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Hohfeld's Conceptions: From Eight to Two

Published online by Cambridge University Press:  16 January 2009

A. K. W. Halpin
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Extract

If Jurisprudence strikes the law student as a miry bog, the analysis of a legal right ought, at least, to provide a path through the marshland. The disparate rumours of such a path may have a greater tendency to lead him into the middle of the bog than bring him safely to the other side.

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Articles
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The Cambridge Law Journal , Volume 44 , Issue 3 , November 1985 , pp. 435 - 457
Copyright
Copyright © Cambridge Law Journal and Contributors 1985

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References

1 Corbin, Foreword to Fundamental Legal Conceptions as Applied in Judicial Reasoning by Wesley Newcomb Hohfeld (edited by Walter Wheeler Cook)—an edition of Hohfeld's papers published by Yale University Press, 1964 (hereafter cited as FLC).

2 Kocourek, Jural Relations, 1st ed. (The Bobbs-Merrill Co. 1927) (hereafter cited as Kocourek).

3 FLC, p. 27.

4 FLC, p. 64.

5 FLC, pp. 27, 64 and 36.

6 FLC, pp. 27ff.

7 FLC, pp. 28, 96.

8 FLC, p. 30.

9 FLC, pp. 32ff.

10 FLC, p. 27.

11 Ibid.

12 FLC, p. 35.

13 “Right” is sometimes given the alternative title of “claim,” or “claim-right.” Some authors prefer “liberty” to “privilege.”

14 FLC, p. 38.

15 FLC, pp. 38ff.

16 FLC, pp. 50ff.

17 FLC, pp. 60ff.

18 (1971–2) 4 Adel. L. R. 377 (hereafter cited as Finnis), at pp. 379ff.

19 Features (1) and (3) correspond to Finnis's axioms (1) and (3). Finnis only deals with the first four of Hohfeld's fundamental legal conceptions in his paper. His axiom (2), that A's claim-right is never that A do or omit something but that B do or omit something, is based on the otherwise impossible situation of having a claim-right without a correlative. Feature (2) generalizes this point for all of Hohfeld's conceptions.

20 Wheeler Cook, FLC Introduction, p. 10. See Finnis, for a critical account of eminent examples of failing to respect this point.

21 FLC, pp. 96f.

22 FLC, p. 26.

23 This is most clearly stated at FLC, p. 41, n. 39, where Hohfeld criticizes Gray for confusing a householder's privilege of ejecting a trespasser with the potential rights, etc. which may arise in an action by the trespasser for assault. Cf. FLC, p. 102, where the duty of Y to return X's horse is treated quite separately from his prior duty not to take it, which has been transgressed.

24 FLC, p. 67.

25 FLC, p. 26.

26 Organon 11b 15ff. The paradigms represent: “correlatives”; “contraries”; “privatives and positives”; “affirmatives and negatives.” Elsewhere, Aristotle lists six types of opposites—Metaphysica, 1018a 20ff.

27 The classification is limited, in that, for example, it does not deal with the spatial opposites of the dining table mentioned above. However, it does provide us with three distinct types of verbal opposites which will be helpful when dealing with Hohfeld's analysis.

28 Kocourek, pp. 364f.

29 Kocourek, pp. 367 and 378; cf. Kamba, (1974) Jur. Rev. 249, at p. 256. Kocourek confuses the two propositions: (***x) —m, “there is something which is not an m”; and, —m, “not an m.” Put less formally, it is the distinction between: “Alice has a pet which is not a dog”; and, “Alice has not got a dog.”

30 Kocourek, pp. 364f.

31 This is aided by a truncated statement of Hohfeld's view of opposite. At p.364, Kocourek refers to Wheeler Cook's Introduction (FLC. p. 10, n. 13) where he states that opposites look at “two different situations from the point of view of the same person.” Kocourek ignores the continuation: “i.e. in one situation he has, for example, a right, in the other, no-right.”

32 Kocourek, p. 365.

33 FLC, pp. 38f. Original emphasis.

34 Above, p. 438, (FLC, p. 65).

35 “The Concept of Legal Liberty” in Summers (ed.), Essays in Legal Philosophy, (Basil Blackwell 1968), p. 121 (hereafter cited as Williams), at pp. 128ff.Google Scholar

36 Williams, p. 131. It should be noted that no such suffix is required for the no-right.

37 Williams, p. 130.

38 Cf. Williams, p. 132.

39 A strict parallel would be “a white no-cat” (involving an opposite of extreme for the first term, and an opposite of negation for the second). Not every conceivable opposite is useful for making practical comparisons.

