Question

Jurisprudence progresses as well as regresses. The late nineteenth-century analysis of rights which Hohfeld brought to completion makes a notable advance in clarity. But rights of each of the four Hohfeldian types are spoken of by Aquinas, as well as by the civilian lawyers of his age (and indeed of earlier ages). The word ‘right’ translates the Latin ius or jus, the root of the word’s ‘justice’, ‘jurist’, ‘juridical’, and ‘jurisprudence’. Though Aquinas does not use the plural forms of the word ius as often as we use the plural ‘rights’, it is a sheer mistake to claim, as some have, that he lacked or repudiated the concept of rights in the modern sense, in which a right is ‘subjective’ in the sense of belonging to someone (the
subject of the right). When he defines justice as the steady willingness to give to others what is theirs, Aquinas immediately goes on to treat that phrase as synonymous with their right (ius suum); hence he treats a right/rights (ius/iura) as subjective. He also uses the word to speak of ‘objective’ right, that is, what interpersonal action or relationship is right-morally or legally, depending upon the context. Hobbes, who got inspired much in Benthamite and Austinian positivism, spurned the classical juristic tradition and defined ‘right’ as liberty in the sense of sheer absence of duty. So, people have most rights in the state of nature where they have no duties. This move exemplifies regression in legal and,
more generally, in political and moral philosophy. Fortunately, the mistake is quite obvious. If no one has any duties to or in respect of others, it will be more accurate to say that no one has any rights at all. For everyone, in such a state of affairs, is subject to being destroyed or abused by everyone and anyone else, and everyone’s actions can be impeded as much as any person or group cares, and is able, to arrange. The truth is that the concept of a right makes little sense save as (the Hohfeldian claim-right) a correlative of someone else’s duty, or (the Hohfeldian liberty) as protected by someone else’s duty of non-interference, or (the Hohfeldian power) as promoted by the duty of officials and others to recognize and
effectuate one’s acts-in-the-law (or their ethical counterparts), or (the Hohfeldian immunity) as protected by a similar duty of officials and others not to recognize another’s juridical acts as it purportedly bears on my position.
(Extracted, with edits and revision, from The Oxford Handbook of Jurisprudence and Philosophy of Law, Edited by Jules L. Coleman, Kenneth Einar Himma, and Scott J. Shapiro)