ANALYSIS OF FUNDAMENTAL LEGAL CONCEPTS I: RIGHTS, DUTIES AND LIABILITY
CONTENTS
1.0 Introduction
2.0 Objectives
Main Body
The concept of rights
The concept of duties and liabilities
4.0 Conclusion
5.0 Summary
6.0 Tutor-Marked Assignment (5)
7.0 References/Further Readings
INTRODUCTION
This unit is meant to guide you through the various fundamental legal concepts with particular focus on the concepts of rights, duties and liability. At the end of the unit, you must be able to embark on your own on a critical legal analysis of these fundamental concepts, and in addition, you must be capable of employing the analysis in the legal field.
OBJECTIVES
This unit is meant to acquaint students with the concepts of rights, duties and liabilities which are commonly used in legal lexicons thereby arming them with the legal and philosophical basis for distinguishing them and helping them in general practice.
MAIN BODY
- The concept of rights;( Few concepts are as fundamental in law as that of However, on examination, it turns out that there is an amazing lack of consistency in the way in which most people use the term ‘rights’: as soon as one scratches a little below the surface it is quite likely that one will find that behind that technical- sounding expression, there exist several half-baked and mutually incompatible conceptions. Where one would expect to find a precisely defined and tightly delimited concept, one meets only muddle.
In defining what a right is, you are expected to resort to various definitions coined by jurists such as Vinogradoff, Salmond, Holmes, Gray, Hart, Dworkin, Raz, and several others. You are to pay particular attention to the basic nitty-gritty of each jurist’s definition of the concept. The whole essence of resorting to several definitions is to open your eyes to the fact that the concept of right is not a straight- jacket( one as it is largely controversial among jurists.
Of particular importance to you in the proper understanding of the concept of ‘right’ is Hohfeld’s analysis of rights, where he, through a diagrammatic representation, explains the relationship between rights, duties and liberties. He points out where there will be claim as well as where there will be no claim. The summary of his analysis is his categorisation of rights into four main sections. He further painstakingly explains the relations of power to immunity; the relations of liability to disability; the relations between power and liability; as well as the relations between immunity and disability. This is a very good point for you to start. An understanding of Hohfeldian analysis of rights will therefore be of priceless use to you.
You are also required to go through the main theories of rights: benefit theory, will or choice theory of right, expectation theory of rights, among several others.
The concept of right must also be applied to human rights and legal rights, and here, you should consider the main theories of human rights such as the state of nature theory, the social contract theories, the intuitionist theories, the duty-based theory of human rights, etc.
Self-Assessment Exercise (SAE) 1
Critically analyse Hohfeldian’s conception of rights.
- The concept of duties and liabilities
It is equally important to analyse with some care the idea of duty for several reasons. A proper understanding of the concept is necessary in order to understand the law. Lawregulates and guides human behaviour by binding people to act in certain ways through the creation of legal duties. Any misconception of what it is to be under a duty is certain to result in a misunderstanding of how the law operates.
It is also essential to clarify one’s ideas about duties in order to understand what a right is. Everybody can see that the concepts of duty and right are intimately related. What many people fail to realize is that it is impossible to understand what a right is without making reference to the idea of duty, but not vice versa. In other words, the concept of duty is the more basic of the two and until it is clarified, it is not possible to have a proper understanding of rights.
It is also of utmost importance that you know the various types of duty that exist: moral, legal, social, religious, etc. The duty to keep one’s promise is moral; the duty to drive on the right-hand side of the road is legal (note however that there is a prima facie moral duty to comply with one’s legal duties); there is a social duty among many Nigerian groups to offer food to a visitor who arrives at mealtime; while Catholics have a religious duty to attend Mass on Sundays.
To understand the concept of duty the more, you must be conversant with the various theories of duty such as the sanction theories of duty, the imperative theories of duty, the theories of duty based on ‘feelings’, the acceptance theories of duty and the rest. The analysis of duties in terms of reasons for action is also to be embarked upon. You must also note that some authors conceive of duties as encompassing obligations and liabilities.
Self-Assessment Exercise (SAE) 2
Some authors have contended that duties encompass obligations and liabilities. Do you agree with them? Discuss how.
CONCLUSION
The importance of basic legal concepts such as rights, duties and liabilities has been explored and we have been able to grapple with the importance of their understanding to everyday legal interactions and situations.
SUMMARY
In this unit we have learned the following legal concepts:
- The concept of rights
- The concepts of duties and liabilities
TUTOR-MARKED ASSIGNMENT (5)
Highlight and discuss the nitty-gritty of the Hohfeldian analysis of rights and the relations, if any, between duties and liabilities.
REFERENCES
A.W.B. Simpson ed., P.M.S. Hacker, Oxford Essays in Jurisprudence, 2 nd Ser., Clarendon Press, Oxford, p. 131 – 170
Dias, R.W.M., Jurisprudence, 4 th ed. (Butterworth & Co. (Publishers) Ltd, Boston)
J.M. Elegido, Jurisprudence, Spectrum Law Publishing, Ibadan, 1994, 143 – 181;
L.B. Curzon, Jurisprudence, 2 nd ed., Cavendish Publishing Ltd., London, 1995, pp. 259 - 271