Fundamental Legal Conceptions as Applied in Judicial Reasoning

W. N. Hohfeld

One of the greatest hindrances to the clear understanding, the incisive statement, and the true solution of legal problems frequently arises from the express or tacit assumption that all legal relations may be reduced to “rights” and “duties,” and that these latter categories are therefore adequate for the purpose of analyzing even the most complex legal interests, such as trusts, options, escrows, “future” interests, corporate interests, etc. Even if the difficulty related merely to inadequacy and ambiguity of terminology, its seriousness would nevertheless be worthy of definite recognition and persistent effort toward improvement; for in any closely reasoned problem, whether legal or non-legal, chameleon-hued words are a peril both to clear thought and to lucid expression. As a matter of fact, however, the above mentioned inadequacy and ambiguity of terms unfortunately reflect, all too often, corresponding paucity and confusion as regards actual legal conceptions. That this is so may appear in some measure from the discussion to follow.

The strictly fundamental legal relations are, after all, sui generis; and thus it is that attempts at formal definition are always unsatisfactory, if not altogether useless. Accordingly, the most promising line of procedure seems to consist in exhibiting all of the various relations in a scheme of “opposites” and “correlatives,” and then proceeding to exemplify their individual scope and application in concrete cases. An effort will be made to pursue this method:

Jural Opposites	{	right no-right	privilege duty	power disability	immunity liability
Jural Correlatives	{	right duty	privilege no-right	power liability	immunity disability

Rights and Duties. As already intimated, the term “rights” tends to be used indiscriminately to cover what in a given case may be a privilege, a power, or an immunity, rather than a right in the strictest sense. . . .

Recognizing, as we must, the very broad and indiscriminate use of the term “right,” what clue do we find, in ordinary legal discourse, toward limiting the word in question to a definite and appropriate meaning? That clue lies in the correlative “duty,” for it is certain that even those who use the word and the conception “right” in the broadest possible way are accustomed to thinking of “duty” as the invariable correlative.2  As said in Lake Shore & M. S. R. Co. v. Kurtz 3 :

“A duty or a legal obligation is that which one ought or ought not do to. ‘Duty’ and ‘right’ are correlative terms. When a right is invaded, a duty is violated.” 4

In other words, if X has a right against Y that he shall stay off the former’s land, the correlative (and equivalent) is that Y is under a duty toward X to stay off the place. If, as seems desirable, we should seek a synonym for the term “right” in this limited and proper meaning, perhaps the word “claim” would prove the best. The latter has the advantage of being a monosyllable…5

Privileges and “No-Rights.”6  As indicated in the above scheme of jural relations, a privilege is the opposite of a duty, and the correlative of a “no-right.” In the example last put, whereas X has a right or claimthat Y, the other man, should stay off the land, he himself 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. As indicated by this case, some caution is necessary at this point; for, always when it is said that a given privilege is the mere negation of a duty, what is meant, of course, is a duty having a content or tenor precisely opposite to that of the privilege in question. Thus, if, for some special reason, X has contracted with Y to go on the former’s own land, it is obvious that X has, as regards Y, both the privilege of entering and the duty of entering. The privilege is perfectly consistent with this sort of duty – for the latter is of the same content or tenor as the privilege; – but it still holds good that, as regards Y, X’s privilege if entering is the precise negation of a duty to stay off. Similarly, if A has not contracted with B to perform certain work for the latter, A’s privilege of not doing so is the very negation of the duty of doing so. Here again the duty contrasted is of content or tenor exactly opposite to that of the privilege.7

Passing now to the question of “correlatives,” it will be remembered, of course, that a duty is the invariable correlative of that legal relation which is most properly called a right or claim. That being so, if further evidence be needed as to the fundamental and important difference between a right (or claim) and a privilege, surely it is found in the fact that the correlative of the latter relation is a “no-right,” there being no single term available to express the latter conception. Thus, the correlative of X’s right that Y shall not enter on the land is Y’s duty not to enter; but the correlative of X’s privilege of entering himself is manifestly Y’s “no-right” that X shall not enter.

