Jurisprudence LAW2345 Assignment 2: Hohfeldian Rights in Legal Context

This essay provides a comprehensive analysis of Hohfeldian incidents, which are fundamental components of legal rights. It begins by defining and differentiating between the four key elements: privilege, claim, power, and immunity. The essay explores the logical form and function of these incidents, explaining how they combine to create complex rights. It delves into the nature of claim rights, discussing their correlation with duties and their application in various scenarios. Furthermore, the essay applies these concepts to the case of Annetts v Australian Stations Pty Ltd, examining how claim rights might have been considered had a duty of care been established. The analysis highlights the significance of Hohfeld's contributions to understanding the nature of rights and their implications in legal reasoning, emphasizing the importance of disambiguating the term 'right' for clarity and precision in legal arguments. The essay provides a detailed examination of how these incidents function in the context of property rights, the role of secondary rules and the concept of immunity.

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The plethora of the right assertions can be sorted through categorization. In order to
understand what each of the asserted right exactly means, there is a need to be precise on how
the rights have to be construed and what these right do. In order to analyse these rights, their
form and their function has to be analysed. The form helps in clarifying the internal structure of
rights and the function helps clarifying the description of what the right would do for the holder
of the rights1. The analysis of the most familiar rights shows that the right of private property or
right to free expression covers a complex internal structure. These rights are deemed as an
ordered arrangement of the basic components, in the very same manner as the molecules are
ordered arrangement of chemical elements. The Hohfeldian incidents are the four basic
components of rights, where the four basic elements are that of privilege, claim, power and
immunity. These Hohfeldian incidents have a distinguishing logical form and these incidents are
so fit with each other, particularly in such a unique manner, that these result in creation of
complex molecular rights2. In the following parts, an attempt has been made to discuss the very
nature of the Hohfeldian claim rights. Once this is done, these claim rights would be applied to
the case of Tame v New South Wales; Annetts v Australian Stations Pty Ltd3. In this case, the
court had held that the defendant did not owe a duty of care based on tort of negligence to the
plaintiff4. However, for the purpose of this discussion, the case would be discussed with regards
the claim rights which were held by the plaintiff, by assuming that a duty of care had been owed
in this case. This is done particularly to fit the claim rights possessed by claim rights with the
other kind of Hohfeldian rights with regards to the molecular conception of rights.
1 Jeffrey Brand, Philosophy of Law: Introducing Jurisprudence (A&C Black, -2013)
2 Oskari Kuusela, Key Terms in Ethics (Bloomsbury Publishing, 2010)
3 (2002) 211 CLR 317
4 Nick Gifford, Information Security: Managing the Legal Risks (CCH Australia Limited, 2009)

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Wesley Newcomb Hohfeld was an American jurist who became famous for his
contributions towards the understanding of the nature of rights and the implications of liberty.
Till the present day, the reflections of Hohfeld prove to be significant in nature. He noted that
even the most reflected jurists used to conflate different meanings of the term ‘right’, which
sometimes use to switch the sense of word several times, only in a single sentence5. He had
written that this vagueness in language indicated towards an associated vagueness of thought
which had the same impact over the lawful conclusions. For facilitating reasoning and for
clarifying the rulings, there was a need to disambiguate the term rights and this had to be done by
breaking this term in eight different concepts. In order to give away with the lack of clarity, there
was a need for these terms to be relative to the other, and for this, there was a need to group these
in two pairs of four, which were of Jural Opposites and Jural Correlatives6. The former covered
the right no-right, privilege duty, power disability and immunity liability; whilst the latter
covered the right duty, privilege no-right, power liability and immunity disability. The wordings
right and privilege are corresponding to the concept of claim rights and liberty rights
respectively7.
The very first component of the Hohfeldian incidents is privilege or liberty. The
individuals have a right to pick up a shell which is found by such person on the beach. This right
is deemed as a privilege where a person A has the privilege to something, only in such a case
where A does not owe a duty to that something. In other words, the right to pick the shell is
available only when there is not duty to pick the shell. Hence, the duty would not be contravened
as there is no duty owed to pick the shell, by deciding to do something else. In a similar manner,
5 Dinah Shelton, The Oxford Handbook of International Human Rights Law (Oxford University Press, 2013)
6 Christopher Berry Gray, The Philosophy of Law: An Encyclopedia (Routledge, 2013)
7 Martin Hogg, Obligations: Law and Language (Cambridge University Press, 2017)

