The analytical scheme developed by American legal theoretician Wesley Newcomb Hohfeld is appropriate starting point to talk about the meaning of a right.[1] Although he was not the one to first introduce the idea, Hohfeld took all the credit for dividing the general notion of "right" into different concepts. Division of the above term was first initiated by Jeremy Bentham who was soon followed by other legal theoreticians such as Bernhard Windscheid and John Salmond. Hohfeld was only a supporter of the tradition of legal analysis which primarily challenged the jural usage of legal concepts in order to avoid their ambiguity and blurriness.[2] His work represented one of the first attempts of systematic organization of jural relations within the Anglo-American Legal Scholarship. Hohfeld divided the term "right" into four different categories - "claim-right", "liberty", "power" and "immunity".[3] Moreover, he did the same with the notion of "duty" - "duty", "no-right", "liability" and "disability". He found the idea that all jural relations can be reduced to rights and duties wrong.
Hohfeld outlined his fundamental legal concepts in two schemes of "opposites" and "correlatives".[4] He differentiated between claim-rights, liberties, powers and immunities and their correlatives, i.e. duties, no-rights, liabilities and disabilities. Every jural relation is a relation between two people. Person X as a part of the pair cannot have a power if other person Y has no liability. Hohfeld also brought forward the fundamental legal concepts in his scheme of opposites. Thus, claims-rights, liberties, powers and immunities stand out against no-rights, duties, disabilities and liabilities.
Hohfeld's scheme of jural relations gave the notion of claim-right a precise meaning by means of the correlative of duty.[5] On the other hand, the concept of privilege is a negation or contradiction of the concept of duty and the correlative to the concept of no-right.[6] Hohfeld used the term of immunity for describing the legal situation wherein a person can be sure that their entitlements cannot be affected by actions of another person. The term power is, in his eyes, seen as follows: "the person (or persons) whose volitional control is paramount may be said to have the (legal) power to effect the particular change of legal relations that is involved in the problem".[7] Claim-rights and immunities are passive rights - "rights that something be done" while liberties and powers are active rights - "rights to do".[8]
Hohfeld provided examples from the field of private law in order to prove the usability of his scheme with respect to shaping and explanation of many legal issues. Hohfeld did not see human rights as a special sort of rights. This likely resulted from the fact that at the beginning of the 20[th] century, at the time when he wrote his papers, human rights were not given great reputation nor prevailed in theoretical discussions, which is different from what they represent today, a hundred years later.[9] Nowadays, no research aimed at the notion and type of rights would be complete without determining the peculiarity of human rights.[10]
These days, most legal theoreticians take the existence of human rights into consideration, notably, the right to freedom of thought and expression, the right to freedom of confession, the right to privacy, the right to freedom of movement and the right to vote.[11] Human rights are seen as fundamental in their core.[12] They are characterized by universal validity, they represent "trumps" superseding all the other goals.[13] Some authors point out that they are also featured by practicality, i.e. they can be involved in actual social or legal rules promoting and protecting the interests according to which a particular right is oriented towards.[14] Here arises the question whether human rights can fit into Hohfeld's analytical scheme or not.[15] The answer has to be positive, which is confirmed by referring contemporary analyses. This paper is trying to demonstrate the usability of Hohfeld's scheme regarding fundamental human rights analysis. Freedom of speech, or expression, is a great example for indicating the usability of Hohfeld's scheme regards analysis of human rights. This right is one of the civil (political) rights, finding its place in each and every charter of rights.[16]
Our explanation assumes that Hohfeld's fundamental concepts are ideal types enabling specific properties of positive law to be defined as more than less compatible with one or more of these concepts; that Hohfeld's concepts were created pursuant to implicit philosophical and ideological assumptions, particularly to liberal ones; that, due to the supremacy of the above assumptions in the whole world, or at least in the Western world which Croatia belongs to, these concepts are applicable to interpretation of the Croatian constitutional order. The goal of this paper is to show that Hohfeld's analysis is not just
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a philosophical insight into the concept of rights but also a foundation, as often stated by himself, for practical resolution of legal issues and thus of great use to students of law and legal practitioners.
