The Structure of Legal Rights

David A Simon (University of Kansas)

Abstract: Legal rights have a common conceptual structure. Across all areas of law, this structure is visible but unobserved. By bringing this structure into view, I aim, like Hohfeld, “to emphasize certain oft-neglected matters that may aid in the understanding an in the solution of practical, every-day problems of the law.” My method for doing so, however, is different. Unlike Hohfeld, I am not interested in distinguishing jural conceptual correlates, or showing how such categories are misused by judges and lawyers. Nor am I concerned with the transcendent properties that makes one thing a “right” – or even a legal right – and another something else. My task, instead, is to trace the outlines of the internal structure of rights as they exist in modern Western legal systems. This requires a significant but, in my view quite necessary, assumption: that a legal right a is the ability to bring a successful claim in a court of law. Working with this assumption, the conceptual structure emerges. Legal rights are triadic, tiered, causal, and interactive. Using this conceptual apparatus, I show how legal disputes are reducible to arguments about the integrity and composition of this structure. Additionally, I show how placing arguments within this structure can illuminate answers to problems and suggest different questions to ask.

David A. Simon is a Visiting Assistant Professor at the University of Kansas School of Law and a Ph.D. candidate in law at the University of Cambridge, where he is a Cambridge international scholar. His current projects examine author's rights in copyright, trademark law & public safety, and the influence of law professors’ amici briefs on the Supreme Court. He holds an LL.M. from Harvard Law School, a J.D. from the Chicago-Kent College of Law (High Honours, Order of the Coif), and a B.A. from the University of Michigan (magna cum laude).