other words, create in X a privilege of entering in the land. Correlative to all these immunities are the respective legal disabilities of other persons in general.”
The correlatives, ‘right’—‘duty’ and ‘power’—‘liability,’ are well-seasoned and they are not questioned. We have already pointed out that Professor Hohfeld has given the term ‘liability’ a wider meaning than that which prevailed, and this extension we regard as original and useful, at least for juristic facts as distinguished from jural relations. Before passing to a discussion of the other two correlatives, some variations of usage may be pointed out.
Professor Hohfeld speaks of “the householder’s privilege of ejecting the trespasser.” This seems a confusion of liberty and power.[1] When one acts for himself without legal consequences, as by walking on his land, he exercises a liberty, but when the owner puts a trespasser off the land, it would seem that he exercises a power., i.e., he does something which is a disadvantage to another.[2]
A license is regarded as a “particular” kind of ‘privilege’ (liberty).[3] Surely there is a juristic difference between what one may do on his own land and what one may do, outside of an agency transaction, on the land of another. A license, therefore, is either a kind of power, or it has not been provided for, since as against the owner of the land it cannot be a liberty (‘privilege’) without doing violence to the ordinary meaning of the term ‘liberty,’ and, likewise, confusing the non-jural concept of ‘liberty’ with the jural concept of ‘power.’
A constable is said to have a “privilege” of killing dogs without collars.[4] This also is a power and not a mere liberty. Professor Cook says of privileged defamation that “the person publishing the same has a privilege to do so.”[5] The present writer agrees that ‘privilege’ is the right word, both in lawyers’ parlance and in jurisprudence, but submits it is the wrong word in the Hohfeld System,
- ↑ “Fund. Concepts,” pp. 33, 41, n. 39. In like manner, Prof. Cook speaks of the “privilege of self-defense”: id., p. 6; see, also, Prof. Corbin, “Legal Analysis,” Yale L. Jour., XXIX, 167-8.
- ↑ We have already pointed out that Prof. Corbin seems to limit power to a constitutive function (see note 9 supra). Perhaps this accounts for the difficulty of applying the term ‘power’ in these cases. Whatever the explanation, the Hohfeld System would in no way need modification if ‘power’ were used in the double sense of abrogative as well as constitutive function. In such case, the person against whom the ‘power’ prevails is subject to a ‘liability’ and not a ‘no-right’ as the use of ‘privilege’ necessarily requires in the Hohfeld System.
- ↑ “Fund. Concepts,” p. 50.
- ↑ Id., p. 41 n. 39.
- ↑ Id., p. 7.
