ACKNOWLEDGEMENT

It is my greatest pleasure to be able to present this project of JURISPRUDENCE-II. I found it

very interesting to work on this project. I would like to thank my teacher, Dr. Manoranjan
Kumar for providing me with such an interesting project topic and for her constant support
and guidance.

I would also like to thank my librarian for helping me in gathering data for the project. Last,
but not the least, I would heartily thank my friends for their unwavering support without
which this work would not have been possible.

I hope that the readers will appreciate this project work.

Ashutosh Kumar

1
 Contents

1. INTRODUCTION……………………………………....4-5

2. A FORMAL ANALYSIS OF HOHFELDIAN RELATION……...6-13

3. FUNDAMENTAL RIGHTS UNDER ARTICLES 15(4) AND 15 (5): HOHFELDIAN

ANALYSIS………………………………………………….……..14-16

4. CRITICAL ANALYSIS OF HOHFELDIAN THEORY……………….17-26

5. CONCLUSIONS……………………………………………..27

Bibliography…………………………………………………….28

2
 OBJECTIVE OF THE STUDY
The main objective behind this project is :-
 To study the Hohfeld’s analysis which distinguished between fundamental legal
concept of correlatives and then opposites and then identified the framework of
relationship between them.

HYPOTHESIS
For the project, the researcher presumes that :-
 If the right resides somewhere there must necessarily be a corresponding duty in some
one else.

RESEARCH METHODOLOGY
In this project, the researcher has relied on the ‘Doctrinal Method’, which is primarily based
upon books, journals, news, articles and from various online sources and publications. A
comprehensive study is made in order to arrive at analytical & critical support of the arguments.
The segments are structured and written actively. The writing style is descriptive as well as
analytical. This project has been done after a thorough research based upon intrinsic and
extrinsic aspect of the assigned topic.

SOURCES OF DATA
Primary:
 Cases
 Laws
 Constitution of India (Bare Constitution short commentaries)

Secondary:
 Journals
 Articles
 Websites

3
 INTRODUCTION

Wesley Newcomb Hohfeld was an American jurist. He was the author of the seminal
Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays
(1919).

During his life he published only a handful of law journal articles. After his death the
material forming the basis of Fundamental Legal Conceptions was derived from two articles in
the Yale Law Journal (1913) and (1917) that had been partially revised with a view to
publication. Editorial work was undertaken to complete the revisions and the book was
published with the inclusion of the manuscript notes that Hohfeld had left, plus seven other
essays. The work remains a powerful contribution to modern understanding of the nature of
rights and the implications of liberty.

The principal aim of Wesley Newcomb Hohfeld's project was to clarify juridical
relationships between the relevant parties. Hohfeld presents us with an analytical scheme which
splits rights into four different categories of jural relationships and exemplifies a number of
analytical distinctions between various legal positions. Importantly, Hohfeld's analysis of rights
lies in the descriptive exercise of the legal positions which are connected with each other by
means of logical relations of entailment and negation. Hohfeld's analysis is engaged in an
analytical and definitional enterprise and does not concern itself with substantive or empirical
enquiry into the concept of a right. It follows that Hohfeld's ambition was to provide a
conceptual understanding for our use of right, duty etc. in practice, thus facilitating a better
understanding of the nature of our rights. It was not, however, to inform us what rights, duties
etc. are or should be or what their moral foundation is or what is necessary for something to
count as a right, duty etc. He does not, therefore, say anything about the justification of rights.
Hohfeld's table presents a distinction between four different sets of juridical relationships. This
method of splitting the notion of a right into its constituent elements has many important
benefits. It is this clear and precise method that makes Hohfeld's analysis of rights not only
elegant and attractive but also fundamental to anyone wishing to make an informed and
intelligible assessment of the legal position between the parties involved.

This essay argues in support of Hohfeld's analysis of rights. It contends that his
approach is highly plausible and helps us to gain a clear understanding of what rights we have

4
in various circumstances and allows us to see clearly what the consequence of holding a
particular Hohfeldian entitlement or burden is. It will be argued that Hohfeld's precise
exposition of jural relations is essential to jurisprudence and an understanding of our practices
involving rights. Hohfeld's analysis has attracted much criticism from his fellow jurists, so, to
provide a balanced view, in arguing in favour of Hohfeld's work, I will consider those
criticisms, in order to show that the majority of them are unfounded because the critics have
misconceived the nature of Hohfeld's work. Others are simply not criticisms at all in that they
simply state rival theories of rights. As far as the critics go, it is pertinent to distinguish between
anti-Hohfeldians and non-Hohfeldians. The former are critics who directly oppose Hohfeld's
analysis, holding that it is not necessary, or even flawed, in that it does not depict our true
conventional practices in relation to rights and does not account for an adequate conception of
our rights. The latter are those who do not rely on Hohfeld's analysis per se but seek to offer an
intelligible account of the conception or use of our rights. Such an account may linguistically1
appear to be in conflict with Hohfeld's analysis. But given, as I will argue in this essay, that
Hohfeld's analysis, possesses a high degree of clarity and a remarkable analytical2 force, it must
represent a highly accurate depiction of the nature of our jural relations. It follows that a non-
Hohfeldian without directly acknowledging it, will tacitly rely on Hohfeld's analytical
framework if he is to provide a coherent account of his position. The significance of this
distinction will become apparent when the critics are discussed.

1
Harris criticised Hohfeld for the fact that his vocabulary does not match that of his fellow jurists. J.W. Harris, Legal
Philosophies (London, 1980), p.82. Such criticism is misguided since Hohfeld's intention was to correct the confused judicial
discourse over rights by offering a precise analytical framework. He never intended to engage in a descriptive exercise of
clarifying jural relations.
2
Hohfeld's analysis is primarily concerned with analytical jurisprudence. N.E. Simmonds in Central Issues in Jurisprudence:
Justice, Law and Rights (London, 1986), p.129, offers a distinction between analytical and normative jurisprudence. The
former is concerned with the formal analysis of concepts in an effort to reveal and refine conceptual distinctions. The latter is
concerned to offer a theory about what is morally right, and thus offers criteria by which the law should be evaluated. Arguably,
Hohfeld's analysis can also deal, mutatis mutandis, with the normative jurisprudence, although this is not its chief objective.