Freedom of speech is of exceptional importance for every individual as well as for the entire society.[17] Informed citizens are a prerequisite for every democratic society (theories of democratic participation).[18] Freedom of speech is necessary for democratic systems of government wherein the authorities are elected by the citizens and are subject to continuous monitoring by both the citizens and civil society.[19] Freedom of expression enables the above actors to control possible abuse of the powers by the authorities.[20] The emphasis is put on the responsibility of the government and ability of people for self-government (the principle of the people's sovereignty).[21]
Freedom of speech implies more than just this kind of instrumental (extrinsic) value. It is also an intrinsic value.[22] Speech is a "basic human faculty", inseparable from precious features of human living.[23] It is important itself and caters for existence of a human being.[24] It is not restricted to politics. Freedom of expression appears in every human activity including holding opinions and free choice, e.g. music, education, sports.[25]
The right to freedom of speech is protected by national constitutions (it is a constitutional category) and international treaties, which means that in the hierarchy of legal norms, it is superior to the rights granted by the laws.[26] The Preamble of the Universal Declaration of Human Rights proclaims that "the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want" shall be "the highest aspiration of the common people". Article 19 of the Declaration stipulates that "everyone has the right to freedom of thought and expression". The same Article defines this right as "freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers".[27] Moreover, the most relevant regional charter of rights and freedoms, that is the European Convention for the Protection of Human Rights and Fundamental Freedoms, grants this right by its Article 10 para 1. Pursuant to this regional treaty, the right to freedom of expression involves the freedom to hold opinions and to "receive and impart information and ideas without interference by public authority and regardless of frontiers".[28] It shall be noted that the above international treaties differentiate to a great extent with respect to the possibility of enforcement of their provisions. While the Universal Declaration of Human Rights includes no instrument of enforcement whatsoever, the European Convention for the Protection of Human Rights and Fundamental Freedoms provides for judicial protection of freedom of speech.[29] These provisions make it clear that the individual right to freedom of expression is extended to the so-called "social-collective" right of the public to be informed.[30] This right comprises the civil right both to impart and receive information of various kinds. Furthermore, freedom of expression does not refer only to factual assertions (information) but also to reception and dissemination of ideas (value judgment).[31]
The Constitution of the United States in its First Amendment stipulates that the Congress is not allowed to pass acts restraining freedom of speech. Unlike the above international documents that define freedom of speech in an affirmative sense, the American Constitution determines it negatively, in the form of bans.[32] The Constitution of the Republic of Croatia affirmatively stipulates freedom of speech by its Article 38 para 1 which guarantees "freedom of thought and expression". Para 2 of the same Article defines freedom of thought and expression, also stating freedom of the press and other media of communication, freedom of speech and public expression, and free establishment of all institutions of public communication.[33]
Since the aim of this paper is to elaborate the right to freedom of speech from the viewpoint of rights theory particularly from the scope of Hohfeld's theory of rights which is said to have provided assistance in comprehending the conceptual properties of human rights, the following lines are divided into two parts. First comes the concept of the right to freedom of speech by Ronald Dworkin. Dworkin did not apply Hohfeld's terminology and used the word "right" ambiguously. Secondly, the right to freedom of speech will be discussed with regard to Hohfeld's scheme, which will be accompanied with arguments supporting the thesis that Hohfeld's analysis is clearer, more consistent and useful than any other legal consideration in that context.
Ronald Dworkin in its well-known article entitled "Taking Rights Seriously" discusses about the issue of freedom of speech within the scope of the following broader problem: Do Americans possess the moral right to violate the law?[34] In Dworkin's opinion, a democratic form of government based on human rights includes "the general moral duty" of citizens to obey all the laws, regardless of their
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wishes to amend some of them.[35] Dworkin points out the fact that the word "right" implies various power in "various contexts":
In most cases when we say that someone has a "right" to do something, we imply that it would be wrong to interfere with his doing it, or at least that some special grounds are needed for justifying any interference. I use this strong sense of right when I say that you have the right to spend your money gambling, if you wish, though you ought to spend it in a more worthwhile way. I mean that it would be wrong for anyone to interfere with you even though you propose to spend your money in a way that I think it is wrong.[36] He claims that it is vital to differentiate between saying that "someone has the right to do something" and saying that "it is right to do that", i.e. what that person does is not wrong.[37]
Someone may have the right to do something that is the wrong thing for him to do (...). Conversely, something may be the right thing for him to do and yet he may have no right to do it, in the sense that it would not be wrong for someone to interfere with his trying.[38] The difference between whether a person has "the right" to do something or not and is it "right" to do that, seldom brings to difficulties.[39] The difficulties arise only in cases when the word "right" is applied for denoting the situation in which it is not wrong for a person to do something and when someone acts according to "their principles" and to "their conscience".[40] Dworkin states the example of a prisoner of war who has "the right" to try to escape and the example of a man who holds the opinion that is wrong to provide poor citizens with social welfare and thus has "the right" to pay for only half of the reported income tax.[41]
Dworkin's answer to the question on the moral right of the citizens to violate the law is based on the fact that American citizens have "certain fundamental rights against their Government, certain moral rights made into legal rights by the Constitution".[42] According to Dworkin, the above rights have to be rights in the strong sense. If citizens have the right to freedom of speech, it necessarily implies that the state is wrong if preventing them from doing that, irrespective of the fact whether what they speak will cause damage or not.[43] Dworkin emphasizes that democratic states must justify their action and hence the action restraining freedom of their citizens. Usually it comes to the explanation that such an action will bring to "general utility". However, it cannot be applied to fundamental civil rights.
When individual citizens are said to have rights against the Government, however, like the right of free speech, that must mean that this sort of justification is not enough. Otherwise the claim would not argue that individuals have special protection against the law when their rights are in play, and that is just the point of a claim.[44]
It is beyond any doubt that all the rights are not moral rights against the state.[45] Many rights are "trivial" and "technical" with regard to moral rights.[46] Even many constitutional rights are not moral rights.[47] Still, says Dworkin, basic constitutional rights, such as freedom of speech, are "rights against the Government in the strong sense". Accordingly, the authorities would make a mistake if they abolished the First Amendment (Bill of Rights) guaranteeing, among other rights, the right to freedom of speech, even if they believe that the majority would benefit from such restriction.[48]
Nevertheless, it does not mean that the state can never restrain that right.[49] It can happen when it is necessary to restrain that right in order to protect the rights of others or to prevent catastrophes.[50] However, the state must not do it on "minimum grounds" nor is it empowered to act pursuant to the judgment that its action will lead to great benefit for the society.[51] It would entail usage of the word "the right" in some other sense, not in the strong one which is necessary for such an assertion to be of political importance.[52]
Dworkin thinks that an individual, within the American legal system, has "the right in the strong sense" not to act according to the law.[53] It is the case when the law unfairly violates the rights of that person against the state. If a person has "the moral right" to express his opinion, then he also has "the moral right" not to act according to the law which the state is not entitled to adopt due to "his right".[54] It is not right to ban freedom of speech, even if it is in the best interest of the majority, i.e. general interest.[55] If the state, despite of all, forbids freedom of speech, it is wrong to enforce laws against the citizens. The crucial thing is, in Dworkin's opinion, that adoption of laws cannot have effect on the rights already in possession of people.
