The misuse of technical legal jargon: rights and privileges

“But if thought corrupts language, language can also corrupt thought.” George Orwell wrote this in his 1946 essay titled “Politics and the English Language,” where he discusses the deterioration of modern English, characterized by vagueness and imprecise language. Orwell addressed the tendency of academic terminology to be unnecessarily complex, and the development of cliches and euphemisms used to mask unpleasant truths. Though written over three-quarters of a century ago, we are still plagued by the dangers of thought corrupting language, used often in political settings (Deist). In the modern context of increased digital communication, cultural and economic globalization, and a dynamic landscape of social activism, technical jargon pertaining to law and legal studies has been tangled with colloquial usage of various terms. The focus of this essay is to highlight the effects and hazards of such confusion, particularly clarifying the modern conception of “right” versus “privilege” according to Wesley Hohfeld’s analytical scheme.

Wesley Newcomb Hohfled (1879 - 1918) was an American Jurist credited with creating an analytical scheme (seen below) by which to analyze a majority of legal issues. He explained a “right” as a legal interest that imposes a correlative “duty”. In other words, when one’s “right” has been infringed, this implies that a duty has been violated on the part of another party. Suppose that party X has a “right” to a piece of land that she owns. She therefore has the “right” against party y to bar them from entering her land. Party Y thus holds the correlative “duty” to not enter party X’s land. This simple illustration reduces the concept of “rights” into a form that is easily understandable, and which we can use to compare to another key concept that Hohfeld elucidates: “privilege”.

(Image taken from the International Journal of Law and Legal Jurisprudence Studies)

Hohfeld explains “privilege” to mean a position one holds in which they have “no duty” to do something. Simultaneously they have “no right” to impose action on the part of someone else. In other words, the correlative to “privilege” is “no-right”. Similarly, the opposite legal position of “privilege” is “right.” Confusion about the two concepts may stem from a variety of sources including linguistic development, cultural perspectives, historical development, and political discourse.

In July of 2020, the Australian government introduced binding legislation and restrictions regarding mask use to deal with the Covid-19 pandemic. Many protested these restrictions, claiming that they infringed on fundamental rights, and that the residents of Australia had a “right” not to wear masks. In Hohfeldian terms, the protesters would technically be advocating for the establishment of a “privilege” to not wear a mask, implying “no right” on the part of the government to interfere with the privilege to use, or not use a mask (Lee). The Australian Human Rights Commission used the protests as an opportunity to clarify the position of the government on the limitation of certain rights, and to address claims that the actions of the government violated the Universal Declaration of Human Rights on movement and freedom of assembly. Emeritus Professor Rosalind Croucher, president of the Australian Human Rights Commission stated “Even if there were direct laws about rights, it doesn’t mean that everything is a right; nor does it mean that rights are unqualified. And all human rights come with the corresponding responsibility to respect the rights of others.” Applying Hohfeld’s analytical scheme to this statement, we understand that Croucher holds that there can be antinomies among different levels of law, but that universal human rights in rem are accompanied by a corresponding duty to uphold them on the part of others. In certain instances, those duties infringe on other rights. In the instance of COVID-19, certain individual “rights” may have been limited, but in an effort to protect public health against a greater threat. Croucher clarifies this in her statement, saying “Rights such as freedom of movement and freedom of association are the kinds of rights that may be limited by clear laws, especially when it comes to issues of public health in responding to a serious threat to the health of the population or individual members of the population and the measures are aimed at addressing that threat.”

As evidenced through the pandemic protests across the world, rights and privileges were not communicated adequately, leading to controversy over what one's obligations were under law. Clear understanding of the primary and secondary rules pertaining to the legislation enacted, and the relationship between the aforementioned legislation and rights or privileges granted at higher levels of law might have helped to ease tensions between the government and the protesters. Instead, “rights” became a buzzword, used without due care, amplifying disdain for public health measures.

Sevastian Oti

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I contenuti degli articoli rappresentano esclusivamente le idee e le opinioni degli autori, e in nessun modo i punti di vista dell'Università Bocconi.

Works Cited

Chugh, Divya, and Saumya Sharma. HOHFELD’S ANALYSIS of LEGAL RIGHTS AUTHOR.

Croucher, Rosalind . “Wearing a Mask Will Protect Human Liberties, Not Infringe upon Them | Australian Human Rights Commission.” Humanrights.gov.au, 28 July 2020, humanrights.gov.au/about/news/opinions/wearing-mask-will-protect-human-liberties-not-infringe-upon-them.

Lee, Constance. “Hohfeld’s Fundamental Jural Relations.” Www.youtube.com, 21 Sept. 2022, www.youtube.com/watch?v=d5mS3z-GEIk. Accessed 21 Nov. 2023.

Orwell, George . “Politics and the English Language.” The Orwell Foundation, Apr. 1946, www.orwellfoundation.com/the-orwell-foundation/orwell/essays-and-other-works/politics-and-the-english-language/.

Scott, Nick, et al. “The Introduction of a Mandatory Mask Policy Was Associated with Significantly Reduced COVID-19 Cases in a Major Metropolitan City.” PLOS ONE, vol. 16, no. 7, 21 July 2021, p. e0253510, journals.plos.org/plosone/article?id=10.1371/journal.pone.0253510, https://doi.org/10.1371/journal.pone.0253510.