‘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.[1]
- ↑ 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. [1917], 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 [1915], 2 K. B. 536, [1918] 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.
