The Hohfeld System of Fundamental Legal Concepts
|The Hohfeld System of Fundamental Legal Concepts (1920)
|From Illinois Law Review Vol. 15 No. 1 (May, 1920): 24-39.|
Wesley Newcomb Hohfeld, late professor of law in Yale University, was widely known among his professional colleagues as a successful teacher and a keen analyst of legal problems. Such attributes in fair measure are a necessary part of the equipment of those who conduct the rigorous schedule of the present-day law school. But Professor Hohfeld achieved fame in a field other than that of teaching. He lived to realize the unique distinction of seeing his system of jural concepts accepted as a body of official classroom doctrine at the institution of learning, where later a wretched fate struck him down in the midst of his constructive proposals and while he was still in the flower of his mental vigor. Had he lived yet a while, he would have seen his jural analysis carried to, and established at, another famous seat of legal scholarship by a generous and competent associate. He would have seen an important revision of a well-known text-book based upon it. He would have found a recent case-book making tacit acknowledgment of the value of his system. Likewise, he would have been gratified, as well he might, to discover his analysis accepted by various law teachers, as shown by miscellaneous writings in American law reviews of recent months. Lastly, had he lived, he would have experienced the satisfaction of finding an interest in his ideas unequalled perhaps by any single contribution to legal science in America within the last twenty years.
In venturing to discuss the Hohfeld System, and at various points to urge serious objections to it, the present writer is tardily responding to a wish which Professor Hohfeld himself, about a year before his death, did him the honor to express, that he make a formal statement of his views. The writer need not say that these comments, the substance of which he had already, though crudely and ineffectually, attempted to convey to Professor Hohfeld, go with a sense of regret that they cannot in their present form meet the eye of that acute thinker, who, notwithstanding sharp difference of opinion, would have been liberal enough not to misinterpret them as other than testimonials of professional and personal esteem. For the rest this discussion lies under no restraint, since the contribution attempted by Professor Hohfeld is important enough to be depersonalized. Furthermore, the inheritance has, as already observed, found ‘cretio’ in ‘heredes voluntarii’ who are well able to defend it.
First of all, Professor Hohfeld’s celebrated table of jural relations must be reproduced.
Among the merits of Professor Hohfeld’s System are the following:
1. It was the first attempt at a complete systematic arrangement of jural relations. A half-dozen or more Germans had already treated in a thorough way the active (power) side of jural relations. The most complete of these attempts was that of Bierling, but no writer in any country, prior to Hohfeld, had sought to give a systematic account, with suitable terminology, of the passive side of jural relations. Partial efforts to state the correlatives (the active and passive sides of jural relations) had been made by Terry and Salmond; but the table of opposites is altogether a novelty—whether useful or not we shall have occasion to examine.
2. It made manifest, as never before, the great complexity of jural threads found in concrete legal relationships. The usual method of legal operation and of legal thinking lies in the realm of molar physics, where often qualitative analysis instead is demanded. Without trenching on the medieval debate of nominalism and realism, it is clear enough that where words are lacking, ideas are usually wanting. Confusion of all jural relations under one undifferentiated idea, ‘rights,’ cannot but result in inaccurate thinking, and, as likely as not, occasionally, in incorrect legal solutions. The chief attribute of scientific progress is greater clearness of distinction. In this the law has been the most backward of sciences, and it is really astonishing, when one stops to consider the fundamental importance of ultimate categories in legal reasoning, that the insufficiency of our technical apparatus, in a scientific sense, had not long before impressed itself.
3. It made conspicuous the uniqueness (singleness) of jural relations as existing only between two persons, and never more than two persons. The confusion which existed on this point was disastrous in cases of rights in personam involving correal or solidary obligations. Nothing in Hohfeld’s System points more clearly to the sharpness of insight of Professor Hohfeld and his colleagues than this important and necessary distinction.
4. It gave to the concept ‘liability’ a new and useful extension, which includes advantage as well as detriment. A certain “linguistic contamination” adheres to the term ‘liability’ which a layman might find it difficult to remove, but in legal science this may readily be ignored. The utility of a two-sided correlative to power as a juristic fact seems indispensable, and no substitute probably could be found without a Benthamic coinage which would require for its establishment two or three generations of insistent repetition.