Dworkin lays out that both liberals and conservatives think that in "a decent society", there is "a general duty" to obey the laws. Although liberals find this duty restrainable in particular cases, it still exists in a weak form.[56] According to Dworkin, this common duty is "incoherent in a society that recognizes rights".[57]
If a man believes he has a right to demonstrate, than he must believe that it would be wrong for the Government to stop him, with or without benefit of a law. If he is entitled to believe that, then it is silly to speak of a duty to obey the law as such, or of a duty to accept the punishment that the State has no right to give.[58] If an individual believes that they have the right to freedom of speech, it means that they also believe that
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the state must not interfere with that right by adopting laws or in some other way. Accordingly, there is no sense of mentioning the general duty of obeying the laws and accepting the punishment. [59]
Finnis comments on Dworkin's perception of the right to freedom of speech, according to which a person has the right not to respect a law if the law wrongly violates their rights against the state.[60] According to Finnis, 'Dworkin's right in its strong sense is actually the Hohfeldian claim-right not to be interfered with actions of X.[61] Here we talk about the general right being exercised against the whole world. Regularly, this claim-right is accompanied with the liberty to do X.[62] Finnis claims that a person may sometimes have the moral duty not to do X, i.e. the no-liberty to do X, in case of which the person will be wrong to do X, but has the right to do it in the strong sense.[63] Finnis assumes that Dworkin actually wants to defend his equalization of "the wrong" with what is someone's "duty" not to do.[64] He makes observations on Dworkin's conclusion that if an individual has the right to freedom of speech, the state will be wrong to interfere with that right by adopting laws or in some other way. Still, someone, by definition, may have the right to do something despite of it being wrong.[65] Finnis finds possible (he thinks that Dworkin's assumptions explicitly allow that possibility) that a holder of a right and duty has the right to do something what is wrong for that person.[66]
There might be a conclusion that, in Dworkin's point of view, constitutional rights, such as the right to freedom of speech, can be taken seriously only if they are regarded as trumps against a background justification of political decisions, i.e. if they are superior to social goals.[67]
This section indicates the advantages of Hohfeld's analysis with respect to that of Dworkin. Let us get back to Dworkin's sentence from the previous paragraph.
If he has a moral right (emphasis added) to free speech, that is, then he has a moral right to break any law that the Government, by virtue of his right, had no right to adopt. [68]
The quoted sentence is not completely clear and does not show us that these are actually different sorts of "rights", those granted to an individual and those granted to the state. It is evident that Dworkin described freedom of speech in the strong sense or in Hohfeld's words as a negative claim-right.[69] However, according to Hohfeld's analytical scheme, what denotes freedom of speech is the liberty to speak publicly about various controversial issues. A holder of the right to freedom of speech can speak about public issues but such a person can also abstain from speaking publicly if that is what they want.[70] That is a bilateral liberty, the liberty to do or not to do X.[71]
Freedom of speech will be elaborated using the example of a person who spoke publicly against the American military intervention in Iraq. The example originates from David Lyons' The Correlativity of Rights and Duties wherein a person addresses to the crowd atop a soap box and argues the military intervention in Vietnam. It is based on the public forum doctrine creating a "mandatory access for purposes of speaking" on pavements and streets and in parks.[72] Although Hohfeld's work was available to him, Lyons did not refer to Hohfeld's terminology and used the word "right" imprecisely and ambiguously, which prevented him from precise determination of freedom of speech.[73]
The person speaking against the American military intervention in Iraq has the liberty to do so but nobody has the duty to provide the speaker with assistance concerning the speaker's addressing to the public, making the public listen to the speaker or keeping the listeners quiet.[74] The only relevant duty is the duty not to undertake physical assault against the speaker. However, freedom of speech does not depend on the above duties. Although a liberty regularly implies a certain duty, the content of such duties does not have to be correlative with the content of the liberty.[75]
In other words, the crowd is forbidden to undertake forcible action against the speaker, under which physical assault or any other way of forcible restriction is meant, i.e. kidnapping the speaker or literally shutting the speaker's mouth.[76] Citizens, by attacking the speaker, would act against the law and thus would violate a certain legal duty. Nevertheless, those "duties to avoid interference are not correlative to the right of the speaker".[77] Actually, they are not correlative to the right of the speaker pursuant to the classical model of the relation between "claim-right" and "duty", e.g. the relation existing between a lessor and lessee. The duty to avoid interference with the speaker when they act within the scope of their right to freedom of speech also exists when they have no right to act in this manner.
