We are presenting Wesley Hohfeld’s fourfold classification of legal entitlements this week, and we discussed “powers” and “immunities” in our previous two posts. In this post, we will examine liberty rights (often referred to as “privileges”). Legal scholar Joseph Singer (1982, pp. 1056-1059) formally defines Hohfeldian liberty rights or legal privileges as “permissions to act in a certain manner without being liable for damages to others and without others being able to summon state power to prevent those acts.” Ok, but how is a liberty or privilege, thus defined, any different from a Hohfeldian power or a Hohfeldian immunity from authority? The way I like to distinguish liberty rights from powers and immunities is to focus on harms. When I have a legal power, I have the right to create, transfer, or change an entitlement, and when I enjoy a legal immunity, I have the right to do something without interference or intermeddling from others, but when I have a liberty interest, I have the right to take actions that might impose external harms on others without legal liability.
A classic example of liberty rights is market competition. If I open a new grocery store, hot dog stand, or other lawful business, my decision to enter one of these markets might harm existing business interests in those markets. But that’s okay, or in the immortal words of Oliver Wendell Holmes (pictured below), “the policy of allowing free competition justifies the intentional inflicting of temporal damage, including the damage of interference with a man’s business ….” (I thank my friend and colleague Dan O’Gorman for bringing this case to my attention.) Note that my decision to open a new business or enter a market is an immunity from authority. Broadly speaking, no one can tell me who to work for or what I can do for a living. But once I decide to open a new business, I have a liberty right to enter the market and attract customers from existing business firms free from legal liability. Alas, occupational licensure and zoning laws have imposed significant restrictions on people’s ability to enter markets. We will nevertheless proceed with our review of Hohfeld’s taxonomy of legal rights in our next post …
Singer quote: Joseph William Singer, “The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld,” Wisconsin Law Review (1982).
Holmes quote: Vegelahn v. Guntner, 167 Mass. 92, 44 N.E. 1077 (1896) (Holmes, dissenting).