We now pass to what we regard as the demerits of the system.
1. The table of jural ‘opposites’ (a) is in part inconsistent, and (b) it has little, if any, juristic utility.
(a) It is inconsistent. But what is an opposite? It is said “that when dealing with jural opposites we are looking at two different situations from the point of view of the same person.” So far, so good. But there is still a difficulty. In logic, opposites as distinguished from contradictories are the extreme terms of quantity. Thus is the opposite of . In the case of legal relations to have a claim to payment of $100 would be the opposite of a duty in the same person to pay $100. Yet we find in Professor Hohfeld’s table that the ‘opposite’ of ‘right’ is not ‘duty,’ but ‘no-right.’ Now it is clear that ‘right’ and ‘no-right’ are not ‘opposites’—at least not in the sense of logic—but are rather ‘contradictories’ (negatives).
The next enumeration of ‘opposites’ in Professor Hohfeld’s table is ‘privilege’ and ‘duty.’ Here is a clear change of position, since on the basis of contradictories or negatives (i.e., the presence or absence of a quality) the negative of ‘privilege’ must be ‘no-privilege’ and not ‘duty.’ Professor Hohfeld’s illustration at this point will be useful—
“... whereas X has a right or claim that Y, the other man should stay off the land [of X], he himself [X] has the privilege of entering on the land; or, in equivalent words, X does not have a duty to stay off. The privilege of entering is the negation of a duty to stay off.”
The term ‘privilege’ is used here apparently in the sense of ‘liberty,’ a non-jural concept, as we think; but the true negative of ‘liberty’ is ‘no-liberty,’ just as the negative of ‘right’ is ‘no-right.’
(a) The field of ‘liberty,’ so far as it is connectible with anything of jural consequence, is limited to the enjoyment of the things for which rights and powers exist. Liberty cannot be predicated of rights and powers themselves since they denote another group of ideas. What ‘liberty’ can the holder have in a chose-in action? Yet there is a duty. It is clear that not every duty is the ‘opposite’ of a liberty, as any right in personam suffices to demonstrate. It may be possible to speak of a possessio iuris of rights in personam which are susceptible of continuing exercise (e.g., the right of an annuitant), but even in this case it is an awkward locution to say that the right-holder has the ‘liberty of exercising his right.’ (b) Again, the liberty of the owner of land to go on his land might stand ‘opposite’ a contractual duty in the same person not to stay off the land, but to go on it. (c) Furthermore, the liberty of an owner of land to go on his land might stand ‘opposite’ his equal liberty to stay off his own land. Liberty to stay off the land is just as much an ‘opposite’ of liberty to go on the land as is the duty to stay off. These illustrations are put to show that ‘privilege’ (liberty) and ‘duty’ are neither true opposites nor negatives, and that this division is wanting in logical coherence. The real negatives are ‘privilege’ (liberty) and ‘no-privilege’ (no-liberty).
The next category (‘power’—‘disability’) seems unobjectionable from the standpoint, not of ‘opposites,’ but of ‘negatives,’ since ‘disability’ is simply another way of saying ‘no-power.’ Likewise, and for the same reason, the last category (‘immunity’—‘liability’) is formally consistent, since ‘liability’ is only a final statement of the effect of ‘no-immunity.’ If there is ‘no-immunity,’ necessarily there must be ‘liability.’
Since the table is inconsistent in one term regarded by Professor Hohfeld as fundamental, it might be supposed that the learned author was dealing neither with ‘opposites’ nor with ‘negatives’ (contradictories), in the application of logic, but with a third term, ‘contraries,’ in the sense that a wrongful act is the contrary of a duty, or in the sense of the ‘contrarius actus’ of Roman law; but without prolonging the discussion at this point, a cursory examination of the table will show that this possibility is not borne out. Moreover, the scope of ‘contraries’ as applied to jural concepts is very limited.