The fact that a particular person acts beyond their rights does not authorize other people to act against that person if they wish to.[78] However, under certain circumstances, we may interfere in order to defend ourselves.[79] These are exceptions from ordinary bans of homicide and assault.[80] Lyons shaped them in the following way: "From the fact that others are prohibited from acting in ways that constitute interference
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with A's doing X it does not follow that A has a right to do X".[81]
So the ordinary legal and moral prohibitions which serve to protect someone in the exercise of his rights do not logically correlate with these rights since others are, in general under such obligations even when one does not have a right to act as he does. [82] Since all the people are generally forbidden to attack, threaten or force other people to do something, they are also forbidden the same things when it comes to freedom of speech.[83] In Hohfeld's opinion, one can say that the duty of not attacking the speaker is part of the civil duty not to physically attack other people, so there is no specific link with freedom of speech here.[84] If a person suffers someone's attack, it does not mean violation of their right to freedom of speech but violation of their right not to be physically assaulted. If citizens were able to shut the speaker without attacking them or without violating one of their rights, this possibility would not be illegal.[85] Hence, citizens do not have to abstain from interfering with the speech.[86]
Freedom of speech is actually a Hohfeldian liberty encircled with the protective perimeter of the law. Kramer singles out "the right to physical and reputational integrity".[87] Moreover, in compliance with Hohfeld's correlativity scheme, it is logically wrong to derive duties from liberties as well as to derive liberties from claim-rights.[88]
An important reason why freedom of speech cannot be deemed as a right in its strict sense is, as stated above, hidden in the fact that Hohfeld's scheme grants the claim-right to do something to no-one but a person may have the right to allow action of another person or to make them abstain there from.[89] According to Hohfeld's concept, a right cannot be interpreted as a right to act (active right). The right to freedom of speech relates to action of the holder of this entitlement. In order to describe the claim-right - duty relation, one uses the phrase "You ought to" ("You must") while in terms of the privilege-no right relation, one refers to the phrase "I may". [90]
Freedom of speech is encircled, in Hart's words, with the protective perimeter of duties. Yet, some attention should be paid here to the authors who have developed and advanced Hart's perception, for instance Carl Wellman and R. Alexy. In Wellman's opinion, a right cannot refer to a single Hohfeldian element but every right is a group of Hohfeldian elements - claim-rights, liberties, powers and immunities.[91] Such interpretation of rights forced him to find an answer to the question how something as complex as this can constitute a right. He found the answer in the stipulating term of "the core of right". What consolidates any right is its core. In the centre of all rights, there is one of the Hohfeldian elements determining the essential content of a respective right.[92] The core of rights defines if a particular right is a claim-right, liberty, power or immunity.[93] For example, every real claim-right contains that Hohfeldian element in its core but also involves associated liberties, powers and immunities. Every associated element is connected with the central core in a way that it provides the holder of a right with some type of liberty or control in relation to the exercise of the core. Robert Alexy finds the structure of rights complex, too. In his book entitled A Theory of Constitutional Rights, he developed the concept of "a complete constitutional right" as a package of legal positions all derived from a single constitutional provision.[94] When it comes to freedom of speech, people, according to Alexy, do not think of a single constitutional position but of a complete constitutional right. What gathers all of those positions in a unique constitutional right is their origin since they are all derived from a single constitutional provision.
What is usually called a right is actually a "bundle of rights", i.e. a bundle of various Hohfeldian elements. If Wellman's terminology is taken into consideration in this context, "the liberty" of an individual to freely express their opinion constitutes "the core of this right". A liberty is the element that defines the right to freedom of speech. Around "this core" there is the claim-right against interference of other people (perimeter of general duties to avoid interference) as well as the power to ask for judicial protection from violent forms of interference and immunity against deprivation of the above liberty by the state.[95]
Freedom of speech is protected by immunities. Behind "the right to freedom of speech" and behind many legal rights, such as the right to freedom of confession, the right not to be deprived of property or freedom without instituted legal proceedings, there is an idea that citizens are exempted from the action of the authorities to modify their legal relations in a certain way.[96] Human rights are relation between a person and the state and the emphasis is put on the aspect of immunity.[97] Human rights are affected by the relation between a person and the state to a great extent whereat the emphasis is put on the aspect of immunity.[98]
Based on the constitution, legislators have the power to enact laws. In terms of the Croatian constitutional order, the Croatian Constitution in its Article 81 grants all the legislative power to the Croatian Parliament. Constitutional rights, such as the right to freedom of speech, is an example of immunity since the legislator is not empowered to enact certain laws which would deprive citizens of the right to
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freedom of speech. The legislator has in this sense "disability". Furthermore, it is not right to say that the Croatian Parliament has the duty of not exceeding its powers when it comes to freedom of speech guaranteed by the constitution.[99] That is not a right because the representatives can be neither criminally nor civilly prosecuted for enacting a law contrary to the Constitution.[100] According to Article 76 para 1 of the Constitution of the Republic of Croatia, the representatives are granted immunity and according to Article 76 para 2 of the same document, they cannot be criminally prosecuted for expressing their opinion or voting. In case of passing an act contrary to the constitutional provisions, including the provisions on freedom of speech, such a law shall be repealed by the Constitutional Court, i.e. the Constitutional Court shall repeal or annul a regulation which is against the constitution (Article 129 and Article 131 of the Constitution of the Republic of Croatia).
