The Hohfeldian analysis of right is an excellent analytical tool for the comprehension and the implementation of any type of rights. Its pragmatic approach made of a precise terminology and a solid logic leads us to identify, for a given right, the actual content of the right as well as the parties involved. The Hohfeldian three-term articulation of the human right that is the right to religious freedom expressed in Vatican II’s declaration Dignitatis Humanae, fulfils the function wanted by its author of providing clear thinking, in view of a correct understanding and a correct use. Translated into an Hohfeldian right, the right to religious liberty becomes a claim-right, held by any natural or legal person, not to be interfered with or coerced in the performance of religious activities, in private or in public, alone or in association. This claim-right is simultaneously held against any other human being, group or association; each of them bearing the correlative Hohfeldian duty. The Hohfeldian reasoning also leads to us to identify the particular relation that a government has with the right to religious liberty: a two-faceted relation composed firstly of the pure Hohfeldian duty not to interfere with or coerce (held by any natural or legal person), as well as a further duty of promotion and protection, proper to governments in relation to any human right.

About the Author

Francois Fontaneau, Master student at the University of Notre Dame in Sydney, currently undertaking a Master by Research in political philosophy.