40 Pollock, , writing before Hohfeld, in Jurisprudence, 2nd ed., (1904), p. 62Google Scholar states: “Sometimes it is thought that lawful power or liberty is different from the right not to be interfered with; but for the reason just given this opinion, though plausible, does not seem correct.” A statement considered by Hohfeld at FLC, p. 48, n. 59—discussed below at n. 48. Subsequently, the same point has been raised as a criticism, or even misrepresentation, of Hohfeld's theory. As the former, it is dealt with by Williams, p. 137; as the latter, it is dealt with by Finnis, p. 379, n. 5.

41 It should be remembered that a different privilege exists in relation to each party, albeit there is a common content: to eat the salad.

42 FLC. p. 41.

43 Williams, pp. 137ff.

44 At p. 439.

45 FLC, p. 46.

46 FLC, p. 7, n. 3.

47 This sidestep is used by Hohfeld's apologists: Williams, p. 137; Finnis, pp. 378f. It is also interesting to compare the problems faced by Von Wright in dealing with the question whether “permissive norms” are definable in terms of “obligation norms”—Norm and Action (Routledge and Kegan Paul 1963), pp. 85ff; and in his use of negation—op. cit. p. 140. Mullock suggests that Hohfeld's theory can be regarded as an “informal and legal precursor of Von Wright's deontic logic”—(1971) 13 Ratio 158, at p. 160.

48 FLC, p. 48, n. 59.

49 A no-right is only properly a correlative of a privilege which is equivalent to a no-duty; as such it is reducible to the negation of another concept (in substance, as well as name). As remarked above, it borrows some status from being correlated to a privilege in the stronger sense of a positive permission to do an act. This privilege has been broken down into a number of protecting rights—whose correlatives are not a no-right but a corresponding number of duties.

50 FLC, p. 50. Contrast Hart, , Essays on Bentham (Oxford 1982), p. 195: “But much more than Hohfeld gives us is needed to display the notion fully and to analyse legal powers in their variant forms, and to exhibit the character of the laws which create or confer them.”Google Scholar

51 FLC, pp. 50f.

52 FLC, p. 55.

53 It will also bring about a corresponding contractual obligation in A himself.

54 FLC, p. 55.

55 Potential legal relations are recognized by Hohfeld, in relation to sanctions—n. 23, above.

56 FLC, p. 52.

57 Together with a correlative right; or, a right with a correlative duty.

58 No-rights are ignored, since these can no longer be regarded as the correlatives of privileges— n. 49, above.

59 The assumption will be examined shortly, when fuller treatment will be given to immunity and disability.

60 A power to vest or divest title to land is mentioned by Hohfeld—FLC, pp. 52ff.

61 An example of a power given by Hohfeld—FLC, p. 52.

62 A feature of a legal power which should not be lost on land lawyers. For example. A, a squatter of 10 years, may have the power to vest title of land in B, as far as X and Y are concerned, but not so far as Z is concerned, where Z is the absent owner of the land. Z could prevent A transferring the land to B.

63 An example given by Hohfeld—FLC, p. 60.

64 The nature of an immunity may be illustrated by considering an immunity from being divested of a right of way over land (a privilege, in Hohfeld's terms, to enter and cross the land). The strength and scope of the immunity will vary depending on whether the holder of the right of way is a contractual licensee, has an equitable easement, has a legal easement, or is the owner of the land.

65 Wheeler Cook shows some hesitancy to disassociate an immunity from protecting rights (FLC, p. 8, n. 6a and p. 9, n. 9), but does not concede that the immunity is constituted by such rights.

66 Whereas the analysis above shows that the correlatives liability and disability represent aggregate positions with a particular significance, we have seen that the same cannot be said for a no-right (n. 49, above). It is, therefore, not surprising that Hohfeld found it relatively easy to find terms for the former conceptions, but could not find an available term for the latter.

67 This represents the relation of a privilege and a duty (correlative to a protecting right of which the privilege is composed), rather than the discarded no-right.

68 I propose to consider Hohfeld's concern with litigation more fully in a sequel, together with an examination of aggregate conceptions in general.

69 I shall also further investigate Hohfeld's conceptions of right and duty in the sequel.

70 FLC, p. 26..

* I am grateful to Dr John Finnis for his helpful criticism, and to Professor Tony Honoré for some comments on an earlier draft of this paper.