The action of the representatives may be, in Lyons' opinion, deemed as "illegal" only in terms of "invalidity". The representatives do not violate the law by acting in this manner - they only fail to enact a valid law.[101] In this context, it is interesting to mention that some believe that laws adopted in the USA after 11 September 2001 have interfered with immunities of the citizens in a way that these laws are contrary to the existing liberties and claim-rights.[102]
Speech is focused on communication as well as on development and enhancement of contact between people.[103] It is necessary for the existence of "a cooperative society".[104] Communication is usually seen as a win-win situation, as an exchange of information and ideas useful to everyone involved therein.[105] Authors say that a lack of state restrictions concerning communication will cater for advancement of knowledge and finding the truth.[106] The origin of such considerations can be found in a piece of work of John Stuart Mill entitled On Liberty wherein he propagates "liberty of thought and discussion" as well as in Holmes' dissent in Abrams v. United States.[107] Mill, as a supporter of liberalism of the 19[th] century, opposed the widely popular idea that governments should go for the official truth and suppress expression of opposite standpoints.[108] The truth can be found and wrong ideas can be disclosed only by means of freedom of speech and real conflict of expressed opinions.[109] Restraining freedom of speech is a wrong thing since it is not possible to ascertain in advance, without critical observations, which standpoint is truthful ("epistemological mistake").[110]
Holmes' justification of freedom of speech is based on "the market place of ideas": "The best test of truth is the power of idea to get itself accepted in the competition of the market."[111] The above authors assume that speech is so important that it cannot be restrained only because there are good reasons for such an action.[112]
Nevertheless, the right to freedom of speech is limited in all the countries of the world. This is because freedom of speech can be harmful. Speech can bring to predictable consequences: pain, death and physical injuries.[113] Hence, all the states, even those democratic ones, restrain freedom of speech. In fact, states protect privacy and ban hate speech encouraging hatred against a racial or national group, dissemination of pornography among minors, false alarms which may lead to panic (e.g. someone screams 'fire' in a crowded theatre), and even various commercials.[114] Freedom of speech is also restrained by interests of people whose reputation might be damaged by spreading lies. Even Mill's interpretation of freedom of speech based on seeking the truth ("market place of ideas") is arguable in various situations: alternative medicine offering scientifically untested drugs for treating numerous diseases, denying historical facts etc.[115]
Constitutions and international treaties open the possibility of restriction of the right to freedom of speech. They regulate what is comprised by the right to freedom of speech and thus can be restricted. Furthermore, the right to freedom of speech is not an absolute but a relative right, such as the right to privacy, assembly and association which can all be restrained under certain circumstances.[116] There is no absolute immunity for freedom of speech.[117] It shall be noted that there is a great chance of abusing possible restrictions of the right to freedom of speech by the authorities. Restrictions of speech can convert citizens into passive receivers of dogmatic speeches.[118] Therefore, interference of the state with the right to freedom of speech must not be arbitrary but only regulated by the law. Freedom of speech can be restrained due to legitimate goals prescribed by the law to an extent necessary for protection of other individuals and collective values (the principle of proportionality).[119] Although here we primarily speak about legal restrictions of freedom of speech, it shall be stated that there are restrictions of freedom of speech outside of the scope of law, such as public opinion and religious authorities in non-tolerant societies. [120] Also, people do not have too much freedom of speech in their workplaces. A person cannot exercise their freedom of speech completely due to a lack of education and inadequate approach to means of communication. [121]
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Restrictions of freedom of speech are included in Article 29 para 2 of the Universal Declaration.
In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
In Article 10 para 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. In compliance with Article 16 of the Constitution of the Republic of Croatian, rights can be restrained exclusively in order to protect rights of other people, public order, morality and health. Every restriction has to be proportional "to the nature of the necessity for restriction in each individual case". According to Article 17, even in case of an immediate threat to the existence of the state, state is not allowed to restrain constitutional provisions on particular rights - "the right to life, prohibition of torture, cruel or degrading treatment or punishment, on the legal definitions of penal offences and punishments, or on freedom of thought, conscience and religion." It is interesting that the Croatian Constitution gives the legislators a smaller manoeuvring space in this context in comparison to the above international treaties.[122]
Moreover, Article 39 of the Constitution forbids inciting warfare and violence as well as national, racial and religious hatred. Pursuant to Article 174 para 3 of the Criminal Code of the Republic of Croatia, a person expressing ideas on racial superiority or promoting racial hatred and encouraging racial discrimination shall face imprisonment lasting from three months to three years. The Criminal Code defines criminal acts against honour and reputation. In fact, freedom of speech is also limited based on interests of other people who might be harmed by criminal acts of insult or defamation (Article 199 and Article 200).[123] One can conclude that freedom of speech is the thing left after deducting all the special duties from abstinence from hate speech, disclosing
lies which might harm the reputation of other people and similar.[124]