(b) It has little, if any, juristic utility. Since jural relations must be completely isolated and identified, it is of no profit to know that ‘no-right’ is the negative of a ‘right.’ (a) One may have ‘no-right’ and yet occupy an important jural position. For example, he may have a jural power (e.g., power of appointment). The thing of importance is to isolate and identify the power, in the example given, and not to determine that a jural power is a ‘no-right.’ (b) Again, one might have a ‘no-right’ because of subjection to duty.
“The slightest reference to actual thinking ... shows that the doctrine [of contradictories] carries the use of logical figments beyond the limits of the tolerable. We never actually use such contradictories. It is not profitable to talk about the universe at large and to contrast a single aspect of it with all that remains. We always know enough about anything we are discussing not to leave its position as vague as that, and hence language does not form pairs of words in the form of ‘A’ and ‘not-A.’”
Contrasting a definite legal concept “with all that remains” is only a step from contrasting a quality outside the field of reference with something in the field of reference by application of the ‘law of excluded middle.’ Thus we might say that particular legal concepts are either colloidal or not colloidal, isosceral or not isosceral, ponderable or not ponderable, etc., etc.
To have known Prof. Hohfeld is to understand the table of ‘opposites’ (contradictories). His type of mind was the thoroughgoing kind. If he met a fact, he did not stop to inquire if it had any exchangeable value. We do not quarrel with that mental attitude. On the contrary, we highly respect it, and we simply affirm that as to the table of ‘opposites’ (contradictories) we are unable to find any place where it may be usefully applied in concrete legal thinking. It is not improbable that Prof. Hohfeld in his reflection on the subject weighed the possibility of constructing still other tables, as, for example, a table of ‘opposites’ (logical sense), of ‘contraries,’ and perhaps even of ‘differentials,’ and since nothing of such additional tables was announced or suggested by him, it is very likely that he regarded the two tables published as a complete statement of fundamental jural ideas so far as concerns the problem of systematic arrangement.
If the fundamentum divisionis is ‘opposites,’ in the logical sense (i.e., extreme terms of quantity), so far as it is workable, we fare no better. That a right in this sense is the opposite of duty is a matter of accounting rather than of jurisprudence. If ‘contraries’ is taken as the basis of division, it will be found that its range of application is too limited for practicality in a systematic table.
Coming back, therefore, to the table considered as based on ‘negatives’ (contradictories), which is the only view which will avoid a complete breakdown), and not on ‘opposites’ or ‘contraries,’ we conclude that it has little, if any, importance, and that if it seems desirable to retain it, its partial inconsistency should be adjusted upon a logical foundation. Other objections to the terms ‘privilege’ and ‘immunity,’ as applied by Professor Hohfeld, are reserved.
2. A number of other suggestions may be grouped.
Professor Hohfeld avoids definition as “always unsatisfactory, if not altogether useless.” His repugnance to definition was the lawyer’s instinct long ago expressed by Iavolenus: “Omnis definitio in iure civili periculosa est; parum est enim, ut non subverti posset.”
He did not have in mind, it is fair to assume, the objections to formal definition raised by non-Euclidian geometry and by non-Aristotelian logic. It is pretty certain that spherical triangles, parallel lines which meet, and four-dimensional space were not the restraining ideas of his refusal to provide a system of definitions; but it may be noted that the philosophers and logicians who argue for pluralistic definitions and relativity agree on the acceptance of provisional definitions as data without which the processes of judgment and inference cannot proceed. But if Professor Hohfeld has declined to define his terms, assuredly he has made it necessary for others to attempt it, if they would have any hope of understanding his proposal.
When we come to the table of ‘correlatives,’ we are as unenlightened as to what is meant as when the table of ‘opposites’ was encountered. Here we believe half of his table will be found logically consistent. The exceptions are ‘privilege’—‘no right’ and ‘immunity’—‘disability.’
The concept ‘correlative,’ as used by Professor Hohfeld, is clearly intended as that derived in formal logic from ‘absolute’ and ‘relative’ terms. Correlatives are those objects or ideas of objects which are necessarily connected with other objects or ideas of objects; thus, ‘father’ is a relative term and ‘son’ is the correlative. As to this distinction, Mr. Schiller has remarked that it is “wise of formal logic not to enter into such questions as why the ‘correlative’ of ‘son’ should not be ‘mother.’” In the light of this objection, ‘wrong’ would be as much a correlative of ‘right’ as is ‘duty.’ But it is allowable for each science to construct its own definitions, and a slight amendment of the definition of formal logic will avoid objections which have been raised in the newer functional logic to this category of terms. We may say, for the purpose 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 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; 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. 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 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. 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.