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the right to paint a wall red or the right to sit in an empty cinema is a privilege. The privilege
rights mark out what the bearer has no duty not to do. Where the presidents of USA invoke the
executive privilege, there is a denial of assertion that they do not owe a duty of concealing
evidence and here a Hohfeldian privilege is asserted8.
The next incident is of claims. A contract which takes place between employer-employee
gives the employee the right to be paid the wages9. This right is deemed as a claim where A has a
claim on B regarding something only when B has the duty towards A with regards to this
something. To explain it properly, the employee is deemed to have a claim regarding the
employer paying them the earned wages. This means that it is the duty of the employer towards
the employee to pay these wages. So, it becomes clear from the explanation and the given
example that every claim right is correlated to the duty which lies with a minimum of one duty
bearing person10. The differentiating factor regarding the claim right is that the duty of the duty
bearer is owed to or is directed towards the right holder. Some of the claim rights exist in an
independent manner owing to the voluntary actions, which is similar to signing of contracts and
there are some claim rights which correspond to the duties in one or more agents. An example of
this can be highlighted in the claim right of a child against the abuse, which exists in an
independent manner from action of any person and that the claim rights of the child are
correlated to the duty in every other person, for not abusing him11. This would mean that the
claim rights are in rem. This example also helps in illustrating the manner in which a claim right
could put forward a requirement on the duty bearer to stop the performance of certain actions.
8 Robert W. Kolb, Encyclopedia of Business Ethics and Society, Volume 1 (SAGE, 2008)
9 Simon Honeyball, Honeyball and Bowers' Textbook on Employment Law (Oxford University Press, 13th ed, 2014)
10 David J. Cornwell, Mercy: A Restorative Philosophy (Waterside Press, 2014)
11 Mhairi Cowden, Children's Rights: From Philosophy to Public Policy (Springer, 2016)

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The property and bodily rights are deemed as the paradigmatic rights which have the claim rights
at their very core12.
The claims and privileges had been defined by Hart as the primary rules as the primary
rules, where it is stated that the rules put forward the requirement of the individuals to either
perform something or to refrain from performing the specific actions. These primary rules are
applicable for all the physical actions and analyse as the claims and privileges. Where all the
claims and privileges come to be known, with regards to the physical actions, it would be known
with certainty for each possible physical action, whether each of these actions is forbidden,
permissible or requirement. The Hohfeldian incidents define the secondary rules of Hart by
specifying the manner in which the agents can change and introduce the primary rules13. The
Hohfeldian power is deemed as such an incident through which the agents are able to alter the
primary rules. As per this, the power is held by ‘A’ only when A has the ability of altering their
own or any other person’s Hohfeldian incident14. The captain of the ship has the power-right for
ordering a person who has lesser authority than him, particularly the lower level people, to scrub
the deck. This is because the captain has the power of changing the normative situation of the
sailor by exercising this power, through which a new duty is imposed on the sailor which results
in one of the Hohfeldian privileges is annulled, as the captain is not required to scrub the deck.
In a similar manner, a promisor exercises a power right of creating a claim in the
promisee regarding the promisor to perform certain actions. The exercise of the power right by
the promise to the power, results in the creation of a claim in the promisee that the promisor
would do what has been promised. In a similar manner, a neighbour would waive their claim
12 Professor Diarmait Mac Giolla, The Welsh Language Commissioner in Context: Roles, Methods and Relationships
(University of Wales Press, 2016)
13 Leif Wenar, Rights (09 September 2015) <https://plato.stanford.edu/entries/rights/#2>
14 Horacio Spector and Brian Bix, Rights: Concepts and Contexts (Routledge, 2017)

