CONCEPTS AND TERMINOLOGY
Because of the intimate relationship between the normative
and the legal language of rights, it is worth our while to
have a look at some legal ways of possessing or not possessing a
right anymore. A right, then, may be 'relinquished', 'waived',
'alienated', 'abandoned', 'forfeited', 'prescribed', 'abrogated',
'annulled', 'suspended', 'abridged', 'overridden', 'overruled' or
'violated'. These terms may be used in different
senses by different theorists, and in a different sense again in
everyday language. What is worse is that two or more of them
are sometimes used interchangeably where a useful distinction
can be made. It does not make sense (and is arrogant) to claim
that there is only one 'true' meaning for all these terms. What
is of great importance, however, is that the different types of
losing or weakening rights which can conceptually be distinguished
are recognized, whatever the terminology may be.
The most characteristic ways of losing or weakening rights are
The first way of not having a right any longer is by
relinquishing it oneself. This may be done voluntarily or
while being forced to do so. When a right is relinquished, or
the exercise of a right not insisted upon, under little or no
compulsion, one speaks of "waiving". Thus a person could waive
'er right to life or to property
itself but also --what is more common-- 'er claim to a certain part
of the land. The waiver of a right can be contrasted with the forced
relinquishment of a right. (The relinquishment or transfer of a right
has been defined, too, as 'alienation', but then in contradistinction
to the forfeiture of a right. In that case it is conceived of as
The distinction between waiver and forced relinquishment
is based on the degree of the agent's freedom to act, and is a
distinction which can only be drawn with respect to relinquishments.
But there are two other criterions which can be applied
to at least three types of losing or weakening rights. They
are the duration of the loss or weakening, and the extent
of it. If the relinquishment is permanent, we speak of an
'abandonment' of the right. (This has also been defined as
'relinquishment', that is, of the right itself and in contradistinction
to the 'waiver' of the exercise of a discretionary
right.) It may be that a forced relinquishment is always an
abandonment in practise, that someone who is coerced into
relinquishing control of, or the right to, something has always
to give it up with the prospect of never being able to claim it
again. In itself, however, this is not necessary and does not
affect the logical independence of the criterions applied.
Whereas an abandonment is irrevocable forever, a temporary
relinquishment is only irrevocable for a certain period of time:
the period for which the right has been given up. If it is also
voluntary --which we may assume it is--, then it is a temporary
waiver. Such a waiver of the right itself is quite different tho
from a waiver of the exercise of the right (if discretionary).
Whereas the temporary relinquishment is not revocable for the
period it has been renounced, the waiver of the exercise is
revocable at any moment as the right-holder continues to possess
the right itself throughout. Hence, when a first party waives
its exercise of a discretionary right, it exercises its power to
release someone else from 'er duty towards the first party.
It may also be said that the right-holder 'waives'
the right itself, but this is because waiving is used both in
the primary sense of relinquishing voluntarily, abandoning
or giving up and in the secondary sense of not insisting
upon, refraining from pressing or enforcing. In the latter
sense no right is lost or weakened at all. On the contrary: the very
possibility of nonexercise is essential to a discretionary right.
There is no reason why the relinquishment of a right would have to be
complete and could not be partial. This question
concerns the extent to which a right is or has been relinquished.
A second typical way of not having a right any longer is not
by relinquishing it oneself (whether forced to or not) but by
forfeiture of the right. This is the instant loss of the right
by some wrongdoing, that is, an error, offense or crime. It is
also described as an 'alienation by some neglect or crime'.
(Thus alienation may be used as a generic term denoting both
relinquishment and forfeiture.) The forfeiture itself may not be
done by the right-holder and may therefore not be 'voluntary' in
this way; the wrongdoing, however, may be either voluntary or
involuntary. Yet, it is possible that according to the rules in
question a right is never forfeited, if the wrong was not done on
Since forfeiture is not an act intended by the agent, there
is no question of the agent's 'freedom to forfeit or not'.
Hence, we cannot apply this first criterion, but the duration
and extent of the forfeiture are not necessarily permanent and
complete. Historically these distinctions may not have been
made, logically speaking we must distinguish a permanent from a
temporary, and a complete from a partial forfeiture.
A third way of losing a right or of having a right reduced in
effectiveness is by abrogation, that is, when it is taken
away or weakened by others. It is then declared (partially or
temporarily) not valid, or not valid anymore, by someone else.
In the event that the abrogation is permanent, it is an
annulment; in the event that it is temporary, a suspension.
Judging by the extent of the abrogation, rather than by
its duration, an abrogation may be complete or partial.
Abridgment is the special name for a partial abrogation.
(Complete abrogation may be called "defeasance", but this term
is ambiguous and may also denote the act of overriding a right.)
Altho it may require a strong will to resist all temptations,
a person cannot lose a right by relinquishing it, or by doing
something wrong without 'er own ultimate consent. It is the
possibility of abrogation which makes a (legal) right defeasible
in that a person can even lose the very right itself without 'er
consent. It is in another sense of defeasibility that a right
can be overridden, overruled, infringed on, or violated. In all
these cases one still has the right theoretically, but not in
practise. Overriding and overruling
(and sometimes also infringing) are used when the de facto loss of
the right is justifiable; violating or infringing
when it is not justifiably lost or neglected. A right is justifiably
overridden, where it is a prima facie right overridden by stronger
considerations. Even when justifiably overruled in a particular situation,
it does not cease to be a prima facie right tho; it is just not an actual
right in that situation because of its relative underweight.
Prima facie rights have been contrasted with 'rights sans phrase' which
are indefeasible in that they cannot be overruled. (It has been argued
that it is, strictly speaking, a claim which is prima facie, not the
right itself. This distinction may be helpful where claims have
ultimately to be based on one principle, it does not carry us any further
where two claims or rights rest on two different principles which are
logically entirely independent of each other.)