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