In view of the considerations thus far emphasized, the importance of keeping the conception of a right (or claim) and the conception of a privilege quite distinct from each other seems evident; and, more than that, it is equally clear that there should be a separate term to represent the latter relation. No doubt, as already indicated, it is very common to use the term “right” indiscriminately, even when the relation designated is really that of privilege; and only too often this identity of terms has involved for the particular speaker or writer a confusion or blurring of ideas…

…On grounds already emphasized, it would seem that the line of reasoning pursued by Lord Lindley in the great case of Quinn v. Leathem 8  is deserving of comment: “The plaintiff had the ordinary rights of the British subject. He was at liberty to earn his living in his own way, provided he did not violate some special law prohibiting him from so doing, and provided he did not infringe the rights of other people. This liberty involved the liberty to deal with other persons who were willing to deal with him. This liberty is a right recognized by law; its correlative is the general duty of every one not to prevent the free exercise of this liberty except so far as his own liberty of action may justify him in so doing. But a person’s liberty or right to deal with others is nugatory unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him.”

A “liberty” considered as a legal relation (or “right” in the loose and generic sense of that term) must mean, if it have any definite content at all, precisely the same thing as privilege; and certainly that is the fair connotation of the term as used the first three times in the passage quoted. It is equally clear, as already indicated, that such a privilege or liberty to deal with others at will might very conceivably exist without any Peculiar concomitant rights against “third parties” as regards certain kinds of interference.  Whether there should be such concomitant rights (or claims) is ultimately a question of justice and policy; and it should be considered, as such, on its merits. The only correlative logically implied by the privileges or liberties in question are the “no-rights” of “third parties.” It would therefore be a non sequitur to conclude from the mere existence of such liberties that “third parties” are under a duty not to interfere, etc. Yet in the middle of the above passage from Lord Lindley’s opinion there is a sudden and question-begging shift in the use of terms. First, the “liberty” in question is transmuted into a “right”; and then, possibly under the seductive influence of the latter word, it is assumed that the “correlative” must be “the general duty of every one not to prevent,” etc.

Another interesting and instructive example may be taken from Lord Bowen’s oft-quoted opinion in Mogul Steamship Co. v. McGregor.

“We are presented in this case with an apparent conflict or antimony between two rights that are equally regarded by the law – the right of the plaintiffs to be protected in the legitimate exercise of their trade, and the right of the defendants to carry on their business as seems best to them, provided they commit no wrong to others.”

As the learned judge states, the conflict or antimony is only apparent; but this fact seems to be obscured by the very indefinite and rapidly shifting meanings with which the term “right” is used in the above quoted language. Construing the passage as a whole, it seems plain enough that by “the right of the plaintiffs” in relation to the defendants a legal right or claim in the strict sense must be meant; whereas by “the right of the defendants” in relation to the plaintiffs a legal privilege must be intended. That being so, the “two rights” mentioned in the beginning of the passage, being respectively claim and privilege, could not be in conflict with each other. To the extent that the defendants have privileges the plaintiffs have no rights; and, conversely, to the extent that the plaintiffs have rights the defendants have no privileges (“no-privilege” equals duty of opposite tenor). [pp. 35-44]

…Powers and Liabilities. As indicated in the preliminary scheme of jural relations, a legal power (as distinguished, of course, from a mental or physical power) is the opposite of legal disability, and the correlative of legal liability. But what is the intrinsic nature of a legal power as such? Is it possible to analyze the conception represented by this constantly employed and very important term of legal discourse? Too close an analysis might seem metaphysical rather than useful; so that what is here presented is intended only as an approximate explanation, sufficient for all practical purposes.

A change in a given legal relation may result (1) from some superadded fact or group of facts not under the volitional control of a human being (or human beings); or (2) from some superadded fact or group of facts which are under the volitional control of one or more human beings. As regards the second class of cases, the person (or persons) whose volitional control is paramount may be said to have the (legal) power to effect the particular change of legal relations that is involved in the problem.

The second class of cases – powers in the technical sense – must now be further considered. The nearest synonym for any ordinary case seems to be (legal) “ability,” – the latter being obviously the opposite of “inability,” or “disability.” The term “right,” so frequently and loosely used in the present connection, is an unfortunate term for the purpose, – a not unusual result being confusion of thought as well as ambiguity of expression. The term “capacity” is equally unfortunate; for, as we have already seen, when used with discrimination, this word denotes a particular group of operative facts, and not a legal relation of any kind.