In the end, one can highlight the fact that according to the current systems of government in most democratic countries, the right to freedom of speech is not a uniform thing but a complex bundle of various Hohfeldian elements.[125] Around the central axis, that is the bilateral liberty to express or not to express opinions on public affairs, there are numerous claim-rights and immunities protecting it. The fact that citizens have the right to freedom of speech pursuant to the constitution and international treaties means that the state is not empowered to interfere with freedom of speech.[126] If a person does not violate the provision of legal acts guaranteeing this right (does not incite warfare, hatred or intolerance, does not commit the criminal act of insult or defamation), they will have a claim-right against interference of the state as well as the immunity not to be deprived of that right.[127]
Nowadays, there is a growing need for development of a new right to freedom of speech. Some think that it should be developed from the negative right of the first generation prohibiting the state to pass laws which could restrain freedom of speech. The new right should be a positive right of the second generation which requires from the state to assure what is guaranteed by the constitution that is to enable citizens to express their opinions on an equal basis.[128] The state is also expected to provide their citizens with equal opportunities in terms of education and access to information.[129] The power of market restrains freedom of speech to a great extent since those possessing financial means are favoured, which is reflected in the fact that, based on these financial means, their ideas can penetrate to homes of many people. Speech is not free.[130] The same authors imagine freedom of speech as a Hohfeldian liberty and ask for adoption of new regulations on freedom of speech and on the right to be provided with access to mass media which take account of the realistic status of modern communication.[131] Here one should say that Hohfeld's analytical scheme does not prevent the legislator from protecting liberties with a claim-right or with some other element. Hohfeld did not deal with justification of rights which is a political issue and shall be kept out of his scheme. A system of rules can combine Hofeldian elements in various ways.[132]
Considering development of a new right to freedom of speech, particularly active are the authors
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from the sphere of common law. It has resulted from the big difference between human rights as perceived by common law and human rights from the viewpoint of continental (German in its origins) law. With regard to the Anglo-American perception, these are rights / freedoms (liberties) of a person towards the state while, in terms of continental law, a personal human right is exercised not only with respect to the state but also to other legal entities (the so-called drittwirkung). This difference is the origin of the difference between the apparently identical human rights in different legal orders. Speaking about Anglo-American legal orders, these include the rights (e.g. the right to confession) seen as liberties (freedoms) but not as the rights that others are expected to respect whereas the only duty of the state towards the holders of these freedoms refers to preventing and punishing those who jeopardize the life and freedom of the freedom holders at the moment of its exercise. In terms of continental legal orders, these rights are derived from the responsibilities of the state but also from the responsibilities of all the other legal entities (drittwirkung). Namely, the American constitutional order is different from the Croatian or Hungarian constitutional regime in which courts recognize and enforce positive entitlement against the state.[133] American freedoms are more like "freedoms from" than "entitlements to". They are not entitlements as to the state to cater for equality.[134] Finally, we might agree with Campbell that the complex discussion on the right to freedom of speech depends a lot on which Hohfeldian right we have in mind: liberty, claim-right, immunity or power. [135] ■
NOTES
[1] Tucak, Ivana, "Rethinking the Hohfeld's Analysis of Legal Rights", Pravni vjesnik, Vol. 25 (2009) No. 2 pp. 31-41.
[2] Comp. Harris, James W., Legal Philosophies, 2nd ed. (Oxford, Oxford University Press, 2004) p. 93.
In his 1862 book entitled Lehrbueh des Pandekten Reehts, German theoretician Bernhard Windscheid made a difference between a claim (German Ansprueh) and a right (German subjektives Recht) The most immediate influence on Hohfeld was made by Salmond's scheme of jural relations presented in his 1902 book called Jurisprudence wherein he differentiated between rights, liberties and powers and their correlatives, i.e. duties, disabilities and liabilities.
[3] Comp. Harris, op. cit. n. 2, at 93.
I have made some terminological changes in this paper. In terms of denoting the concept of a lack of duty, I use the term "liberty" instead of the term "privilege". In Hohfeld's opinion, the terms liberty and privilege have a similar meaning. Most authors today tend to use the term liberty instead of the term privilege. See Hart, H. L. A., Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford, Clarendon Press, 2001) p. 174; Kramer, Matthew H., "Rights Without Trimmings" in Kramer, Matthew H., Simmonds, N. E., and Steiner, Hillel, A Debate Over Rights: Philosophical Enquiries (Oxford, Oxford University Press, 2002) p. 8, note 1; Simmonds, N. E., "Rights at the Cutting Edge" in Kramer, Matthew H., Simmonds, N. E., and Steiner, Hillel, A Debate Over Rights: Philosophical Enquiries (Oxford, Oxford University Press, 2002) pp. 113-232; Rainbolt, George W., The Concept of Rights (Dordrecht, NL, Springer, 2006); Wellman, Carl, An Approach to Rights, Studies in the Philosophy of Law and Morals (Dordrecht, Boston, London, Kluwer Academic Publishers, 1997). One can draw the conclusion that this expression, concerning scientific papers, prevail over others of the kind. Also, I use the term "claim-right" instead of Hohfeld's term "right".
[4] Hohfeld, W. N., Fundamental Legal Conceptions as Applied in Judicial Reasoning, edited by David Campbell and Philip Thomas (Aldershot, Burlington, USA ... [etc.], Ashgate, Dartmouth, 2008) p. 12.
Jural Opposites claim-right privilege power immunity
no-right duty disability liability
Jural Correlatives claim-right privilege power immunity
duty no-right liability disability
[5] Ibid. at p. 13.
[6] Ibid. at p. 14. Comp. Cook, Walter Wheeler, "Introduction" in Hohfeld, W. N., Fundamental Legal Conceptions as Applied in Judicial Reasoning, 3rd. ed. (New Haven, London, Yale University Press, 1964) pp. 3-22 at p. 7.
[7] Hohfeld, op. cit. n. 4, at p. 21.
[8] Robinson, R. E., Coval, S. C., and Smith, J. C., "The Logic of Rights", University of Toronto Law Journal, Vol. 33 (1983) pp. 267-278 at p. 267.
[9] Campbell, Tom, Rights: A Critical Introduction (London, New York, Routledge, 2006) p. 34.
[10] Ibid.
[11] Comp. Robinson, Coval i Smith, op. cit. n. 8, at p. 267.
[12] Dworkin, Ronald, Taking Rights Seriously (Cambridge, Mass. : Harvard University Press, 1978) p. 191.
