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Commentary & Opinion

Hohfeld's COVID

Airing 9/7/21
This is one of the holiest days of the Jewish year. I think this commentary (which was recorded a few days ago) appropriate because law and religion both get at very significant moral issues – in this case, how we handle Covid.

So, are you game for a little legal philosophy? Law students are generally taught traditional legal concepts but more rarely the underlying fundamental logic of the law. Now you’ll be able to lord it over all the lawyers you know.

Wesley Hohfeld was just 39 when he died in 1918. A member of the faculty at Yale Law School, he had published two remarkable articles that continue to enlighten study of the law. Hohfeld gave meaning to the phrase that law is a seamless web because there is always a rule that defines what is and isn’t OK; there is never an absence of government.

Hohfeld began by asking what it means to say I’m entitled to something? What does it mean to say I have a right, or a privilege, or freedom? We bandy those terms about as if they’re the same, with simple, obvious meanings. But Hohfeld explained that someone’s right means someone else’s duty. My right to clean air means someone else’s duty not to foul it for me. They may claim another right, like the right to ditch masks, but then we’re claiming conflicting rights.

Someone may claim the privilege of going unvaccinated without a mask. But then the owner, manager, tenant or employer has no right to kick them out. Again we’re dealing with conflicting claims of rights. We can’t have legally conflicting freedoms.

Rights talk makes us think government is the heavy when it tells us what we can’t do. But Hohfeld revealed that law and government always tell us what we can or can’t do. To say nothing commands someone because the legal implication is that one of us can do what we want and the courts will penalize those who interfere. To say I have a right means government and the courts will protect me from your interference, not the other way around.

But then how should government choose whose rights to protect? Flip a coin? Take bribes or campaign donations? Play favorites, duck bullets or consider the general welfare?

Sometimes there are reasonable ways we can protect ourselves from the consequences of others’ exercise of their rights and privileges. Then maybe it’s worth it to make us do those work-arounds.

It sounds reasonable for me to protect myself and my family by keeping our masks on. But it’s about percentages – how effective are vaccines, masks and other precautions? Everyone’s precautions affect everyone else’s chance of getting sick. If encountering too much of the Delta variant in public means unwittingly bringing it home, do we all have to wear masks both in public and at home in order to protect our families? Is our home our castle where we have a right to safety and intimacy? Or did that right or privilege just get reduced?

Because government can’t protect us all without limiting privileges others claim, it’s never true that law and government can avoid choosing whose rights are more worth protecting and whose aren’t. What people call limited government is just government that favors the rich and powerful or people who talk tough. But I think I have a right to a government that makes reasonable choices, not one that lets some people do whatever they want, as if anyone’s rights are that broad. It’s not about getting government out of our lives – law is a seamless web. I’m fed up with sloppy claims about rights to commit wrongs – whether about masks, vaccines or guns.

Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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