A license is regarded as a “particular” kind of ‘privilege’ (liberty). 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. 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.” 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, where ‘privilege’ means ‘liberty,’ unless ‘power’ and ‘privilege’ overlap, in which case it will become necessary to register another quite obvious objection.
Professor Cook also speaks of the ‘privilege’ against selfcrimination, and he seems also to say that this ‘privilege’ is a ‘right’ stricto sensu and also an ‘immunity.’ The same observation above made may be here repeated so far as the capacity against self-crimination is regarded as a ‘privilege.’ It may be further objected, if Professor Cook has not been misunderstood, that it is a curious situation that the same jural situation can be at once a ‘privilege,’ a ‘right,’ and an ‘immunity.’ If so much diversity of jural aspect is possible in the Hohfeld System, it is patent that the System needs reduction to Professor Hohfeld’s ideal, the “lowest common denominators.”
These few illustrations may suffice to show either inconsistency in the use of the terms ‘privilege’ and ‘power,’ or, in the alternative, an apparent overlapping which needs explanation. We now pass to a brief consideration of the validity of the two groups of correlatives denominated ‘privilege’—‘no-right’ and ‘immunity’—‘disability.’
‘Privilege,’ in the sense of liberty, does not seem to be a relative term at all, but, on the contrary, an absolute term. There is no more of ‘relation’ in ‘privilege’ than may be found in a windmill or a table. True enough, the term ‘correlative’ is indefinite at best, but it is clear that the correlation, if any, of liberty in one person and the non-existence of rights as to the content of it, in another, is juristically quite a different sort than that of ‘right’ and ‘duty.’
(a) Without attempting here a refinement of distinction which more properly falls to the expert logician, it is enough to point out that ‘no-right’ is not any more entitled to be considered the correlative of ‘privilege’ than is ‘no-power.’ (b) Again, the correlatives ‘immunity’—‘disability,’ for the same reason and for an additional reason, are objectionable. The additional reason is that the correlation is not complete. The person under disability may lack legal power (which is the sense in which the term disability is used in the Hohfeld System, ) but may there not be a disability, also, because of the existence of duty?
3. Like the table of ‘opposites,’ the category of ‘correlatives,’ ‘immunity’—‘disability,’ is a novelty. While it is logically incomplete, as it seems to us, in not including under disability the presence of duty as well as the absence of power, it may be objected to for the more important reason that, as limited, it is juristically of no consequence.
‘Immunity,’ if it means anything at all of importance, is immunity from something; but, in Professor Hohfeld’s System, an immunity is an immunity from nothing. One would hardly be considered immune in any practical sense from a disease which has never existed and which will never come into existence. Likewise, in the law, what has never existed and never will exist is not worth consideration either by lawyers or jurists.
The category ‘immunity’—‘disability’ is an empty one—it has absolutely no content. It may be conceded that in the administration of justice the question often may be, and is, litigated whether A has the power to divest the title of B. A either has such a power or he has not. If A has the power, we are not dealing with an immunity but with a liability—something real—a positive concept; but if A does not have the power, even though A asserts it, there are blanks on both sides. What, therefore, Professor Hohfeld means to say is that where there is a ‘no-power’ on one side, there is a correlation of ‘no-liability’ on the other. This way of stating the matter must, we think, disclose that one nothing opposed to another nothing cannot be regarded either as juristic correlatives, or as having any juristic connection or utility.
The term ‘immunity’ is well known to the law and we believe it can be usefully employed in a juristic sense, which is reasonably consistent with prevailing professional usage, and it seems to us unfortunate that an effort was not made to incorporate it in a juristic table where its actual fundamental operation would be disclosed. Nor do we deny that it may rarely be convenient to use a negative category of terms to facilitate communication of ideas, as. for example, when we speak of “immunity from prosecution.” What we deny is that the terms ‘immunity’—‘disability’ are of fundamental juristic importance in the limited use made of ‘immunity’ in Professor Hohfeld’s System.
