conventional interdefinability of permission and obligation within deontic logic is challenged here. The conclusion is reached that “liberty” is an inadequate label for the normative position signifying the absence of duty; and that, as a distinctive position, liberty is not a true correlative of any other normative position. Implications are noted for the theoretical problem faced by deontic logic when confronting a normative system comprising relations between individuals, and for the solution of practical problems within a (legal or moral) normative system, where no-rights and liberties are to be found.
Halpin, Andrew, No-Right and its Correlative (July 23, 2020). Forthcoming, (2020) 65 American Journal of Jurisprudence.