[13] Dworkin, Ronald, "Prava kao aduti" (Rights as Trumps) in Ljudska prava (Human Rights) edited by Miomir Matulovic (Rijeka, 1992) pp. 93-103 at p. 93.
[14] In that direction, Campbell claims that human rights, like other rights, have to be institutionalisable. Campbell, op. cit. n. 9, at pp. 34-35.
[15] Are human rights only one kind of rights or do they undoubtedly differentiate from other rights? According to Campbell, although many actual rights are "trivial" and "technical" comparing to human rights, there is no clear distinction between human and other rights in either moral or analytical sense. Campbell, op. cit. n. 9, at p. 34.
[16] Campbell, op. cit. n. 9, at p. 141.
[17] Alaburic, Vesna, Sloboda izraľavanja u praksi Europskog suda za ljudska prava (Freedom of Expression in the Jurisprudence of the European Court of Human Rights) (Zagreb, Narodne novine, 2002) p. 1.
[18] Ibid.
[19] Campbell, op. cit. n. 9, at pp. 144-145.
[20] Schauer, Frederick, "Hohfeld's First Amendment", The George Washington Law Review, Vol. 76 (2008) No. 4 pp. 914-932 at p. 926.
[21] Ibid. at p. 928.
[22] Campbell, op. cit. n. 9, at p. 147.
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Alaburic, op. cit. n. 17, at p. 1 note 1.
[27] Universal Declaration of Human Rights, General Assembly Resolution 217 A (III) of 10 December 1948.
[28] European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) CETS NO. : 005.
[29] Freedom of speech is protected by the International Covenant on Civil and Political Rights (Article 19) involving enforcement instruments, even though not judicial ones but
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those assuring peaceful resolution of disputes. International Covenant on Civil and Political Rights, General Assembly resolution 2200A (XXI) of 16 December 1966.
According to the jurisprudence of the European Court of Human Rights, freedom of expression includes various forms of receiving and imparting information and ideas by any means. For instance, ideas and pieces of information provided by public media, speeches made at public meetings, "commercial speeches", various forms of artistic expression. All the legal, administrative and judicial measures by means of which national authorities restrain the civil right to freedom of expression (e.g. various bans, denying licence issue regarding radio and TV broadcasting). Alaburic, op. cit. n. 17, at pp. 21-22.
[30] Alaburic, op. cit. n. 17, at p. 1.
[31] Ibid. at p. 21.
[32] Comp. Morse, H. Newcomb, The Thinkers (University Press of America, 1995) p. 232.
[33] The Constitution of the Republic of Croatia, the consolidated text published in "Narodne novine" (the Official Gazette) No. 41/01 of May 7, 2001 together with its corrections published in "Narodne novine" No. 55 of June 15, 2001.
[34] Dworkin, 1978, op. cit. n. 12, at p. 186.
[35] Ibid.
[36] Ibid. at. p. 188.
[37] Ibid.
[38] Ibid. at. pp. 188-189.
[39] Ibid. at. p. 189.
[40] Ibid.
[41] Ibid. We might object Dworkin that avoiding violent death and evading taxes are not commensurate and thus not comparable.
[42] Ibid. at. p. 190. Comp. Finnis, John, "Some Professorial Fallacies About Rights", Adelaide Law Review, Vol. 4 (1971-72) pp. 377-388 at p. 382.
[43] Dworkin, 1978, op. cit. n. 12, at p. 190.
[44] Ibid. at p. 191.
[45] Ibid.
[46] Comp. Campbell, op. cit. n. 9, at p. 34.
[47] Dworkin, 1978, op. cit. n. 12, at p. 191.
[48] Ibid.
[49] Ibid.
[50] Ibid.
[51] Ibid. at pp. 191-192.
[52] Ibid at p. 192.
[53] Ibid.
[54] Ibid.
[55] Ibid.
[56] Ibid.
[57] Ibid.
[58] Ibid. at pp. 192-193.
[59] Ibid. at p. 193.
[60] Finnis, op. cit. n. 42, at p. 382.
[61] Ibid. at p. 383.
[62] Ibid.
[63] Ibid.
[64] Ibid. at p. 383, note 11.
[65] Ibid. at p. 384. Dworkin mentions here the example of gambling. See Dworkin, 1978:188.
[66] Ibid.
[67] Dworkin, 1992, op. cit. n. 13, at p. 93; Wellman, 1997, op. cit. n. 3, at p. 240.
[68] Dworkin, 1978, op. cit. n. 12, at p. 192.
[69] A claim-right necessarily implies a correlative duty, a restriction imposed on others. Other people's duty can mean, for the holder, an advantage, i.e. a benefit, exercised in the following two ways: someone either binds another person to certain positive action or binds all the others to abstain from certain action. Ross, Alf, Pravo i Pravda [On Law and Justice] (Podgorica, CID, 1996) p. 204.
[70] Wellman, 1997, op. cit. n. 3, at p. 2.
[71] Hohfeld himself did not mention "liberty to do". Hence, freedom is, in his opinion, unilateral. However, contemporary theoreticians usually extend Hohfeld's freedom to the bilateral option. See Hohfeld, op. cit. n. 4, at p. 14; Kamm, F. M., "Rights" in Coleman, J, and Shapiro, Scott (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford, New York, Oxford University Press, 2002) pp. 476-513 at p. 479.
[72] Schauer, op. cit. n. 20, at p. 916, note 8.
[73] Comp. Kramer, op. cit. n. 3, at p. 111.
