Right versus Liberty

Think of an empty bench in a public park. You are free to sit on it: no rule of law obliges you to keep off. But if another walker reaches it first and sits down, you have no complaint, because nobody ever owed you a duty to keep the bench free for you. Now think of a numbered seat in a cinema for which you hold a ticket. If a stranger is sitting in it, the cinema owes you a duty to seat you, and you may insist. The park bench is a liberty: you are free, but nobody is bound. The cinema seat is a claim-right: somebody is bound to you. Both are called 'a right to sit' in everyday speech. Jurisprudence insists on the difference, because it decides whether anyone else has done a legal wrong.

1. The Terminology: Privilege, Liberty and the Loose Word Right

Hohfeld, in 'Some Fundamental Legal Conceptions as Applied in Judicial Reasoning' (Yale Law Journal, 1913 and 1917), showed that judges used the one word right for four distinct advantages: right (claim), privilege, power and immunity. For the second he used the common law word privilege, as in a privilege to enter land. Salmond and Glanville Williams ('The Concept of Legal Liberty', 1956) preferred liberty, since privilege suggests a special exemption enjoyed by a few, whereas the idea is the most ordinary thing in the world: the absence of a duty. The two words name one concept. A claim-right, by contrast, is a claim that another act or forbear, matched by a duty in him; its opposite is a no-right. The master table of all eight terms is in Note 28, and the right and duty pair in Note 72.

2. The Liberty and Its Formal Test

A liberty is the absence of a duty. The formal test is exact: A has a liberty (privilege) to do X if and only if A has no duty not to do X. The liberty says nothing about anyone else's conduct; it describes only the holder's freedom from obligation. That is why its opposite is a duty: the two cannot exist in the same person about the same act. If I am under a duty to stay off your land, I have no privilege to enter it; if you give me permission, the duty disappears and a privilege takes its place.

The correlative of a liberty is a no-right in the other party. If A is at liberty to enter his own land, B has no claim that A keep off. Contrast the claim-right: its correlative is a duty in someone else, a burden; a liberty's correlative is only the absence of a claim, which burdens nobody.

Hart added that a liberty may run one way or both ways. A bilateral liberty exists where A has no duty to do X and no duty not to do X: he may wear a red shirt or not. A unilateral liberty runs one way only: a driver in India has a liberty to drive on the left, but since he also has a duty to do so, he has no liberty to drive on the right. Freedoms such as speech or movement are bilateral: they include the freedom to stay silent or stay at home.

3. Hohfeld's Shrimp Salad

Textbooks often illustrate a liberty with a person looking over a fence, but that example is not Hohfeld's. His own is the shrimp salad. The owners of a salad say to X: eat it if you can; you have our licence, but we do not agree not to interfere with you. X now has a privilege to eat: he owes the owners no duty to refrain, so if he eats it he wrongs nobody. But X has no claim that the owners refrain from stopping him. If one of them holds the dish so firmly that X cannot eat, X has no complaint.

A privilege to do something and a claim not to be prevented from doing it are therefore two separate relations. Hohfeld's target was the judicial habit of reasoning from 'X has a right to do this' (a privilege) to 'so others have a duty not to prevent him' (a claim). That step is a fallacy.

4. Hart's Protective Perimeter

If a liberty binds no one, why is it worth having? Hart (Essays on Bentham, 1982) answered that a liberty is rarely bare. It is surrounded by a protective perimeter of claim-rights: general duties others owe us anyway, not to assault us, trespass on our land or defame us. In the shrimp salad case the owners may hold the dish, but they may not punch X, because X has a claim-right against battery. The perimeter protects against some methods of interference, not against interference as such. The value of a liberty therefore depends heavily on the claim-rights that fence it.

5. Liberty Defeated Without Wrong: Damnum Sine Injuria

Because a liberty is matched by no duty, it may be lawfully defeated by another person's exercise of his own liberty, even where real loss results. Loss without violation of any claim-right is damnum sine injuria and is not actionable. The competition cases are Hohfeld's liberties in action.

6. Legal Liberty and Political Liberty

Isaiah Berlin, in 'Two Concepts of Liberty' (1958), distinguished negative liberty (absence of interference by others) from positive liberty (self-mastery). Berlin's liberty is a political ideal used to judge laws; Hohfeld's liberty is a legal position, the bare absence of a legal duty. A person may have a Hohfeldian liberty and little Berlinian freedom, because others may lawfully obstruct him. Berlin's negative liberty is closer to a Hohfeldian liberty together with its protective perimeter. See Note 48.

7. The Two Compared

8. The Indian Perspective: Freedoms as Protected Liberties

The freedoms in Art. 19(1) (speech, peaceable assembly, association, movement, residence, profession and trade) are at their core liberties: a citizen has no duty not to speak or assemble. What makes them fundamental rights is the protection built around them against the State. The State must not interfere except by reasonable restrictions under Art. 19(2) to (6): a claim-right. Under Art. 13(2) the legislature is disabled from abridging them: an immunity (Note 75). Against fellow citizens, many remain bare liberties: my freedom of trade does not stop a rival taking my customers. Where liberties and claims meet in public space, courts must balance them.

9. Evaluation

Many disputes about whether someone 'has a right' dissolve once the question is put precisely: a liberty to act does not imply a claim not to be prevented. Critics note that Hohfeld analysed only two-person relations and said nothing about why the law grants liberties; for that one needs the will and interest theories (Note 71). Hart's perimeter answers the objection that a bare liberty is too thin to call a right.

10. Frequently Asked Questions

Q. What is the difference between a right and a liberty?
A. A right (claim-right) is a claim against another person who is under a duty to respect it. A liberty is simply the absence of a duty on the holder: A is at liberty to do X if A has no duty not to do X. A right is correlated with a duty in another; a liberty is correlated only with a no-right, so it binds nobody.

Q. Why can a liberty be lawfully defeated?
A. Because nobody owes the holder a duty to let him exercise it. Another person using his own liberty, such as a rival trader, may defeat it without any wrong, as in the Gloucester Grammar School case, Mogul Steamship and Allen v Flood. The loss is damnum sine injuria.

Q. Are privilege and liberty different concepts?
A. No. Hohfeld called it a privilege; Salmond and Glanville Williams preferred liberty, because privilege suggests a special exemption, whereas the idea is simply the absence of a duty.

See also: Note 28 (Hohfeld's master table), Note 72 (right versus duty), Note 74 (right versus power), Note 75 (power versus immunity), Note 48 (liberty and equality), Note 71 (will versus interest theory).