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 represented in figure I.

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 inherently 'voluntary'.)

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 purpose.

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.)

©MVVM, 41-67 ASWW

Model of Neutral-Inclusivity
Book of Instruments
Right-Duty Constellations
Ways of Losing or Weakening Rights