5
 A FORMAL ANALYSIS OF HOHFELDIAN RELATIONS.

Even though right is a fundamental concept of law yet jurists are not unanimous in their views
regarding the concept of right.3

The natural law jurists like Grotious define right as a moral quality by which a person is
competent to do or have a thing justly. According, to him ‘it the function of the positive law
to give effect to this moral quality’. This approach emphasizes a moral right and not legal right
since positive law may or may not give effect to the moral right. Not only this it might
sometimes be contrary to a moral right. The metaphysical theory started with the assumption
that the task of law is to assume the maximum of the free individual self-assertion.4 However,
lawyers are not primarily concerned with this aspect of right.

Every right has two elements and definitions of right given by different jurists are mostly based
on either one or the other element of rights. These two elements are ‘the material element of
interest’ like reputation, property, money, etc. and ‘formal element’ namely will, capacity,
power to realise the interest, etc.

Those who emphasise the formal element takes the view that interest is not right it is merely
the object of a right. The will, capacity, power, faculty to realise the interest is in fact the right.
Austin5 and Gray6 take the view that, right is a faculty or power residing in a determinate party
and parties. This faculty of power enables the person to contract the action of such other person
or persons. Thus, e.g., if I have a right not with regard to 100 rupees which the debtor has
borrowed from me, my right really means my faculty or power to get back the amount.7

Holland defines right 'as a capacity residing in a person to control the action of others.8 Holmes
defines right 'as a permission to exercise certain actual power and upon certain conditions to

3
French and German writers invented a special term to refer to a legal right as distinct from ‘droit’ or ‘recht’ which also
mean in general, and they have done this by calling individual rights ‘subjective rights’ as distinct from the objective legal
system or order- Wortley, op. cit., p. 291.
4
Puchta takes this view.
5
Austin (op. cit., p. 344) defines right as or parties by virtue of a given law and than the party or parties in whom it re `a
faculty which resides in a determinate party which availed against a party or parties, other sides'.
6
Gray (op. cit., p. 10) observes that 'the right is not the interest itself; it is the means by which enjoyment of the interest is
secured. It is the power to get the money from Balbus or the power to leave the room, not the payment of the money or the
leaving of the room'
7
Prof Mill has criticised Austin's definition by pointing out that the jailor is bound by law to hang the criminal. Can it be
said that the criminal has the right to be hanged simply because the former is bound by law to execute the latter. It is,
however, submitted that the Mill's criticism of Austin is not correct. The jailor who is bound b un by law to hang the
criminals owes duty to the person or party by whose order he hangs the convict He does not owe this duty to the convict.
Therefore, a question of right residing in the criminal does not rise at all.
8
Holland (op. cit., Pb 83). He further explains his definition and says, 'that which gives validity to a legal right is, in every
case, the force which is lent to it by the State. Anything else may be occasional but is not the cause of its obligatory

6
obtain protection, restitution or compensation with the aid of public force'. 9 All these
(abovementioned) writers viewed right in terms of will, power, faculty, capacity—that is in
terms of the formal element. Another group of writers defines rights in terms of material
element. Thus Ihering says 'right is a legally protected interest'. According to him law is a
means to an end. The end of law is protection of interest. The law cannot possibly protect all
interest, consequently it selects some and protects some. It is these protected interests which
constitute right. Salmond, who also defines right in terms of the material element, differs from
Ihering. He points out that when law prohibits the killing of animal it does protect the life and
therefore the interest of the animal but the animal does not have a right. The society may have
an interest or the owner of a animal may have interest in the life of an animal. When law
prohibits the killing of animal it recognises as well as protects the interest of the society or of
the owner of both and consequently right in this case vests not in the animal but in the society
or the owner. Salmond, therefore, defines right as `an interest recognised and protected by law'.
The interest which law protects observes Salmond is a human interest. That which has no effect
on human interest has no consequence in law.

A reconciliation between the two views has been offered by Allen. According to him 'right is
neither a legally protected interest alone nor a legally guaranteed power alone'. Will, power,
capacity, faculty do not operate in vacuum, but devises certain ends. These ends are interests.
A correct definition of right, therefore, must incorporate both the elements of power and
interest. Consequently, Allen defines right as ‘a legally guaranteed power to realise an interest’.
In an important case Dane v. State10 the Court has also realized the difficulty of explaining the
concept of right. Madras High Court has held that "The expression 'legal right' is a difficult
concept". The Court further held the 'legal right in its strict sense is one which is an
ascertainable claim, unforeseeable before courts and administrative agencies; in its wider sense
a legal right has to be understood as any advantage or benefit conferred upon a person by a rule
of law'.

Duguit, however, takes an entirely different view. He rejects the very notion of right. According
to him the word 'right' must be taken out of the legal vocabulary. The view is broadly accepted

character. Sometimes it has reference to a tangible object. Sometimes it has no such reference. Thus, on the one hand, the
ownership of the land is power residing in the land, is its object and available against all other men. So a father has a certain
power, residing in himself as its subject and exercised over his child as its object, available against all the world. On the
other hand, a servant has a power residing in himself as its subject, over no tangible object, and available only against his
master to compel the payment of such wages as may be due to him'.
9
Holmes, op. cit., p. 214.
10
AIR1968 Mad 355

7
in totalitarian state which subordinates the rights and interest of the individual to that of the
state.

Legal Rights in wider Sense of the Term.

