Van der Vyver’s analysis of rights: a case study drawn from thirteenth-century canon law

Abstract

In an important article published in 1988, Johan Van der Vyver challenged the prevailing reliance on Wesley Hohfeld’s taxonomy of rights. Hohfeld's division of rights into claims, powers, privileges and immunities, Van der Vyver stresses, is excessively concerned with "inter-individual legal relations” at the expense of the right-holder's relationship to the object of the right. Van der Vyver proposes instead that an assertion of right involves three distinct juridic aspects:

• legal capacity, which is "the competence to occupy the offices of legal subject;

• legal claim, which "comprises claims of a legal subject as against other persons to a legal object";

• legal entitlement, which specifies the boundaries of the right-holder's ability to use, enjoy, consume, destroy or alienate the right in question.

This article applies Van der Vyver’s taxonomy to the operations of thirteenthcentury canon law, and demonstrates that Van der Vyver’s analysis provides greater depth than Hohfeld's, in that it considers both the relationship of the person claiming a particular right and the object of that right.

https://doi.org/10.4102/koers.v64i2/3.502
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