Refuge from a Jurisprudence of Doubt:

Hohfeldian Analysis of Constitutional Law

Author: Allen Thomas O’Rourke
Published: 61 S.C. L. Rev. 141 (2009)
In Refuge from a Jurisprudence of Doubt: Hohfeldian Analysis of Constitutional Law, Mr. O’Rourke provides a novel application of Professor Wesley Hohfeld’s landmark theory about legal concepts. Hohfeldian analysis changed the landscape of private law by clarifying the notion of a “right” into eight different terms: duty, claim, liberty, no-claim, power, liability, disability, and immunity. Mr. O’Rourke provides a thorough explanation of how Hohfeldian analysis can be applied to constitutional law, an application only made in piece-meal fashion in previous literature. In so doing, he provides a tool for resolving conceptual ambiguity in constitutional law. Specifically, Mr. O’Rourke reveals the ambiguity of the term “constitutional right” in Supreme Court decisions and, using Hohfeldian analysis, introduces the idea that the term “constitutional right” can denote a bundle of legal relationships.