The term 'right' has been used in different ways. In its strict sense it has been used
as correlative of legal duties. Legal rights, in a wider sense of the term, do not necessarily
correspond with duties. In this generic sense a legal right may be defined as any advantage or
benefit conferred upon a person by a rule of law.11 Of rights in this sense there are four distinct
kinds. These are (1) Rights (in the strict sense); (2) Liberties,12 (3) Powers, and (4) Immunities
which very often ire clubbed together, under one general word namely 'right: but which ought
to be separated for the purpose of analysis and understanding. For example, 'A' is the owner of
a house. 'A' may sell the house, gift the house, will the house, etc. 'A' thus apart from other
things has the liberty to do these things. If he does any of these things, no one else has any right
to stop him. A', therefore, has a liberty and what others have 'no right'. 'A' sends an offer to ‘B’
to sell the house for Rs. 50,000/-. ‘B’ can accept the offer or decline the offer. If he does accept
the offer 'A' would be under a liability to sell the house. 'B' thus has a power and not a right.
‘B’ accepts the offer. A' must sell the house to 'B' for the set amount. 'A' thus is under a duty
to sell the house and 'B' has a right to purchase it. pays the amount. The sale-deed is registered,
now 'A' cannot do anything against 'B' with regard to this house. 'B' now has an immunity
against any action or interference by A' with regard to this house. 'B' therefore gets an
immunity. Each of these kinds of rights has its correlative, namely, (1) duties, (2) no right, (3)
liabilities, and (4) disabilities. These relationships are designated as jural relations.13

(1) Y's duty with regard to 'X' would be expressed by 'X' as 'you must (X has a right in strict
sense or claim).

(2) X’s freedom to do something in relation to ‘Y’would be expressed by 'X as 'I may' (X has
a liberty or privilege).

(3) X's ability to alter Y's legal position would be expressed by X as `I can' (X has a power).

11
Salmond, op. cit., p. 224.
12
Salmond, has used the term ‘liberty’ while others have used the term ‘privilege’, G.L. Williams, however, followed
Salmond’s term i.e., liberty in place of privilege.
13
For their importance see Kocourek, Jural Relations, Chap-1-3.

8
(4) Y's ability to alter X's legal position would be expressed by X as ‘You cannot’ (X has an
immunity).14

However, these distinctions were not all perceived at Once but were arrived at gradually as the
result of the empirical analysis of successive jurists.15 It was Bentham who for the first time
(though not very distinguished right in strict sense from liberty. 16 Austin followed Bentham's
distinction rather tentatively.17

In 1862 Windscheid distinguished between right and power, Thereafter, Thon in 1878 and
Bierling in 1883 distinguished between right, liberty and power. In 1902, Salmond also
distinguished between these three and the corresponding ideas of duty, disability and liability.'
Lastly, in 1913, an American Jurist Hohfield rearranged and completed Salmond's scheme by
adding a fourth term, immunity and worked out a table of jural relations. It is for the first time
that a jurist really elaborated the distinction and took the analysis to its logical end. Following
is the table of jural relations (as worked out by Hohfield)

(1) (2) (3) (4)

Right Privilege Power Immunity

JURAL OPPOSITES
No-right Duty Disability Liability

(1) (2) (3) (4)

Right Privilege Power Immunity

JURAL CORRELATIVES
Duty No-right Liability Disability

We have already discussed above the right and duty relationship.18 But it may be noted in
passing that the distinctive feature of the right is that if the right resides somewhere there must
necessarily be a corresponding duty in someone else. If one has something which appears to
be a right but there is no corresponding duty in someone else, what he might be having is not
a right—it might be a power, immunity or anything else.

14
The phrases ‘You must’, ‘I must’, etc. were suggested by Corbin ‘Legal Analysis and Terminology’ (1919) 29 Yale Law
Journal, 165
15
‘Dias’ op. cit. p. 249.
16
This is clear from his book which was published in 1945. ‘The Limits of Jurisprudence Defined’, Chapter 2
17
Op. cit. p. 344.
18
See the subheading ‘Are Rights and Duties Correlative?’

9
Privilege, no-right Relations.

According to Hohfield, privilege means the freedom which a person has i.e., to do or
not to do something. In other words it means what one can do for himself without being
prevented by the law or one is free of the possibility of legal interference by others e.g., the
franchise law which says that person of a certain age would be entitled to vote—this confers
not right but in fact privilege because one may entertain this right or not—it is the choice of
the individual concerned—the state cannot compel him for the same. Hence privilege has no
corresponding duty. Again, a person who owns a garden can use the same in a way he likes—
he may give it to any one, sell it etc. Again, a Hindu coparcener having separate property can
do anything with the property without the interference of the law—this is a privilege and not a
right. It (privilege) is that sphere of a person's activity within which the law leaves him alone.
Thus, if A does any of these things (mentioned above) no one else has any right to stop him.
A, therefore, has a liberty and what others have is no-right.

The relationship between privilege and right can be explained in the

following way—

(1) If ‘Y’ has a right, there must be duty on 'X' . A duty in 'X' implies the absence of privilege
in 'X'. Therefore, a right in ‘Y’ implies the absence of privilege in 'X' i.e., right and privilege
as jural contradictions.

(2) Conversely, the presence of a privilege in 'X' implies the absence of a right in 'Y. Hohfield
calls the condition 'no- right' therefore a privilege in X implies the presence of a `no-right' in
'Y' i.e., privilege and no-right are "jural correlatives'.19 Thus, in this case (above) what the
person has is a privilege and no-right. It is clear from the fact that corresponding to this
privilege he has no one who is under a duty to do or not to do something to enable him to
exercise that privilege.

Difference between Right and Privilege.

A right implies a correlative duty but a privilege does not. A's privilege to vote is
not correlative to a duty in anyone. There is indeed a duty in others not to interfere and others
duty not to interfere is correlative to A's right against others and they shall not interfere. Therein
lies the distinction. A's privilege to vote and his right not to be prevented from so doing are two

19
‘Dias’ op. cit. p. 253-54.

