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Luis Duarte d'Almeida: 'Legal Rights, Duties, and Liberties: A Framework'

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University of Surrey School of Law

Frank Whittle Building (AB)

Fifth Floor

Guildford

GU2 7XH

United Kingdom

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It is my pleasure to invite you to a Hart Seminar featuring Professor Luis Duarte d'Almeida: 'Legal Rights, Duties, and Liberties: A Framework'. This is an optional pre-read seminar, and the reading will be circulated to registered attendees one week prior to the event.

Abstract: I have in previous work suggested we ought to resist W. N. Hohfeld’s relational account of legal positions. Hohfeld characterises legal duties, rights, liberties, powers, and so on, as positions in two-party relations. I argued against his approach. I also hinted at a link between Hohfeld’s views on relationality and his loose grip on the notion of a liberty. But my arguments were not meant as a complete defence of my claims; and I provided no non-relational framework of legal positions that could be set out against Hohfeld’s own.

My goal in this paper to do just that. Focusing on duties, rights, and liberties, I will begin by drawing some distinctions to help us make progress on the matter. The main distinction is between two classes of statements legal positions. One is that of statements of (what I propose to call) positive legal positions: statements of the forms “A has a liberty to φ”, “A has a duty to φ”, “A has a duty toward B to φ” (or, equivalently, “B has a right that A φ”), and so on. The second is the class of statements of definite legal positions: statements of the forms “A has the liberty to φ”, “A has the duty to φ”, “B has the right that A φ.” The distinction, I argue, is theoretically fruitful, and should form the basis of a framework for the analysis of fundamental legal positions.

I then develop such a framework, putting together a comprehensive picture of how statements of both kinds interrelate logically—both internally to each class, and between the two classes. And as the discussion unfolds, I will also present a fuller case for the general non-relationality of normative positions, and bring out more clearly the difficulties surrounding Hohfeld’s (widely adopted, but misguided) take on liberties.

Luis Duarte d'Almeida is a Professor of Jurisprudence at the Edinburgh Law School. He joined the University of Edinburgh as a Chancellor's Fellow in September 2012; before that he was a Fellow of Churchill College, Cambridge, and a PERSP post-doctoral researcher at the University of Girona. His main research areas are general jurisprudence, legal reasoning and argumentation, and the philosophical foundations of criminal law. He is also interested in philosophy of language, metaethics, argumentation theory, informal logic, and philosophical aspects of discrimination.

This seminar is part of our Hart Seminar Series, which features a diverse group of leading scholars working at the intersection of law and philosophy. Hart Publishing contributes generous support to make the seminar series possible.

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University of Surrey School of Law

Frank Whittle Building (AB)

Fifth Floor

Guildford

GU2 7XH

United Kingdom

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