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regarding no entering the property when such individual invites a person in their house, which
results in the endowing of the corresponding privilege upon the invited person. Abandoning,
selling, ordering, consenting, sentencing, promising and waiving are deemed as the examples of
the acts through which the powers are exercised by the right holder for changing the Hohfeldian
incidents of their own, or those of another people. Hence, the powers have the ability of altering
the first order claims and privileges, along with the second order incidents. So, there is a power
with the admiral regarding the power right to relive the captain of the command to ship, which is
the captain’s power right. So, the authority of other is altered through power-rights15.
The final Hohfeldian incident is immunity. Where A has the ability of altering the
Hohfeldian incidents of B, it means that A has the power. Where A does not have the ability of
altering the Hohfeldian incidents of B, it means B has immunity16. The Australian government
does not have the ability under the Constitution of Australia of imposing the citizens with the
duty of kneeling before a symbol of Jesus or before a cross. This means that the citizens in such
case have immunity. The immunity is deemed very basic element of the right of the citizens of
the nation to exercise freedom of religion17. In a similar manner, the civil servants have the right
of not being dismissed where the power in the government is changed and the witnesses which
are presented in the court have been given the right to not be coerced or threatened to say
something. These rights are deemed as immunities which correspond to an absence of power in a
particular party to modify the normative situation or a right holder in a certain manner18.
15 Christian Erk, Health, Rights and Dignity: Philosophical Reflections on an Alleged Human Right (Walter de
Gruyter, 2013)
16 Patricia Mindus, A Real Mind: The Life and Work of Axel Hägerström (Springer Science & Business Media, 2009)
17 Carolyn Maree Evans, Legal Protection of Religious Freedom in Australia (Federation Press, 2012)
18 At 10

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Each of the atomic incidents, or the basic components, stated above can be deemed as a
right where they take place in isolation. As has been stated earlier, these elements bond together
in a unique manner to give rise to complex rights19. The privilege and claim are deemed as first
order right which gives the direct legal right to an individual. This privilege allows the person to
be protected as a result of the duty owed to them by another, or could relate to the use of the
computer which a person owes20. The claims correlate to the duty towards the others to not use
the property of another. The second order right covers immunity and power, where the legal
rights with regards to the alterations of the first order rights are concerned21. A person has
different powers in context of the claim made by them, in the manner of waiver of this claim,
annulment of this claim, or the transfer of this claim. The second order immunity stops the others
from changing the first order claim over the property. This immunity stops another person from
transferring, waiving or annulling the claim over the computer. These four incidents form a
major part of the property right22.
The first part of this discussion has been focused on the Hohfeldian incidents. These
incidents, particularly the claim-rights how now been applied in context off the Annetts v
Australian Stations Pty Ltd case. In this case, James was the son of Mr and Mrs Annetts who had
been left by Mr and Mrs Annetts to work in New South Wales when he was sixteen years old,
back in August 1986. This was done so that James could go and work with the defendant, who
was located in the state of Western Australia. Annetts had questioned the defendant, i.e.,
Australian Stations Pty Ltd regarding the working conditions in Western Australia, where James
was set to work, before they left their son with the defendant. The defendant informed the
19 William A. Edmundson, An Introduction to Rights (Cambridge University Press, 2nd ed, 2012)
20 N.D. Arora, Political Science for Civil Services Main Examination (Tata McGraw-Hill Education, 2010)
21 Gerald F. Gaus and Fred D'Agostino, The Routledge Companion to Social and Political Philosophy (Routledge,
2013)
22 M.E. Bayles, Principles of Law: A Normative Analysis (Springer Science & Business Media, 2012)