10
different ideas. Thus, X may enter into a valid contract with whereby X gives Y permission to
prevent him from wearing the hat but X says he will nevertheless try to wear it. If X succeeds
in evading Y and leaves. the scene wearing the hat, he has exercised his privilege to wear it
and Y h.as no cause for complaint. If, On the other hand, Y prevents him from wearing the hat,
he cannot complain, for he has by contract extinguished his right against Y and that Y shall not
interfere. This shows that the privilege and the right are separate and separable, the right can
be extinguished without affecting the privilege.20

The difference between right and privilege is also dear in the following case& it was held in
Musgrove v. Chun Teeong Toy21 that at common law an alien has the privilege to enter British
territory but has no right. This was re-affirmed in Schmidt and another v. Secretary of State for
Home Affairs.22 Chaffers v. Goudsmid,23 shows that although a person has the privilege of
presenting a petition to Parliament through his representative member, he has no right against
such member that the latter shall comply. Bradford Corporation v. Pickles,24 shows that a land-
owner has the privilege of abstracting subterranean water, but no right against anyone else,
who by abstracting the water before it reaches the land-owner, prevents him from exercising
his privilege.

Power-Liability Relation (I can)

Salmond defines a power as the ability conferred upon a person by the law to alter, by
his own will, directed to that end, the rights, duties or other legal relations, either of himself or
of other persons.,25 That is to say that power denotes the ability in a person to alter the existing
legal condition, whether of oneself or of another, for better or for worse.26 One can make a will
of his property or can alienate his property; one can rescind a contract for fraud; one can marry
one's deceased wife's sister—all these are often termed as rights but close legal analysis implies
that they are not rights but powers. All these have no corresponding duties--hence they are not
rights in strict sense but termed as powers. A's right to make a will corresponds to no duty in
any one else.

20
The above is similar to Hohfeld’s demonstration op. cit., p. 41.
21
(1891) AC 272; See also R v. Secretary of State for Home Department and others, Ex-Parte Bhurosah (1968) 1 QB 3 :
(1967) 3 ALL ER 831.
22
(1969) 2 Ch 149 : (1969) 1 All ER 904.
23
(1894) 1 QB 186 : (1895) 39 AC 587.
24
(1895) AC 587.
25
Salmond, op. cit., p 229.
26
‘Dias’ op. cit. p. 269.

11
 The correlative of a power is a liability.27 This connotes the presence of power vested
in someone else as against the power with the liability. It is the position of one whose legal
rights (in the wider sense) may be altered by the exercise of a power.28

Thus, the tenancy of a tenant can be determined by pre-entry by the landlord. Landlord
in this case has powers and tenant is under a liability because his legal position can be affected
and changed by the landlord at his will.

Distinction between Right and Power

A right is always a sign that some other person is required to conform to a pattern of
conduct, a power is the ability to produce a certain result.29 The right for example to make a
will can be dissected into a privilege to make a will (there is another privilege not to make one),
rights against other people not to be prevented from making one and power in the sense of the
ability to alter the legal condition of persons specified in the will. The power itself has no duty
correlative to it. It would be incorrect to describe this as a right in the testator correlative to the
duty in the executor to carry out the testamentary disposition, for the will would take effect as
from the death of the testator and the executor’s duty only arises as from that moment. When
the testator dies his rights cease and the duty cannot correlate to any right in him.

Immunity- Disability (You cannot)

Immunity denotes freedom from the power of another, while disability denotes the
absence of power, nemo det quod non habit i.e. ‘He who hath not cannot give’ can be expressed
as a disability on the part of person in general to transfer property that they do not themselves
own.

The relationship between power, liability, immunity and disability may be explained as
follows30:

1) If X has a power , Y has a liability. They are, therefore, ‘jural correlative’. A liability
in Y means the absence of an immunity in him. Therefore, immunity and liability are
jural opposites.

27
All modern Analytical Jurists writing in the English language (including Salmond and Hohfeld) have used the term
‘Liability’ for the correlative of power and this usages has also been adopted in the American Restatement.
28
‘Dias’ op. cit. p. 259.
29
Loc cit.
30
(1930) 1 KE 376.

12
 2) Conversely, the presence of an immunity in Y implies the absence of a liability in him.
The absence of a liability in Y implies the absence of a power in X i.e., power and
immunity are jural contradictories.
3) The absence of power could have been styled as ‘no power’ in the same way as ‘no
right’, but Hohfeld preferred to give it the term ‘disability’. Power and disability thus
become jural opposites. It follows from this that immunity in Y implies the presence of
a disability in X i.e., they are ‘jural correlatives’31.

Distinction between Privilege and Immunity

An ambassador or a diplomatic envoy’s position illustrates this distinction. Such a

person treated as being capable of committing a breach of duty to pay damages, although
immune from the power of action or other legal process to compel him to do so. In other words,
he has no privilege to the act, nor a privilege from having to pay damages for it, but he has the
immunity from process all the same. It was held in Dickinson v. Del Solar that the fact an envoy
was thus under a sanction duty to pay damages was sufficient to involve his insurance company
in responsibility. If, on the other hand, an envoy voluntarily pays the damages, he cannot
recover them since there is the duty to pay.32

31
‘Dias’ op. cit. p. 269.
32
Roscoe Pound ‘Legal Rights’ (1916), 26 International Journal of Ethics 92 at p. 97.

13
 FUNDAMENTAL RIGHTS UNDER ARTICLES 15(4) AND 15 (5):
HOHFELDIAN ANALYSIS

The modality with which law seeks to secure its objectives is mostly common across the variety
of social and legal systems in which laws operate. Law secures its objectives primarily through
the creation, extinction, regulation and enforcement of Jural/Legal relations. The simplest way
to explain a legal relation would be describe it as a relation between two persons or set of
persons determined by a rule of law.
The preamble to the Constitution of India provides that equality of opportunity as an
avowed principle of the constitutional scheme. Thus, the Preamble, which serves as the vision
statement of the framers of the constitution, establishes equality of opportunity as an objective
which must be achieved through the constitution.

14
15
16
 CRITICAL ANALYSIS OF HOHFELDIAN THEORY

In venturing to discuss the Hohfeld System, and at various points to urge serious objections to
it, the present writer is tardily responding to a wish which Professor Hohfeld himself, about a
year before his death, did him the honor to express, that he make a formal statement of his
views. The writer need not say that these comments, the substance of which he had already,
though crudely and ineffectually, attempted to convey to Professor Hohfeld, go with a sense of
regret that they cannot in their present form meet the eye of that acute thinker, who,
notwithstanding sharp difference of opinion, would have been liberal enough not to
misinterpret them as other than testimonials of professional and personal esteem.