[74] Williams, Glanville, "The Concept of Legal Liberty", Columbia Law Review, Vol. 56 (1956) No. 8 pp. 1129-1150 at p. 1144.
[75] Wellman, 1997, op. cit. n. 3, at p. 3.
[76] Comp. Lyons, David, "The Correlativity of Rights and Duties" in Carlos, Nino (ed.), Rights (New York, New York University Press - Reference Collection, 1992) pp. 49-59 at p. 56; Williams, op. cit. n. 74, at p. 1144.
[77] Lyons, op. cit. n. 76, at p. 56.
[78] Ibid.
[79] Ibid.
[80] Ibid. Here one can state reasons for exclusion of illegal action, e.g. self-defence (German Notwehr).
[81] Ibid.
[82] Ibid. at pp. 56-57.
[83] Ibid. at p. 57.
[84] Williams, op. cit. n. 74, at p. 1144.
[85] Kramer, op. cit. n. 3, at p. 111. Comp. Williams, op. cit. n. 74, at p. 1145.
[86] Kramer, op. cit. n. 3, at p. 106.
[87] Ibid. at p. 74.
[88] Nyquist, Curtis, "Teaching Wesley Hohfeld's Theory of Legal Relations", Journal of Legal Education, Vol. 52 (2002) No. 1-2 pp. 238-257 at 252.
A relating example of misjudgement of constitutional rights allegedly based on Hohfeld's analysis comes from Morse who claims that someone cannot possess a liberty if they do not possess a claim-right first. Morse, op. cit. n. 32, at p. 226.
In general, Morse has investigated the bond between the Hohfeldian logic and constitutional formulation. In fact, the founding fathers of the American Constitution referred to all of the four Hohfeldian terms: right, privilege, power and immunity. Morse, op. cit. n. 32, at p. 217.
[89] Williams, op. cit. n. 74, at p. 145. Comp. Simmonds, op. cit. n. 3, at pp. 156-157.
[90] Dias, R. W. M., Jurisprudence, 5th ed. (London, Butterworths, 1985) pp. 25-28.
[91] Wellman, Carl, Real Rights (New York, Oxford University Press, 1995) p. 61.
[92] Rainbolt, op. cit. n. 3, at p. 105; Wellman, 1985, op. cit. n. 90, at p. 81.
[93] Rainbolt, op. cit. n. 3, at p. 105.
[94] Alexy, Robert, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2004) p. 159.
[95] Comp. Wellman, 1997, op. cit. n. 3, at pp. 70-71. In Well-man's opinion, this complex structure of Hohfeldian elements constitutes a system of legal autonomy with respect to holding opinions on dubious issues.
[96] Cook, op. cit. n. 6, at p. 8.
[97] Stahl, Ingemar, "Political and Economic Freedom in the Welfare State: Some Basic Concepts Applied to the Case of Sweden" in Walker, Michael A. (ed.), Freedom Democracy and Economic Welfare proceedings of an international symposium, (Vancouver, BC., Fraser Institute, 1988) pp. 295-322 at p. 299.
[98] Ibid.
[99] Lyons, op. cit. n. 76, at p. 55.
[100] Ibid.
[101] Ibid.
[102] Rainbolt, op. cit. n. 3, at pp. 44-45.
[103] Campbell, op. cit. n. 9, at p. 148.
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[104] Ibid.
[105] Ibid. at p. 149.
[106] Schauer, op. cit. n. 20, at p. 923.
[107] Ibid. at p. 922.
[108] Ibid. at p. 923.
[109] Campbell, op. cit. n. 9, at p. 143.
[110] Ibid.
[111] Abrams v. United States, 250 U.S. 616, 630-631 (1919) (Holmes, J., dissenting). See Schauer, op. cit. n. 20, at p. 922; Campbell, op. cit. n. 9, at p. 143.
[112] Campbell, op. cit. n. 9, at p. 142.
[113] Ibid. at p. 141.
[114] Ibid. at p. 143.
[115] Schauer, op. cit. n. 20, at p. 923.
[116] Alaburic, op. cit. n. 17, at p. 1, note 1.
[117] Campbell, op. cit. n. 9, at p. 143.
[118] Ibid. at p. 152.
[119] Alaburic, op. cit. n. 17, at p. 2.
[120] Campbell, op. cit. n. 9, at p. 150.
[121] Ibid.
[122] Alaburic, op. cit. n. 17, at p. 3. note 6.
[123] Kazneni zakon (Criminal Code of the Republic of Croatia) published in "Narodne novine" (the Official Gazette) No. 110/97, 27/98, 50/00, 129/00, 51/01, 11/03, 190/03, 105/04, 84/05, 71/06.
[124] Williams, op. cit. n. 74, at p. 1144.
[125] Rainbolt, op. cit. n. 3, at p. 33.
[126] Kramer, op. cit. n. 3, at p. 111.
[127] Ibid.
[128] Campbell, op. cit. n. 9, at p. 154.
[129] Ibid. at p. 153.
[130] Ibid.
[131] Ibid. at p. 155; Schauer, op. cit. n. 20, at p. 930.
[132] Rainbolt, op. cit. n. 3, at p. 33.
[133] Schauer, op. cit. n. 20, at p. 920.
[134] Ibid.
[135] Campbell, op. cit. n. 9, at p. 148.
Lábjegyzetek:
[1] The Author is Senior Assistant, J.J. Strossmayer University of Osijek, Faculty of Law.
Visszaugrás