Many examples of legal powers may readily be given. Thus, X, the owner of ordinary personal property “in a tangible object” has the power to extinguish his own legal interest (rights, powers, immunities, etc.), through that totality of operative facts known as abandonment; and – simultaneously and correlatively – to create in other persons privileges and powers relating to the abandoned object – e.g. the power to acquire title to the latter by appropriating it. Similarly, X has the power to transfer his interest to Y – that is, to extinguish his own interest and concomitantly create in Y a new and corresponding interest. So also X has the power to create contractual obligations of various kinds. Agency cases are likewise instructive. By the use of some metaphorical expression such as the Latin, qui facit per alium, facit per se, the true nature of agency relations is only too frequently obscured. The creation of an agency relation involves, inter alia, the grant of legal powers to the so-called agent, and the creation of correlative liabilities in the principal. That is to say, one party, P, has the power to create agency powers in another party, A, – for example, the power to convey P’s property, the power to impose (so-called) contractual obligations on P, the power to discharge a debt owing to P, the power to “receive” title to property so that it shall vest in P, and so forth. In passing, it may well be to observe that the term “authority,” so frequently used in agency cases, is very ambiguous and slippery in its connotation. Properly employed in the present connection, the word seems to be an abstract or qualitative term corresponding to the concrete “authorization,” – the latter consisting of a particular group of operative facts taking place between the principal and the agent. All too often, however, the term in question is so used as to blend and confuse these operative facts with the powers and privileges thereby created in the agent. A careful discrimination in these particulars would, it is submitted, go far toward clearing up certain problems in the law of agency…

… Passing now to the field of contracts, suppose A mails a letter to B offering to sell the former’s land, Whiteacre, to the latter for ten thousand dollars, such letter being duly received. The operative facts thus far mentioned have created a power as regards B and a correlative liability as regards A. B, by dropping a letter of acceptance in the box has the power to impose a potential or inchoate obligation ex contractuon A and himself; and, assuming that the land is worth fifteen thousand dollars, that particular legal quantity – the “power plus liability” relation between A and B – seems to be worth above five thousand dollars to B. The liability of A will continue for a reasonable time unless, in exercise of his power to do so, A previously extinguishes it by that series of operative facts known as “revocation.” These last matters are usually described by saying that A’s “offer” will “continue” or “remain open” for a reasonable time, or for the definite time actually specified, unless A previously “withdraws” or “revokes” such offer. While, no doubt, in the great majority of cases no harm results from the use of such expressions, yet these forms of statement seem to represent a blending of non-legal and legal quantities which, in any problem requiring careful reasoning, should preferably be kept distinct. An offer, considered as a series of physical and mental operative facts, has spent its force and become functus officio as soon as such series has been completed by the “offeree’s receipt.” The real question is therefore as to the legal effect, if any, at that moment of time. If the latter consist of B’s power and A’s correlative liability, manifestly it is those legal relations that “continue” or “remain open” until modified by revocation or other operative facts. What has thus far been said concerning contracts completed by mail would seem to apply,mutatis mutandis, to every type of contract. Even where the parties are in the presence of each other, the offer creates a liability against the offerer, together with a correlative power in favour of the offeree. The only distinction for present purposes would be in the fact that such power and such liability would expire within a very short period of time…

…In view of what has already been said, very little may suffice concerning a liability as such. The latter, as we have seen, is the correlative of power, and the opposite of immunity (or exemption). While no doubt the term “liability” is often loosely used as a synonym for “duty,” or “obligation,” it is believed, from an extensive survey of judicial precedents, that the connotation already adopted as most appropriate to the word in question is fully justified…

…Immunities and Disabilities. As already brought out, immunity is the correlative of disability (“no-power”), and the opposite, or negation, of liability. Perhaps it will also be plain, from the preliminary outline and from the discussion down to this point, that a power bears the same general contrast to an immunity that a right does to a privilege. A right is one’s affirmative claim against another, and a privilege is one’s freedom from the right or claim of another. Similarly, a power is one’s affirmative “control” over a given legal relation as against another; whereas an immunity is one’s freedom from the legal power or “control” of another as regards some legal relation.