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Annetts that their son would be working in a place in Flora Valley. Further, they were also told
that the son of the plaintiff would be supervised at all time, and would get a shared room. The
crux of the matter was that the defendant promised the Annetts that James would be looked after
in a proper manner23.
For seven weeks, James worked at the promised location. However, the defendant broke
their promise when James was sent to work at a place which was a hundred kilometres away
from Flora Valley, on October 13th, 1986. The defendant, for the very first time, became aware of
the disappearance of James on December 03rd 1986 and had a strong belief that James was in a
major danger, particularly one of grave injury or death. After three days had passed, the Annetts
were informed about their son having gone missing. This information was given to the father
over a phone and he was told that James had run away from his place of work. This information
was given to him by a police officer of New South Wales. Upon hearing this sad news, Mr
Annetts collapsed on the floor and the conversation was taken over by Mrs Annetts. On April
29th, 1987, after conducting a lot of search efforts, the skeleton of James was found. After the
skeleton was analysed, it came to be known that James had died due to extreme exhaustion and
dehydration accompanies by hypothermia, on December 04th 1986. James’ death took place in
Gibson dessert which was located at a very far distance from where the defendant had sent James
to work later on, which was a place hundred kilometres far from Flora Valley. It was claimed by
the plaintiff that the defendant had been negligent, which resulted in the death of the plaintiff.
They also made a case for psychiatric injury which they had to bear as a result of the death of
their son, and this claim was made against the defendant24.
23 Federation Press, Tame v New South Wales Annetts v Australian Stations Pty Ltd (2017)
<http://www.federationpress.com.au/pdf/Tame%20v%20New%20South%20Wales.pdf>
24 High Court of Australia, Tame v New South Wales [2002] HCA 35 (5 September 2002)
<http://eresources.hcourt.gov.au/downloadPdf/2002/HCA/35>

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The Court of Appeal in this case held that the plaintiff was not owed a duty of care due to
lack of proximity and foreseeability25. However, for the purpose of this study, it is assumed that a
duty of care was owed by the defendants in negligence to Mr and Mrs Annetts. The claim rights
dictate that Annetts had a claim against Australian Stations Pty Ltd under negligence, if and only
if Australian Stations Pty Ltd owed a duty to Annetts under negligence. In other words, the
Annetts get the right of making a claim against Australian Stations Pty Ltd when they owed a
duty of care, based on the tort law of negligence. The key point here is that the claim right is
born as the duty of Australian Stations Pty Ltd is directed at Annetts and is owed to them. This
claim right is born voluntarily as the duty of applying care has to be applied by the defendants
when their actions have the possibility of resulting in a harm to the plaintiff. So, Australian
Stations Pty Ltd was required to take care of James as he was coming to work with them. They
also had to carefully deliver the news to Annetts as it was very clear that they were concerned
about the safety of their child from the very beginning. This can be affirmed from the number of
enquires and questions made by Mrs Annetts before she sent James to work for Australian
Stations Pty Ltd. A parent who is this concerned is bound to be shocked by such disturbing news
and thus, Australian Stations Pty Ltd owed a duty of care towards the Annetts while informing
them about their son.
The opposites and correlatives table covers the arrangement of four incidents in order to
display the logical structure of the system devised by him26. For filling out the tables, a further
terminology was added in this table. This dictated that a person would have a claim than the
person would be lacking a ‘no claim’, as this is the opposite of a claim. When it comes to the
25 Health Law Central, Tame v New South Wales; Annetts v Australian Stations Pty Limited [2002] HCA 35 (17
January 2015) <http://www.healthlawcentral.com/cases/tame-v-new-south-wales/>
26 Alison Clarke and Paul Kohler, Property Law: Commentary and Materials (Cambridge University Press, 2005)

