engleski

Hohfeld's Analytical Scheme and Constitutional Economic and Social Rights

Wesley Newcomb Hohfled found analytical clarity crucial for legal reasoning. He regarded the ambiguity and inconsistence of legal terminology as the main obstacles for understanding and successful resolution of legal issues. Hohfeld was not satisfied with the assumption that all the legal relations can be reduced to ’’right’’ and ’’duty¨’’ and that these categories are convenient for analysing even the most complex legal interests. ’’Right’’ is not a uniform notion and is often used when the subject matter actually refers to liberty, power or immunity. Soon after its publishing, Hohfeld’s analytical scheme gained great reputation among early American legal realists, which is interesting considering its formalistic form. Its influence on the analysis of the language of rights has remained strong up to now. The purpose of this paper is to clarify some of the relevant misunderstandings relating to the application of Hohfeld’s analysis to contemporary constitutional rights, particularly constitutional economic and social rights. The paper is divided into two main parts. The first part attempts to remedy all the misunderstandings pertaining to the possibility of application of Hohfed’s analysis to constitutional law. Hohfeld himself applied his analysis only in the field of private law, which made some authors contest the possibility of its broader application. This part also critically revises the previous attempts of the authors who have applied Hohfeld’s analysis to constitutional law. The second part displays how Hohfeld’s scheme can be useful in the Constitutional Court’s review of the exercise of constitutional rights in general and the exercise of economic and social rights in particular. First it provides some general explanations, then it shows how Hohfeld’s analysis is applied to the decisions of the Croatian Constitutional Court relating to the interpretation of constitutional economic and social rights and finally, it indicates the advantages of such an approach with respect to conventional legal reasoning.

Hohfeld’s analytical scheme ; constitutional economic and social rights

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