Fundamental Legal Conceptions Reconsidered

Fundamental legal conceptions are considered in relation to the analytical concerns of Hohfeld and Bentham, and also in relation to the normative concerns of constitutional and common law protection of rights and liberties. The use of a square of opposition to expound fundamental conceptions is reje...

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Bibliographic Details
Published in:The Canadian journal of law and jurisprudence 2003-01, Vol.16 (1), p.41-54
Main Author: Halpin, Andrew
Format: Article
Language:English
Subjects:
Common law
Constitutional law
Judicial power
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Summary:Fundamental legal conceptions are considered in relation to the analytical concerns of Hohfeld and Bentham, and also in relation to the normative concerns of constitutional and common law protection of rights and liberties. The use of a square of opposition to expound fundamental conceptions is rejected in favour of “a triangle of possibilities”. It is argued that using this device helps to provide a clearer understanding of which conceptions may appropriately be recognised as analytically fundamental, and in turn avoids confusion over the normative treatment of practical situations that may arise through the designation of legal rights and liberties as “fundamental”. In particular, the nature of legal liberties, and the priority accorded to legal rights, are both questioned.
ISSN:0841-8209
2056-4260
DOI:10.1017/S0841820900006627