The merits of Professor Hohfeld’s System are the following:

1. It was the first attempt at a complete systematic arrangement of jural relations. A half-
dozen or more Germans had already treated in a thorough way the active (power) side
of jural relations. The most complete of these attempts was that of Bierling, but no
writer in any country, prior to Hohfeld, had sought to give a systematic account, with
suitable terminology, of the passive side of jural relations. Partial efforts to state the
correlatives (the active and passive sides of jural relations) had been made by
Terry33 and Salmond.34

2. It made manifest, as never before, the great complexity of jural threads found in
concrete legal relationships. The usual method of legal operation and of legal thinking
lies in the realm of molar physics, where often qualitative analysis instead is demanded.
Without trenching on the medieval debate of nominalism and realism, it is clear enough
that where words are lacking, ideas are usually wanting. Confusion of all jural relations
under one undifferentiated idea, ‘rights,’ cannot but result in inaccurate thinking, and,
as likely as not, occasionally, in incorrect legal solutions. The chief attribute of
scientific progress is greater clearness of distinction. In this the law has been the most
backward of sciences, and it is really astonishing, when one stops to consider the
fundamental importance of ultimate categories in legal reasoning, that the insufficiency
of our technical apparatus, in a scientific sense, had not long before impressed itself.

33
Leading Principles of Anglo-American Law” (1884).
34
Jurisprudence” (1902).

17
 3. It made conspicuous the uniqueness (singleness) of jural relations as existing only
between two persons, and never more than two persons.35 The confusion which existed
on this point was disastrous in cases of rights in personam involving correal or solidary
obligations. Nothing in Hohfeld’s System points more clearly to the sharpness of insight
of Professor Hohfeld and his colleagues than this important and necessary distinction.

4. It gave to the concept ‘liability’ a new and useful extension, which includes advantage
as well as detriment.36 A certain “linguistic contamination” adheres to the term
‘liability’ which a layman might find it difficult to remove, but in legal science this may
readily be ignored. The utility of a two-sided correlative to power as a juristic fact seems
indispensable, and no substitute probably could be found without a Benthamic coinage
which would require for its establishment two or three generations of insistent
repetition.

The demerits of the system.

1. The table of jural ‘opposites’ (a) is in part inconsistent, and (b) it has little, if any, juristic
utility.

(a) It is inconsistent. But what is an opposite? It is said “that when dealing with jural opposites
we are looking at two different situations from the point of view of the same person.”37 So far,
so good. But there is still a difficulty. In the case of legal relations to have a claim to payment
of Rs.100 would be the opposite of a duty in the same person to pay Rs.100. Yet we find in
Professor Hohfeld’s table that the ‘opposite’ of ‘right’ is not ‘duty,’ but ‘no-right.’ Now it is
clear that ‘right’ and ‘no-right’ are not ‘opposites’—at least not in the sense of logic—but are
rather ‘contradictories’ (negatives).

The next enumeration of ‘opposites’ in Professor Hohfeld’s table is ‘privilege’ and

‘duty.’ Here is a clear change of position, since on the basis of contradictories or negatives (i.e.,
the presence or absence of a quality) the negative of ‘privilege’ must be ‘no-privilege’ and not
‘duty.’ Professor Hohfeld’s illustration at this point will be useful—

35
Prof. Corbin has especially emphasized this point: “Legal Analysis and Terminology,” Yale L. Jour., XXIX, 165.
36
Prof. Corbin has especially emphasized this point: “Legal Analysis,” Yale L. Jour., XXIX, 169; cf. the remarks of
Dean Pound, Int. J. Ethics, XXVI, 92 (97).
37
Fundamental Concepts,” p. 10.

18
 “… … whereas X has a right or claim that Y, the other man should stay off the land [of
X], he himself [X] 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.”

The term ‘privilege’ is used here apparently in the sense of ‘liberty,’ a non-jural
concept, as we think; but the true negative of ‘liberty’ is ‘no-liberty,’ just as the negative of
‘right’ is ‘no-right.’

The field of ‘liberty,’ so far as it is connectible with anything of jural consequence, is

limited to the enjoyment of the things for which rights and powers exist. Liberty cannot be
predicated of rights and powers themselves since they denote another group of ideas. What
‘liberty’ can the holder have in a chose-in action? Yet there is a duty. It is clear that not every
duty is the ‘opposite’ of a liberty, as any right in personam suffices to demonstrate. It may be
possible to speak of a possessio juris of rights in personam which are susceptible of continuing
exercise, but even in this case it is an awkward locution to say that the right-holder has the
‘liberty of exercising his right.’ (b) Again, the liberty of the owner of land to go on his land
might stand ‘opposite’ a contractual duty in the same person not to stay off the land, but to go
on it. (c) Furthermore, the liberty of an owner of land to go on his land might stand ‘opposite’
his equal liberty to stay off his own land. Liberty to stay off the land is just as much an
‘opposite’ of liberty to go on the land as is the duty to stay off. These illustrations are put to
show that ‘privilege’ (liberty) and ‘duty’ are neither true opposites nor negatives, and that this
division is wanting in logical coherence. The real negatives are ‘privilege’ (liberty) and ‘no-
privilege’ (no-liberty).

The next category (‘power’—‘disability’) seems unobjectionable from the

standpoint, not of ‘opposites,’ but of ‘negatives,’ since ‘disability’ is simply another way of
saying ‘no-power.’ Likewise, and for the same reason, the last category (‘immunity’—
‘liability’) is formally consistent, since ‘liability’ is only a final statement of the effect of ‘no-
immunity.’ If there is ‘no-immunity,’ necessarily there must be ‘liability.’38

Since the table is inconsistent in one term regarded by Professor Hohfeld as

fundamental, it might be supposed that the learned author was dealing neither with ‘opposites’
nor with ‘negatives’ (contradictories), in the application of logic, but with a third term,
‘contraries,’ in the sense that a wrongful act is the contrary of a duty, or in the sense of the

38
On the assumption, of course, of a jural relation, since, if no jural relation exists, the terms are meaningless; e.g., if A is not
an owner of land, his position is one of ‘no-immunity’ without, however, being that of ‘liability.