4. If the category of supposed juristic correlatives, ‘immunity’—‘disability,’ is a case of blanks on both sides, so it will be found also with the supposed juristic category of correlatives, ‘privilege’— ‘no-right.’ This category is another case of negatives with which the law is not concerned in any practical sense except to determine within the scope of litigation that it is not concerned, by merely adjudicating a negative.
If A, the owner of a cigar, smokes it in his study, he exercises a liberty, or, in the language of the Hohfeld System, a ‘privilege.’ No one has a claim against A that he shall not smoke the cigar. What is the possible juristic significance of the act? Does the law in any way undertake for the advantage of others to say that A shall, or shall not, smoke the cigar? Not at all. Then where is the juristic significance? Clearly there is no positive juristic content in the exercise of a liberty, and it is equally apparent that if the law attempted to supervise every possible act of liberty, in criminal law or otherwise, it would break down with its own weight. It should be emphasized that nothing less than every act of liberty is in question, and that no acts are involved which are a breach either of public or private duty.
This category reduces to this: Where one has no right to, or claim upon, the act of another, the other may do as he pleases. Ex nihilo, nihil fit. The two categories last discussed are simply two kinds of negatives—the absence of power and the absence of right (claim), respectively. In neither case is there a correlative. Non-existence is the most absolute thing in the world, and incidentally it is perhaps one of the few logical absolutes.
But while ‘no-right’ and ‘no-power’ must be regarded as juristic negatives and as logical absolutes, yet in fairness to Professor Hohfeld’s System it is necessary to consider these terms in the exact form in which they have been presented; since it may be possible, contrary to expectation, that an absolute term may be, if not relative (which involves a contradiction), at least correlative, in jurisprudence. The question, therefore, may be formulated as follows: Is ‘no-right’ the correlative of a liberty (‘privilege’), and is a ‘no-power’ (disability) the correlative of ‘immunity’? In other words, are liberty (‘privilege’) and ‘immunity’ relative terms or are they absolute terms?
The term liberty (‘privilege’) is clearly an absolute term, in any practical sense. The term ‘no-right’ has no greater connection with liberty by way of correlation than have ‘no-power’ (disability), or ‘no-duty’ or ‘no-liability,’ or ‘power,’ or ‘duty,’ or ‘liability.’ Professor Corbin’s explanation of ‘privilege’ as another name for ‘no-duty’ makes this still more evident. Here it is clear that ‘no-duty’ and ‘no-right’ are both mere negations and that as such they can not be in relation in any logical sense.
Likewise, the term ‘immunity,’ as used by Professor Hohfeld, is also absolute. It can not claim for its correlative ‘no-power’ (disability) to the exclusion of ‘no-liability’ or ‘no right.’ If A is the owner of land without outstanding rights or powers in others, he is not in his situation as owner, which gives him certain claims and powers against others, under any duty or liability to such others. There is no right against him (e.g., to make a conveyance as holder of the legal estate in trust); nor has any person the power to divest his title. Clearly A’s situation is, as respects others, an absolute legal situation. As to his title, no act can be claimed from him nor any act projected against him. If B, a stranger to the title, should go through the form of making a conveyance of a fee simple right in A’s land, the act would be a legal nullity. Moreover, B is under no legal duty not to make such a paper conveyance. Any act of B attempting to convey A’s title would be wholly lacking in legal consequences. Accordingly, A’s situation, as owner, as to such an act on the part of B, is absolute; it has no connections or correlatives, and is lacking in juristic importance.
The subject matter of Professor Hohfeld’s tables is full of intrinsic difficulties, and the present writer cannot safely assume with too much confidence, in pointing out what seem to him to be valid objections, that he has always succeeded in his understanding of the Hohfeld System, and that he has been able, on the other hand, to avoid falling into errors of his own. One of the most competent authorities in this field has already spoken of Professor Hohfeld’s tables as showing ingenuity, to which sentiment we subscribe without reservation. The same authority has also advanced objections on other grounds to some of the terminology used by Professor Hohfeld as lacking juristic significance.
