Page:Hohfeld System of Fundamental Legal Concepts.djvu/8

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of jurisprudence, that a correlative term is that of an idea which is necessarily connected, and is consistent, with another idea.

With this addition, we find no objection to ‘right’—‘duty’ and ‘power’—‘liability’ as correlatives. These combinations of correlatives are fairly well established. But again, so far, so good; for when these terms are inspected in detail, it will be found, unfortunately, that occasionally the meaning is obscured by inconsistent or double usage in the Hohfeld School.

A quotation taken from the more recent of Professor Hohfeld’s essays[1] on this topic and which may be accepted as representing his maturest views, is as follows:

“Suppose ... that A is fee-simple owner of Blackacre. His ‘legal interest’ or property relating to the tangible object that we call land consists of a complex aggregate of rights (or claims), privileges, powers, and immunities. First, A has multital legal rights [rights in rem], or claims that others, respectively, shall not enter on the land, that they shall not cause physical harm to the land, etc., such others being under respective correlative legal duties.

“Second, A has an indefinite number of legal privileges of entering on the land, using the land, harming the land, etc., that is, within the limits fixed by law on grounds of social and economic policy, he has privileges of doing on or to the land what he pleases; and correlative to all such legal privileges are respective legal no-rights of other persons.

“Third, A has the legal power to alienate his legal interest to another, i.e., to extinguish his complex aggregate of jural relations and create a new and similar aggregate in the other person;[2] also the legal power to create a life estate in another and concurrently to create a reversion in himself; also the legal power to create a privilege of entrance in any other person by giving ‘leave and license’; and so on indefinitely. Correlative to all such legal powers are the legal liabilities in other persons—this meaning that the latter are subject nolens volens to the changes of jural relations involved in the exercise of A’s powers.

“Fourth, A has an indefinite number of legal immunities, using the term ‘immunity’ in the very specific sense of non-liability, or non-subjection to a power on the part of another person.[3] Thus A has the immunity that no ordinary person can alienate A’s legal interest or aggregate of jural relations to another person; the immunity that no ordinary person can extinguish A’s own privileges of using the land; the immunity that no ordinary person can extinguish A’s right that another person, X, shall not enter on the land, or, in

  1. “Fund. Concepts,” p. 96. The italics are the author’s; the small capitals for differentiation are the present writer’s.
  2. Here is a clear example of the confusion of a ‘power’ considered as a juristic fact with power considered as a jural relation.
  3. Overlooking the more important function of ‘immunity’ in a jural relation; e.g., immunity from an illegal levy on exempt property.