Hohfeld\'s scheme of Jural Relations PDF

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Hohfeld's Scheme of Jural Relations

Introduction

This paper is not aimed at determining what rights some person has, but at determining what holding of a right involves. My main topic comprises an analytical scheme of jural relations, developed by American jurist Wesley Newcomb Hohfeld at the beginning of the 20th century. Hohfeld’s description of relations between various forms of legal entitlements reflects truths on features of legal rights. Countless references thereof prove Hohfeld’s great influence on analytical jurisprudence. 1 Hohfeld’s contribution is mostly contained in two articles published in the Yale Law Journal in 1913 and 1917 respectively.2 The one published in 1913 and entitled ’’Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’’ is one of the most cited articles in law reviews in general.3 It is important to point out that Hohfeld had not expected the article to be a revolutionary theoretical contribution to the legal science. On the contrary, his motifs had been primarily pedagogic, i.e. he had intended to show that developments in the field of jurisprudence and in the field of legal pedagogy had to be connected.4 Hohfeld’s intention was to emphasize the educational effects of a clear

1

See, for instance, Andrew Halpin, Rights and Law Analysis and Theory ; Carl Wellman, A Theory of Rights, Persons Under Laws, Institutins and Morals (Rowman and Allanheld Publishers, 1985); Carl Wellman, Real Rights (Oxford University Press, 1995); L. W. Sumner, The Moral Foundation of Rights, Clarendon Press Oxford 1987); and J. J. Thomson, The Realm of Rights (Harvard University Press, 1990). 2

His two famous articles: «Some Fundamental Legal Conceptions as Applied in Judicial Reasoning», 23 Yale Law Journal 16 (1913) and «Fundamental Legal Conceptions as Applied in Judicial Reasoning», 26 Yale Law Journal 710 (1917). After his death, his articles were collected and published in a book called ’’Fundamental Legal Conceptions as Applied in Judicial Reasoning’’, with forewords by W. W. Cook and Al Corbin (Yale University Press, New Haven and London, 1964), all quotations from the text are given pursuant to this edition (hereinafter cited as Hohfeld, FLC).

3 Fred R. Shapiro, “The Most Cited Articles from the Yale Law Journal”, 100 Yale Law Journal 1449, 1452-53 (1991). 4

N. E. H. Hull, «Vital Schools of Jurisprudence: Roscoe Pound, Wesley Newcomb Hohfeld, and the Promotion of an Academic Jurisprudential Agenda, 1910-1919», 45 Journal of Legal Education 235, 257 (1995).

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analytical opinion on legal issues.5 He denied that the article, as may be suggested by its title, represented “a merely philosophical inquiry as to the nature of law and legal relations”, but its main purpose was to “emphasize certain oft neglected matters that may aid in the understanding and in the solution of practical, everyday problems of law”.6Hohfeld did reveal that his articles “are intended more for the law school students than for any other class of readers”.7

Jural Relations

The eight fundamental legal conceptions resulted from Hohfeld's dissatisfaction with the idea that all the jural relations can be reduced to rights and duties. That was singled out as the main obstacle to comprehension and successful resolution of legal issues. According to Hohfeld, there are eight fundamental legal conceptions. Those fundamental legal conceptions are sui generis, which means that all the attempts aimed at creating a formal definition are not only dissatisfying but also useless.8 The most satisfying approach is to lay down various jural relations in a scheme of “opposites” and “correlatives” and, then, to proceed with stating examples of their individual scope and application in concrete cases.9 Hohfeld saw every jural relation as a relation between two

5 Id. at 257. The article had influenced the scientific community so much that Hohfeld was offered a transfer from Stanford to the Yale Law School where he had lectured until his death in 1918. Hohfeld was a devoted and uncompromising teacher of law. He wanted his students to master his fundamental legal conceptions and apply them to case analysis. That did not match what the students had been accustomed to and, along with some of his personal limitations - his way of dealing with people did not do any good to his general popularity, was also the reason why he was not preferred amongst the students of the Yale Law School. He was only appreciated by the most talented, so, after Hohfeld’s death, young Karl Llewellyn wrote in his short memoir that Hohfeld was an inspiring teacher. See Nigel Simmonds, Introduction, in W. N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (David Campbell and Philip Thomas eds., 2001), at IX (hereinafter cited as Simmonds, Introduction). See also Karl N. Llewellyn, «Wesley Newcomb Hohhfeld: Teacher» 28 Yale Law Journal 795, 796 (1918). 6

Hohfeld, FLC, supra note 2, at 26.