19
‘contrarius actus’ of Roman law; but without prolonging the discussion at this point, a cursory
examination of the table will show that this possibility is not borne out. Moreover, the scope of
‘contraries’ as applied to jural concepts is very limited.

(b) It has little, if any, juristic utility. Since jural relations must be completely isolated and
identified, it is of no profit to know that ‘no-right’ is the negative of a ‘right.’ (a) One may have
‘no-right’ and yet occupy an important jural position. For example, he may have a jural power.
The thing of importance is to isolate and identify the power, in the example given, and not to
determine that a jural power is a ‘no-right.’ (b) Again, one might have a ‘no-right’ because of
subjection to duty.

Professor Schiller has aptly said of contradictories —

“The slightest reference to actual thinking . . . shows that the doctrine [of
contradictories] carries the use of logical figments beyond the limits of the tolerable. We never
actually use such contradictories. It is not profitable to talk about the universe at large and to
contrast a single aspect of it with all that remains. We always know enough about anything we
are discussing not to leave its position as vague as that, and hence language does not form pairs
of words in the form of ‘A’ and ‘not-A.”

Contrasting a definite legal concept “with all that remains” is only a step from contrasting a
quality outside the field of reference with something in the field of reference by application of
the ‘law of excluded middle.’

To have known Prof. Hohfeld is to understand the table of ‘opposites’ (contradictories).

His type of mind was the thoroughgoing kind. If he met a fact, he did not stop to inquire if it
had any exchangeable value. We do not quarrel with that mental attitude. On the contrary, we
highly respect it, and we simply affirm that as to the table of ‘opposites’ (contradictories) we
are unable to find any place where it may be usefully applied in concrete legal thinking. It is
not improbable that Prof. Hohfeld in his reflection on the subject weighed the possibility of
constructing still other tables, as, for example, a table of ‘opposites’ (logical sense), of
‘contraries,’ and perhaps even of ‘differentials,’ and since nothing of such additional tables was
announced or suggested by him, it is very likely that he regarded the two tables published as a
complete statement of fundamental jural ideas so far as concerns the problem of systematic
arrangement.

If the fundamental division is ‘opposites,’ in the logical sense, so far as it is workable,

we fare no better. That a right in this sense is the opposite of duty is a matter of accounting

20
rather than of jurisprudence. If ‘contraries’ is taken as the basis of division, it will be found that
its range of application is too limited for practicality in a systematic table.

Coming back, therefore, to the table considered as based on ‘negatives’ (contradictories), which
is the only view which will avoid a complete breakdown), and not on ‘opposites’ or
‘contraries,’ we conclude that it has little, if any, importance, and that if it seems desirable to
retain it, its partial inconsistency should be adjusted upon a logical foundation. Other objections
to the terms ‘privilege’ and ‘immunity,’ as applied by Professor Hohfeld, are reserved.

2. A number of other suggestions may be grouped.

Professor Hohfeld avoids definition as “always unsatisfactory, if not altogether useless.”

He did not have in mind, it is fair to assume, the objections to formal definition raised
by non-Euclidian geometry and by non-Aristotelian logic. It is pretty certain that spherical
triangles, parallel lines which meet, and four-dimensional space were not the restraining ideas
of his refusal to provide a system of definitions; but it may be noted that the philosophers and
logicians who argue for pluralistic definitions and relativity agree on the acceptance of
provisional definitions as data without which the processes of judgment and inference cannot
proceed. But if Professor Hohfeld has declined to define his terms, assuredly he has made it
necessary for others to attempt it, if they would have any hope of understanding his proposal.

When we come to the table of ‘correlatives,’ we are as unenlightened as to what is

meant as when the table of ‘opposites’ was encountered. Here we believe half of his table will
be found logically consistent. The exceptions are ‘privilege’—‘no right’ and ‘immunity’—
‘disability.’

The concept ‘correlative,’ as used by Professor Hohfeld, is clearly intended as that

derived in formal logic from ‘absolute’ and ‘relative’ terms. Correlatives are those objects or
ideas of objects which are necessarily connected with other objects or ideas of objects; thus,
‘father’ is a relative term and ‘son’ is the correlative. As to this distinction, Mr. Schiller has
remarked that it is “wise of formal logic not to enter into such questions as why the ‘correlative’
of ‘son’ should not be ‘mother.39 In the light of this objection, ‘wrong’ would be as much a
correlative of ‘right’ as is ‘duty.’ But it is allowable for each science to construct its own
definitions, and a slight amendment of the definition of formal logic will avoid objections
which have been raised in the newer functional logic to this category of terms. We may say,

39
Formal Logic,” p. 28

21
for the purpose of jurisprudence, that a correlative term is that of an idea which is necessarily
connected, and is consistent, with another idea.

With this addition, we find no objection to ‘right’—‘duty’ and ‘power’—‘liability’

as correlatives. These combinations of correlatives are fairly well established. But again, so far,
so good; for when these terms are inspected in detail, it will be found, unfortunately, that
occasionally the meaning is obscured by inconsistent or double usage in the Hohfeld School.

A quotation taken from the more recent of Professor Hohfeld’s essays40 on this topic and which
may be accepted as representing his maturest views, is as follows:

Suppose . . . that A is fee-simple owner of Blackacre. His ‘legal interest’ or

property relating to the tangible object that we call land consists of a complex aggregate of
rights (or claims), privileges, powers, and immunities. First, A has multital legal rights [rights
in rem], or claims that others, respectively, shall not enter on the land, that they shall not cause
physical harm to the land, etc., such others being under respective correlative legal duties.

Second, A has an indefinite number of legal privileges of entering on the land, using
the land, harming the land, etc., that is, within the limits fixed by law on grounds of social and
economic policy, he has privileges of doing on or to the land what he pleases; and correlative to
all such legal privileges are respective legal no-rights of other persons.