Professor Hohfeld’s table arouses curiosity as to how he proceeded to work it out. No explanation is given. Can we be sure that there are only four fundamental juristic terms? Could there not be more than four? No answer is given by Professor Hohfeld or by his associates, or, so far as is within our knowledge, by anyone who has adopted Professor Hohfeld’s System. Superficially, the tables seem to be an enumeration, but a closer inspection shows a regular alternation of the secondary terms when the two tables are compared; thus ‘no-right’ and ‘duty’ change places, as do also ‘disability’ and ‘liability.’ This may perhaps explain the rigid symmetry of the scheme, and this rigidity may account for some of the objections which have been offered. But why did Professor Hohfeld select, or how did he discover, four fundamental jural terms—the “lowest common denominators”? No satisfactory answer can be given, and surmise is all that is left.
Hohfeld was not ex professo a teacher of jurisprudence, but there can be no question that he was an assiduous student of it and that he had a natural bent for that kind of thinking. His literary apparatus shows an intimate acquaintance with everything on the subject printed in English, but it shows no acquaintance at any point with an important literature, especially in German, which has explored juristic ideas in various directions which have not yet been made familiar to us in our own language. This isolation must be regarded as a great hindrance to any investigator in jurisprudence, but in spite of it, or rather because of it, Hohfeld succeeded in building up a structure which has the unquestioned merit of originality and ingenuity. The terms themselves used by Professor Hohfeld are not new and two of the combinations ‘right-duty’ and ‘power-liability’ are not new, but the tables as a whole are original. It seems probable that the terms were derived from, or to some extent based upon, the notable manual of Salmond, but the exact method of construction must be at best conjectural unless among Professor Hohfeld’s papers his work-sheets happen to be preserved. We shall not attempt to pursue the inquiry.
What we regard as the basic defect of his method is his failure to search for and to proceed from the fundamental concept of jural relation. Without a clear understanding of this primary juristic idea, it was nearly inevitable that no table of jural relations could be constructed which would not disclose objections, however symmetrical it might turn out. Professor Hohfeld’s use of terms shows an entire lack of recognition of the important distinction between jural relations and juristic facts, and this confusion of ideas may account for the circumstance that half of his table deals with situations which do not involve any jural relation whatsoever.
Our conclusion, not arrived at without much reflection, is that the System, in so far as it shows originality, is without juristic value; that at one point where the term ‘privilege’ is used to mean ‘liberty,’ the table is objectionable on the double ground that ‘liberty’ is a non-jural concept and that its double usage, which includes ‘power,’ is a misapplication likely to lead to much confusion in the solution of delicate legal problems; and that at another point the term ‘immunity’ is unduly narrowed to exclude the important function of jural relation.
A reconstruction of the Hohfeld tables in the light of the objections advanced is as follows:
|Table of Contradictories|
|Jural Concepts||Non-Jural Concepts|
|Table of Correlatives|
|Jural Concepts||Non-Jural Concepts|
- Prof. Arthur L. Corbin’s Anson, “Contracts” (3d Am. ed.), Oxford U. Press, 1919.
- Bigelow, “Cases on Rights in Land Including Introduction to the Law of Real Property,” St. Paul. 1919.
- See, especially, Yale Law Journal, XXVI, et seq.
- In making reference to Professor Hohfeld’s system, we shall for convenience make use of and cite the pamphlet entitled “Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays,” by Wesley Newcomb Hohfeld, New Haven, Yale U. Press, 1919, which contains the two principal expositions of his system together with an introduction by Prof. Walter Wheeler Cook, all reprinted from Yale Law Journal, Vols. XXIII, 16 (Hohfeld, 1913); XXVI, 710 (Hohfeld, 1917); XXVIII, 721 (Cook, 1919).
- “Kritik der juristischen Grundbegriffe”; “Juristische Principienlehre.”
- “Leading Principles of Anglo-American Law” (1884).
- “Jurisprudence” (1902).
- Prof. Corbin has especially emphasized this point: “Legal Analysis and Terminology,” Yale L. Jour., XXIX, 165.