7

Id. at 27.

8

Id. at 36.

9

Id.

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persons.10 His notions might be presented in a slightly modified version of Glanville Williams’ table11:

Right

Privilege

Power

Immunity

Duty

No-Right

Liability

Disability

The vertical arrows couple jural correlatives, ’’two legal positions that entail each other’’12 whereas the diagonal arrows couple jural opposites, ’’two legal positions that deny each other’’. The latter expression is solely Hohfeld’s while Williams and a large number of other authors call them ’’jural contradictories’’.13 Every pair of correlatives must always exist together.14 Person A as part of the pair cannot have a right if other person B has no duty. None of the pairs of opposites can exist together. If person A has a right, he cannot have a no-right in relation to the same subject matter and the same person.15

10

Simmonds, Introduction, supra note 5, at XIII.

11 Williams, Glanville, «The Concept of Legal Liberty», 56 Columbia Law Review 1129, 1135 (1956). Com. Halpin, supra note 1, at 30. 12

Matthew H. Kramer, «Rights Without Trimmings» in Matthew H. Kramer, N. E. Simmonds, and Hillel Steiner, A Debate Over Rights, Philosophical Enquiries (Oxford University Press, 2002), at 8. 13

Williams, supra note 11, at 33. See also Kramer, supra note 12, at 8. Kramer has replaced the notion of ''opposite'' with the notion of «contradiction» or «negation». He points out that since the 1920s Hohfeld's analysis has defined a jural contradiction and not legal opposition. Other reviews on Hohfeld’s analytical scheme: Halpin, supra note 1; Stone, Roy, «An Analysis of Hohfeld», A. Jacobson, «Hegel's Legal Plenum» 10 Cardozo L Rev 877 (1989), P. Mullock, «The Hohfeldian Jural Opposite», 13 Ratio 158 (1971). Kramer includes more articles that discuss Hohfeld's use of «opposite» at. 8 n. 1. 14

Arthur L. Corbin, «Legal Analysis and Terminology» 29 The Yale Law Journal 163, 166 (1919).

15

Id.

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Hohfeld based his analytical system on earlier Salmond’s system.16 Salmond identified three jural relations. According to Salmond, the notion of right was used in a wider sense in order to indicate “any advantage or benefit which is in any manner conferred upon a person by a rule of law”.17 Those rights are divided into different categories: (1) Rights in the strict sense, which are defined as interests protected by the law by imposing its duties with respect to the rights upon other persons,18 (2) Liberties defined as “interests of unrestrained activity” and (3) Powers “when the law actively assists me in making my will effective”.19 Salmond found no generic term which would be correlative to right in a wider sense, and would include all the burdens imposed by the law. Nevertheless, he, correlative to those three categories of advantages or benefits, singled out three types of legal burdens: duties, disabilities and liabilities.20 Salmond also made a table of “correlatives” but he did not pay much attention to the “opposites”. On the other hand, Hohfeld cleared out the relation between the eight fundamental legal conceptions by inventing different terms for the correlatives of liberties and powers and by designing the relations between the opposites.21

Rights and Duties Hohfeld did not spend much time on the relation between rights and duties.22 According to him, the term “rights” is incorrectly used for denoting something that, in a certain case, might be a privilege, a power, or an immunity, and not a right in the strictest

16

John Salmond, Jurisprudence, (London: Sweet and Maxwell, Limited, 1937). Com. Joseph William Singer, «The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld», 1982 Wisconsin Law Review 975, 1049 (1982). 17

Salmond, supra note 16, at 299.

18

Id.

19

Id. at 303.

20

Id. at 304.

21

Singer, supra note 16, at 1049.

22

He dedicated somewhat less than three pages to that relation. See Hohfeld, FLC, supra note 2, 36-38.