Third, A has the legal power to alienate his legal interest to another, i.e., to extinguish
his complex aggregate of jural relations and create a new and similar aggregate in the other
person; also the legal power to create a life estate in another and concurrently to create a
reversion in himself; also the legal power to create a privilege of entrance in any other person
by giving ‘leave and license’; and so on indefinitely.

Fourth, A has an indefinite number of legal immunities, using the term ‘immunity’ in
the very specific sense of non-liability, or non-subjection to a power on the part of another
person. Thus A has the immunity that no ordinary person can alienate A’s legal interest or
aggregate of jural relations to another person; the immunity that no ordinary person can
extinguish A’s own privileges of using the land; the immunity that no ordinary person can
extinguish A’s right that another person, X, shall not enter on the land, or, in other words, create
in X a privilege of entering in the land. Correlative to all these immunities are the respective
legal disabilities of other persons in general.”

40
Fund. Concepts,” p. 96. The italics are the author’s; the small capitals for differentiation are the present writer’s.

22
The correlatives, ‘right’—‘duty’ and ‘power’—‘liability,’ are well-seasoned and they are not
questioned. We have already pointed out that Professor Hohfeld has given the term ‘liability’
a wider meaning than that which prevailed, and this extension we regard as original and useful,
at least for juristic facts as distinguished from jural relations. Before passing to a discussion of
the other two correlatives, some variations of usage may be pointed out.

Professor Hohfeld speaks of “the householder’s privilege of ejecting the trespasser.”

This seems a confusion of liberty and power.41 When one acts for himself without legal
consequences, as by walking on his land, he exercises a liberty, but when the owner puts a
trespasser off the land, it would seem that he exercises a power., i.e., he does something which
is a disadvantage to another.

A license is regarded as a “particular” kind of ‘privilege’ (liberty). Surely there is a

juristic difference between what one may do on his own land and what one may do, outside of
an agency transaction, on the land of another. A license, therefore, is either a kind of power, or
it has not been provided for, since as against the owner of the land it cannot be a liberty
(‘privilege’) without doing violence to the ordinary meaning of the term ‘liberty,’ and, likewise,
confusing the non-jural concept of ‘liberty’ with the jural concept of ‘power.’

These few illustrations may suffice to show either inconsistency in the use of the
terms ‘privilege’ and ‘power,’ or, in the alternative, an apparent overlapping which needs
explanation. We now pass to a brief consideration of the validity of the two groups of
correlatives denominated ‘privilege’—‘no-right’ and ‘immunity’—‘disability.’

‘Privilege,’ in the sense of liberty, does not seem to be a relative term at all, but, on
the contrary, an absolute term. There is no more of ‘relation’ in ‘privilege’ than may be found
in a windmill or a table. True enough, the term ‘correlative’ is indefinite at best, but it is clear
that the correlation, if any, of liberty in one person and the non-existence of rights as to the
content of it, in another, is juristically quite a different sort than that of ‘right’ and ‘duty.’

(a) Without attempting here a refinement of distinction which more properly falls
to the expert logician, it is enough to point out that ‘no-right’ is not any more entitled to be
considered the correlative of ‘privilege’ than is ‘no-power.’ (b) Again, the correlatives
‘immunity’—‘disability,’ for the same reason and for an additional reason, are objectionable.
The additional reason is that the correlation is not complete. The person under disability may

41
Fund. Concepts,” pp. 33, 41, n. 39. In like manner, Prof. Cook speaks of the “privilege of self-defense”: id., p. 6; see, also,
Prof. Corbin, “Legal Analysis,” Yale L. Jour., XXIX, 167-8.

23
lack legal power (which is the sense in which the term disability is used in the Hohfeld
System,42) but may there not be a disability, also, because of the existence of duty?

3. Like the table of ‘opposites,’ the category of ‘correlatives,’ ‘immunity’—‘disability,’

is a novelty. While it is logically incomplete, as it seems to us, in not including under
disability the presence of duty as well as the absence of power, it may be objected to
for the more important reason that, as limited, it is juristically of no consequence.

‘Immunity,’ if it means anything at all of importance, is immunity from something; but, in

Professor Hohfeld’s System, an immunity is an immunity from nothing. One would hardly be
considered immune in any practical sense from a disease which has never existed and which
will never come into existence. Likewise, in the law, what has never existed and never will
exist is not worth consideration either by lawyers or jurists.

The category ‘immunity’—‘disability’ is an empty one—it has absolutely no

content. It may be conceded that in the administration of justice the question often may be, and
is, litigated whether A has the power to divest the title of B. A either has such a power or he
has not. If A has the power, we are not dealing with an immunity but with a liability—
something real—a positive concept; but if A does not have the power, even though A asserts
it, there are blanks on both sides. What, therefore, Professor Hohfeld means to say is that where
there is a ‘no-power’ on one side, there is a correlation of ‘no-liability’ on the other. This way
of stating the matter must, we think, disclose that one nothing opposed to another nothing
cannot be regarded either as juristic correlatives, or as having any juristic connection or utility.

The term ‘immunity’ is well known to the law and we believe it can be usefully
employed in a juristic sense, which is reasonably consistent with prevailing professional usage,
and it seems to us unfortunate that an effort was not made to incorporate it in a juristic table
where its actual fundamental operation would be disclosed. Nor do we deny that it may rarely
be convenient to use a negative category of terms to facilitate communication of ideas, as. for
example, when we speak of “immunity from prosecution.” What we deny is that the terms
‘immunity’—‘disability’ are of fundamental juristic importance in the limited use made of
‘immunity’ in Professor Hohfeld’s System.

4. If the category of supposed juristic correlatives, ‘immunity’—‘disability,’ is a case of

blanks on both sides, so it will be found also with the supposed juristic category of
correlatives, ‘privilege’— ‘no-right.’ This category is another case of negatives with

42
Fundamental concept, pp. 96-97; Corbin, “Legal Analysis,” Yale L. Jour., XXIX, 170.

24
 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.

