Correlation and Constitutional Rights
Forthcoming in Without Trimmings: The Legal, Moral, and Political Philosophy of Matthew Kramer (Mark McBride & Visa A.J. Kurki eds., Oxford University Press). 2020. Georgetown Law Faculty Publications and Other Works. 2303.
29 Pages Posted: 9 Oct 2020 Last revised: 13 Apr 2021
Date Written: August 20, 2020
Skepticism among American scholars about the value of analytic legal positivism stems in part from the pervasiveness of private law in analytic jurisprudence. Wesley Hohfeld’s influential framework proves little different: although he claims that the jural relations apply to constitutional entitlements, he relies on private law for their exposition. Matthew Kramer’s scholarship clarifies and develops Hohfeld’s framework and draws greater attention to its application in the public realm. This chapter advances the discussion by examining the application of the Hohfeld-Kramer framing to constitutional law in particular, demonstrating the weaknesses in assuming that the private law model can be sustained without more careful exposition. Such entitlements are held in res publica, with the result that the entitlement-holder also bears a duty of non-infringement. It identifies a new category of ‘dignities’, which act as a shield for claim-rights and highlights the nature of ‘purported rights’, where the state, holding the power of enforcement, structurally lacks the impetus to prosecute (its own) constitutional breach.
Keywords: Constitutional analysis, constitutional law, duty, Matthew Kramer, Hohfeld, Hohfeldian analysis, immunity, rights, liberty, power, Public Law
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