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sense.23 A solution for the limitation of the word “right” to its precise and most appropriate meaning is to be found in the correlative (and equivalent) “duty”.24 As a correlative, legal right always have a legal duty. 25This pair of terms expresses the same jural relation, although seen from different points of view.26 Hohfeld gave an example wherein X has a right against Y that he shall stay off the X’s land. The invariable correlative thereof is comprised in the fact that Y is under a duty towards X to stay off X’s land. In Hohfeld’s opinion, the word ’’claim’’ is the most suitable synonym for the word “right” in terms of its precise and most appropriate meaning.27 A genuine right or claim is enforceable, by means of state coercion, if necessary.28 Being granted or having a legal right (or a claim according to Hohfeld) consists of legal protection against other people’s interference or against refusal of providing aid or remuneration regarding a particular action or a particular state of affairs. A person that is supposed to abstain from interference or to provide assistance or remuneration is under a duty to act in that manner. A right or claim is a legal position arising from imposition of a duty on someone else. 29

Privileges and No-Rights

Hohfeld’s main goal was to clarify the basic difference between rights (or claims) and privileges.30 The non-distinction between these terms leads to “confusion or blurring

23

Id. at 36.

24

Id. at 38.

25

Corresponds to Corbin's second question which was proposed for determining jural relations: “What must A (or B) do, under threat of societal penalty assessed for the benefit of the other?” Corbin, supra note 14, at 165. 26

Singer, supra note 16, at 988.

27

Hohfeld, FLC, supra note 2, at 38.

28

Kramer, supra note 12, at 9.

29

Id.

30

Hohfeld, FLC, supra note 2, at 39. See also Singer, supra note 16, at 987.

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of ideas”.31 He wished to correct the faulty classical viewpoint that privileges are necessarily accompanied with other people’s duties not to interfere with such permitted actions.32 Consequently, Hohfeld criticized classical analytical writers such as Thomas Holland and John Chipman Gray who incorrectly deduced duties from privileges.33 A privilege as a jural relation means a bare negation of duties. Most of the subsequent jurists prefer the term liberty over the term privilege.34 In Hohfeld’s analysis these two terms have the same structural position, although Hohfeld himself favoured the term privilege.35 Privileges are permissions to act in a certain way without being responsible for the damage done to other people who, simultaneously, are not in position to call in the authorities to prevent such action.36 As Hohfeld pointed out: “To the extent that the defendants have privileges the plaintiffs have no rights”.37 Rights (claims) and privilege cannot be in conflict.38 Hohfeld commented John Chipman Gray’s example who, in a chapter called “Legal Rights and Duties” of his book The Nature and Sources of Law wrote about the property right:39 The eating of shrimp salad is an interest of mine, and, if I can pay for it, the law will protect that interest, and it is therefore a right of mine, to eat shrimp 31

Hohfeld, FLC, supra note 2, at 40.

32

Singer, supra note 16, at 1014.

33

Hohfeld, FLC, supra note 2, 40-41. See also Singer, supra note 16, at 988.

34 According to Thomson, the concept that privileges are rights is not Hohfeld's but is featured by a long history and can be found in Hobbes' Leviathan, Chapter 13, that describes the state of nature as ''the war of all against all''. In the state of nature, people have no claims. What they have are privileges and their privileges are their natural rights, and thus rights. Thomson, supra note 1, 49-50. 35

Com. Singer, supra note 16, at 987. Hohfeld, FLC, supra note 2, at 42.

36 Singer, supra note 16, at 986. The privilege no-right relation corresponds to Corbin's first question: “What may A (or B) do, without societal penalty assessed for the benefit of the other?” Corbin, supra note 14, at 165. 37

Hohfeld, FLC, supra note 2, at 43.

38

Id.

39

Hohfeld, FLC, supra note 2, at 41.

