Fundamental Legal Conceptions Reconsidered

Abstract

Fundamental legal conceptions are considered in relation to the analytical concerns of Hohfeld and Bentham, and also the normative concerns of constitutional and common law protection of rights and liberties. The use of a square of opposition to expound fundamental conceptions is rejected in favour of a triangle of possibilities. It is argued that this device helps to provide a clearer understanding of which conceptions may appropriately be recognised as analytically fundamental, and in turn avoids confusion over the normative treatment of practical situations that may arise through the designation of legal rights and liberties as fundamental.

Keywords: Fundamental legal conceptions, constitutional rights, common law rights, square of opposition, Bentham, Hohfeld