It is common in the literature to claim that legitimacy is the right to rule and that, accordingly, Hohfeldian rights analysis can be used to understand the concept. However, we argue that authors in the legitimacy literature have not generally realised the full potential of Hohfeldian analysis. We discuss extant approaches in the literature that conceptually identify legitimacy with one particular Hohfeldian incident, or, more rarely, a determinate set of incidents. Against these views, and building on parallel debates in property (...) theory, we suggest that Hohfeldian analysis pushes one towards the claim that legitimacy possesses no determinate essence. We provide a rationale for this novel view and disarm a series of objections. (shrink)

Increasingly firm rejections of the distinction between positive and negative human rights as incoherent have created a gap between theory and practice, as well as tensions within legal doctrinal and philosophical literature. This article argues that the distinction can be preserved by means of a structural account of the interaction of duties within human rights, anchored in case law on the right to freedom of assembly in Article 11, the right to free elections in Article 3 of Protocol 1, and (...) the right to security as enshrined in Articles 2, 3, 5, and 8 of the European Convention on Human Rights. (shrink)

The article examines methods of distinguishing positive and negative duties within the provisions of the European Convention of Human Rights as applied by the European Court of Human Rights. It highlights problems with tying positive duties to acts and negative duties to omissions, and sets out a supplemental delineation method when those problems lead to systematic classification errors: duties sort as positive if they have the capacity for multiple fulfilment options and negative if they only allow one fulfilment option. These (...) delineation criteria allow for a more consistent reconstruction of case law and point to a causal mechanism for alleged asymmetries in proportionality review and margins of appreciation. Lastly, there are revisionary implications for human rights scholarship. Judgments have been sorted as positive rights cases because they feature a requirement that states commit to legislative amendment, yet performative acts of amendment may be continuous with underlying negative duties. (shrink)