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salad which I have paid for, although I know that shrimp salad always gives me the colic40 Hohfeld thought that this passage deals with two types of relations: the first one refers to the privilege of eating salad and the second one relates to a party’s claim for not being disturbed while doing so. Privileges may be accompanied with rights that impose duties on other people not to interfere. However, privileges can sometimes exist without the existence of a right.41 A, B, C and D, being the owners of the salad, might say to X: “Eat the salad if you can; you have our license to do so, but we don't agree not to interfere with you”. In such a case the privileges exist, so that if X succeeds in eating the salad, he has violated no rights of any of the parties. But....if A had succeeded in holding so fast to the dish that X couldn't eat the content, no right of X would have been violated.42 As privileges do not imply rights, rights do not imply privileges. For instance, a remainderperson has no privilege “to enter the land but retains a right to keep trespassers off”.43 It is also relevant to take notice that Hohfeld’s example is one of conflicting liberties: A‘s privilege to keep salad for himself, conflicts with the privilege of person X to take it from him.44 As said by Singer, Hohfeld showed how privileges can be legitimately in conflict. Such interferences represent a special case of damage for which victims have no legal recourse. X and Y can both have the legal liberty to eat the salad from the table. The dominancy will not result from common instruments of law but from power struggle which the state will not participate in.45 40

J. Gray, The Nature and Sources of the Law sec. 48 (1909) according to Hohfeld, FLC, supra note 2, at 41. 41

Hohfeld, FLC, supra note 2, at 41.

42

Id.

43

Singer, supra note 16, at 988.

44

Id.

45

Id. at 984.

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Hohfeld shared the opinion that liberties which are not accompanied with duties imposed on other people to avoid interference with legal action do exist in legal systems and there are often good political grounds for such action.46 He relieved legislators of the burden of imposing a duty on other people every time when someone is granted a legal liberty. A rational legislator may take advantage of political concerns when making decisions on whether to impose the above duties in a particular case or not.47 Such a privilege or liberty.....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.48 Many theoreticians have had doubts about the importance of liberties or lack of duties in terms of legal rights analysis.49 Hart finds it wrong since when the law permits a person to do or to omit to do a certain action, despite a lack of the strictly correlative obligation of avoiding interference, exercising of such a liberty will always be protected by the law to some extent.

It is a consequence of the existence of a “protective

perimeter” for liberty. It refers to the severest forms of interference such as physical assaults or trespassing which are also criminal or civil offences.50 Moreover, Hart considers both the notion of privilege and the protective perimeter necessary for analysis of numerous legal phenomena, including economic competition. Therefore, none of the competitors may »hit or trip up the other, or threaten him with the violence to get the 46

Id. at 993.

47

Id. at 993.

48

Hohfeld, FLC, supra note 2, at 43.

49

Kocourek claimed that the relation privilege/no-right is not a jural relation at all since it does not imply any governmental restriction. He stated his famous example of a cigarette owner who is smoking in his workroom and therefore, in Hohfeldian words, exercising a privilege. No one has a claim against him that he should not smoke a cigarette. Where is a legal relevance of such an action? A. Kocourek, «The Hohfeld system of fundamental legal concepts», 15 Illinois Law Review 24, 36 (1920-1921). See also Miomir Matulovi, «Jedan esej iz povijesti pravne analize», Zbornik Pravnog fakulteta u Rijeci, 10 (1989), at 70.

50

H. L. A. Hart, Essays on Bentham, Studies in Jurisprudence nad Political Theory (Clarendon Press: Oxford University Press: New York, 1982) at 171.

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prize. The perimeter of obligations to abstain from such actions constitutes the ring within which the competitors compete in the exercise of their liberties»51. One must not forget the fact that the duty of being non-violent is not correlative to exercising of a privilege, and it is logically separable from it.52 Duties are only correlative to claimsrights. Hart makes a difference between a “liberty right” which is defined as to do an act protected by the strict correlative obligation towards other people of abstaining from intereference therewith, and a “liberty-right” which is protected only by a usual adequate perimeter of general obligations.53

Powers and Liabilities Whereas the first two pairs of legal positions (“right”/“duty” and “liberty”/“noright”) are first order relations, the following two pairs are second order relations (“power”/”liability” and “immunity”/”disability”).54 Some first order relations are applied directly to human conduct and social intercourses, without mediation of any second order relation. On the other hand, all the second order relations are applied directly to human entitlements and only indirectly to human conduct and social intercourses. 55 Pursuant to Hohfeld, a jural relation can be modified in two ways: by means of facts that are not under the volitional control of one or more persons or by means of facts which are not under volitional control of...