Wolterstorff on the Goods to Which We Have Rights 2.3

For my money, Wolterstorff occasionally meanders off-track and fights some battles that seem a bit less than germane to the topic. Maybe I’m obtuse. Maybe Certainly, I’m not an analytic philosopher at heart. In any event, it’s his book.

Chapter 11 strikes me as such as such an instance. However, since Wolterstorff uses this chapter to discuss W.N. Hohfeld, I nonetheless found it quite interesting. Wolterstorff restates, refines, and ultimately vindicates what he calls the weak Hohfeld thesis: to every claim right there is a correlative duty. (What Wolterstorff calls a “claim right” Hohfeld would have labeled simply a right. A Hohfeldian “privilege” Wolterstorff calls a “permission right.”) Wolterstorff is not, at least at this point, willing to accede to a “strong” Hohfeld thesis; i.e., that for every duty there is a correlative right. Hohfeld himself never clearly considered the identity of this relationship; only more recent analytic writers have done so. By way of example Wolterstorff suggests the possibility of a duty toward the environment or great works of art as one for which there is no corresponding right (because neither the Great Dismal Swamp nor the Four Horsemen of the Apocalypse formerly adorning the Regent campus have a “life,” the relation to a good for which constitutes a right).

Wolterstorff even uses this Hohfeldian opportunity to discuss third-party rights. Most lawyers probably remember third-party beneficiary law as that part of the contracts casebook no one ever reached. I’m not sure he should have bothered because I don’t see how it adds anything to his fundamental thesis.