A few examples may serve to make this clear. X, a landowner, has, as we have seen, power to alienate to Y or to any other ordinary party. On the other hand, X has also various immunities as against Y, and all other ordinary parties. For Y is under a disability (i.e. has no power) so far as shifting the legal interest either to himself or to a third party is concerned; and what is true of Y applies similarly to every one else who has not by virtue of special operative facts acquired a power to alienate X’s property. If, indeed, a sheriff has been duly empowered by a writ of execution to sell X’s interest, that is a very different matter: correlative to such sheriff’s power would be the liability of X – the very opposite of immunity (or exemption). It is elementary, too, that as against the sheriff, X might be immune or exempt in relation to certain parcels of property, and be liable as to others. Similarly, if an agent has been duly appointed by X to sell a given piece of property, then, as to the latter, X has, in relation to such agent, a liability rather than an immunity…

…In the latter part of the preceding discussion, eight conceptions of the law have been analyzed and compared in some detail, the purpose having been to exhibit not only their intrinsic meaning and scope, but also their relations to one another and the methods by which they are applied, in judicial reasoning, to the solution of concrete problems of litigation. Before concluding this branch of the discussion a general suggestion may be ventured as to the great practical importance of a clear appreciation of the distinctions and discriminations set forth. If a homely metaphor be permitted, these eight conceptions, – rights and duties, privileges and no-rights, powers and liabilities, immunities and disabilities, – seem to be what may be called “the lowest common denominators of the law.” Ten fractions (1-3, 2-5, etc.), may,superficially, seem so different from one another as to defy comparison. If, however, they are expressed in terms of their lowest common denominators, (5-15, 6-15, etc.), comparison becomes easy, and fundamental similarity may be discovered. The same thing is of course true as regards the lowest generic conceptions to which any and all “legal quantities” may be reduced.

Reverting, for example, to the subject of powers, it might be difficult at first glance to discover any essential and fundamental similarity between conditional sales of personality, escrow transactions, option agreements, agency relations, powers of appointment, etc. But if all these relations are reduced to their lowest generic terms, the conceptions of legal power and legal liability are seen to be dominantly, though not exclusively, applicable throughout the series. By such a process it becomes possible not only to discover essential similarities and illuminating analogies in the midst of what appears superficially to be infinite and hopeless variety, but also to discern common principles of justice and policy underlying the various jural problems involved. An indirect, yet very practical, consequence is that it frequently becomes feasible, by virtue of such analysis, to use as persuasive authorities judicial precedents that might otherwise seem altogether irrelevant. If this point be valid with respect to powers, it would seem to be equally so as regards all of the other basic conceptions of the law. In short, the deeper the analysis, the greater becomes one’s perception of fundamental unity and harmony in the law.  [pp. 50-64]

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1 [Ed. Cook, Yale University Press (1923), Chap. 1.] [Back]

2 [A useful illustration of the practical value of Hohfeldian analysis may be found in J. W. Harris, 87 L. Q. R. 31. Harris distinguishes four concepts of duty and finds a failure to appreciate that the concept can be used differently at the root of the confusion between trusts and powers.] [Back]

3 (1894) 10 Ind. App. 60. [Back]

4 See also Howley Park Coal, etc., Co. v. L. & N. W. Ry. [1913] A.C. 11, 25. 27 (per Viscount Haidane L. C.: “There is an obligation (of lateral support) on the neighbour, and in that sense there is a correlative right on the part of the owner of the first piece of land”; per Lord Shaw: “There is a reciprocal right to lateral support for their respective lands and a reciprocal obligation upon the part of each owner… No diminution of the right on the one hand or of the obligation on the other can be effected except as the result of a plain contract…”). [Back]

5 [Hart has shown that claims can be defined as a power to enforce a duty coupled with the power to abolish the duty. See Definition and Theory in Jurisprudence, p. 16.] [Back]

6 [See further Glanville Williams, “The Concept of a Legal Liberty” in ed. Summers, Essays in Legal Philosophy (1968). p. 121. Williams, and many contemporary writers, prefer “liberty” to “privilege” as they believe the latter is tinged with political connotation of something specially granted, whereas in fact most “rights” are privileges or liberties.] [Back]

7 [For the argument that privilege is not the negation of duty. See White (1978) 41 M. L. R. 299.] [Back]

8 [1901] A.C. 495, 534. [Back]