Philosophy of Law Study Questions
Questions on Applbaum/Hohfeld
Much of today will be spent just getting a feel for the Hohfeldian analysis upon which Applbaum relies.
To get a feel for what a Hohfeldian privilege is, consider the
following example (from Jeremy Waldron, who borrowed it from Sanford
fanatical terrorist armed with various weapons has killed a number of
people and is now holed up in a building surrounded by police. The
police believe that if he is permitted to escape, he will kill many
more, and they have decided they cannot allow this.
the terrorist has a hostage, and he is determined to move out of the
house using the hostage as a human shield. He knows that there is a
good chance that the police will try to kill him even if this means
shooting through the body of the innocent hostage. Devilishly, he
explains the situation to the hostage and convinces him that either
they will both escape together or they will both die together. He gives
the hostage a pistol with which he can shoot back at any police
officers who may try to shoot (through) him, assuring him of course
that if he even so much as makes a move to turn the pistol on his
captor he (the terrorist) will kill him instantly. The police, for
their part, are fully aware that an escape attempt of this kind may be
terrorist and his hostage begin moving down the stairway of the
building. By sheer bad luck, an armed police officer has chosen just
that moment to move to a position higher up that stairway. He turns a
corner of the stair and sees the other two coming down towards him. All
three individuals grasp the situation in a flash, and all three begin
firing: the terrorist and his hostage firing at the officer, the
officer firing at and through the hostage. Each of them is shooting to
kill. None of them is under any misapprehension of fact.
this story, we have a number of people shooting at each other, each
trying to save his own skin. How are we to deploy ideas of
justification, necessity, and self-defense in such a terrible case?
begin with, presumably no one believes that the terrorist is justified
in firing. He can make no valid claim of self-defense since he knows
very well that if he were instantly to throw down his weapons, the
other two would stop firing, and there would be no further danger to
his life. But he doesn't, and in the circumstances his actions have the
effect of making the hostage and the police officer mortal threats to
one another, even though both of them are innocent. They fire on each
other, both, as I have said, shooting to kill, each convinced that
killing the other is the only way to save his own life. Are either or
both of them justified in firing?
will have difficulty saying the police officer is justified. In fact
his action seems justified several times over. He is firing in
self-defense to save his own life, and he has also either a general
defense of necessity or a specific law enforcement defense justifying
him in doing whatever it takes to arrest, disarm, or kill the terrorist.
interesting question relates to the hostage. Does he have a valid claim
of self-defense? It seems odd to say that he does not. He is an
innocent party, and had no choice but to become a human shield for the
terrorist. He is shooting only in order to save his own life, not to
help the terrorist, and he would stop shooting in an instant if he
thought the police officer was not shooting at or through him. He fires
only because someone is trying to kill him, and this is the only way he
can defend himself against attack.
Waldron introduces the example to discuss the normative problem of
when a legal justification for self-defense is appropriate. But we can
also use to bring up a descriptive puzzle. The puzzle is this: Let us
assume that the law takes both the officer and the hostage as having a
"right" to self-defense. We usually understand the possession of a
right to an activity as putting an obligation upon others not to
interfere with us. So, for example, that we have a right to farm our
property means, among other things, that others cannot come onto our
property and trample our crops. But if that is what a right means, how
is it possible that both the officer and the hostage have the right to
self-defense? For the hostage’s “right” to self-defense puts upon the
officer no obligation not to interfere. In what sense, therefore is
there any legal right there at all?
2) Consider the following comment from Judith Jarvis Thomson (a philosopher at MIT):
is an even simpler way of bring[ing] out how weak Hohfeld’s notion of a
‘privilege’ is. Notice that … other things besides human beings –
indeed, non-human entities of all sorts, including your left shoe –
have privileges….I presume your left shoe has no duties toward
anything; that being so, your left shoe has privileges as regards
Doesn’t that show that there is something meaningless about the concept of a Hohfeldian privilege?
Could we solve the problem in the question above by assuming that
simply because someone or something lacks a duty it is not enough for
them to have a privilege? Perhaps they are simply in a legal void.
Privileges, on the other hand, would be a case in which there is indeed
something legal there – namely a legal absence of a duty. The officer
and the hostage would have privileges. My left shoe would not. Does
this distinction make sense?
4) Are all duties correlative with claim-rights? What about the duty to pay taxes or not to counterfeit money?
5) How is Applbaum's view of legitimacy different from the legitimacy-entails-duty view?