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 a breach are 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 exact form in which they have been presented; since it may be possible, contrary
to expectation, that an absolute term may be, if not relative (which involves a contradiction),
at least correlative, in jurisprudence. The question, therefore, may be formulated as follows: Is
‘no-right’ the correlative of a liberty (‘privilege’), and is a ‘no-power’ (disability) the
correlative of ‘immunity’? In other words, are liberty (‘privilege’) and ‘immunity’ relative
terms or are they absolute terms?

The term liberty (‘privilege’) is clearly an absolute term, in any practical sense.
The term ‘no-right’ has no greater connection with liberty by way of correlation than have ‘no-
power’ (disability), or ‘no-duty’ or ‘no-liability,’ or ‘power,’ or ‘duty,’ or ‘liability.’ Professor
Corbin’s explanation of ‘privilege’ as another name for ‘no-duty ‘makes this still more evident.
Here it is clear that ‘no-duty’ and ‘no-right’ are both mere negations and that as such they can
not be in relation in any logical sense.

Likewise, the term ‘immunity,’ as used by Professor Hohfeld, is also absolute. It

cannot claim for its correlative ‘no-power’ (disability) to the exclusion of ‘no-liability’ or ‘no

25
right.’ If A is the owner of land without outstanding rights or powers in others, he is not in his
situation as owner, which gives him certain claims and powers against others, under any duty
or liability to such others. There is no right against him (e.g., to make a conveyance as holder
of the legal estate in trust); nor has any person the power to divest his title. Clearly A’s situation
is, as respects others, an absolute legal situation. As to his title, no act can be claimed from him
nor any act projected against him. If B, a stranger to the title, should go through the form of
making a conveyance of a fee simple right in A’s land, the act would be a legal nullity.
Moreover, B is under no legal duty not to make such a paper conveyance. Any act of B
attempting to convey A’s title would be wholly lacking in legal consequences. Accordingly,
A’s situation, as owner, as to such an act on the part of B, is absolute; it has no connections or
correlatives, and is lacking in juristic importance.

Professor Hohfeld’s table arouses curiosity as to how he proceeded to work it out.

No explanation is given. Can we be sure that there are only four fundamental juristic terms?
Could there not be more than four? No answer is given by Professor Hohfeld or by his
associates, or, so far as is within our knowledge, by anyone who has adopted Professor
Hohfeld’s System. Superficially, the tables seem to be an enumeration, but a closer inspection
shows a regular alternation of the secondary terms when the two tables are compared; thus ‘no-
right’ and ‘duty’ change places, as do also ‘disability’ and ‘liability.’ But why did Professor
Hohfeld select, or how did he discover, four fundamental jural terms—the “lowest common
denominators”? No satisfactory answer can be given, and surmise is all that is left.43

What we regard as the basic defect of his method is his failure to search for and
to proceed from the fundamental concept of jural relation. Without a clear understanding of
this primary juristic idea, it was nearly inevitable that no table of jural relations could be
constructed which would not disclose objections, however symmetrical it might turn out.
Professor Hohfeld’s use of terms shows an entire lack of recognition of the important
distinction between jural relations and juristic facts.

43
Prof. Roscoe Pound, “Legal Rights,” Int. Jour. Ethics, XXVI, 92 (97).

26
 COCLUSIONS

The words commonly used to describe legal relations frequently convey multiple inconsistent
meanings. The confusion that results from this inherent weakness in the language of the law
has produced many attempts to reduce that language to terms that suggest a single idea. A most
remarkable theory of reduction was expressed in Professor Hohfeld's formulation of a logical
system of language based on fundamental legal conception. Hohfeld‟s theory was intended, to
“aid in the understanding and solution to practical, everyday problems of the law”. Hohfeld
claimed to have identified the eight fundamental legal conceptions, and as such to have
provided a technical apparatus for legal analysis: the atomic elements into which all legal
material can be reduced. 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. 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. Hohfeld did not only correct minor technical mistakes
but he also offered a radical critique of previous concepts of legal rights and liberties.

The Hohfeld's analysis can be said to have rather little impact. This may be true, it
has to be admitted however that the strength of the conclusion is undiminished. In the final
analysis Professor Hohfeld's contribution to the language of rights continues to be highly
valued. Drawing public attention to the importance of appropriate terminology in rights cannot
be ignored even if the conclusions as to what is or is not appropriate are not the same as he
recommends.

27
 Bibliography
Books
 Mahajan V.D. - Jurisprudence and Legal Theory Eastern Book Company 5th Edition,
Reprinted 2016
 Aggarwal Nomita Jurisprudence and Legal Theory 10th Ed. (Rep) 2016
 Paton G. W. A Textbook of Jurisprudence Oxford University Press; Edition (2016)
 Pillai Atchuthen P.S. Jurisprudence And Legal Theory Eastern Book Company 3rd
Edition, Reprinted 2016
 Fitzgerald P. J. Salmond on Jurisprudence Sweet and Maxwell; 12th edition (2016)
 Hohfeld, Wesley Newcomb Fundamental Legal Conceptions As Applied in Judicial
Reasoning (Dartmouth Pub Co; Reprint ed. 2002) (originally 26 Yale Law Journal
710 (1917)) (online version)
 Paranjape Dr. N.V., Studies in Jurisprudence and Legal Theory Central Law Agency
Eighth Edition 2016
 Dais Dias Jurisprudence LexisNexis; edition (2013)
 Bakshi. P.M., The Constitution of India LexisNexis, edition 14th (2017)

WEBSITES
http://www.austlii.edu.au/au/journals/MurUEJL/2005/9.html
https://www.ukessays.com/essays/philosophy/the-hohfeldian-analysis-of-rights-
philosophy-essay.php
https://plato.stanford.edu/entries/rights/
http://lsolum.typepad.com/legaltheory/2012/06/legal-theory-lexicon-hohfeld.html
http://www.thomasalspaugh.org/pub/fnd/hohfeld.html
www.law.harvard.edu/faculty/cdonahue/courses/prop/mat/Hohfeld.pdf
www.jstor.org/stable/20009647
https://www.ics.uci.edu/~alspaugh/cls/shr/hohfeld.html

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