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correlative, A would be deemed to have a claim where person B has a duty27. When this context
is applied to the case of Annetts v Australian Stations Pty Ltd, a claim would be present with
Annetts when they lack a ‘no claim’. In other words, where they have a claim under tort of
negligence, they would not lack the claim under negligence, in context of opposites. In context of
correlative, Annetts would be considered to have a claim when Australian Stations Pty Ltd owed
a duty towards them. This was true as per the assumption made for this study that Australian
Stations Pty Ltd did owe a duty of care towards the Annetts. So, there are both opposites and
correlatives with regards to the claim rights of the Annetts against Australian Stations Pty Ltd.
When it comes to the molecular rights, each of the atomic incidents has to be deemed as a
right when the same takes place in isolation. These four atomic incidents are of privilege, claim,
power and immunity and they bond together in a unique manner to give rise to complex rights28.
In the context of Annetts v Australian Stations Pty Ltd, these molecular rights are now analysed.
The Annetts have the privilege to be owed care under negligence when they do not have a duty
of care under negligence in this case. As explained earlier, they have a claim towards Australian
Stations Pty Ltd only under negligence, when Australian Stations Pty Ltd had a duty towards A
under negligence. The Annetts have the power only when they have the altering their own or of
another person’s Hohfeldian incidents. In this regard, they had the power of altering the
Hohfeldian incidents of James, as they sent him to work for Australian Stations Pty Ltd.
Similarly, Australian Stations Pty Ltd had a power over James to send him 100 kilometres away
from the Flora Valley. And this is true for Annetts as well, as Australian Stations Pty Ltd had the
capacity of altering the mental peace and stability of the Annetts through the delivery of such
traumatic news. Australian Stations Pty Ltd would be deemed to have the immunity where the
27 At 13
28 Ibid

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Annetts do not have the ability of altering the Hohfeldian incidents of Australian Stations Pty
Ltd. Here, the Annetts do not have the ability of changing the four incidents of the defendant
giving the defendant the immunity in this case. The molecular rights revolving around this case
has been presented in the table below.
A Person Has
POWER
To waive, transfer or
annul the
IMMUNITY
Against others modifying
the
Second-order:
Rights over the first-
order rights
PRIVILEGE
To be safeguarded from
actions of others
CLAIM
Against the others for
negligence
First-order:
Rights over the duty
The figure presented above shows the first order rights, which the Annetts directly have
with regards to the tort of negligence. The privilege on the first level gives the entitlement to the
Annetts to make use of this right, where they have to be safeguarded from the acts being
undertaken by the other people, particularly by Australian Stations Pty Ltd. This gives them a
privilege of being dealt with in a careful manner, as would be done by a reasonable person. The

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claim is related to the duty of the other people of not hurting or harming them, while they
undertake their actions. In other terms, the claims give the Annetts the right against the breach of
duty of care on part of Australian Stations Pty Ltd.
The second order rights are deemed as the legal rights which are related to the legal rights
which can be resulted in changes in the first order rights stated above. The Annetts have different
powers with regards of their claim; they can choose to waive this claim off by allowing the
Australian Stations Pty Ltd to breach their duty of care; to annul their claim, by giving up the
duty of care which was owed to them; or they can transfer their claim by making the duty of care
not being owed to them, and instead being owed to James or someone else. Here, the Annetts
could easily waive off their claim and state that Australian Stations Pty Ltd had not wilfully
undertaken the breach or that the same was not reasonably foreseeable. This can also be done in
the sense of lack of proximity between them and the news having being given in a segmented
manner, instead of like a shock. In the second order, the immunity of Annetts could help them in
changing their first order claims. Hence, this would restrict the waiver, transfer and the
annulment of the claims of the Annetts with regards to negligence.
These four incidents result in constitution of the major part of the negligence related
rights of the Annetts. Though, the Hohfeld incidents are qualified and these factors can still be
changed. For instance, the immunity of the Annetts can be changed where the court finds that a
duty of care was never owed to the Annetts. This could be for any reasons, including the ones
established in the original case, i.e., of foreseeability and proximity. The qualification of these
incidents carves out the shape of the negligence related rights of the Annetts; though, the basic
shape is not affected. This can be deemed as true as here the Annetts are deemed to have been
owed a duty of care, which would mean that the immunity would be upheld. The example was