- Prof. Corbin has especially emphasized this point: “Legal Analysis,” Yale L. Jour., XXIX, 169; cf. the remarks of Dean Pound, Int. J. Ethics, XXVI, 92 (97).
This enlargement of the term liability is necessary not in jural relations proper which involve fundamentally the idea of constraint, but only for the broader use of the concept juristic fact, a distinction entirely disregarded and probably misapprehended in the Hohfeld System.
It may here be noted that while Prof. Hohfeld (“Fund. Concepts,” p. 16) and Prof. Cook (id., p. 7) clearly employ ‘power’ with both an abrogative and a constitutive function, Prof. Corbin in a recent statement issued with collaboration of his associates, seems to limit ‘power’ to the function of creating “new legal relations” (“Legal Analysis and Terminology,” Yale L. Jour., XXIX, 168).
- “Fund. Concepts,” p. 10, n. 13.
- Id., p. 39. Note the term ‘negation’ (not emphasized in the original). Cf. note 29, post, where Prof. Corbin has substituted for ‘privilege’—‘duty,’ the terms ‘no-duty’—‘duty.’ As to this substitution, while it has the effect of making the table of ‘opposites’ consistent on the basis of contradiction, it may be objected, that ‘privilege’ in the sense of ‘liberty’ is not the same idea as ‘no-duty’ (cf. note 28, post).
- On the assumption, of course, of a jural relation, since, if no jural relation exists, the terms are meaningless; e.g., if A is not an owner of land, his position is one of ‘no-immunity’ without, however, being that of ‘liability.’
- Id., p. 36.
- D. 50, 17, 202: de reg. iur.
- “Formal Logic,” p. 28.
- “Fund. Concepts,” p. 96. The italics are the author’s; the small capitals for differentiation are the present writer’s.
- Here is a clear example of the confusion of a ‘power’ considered as a juristic fact with power considered as a jural relation.
- Overlooking the more important function of ‘immunity’ in a jural relation; e.g., immunity from an illegal levy on exempt property.
- “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.
- Ibid. See also Yale L. Jour., XXVIII, 387 (391).
- Id., p. 7 n. 3.
- Id., p. 64.
- Id., pp. 96-97; Corbin, “Legal Analysis,” Yale L. Jour., XXIX, 170.
The difficulty of this table proceeds from the erroneous view expressed by Prof. Cook that “each concept must therefore as a matter of logic have a correlative”: “Fund. Concepts,” p. 10. This is not true in logic, nor is it true in jurisprudence.
- Professor Hohfeld in a personal letter (Nov. 19, 1917, citing Pollock, Del Vecchio, and Gareis) snowed his understanding of the objection without, however, changing his position: (see Yale L. Jour., XXIII, 16, 42 n. 59; XXVII, 66, 71 n. 12). Likewise, Professor Cook has also clearly apprehended the objection. In the case of Ind. News Service Co. v. Associated Press, 39 Sup. Ct. Rep. 68, Mr. Justice Brandeis, in a dissenting opinion thought that relief ought to be denied to the complainant upon considerations which should lead the court “to decline to establish a new rule of law.” Professor Cook says of this statement:
“Mr. Justice Brandeis, in holding that the defendant was ‘privileged’ to pirate the plaintiff’s news, was laying down ‘a new rule of law’ just as clearly as was the majority when they held the defendant was not ‘privileged’“ (Yale L. Jour., XXVIII, 387 (391).
To say that a rule of law does not exist applicable to a given case of first impression, according to this logic, is the same thing in jurisprudence as saying that a rule of law does exist. The question, however, is not merely one of words. The real difficulty lies in the failure to understand the nature of a jural relation. A jural relation involves the idea of constraint; so, also, does a legal rule. The reductio ad impossibile of the position of Professors Hohfeld and Cook may be shown by the Hohfeld category of ‘opposites,’ ‘right’—‘no-right.’ A sues B, claiming money due under an alleged contract. The court finds there was no contract, no money due, and consequently ‘no-right’ in A against B. Will it be argued that A had a ‘right’ against B before the suit was commenced? Will it be argued that a jural relation was established when the court pronounced a judgment (apart from costs) for the defendant?
Prof. Borchard who has made familiar to us the functions of the declaratory judgment procedure has also asserted the jural character of ‘privilege’ (liberty). In a recent discussion of London-American, etc., Co. v. Rio de Janeiro, etc., Co. , 2 K. B. 611, he remarks:
“It will be observed that the plaintiffs here had no ‘cause of action’ against the defendants. They merely asserted the defendants’ ‘no-right’ and their own freedom from a duty to share with the defendants the admiralty award (i.e., a privilege)”: Yale L. Jour., XXIX, 545.
Prof. Borchard had already made the same point in his discussion of Guaranty Trust Co. v. Hannay , 2 K. B. 536,  2 K. B. 623: Yale L. Jour., XXVIII, 9.
It may be observed that Prof. Hohfeld used the term ‘privilege’ to include a variety of meanings, as follows:
(1) The ‘privilege’ of X, the owner of land, to enter on his land: “Fund. Concepts,” p. 39. This variation doubtless properly includes also the ‘privilege’ of not entering.
(2) The ‘privilege’ of a householder to eject a trespasser: “Fund. Concepts,” p. 41, n. 39.
(3) The ‘privilege’ of uttering a libel (e.g., ‘privileged communication’): “Fund. Concepts,” p. 46.
(4) The ‘privilege’ against self-crimination: “Fund. Concept,” p. 46.
(5) The ‘privilege’ of entering on the land of another by ‘license’: “Fund. Concepts,” p. 49.
“It has been assumed,” Prof. Hohfeld said, “that the term ‘privilege’ is the most appropriate and satisfactory to designate the mere negation of duty” [our italics]: “Fund. Concepts,” p. 44.
The views of the present writer may be shortly stated:
(a) The term ‘privilege’ in the sense of “no-duty” is not synonymous with the term ‘privilege’ in the sense of ‘liberty,’ i.e., abscence of jural relations.
(b) The term ‘privilege’ as used by Prof. Hohfeld is a blending and confusion of jural and non-jural concepts. In the variations above set out there are three separable ideas—liberty, privilege, and power. A term of such extension is unworkable and will result in confusion in cases where refinement of discrimination is called for in legal operations.
(c) As to Prof. Borchard’s contention that a ‘no-duty’ situation has a jural character, we need only enter a simple denial. The thing itself speaks. We do not deny, of course, the procedural necessity of establishing negatives of claimed jural relations. The declaratory judgment where a plaintiff establishes that he owes no duty to the defendant is not different from the case where the defendant in an action succeeds in getting the judgment of the court that the plaintiff has no cause of action.
A similar confusion of jural and non-jural relations is found in a recent book (“Les transformations générales du droit privé”) by Professor Duguit of the University of Bordeaux (translated in part as one of the chapters of “Progress of Continental Law in the Nineteenth Century” (Cont. L. Hist. Ser., XI, cap. iii). Professor Duguit, who may be said to be one of the most extreme representatives of the newer ‘functional’ jurisprudence, interprets the modern trend of law as being toward ‘objectivism,’ which according to him means a progressive cutting down of ‘subjective’ (legal) rights. We have attempted to show elsewhere that what has been reduced is not ‘rights’ but ‘liberties’: Jour. Cr. L. and Criminol., IX, 464 (469-470).
Failure of discrimination of these ideas is not always unimportant, as may be seen in Kemp v. Division, 255 Ill. 213, 99 N. E. 389: cf. Ill. L. Rev., VII, 320, 323; VIII, 126.
- “Legal Analysis,” Yale L. Jour., XXIX, 167-8. It is interesting to note that when ‘no-duty’ is substituted for privilege, not only is there a change of position (see note 11 ante), but the logical symmetry of the Hohfeld tables is adversly affected in this that a negative term is ranged alongside other terms intended in the Hohfeld System to be positive terms. Thus, it is necessary to speak of ‘rights,’ ‘no-duties,’ ‘powers,’ and ‘immunities.’ All this, it seems to us, is further evidence of the fatal error of attempting to include ‘liberty’ in a table of jural concepts.
- Prof. Roscoe Pound, “Legal Rights,” Int. Jour. Ethics, XXVI, 92 (97).
- “Jurisprudence,”3 cap. x.
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