Why This Matters

Concepts play a significant role in the legal process. Most legal rules and principles are explained in terms of juridical concepts, prominently among which are the concepts of rights and duties.[1] As Ronald Dworkin observed: “Lawyers lean heavily on the connected concepts of legal right and legal obligation. We say that someone has a legal right or duty, and we take that statement as a sound basis for making claims and demands, and for criticizing the acts of public officials. But our understanding of these concepts is remarkably fragile, and we fall into trouble when we try to say what legal rights and obligations are.”[2]

The problem is that the word “rights” in ordinary usage has given rise to a variety of meanings. While legally the term has more precise meaning, confusion in terminology exists.[3] Wesley Newcomb Hohfeld addressed this problem brilliantly.

The Four Shifts in Meaning of “Right”

Dias explained that claims, liberties, powers, and immunities are all subsumed under the term “right” in ordinary speech, but for clarity and precision, we must appreciate that this word has undergone four shifts in meaning.[4] He observed that the use of the homonym “right” to denote these separate ideas obscures the distinctions and leads to confusion sooner or later.[5] It would be helpful therefore to allot to each a term of its own.

Historical Development

Bentham was the first to distinguish between a right and a liberty.[6] Following this, Windscheid in 1862 distinguished between claim and power, while Thon in 1878 and Bierling in 1883 distinguished between claim, liberty, and power.[7] In 1902, Salmond analyzed claim, liberty, and power and distinguished them from their corresponding ideas of duty, disability, and liability.[8]

This set the stage for Hohfeld’s remarkable analysis in 1913, when he added a fourth term—immunity—and worked out a complete table of jural relations with incisive logic.[9] His early death prevented him from completing the task he outlined, but his scattered writings were collected and published posthumously in 1923 under the editorship of W.W. Cook.[10]

The Holborn teachers remarked: “Within the area of the analytical jurisprudence of rights the starting point for any study must be according to Lloyds and Freeman, the work of Wesley N. Hohfeld.”[11]

Hohfeld’s Objective

In his work Fundamental Legal Conceptions As Applied in Judicial Reasoning, Hohfeld stated his aim was to clarify different kinds of legal relations and the different uses to which certain words in legal reasoning are made.[12] He sought to expose ambiguities and eliminate confusion surrounding these words. He was concerned to give meaning to the phrase “X has a right to R” and to explain the set of jural relations that such a statement gives rise to.

He saw these concepts as the lowest common denominators in which legal problems about rights could be stated.[13] That proposition is not without criticism. Critics contend that while his scheme works for some propositions in which the phrase “X has a right to R” could be fitted, it doesn’t always work because his scheme could not take account of paternalistic criminal law.[14]

The Three Types of Jural Relations

Hohfeld explained these concepts in terms of correlatives, opposites, and contradictories. These contain eight fundamental conceptions, and he believed all legal problems could be stated in their terms.[15]

Jural Correlatives

The presence of a correlative in one person implies the presence of a corresponding correlative in another person. For example, the presence of a right in one person implies the presence of a duty in another person. The converse here is not necessarily true since duties may arise without correlative rights, especially in criminal law.[16]

Right — Duty
Privilege — No-Right
Power — Liability
Immunity — Disability

Jural Opposites (or Jural Negations)

The presence of one in a person implies the absence of another in that same person. For example, the presence of a duty in one person implies the absence of a privilege in that same person.

Right — No-Right
Privilege — Duty
Power — Disability
Immunity — Liability

Jural Contradictories

The presence of one in one person implies the absence of another in a different person. For example, the presence of a right in one person implies the absence of a privilege in another.[17]

Defining the Eight Concepts

1. Right (Claim)

Everyone is under a duty to allow X to do R, and X would have a claim against everyone to enforce that right.[18] For example, if you own property, everyone else has a duty not to trespass on it, and you have a right (claim) to exclude them.

2. Privilege (Liberty)

X is free to do or refrain from doing that which is the subject of R. Y has no claim against X if X either exercises or refrains from exercising that liberty.[19] For example, you have a privilege to walk down a public street, and nobody has a right to stop you.

3. Power

X is free to do an act whether or not he has a claim or a privilege, and this act would have the effect of altering the legal rights and duties of others.[20] For example, a property owner has the power to sell property, which alters the buyer’s legal position.

4. Immunity

X is not subject to anyone’s power to change his legal position.[21] For example, you are immune from having your constitutional rights taken away by ordinary legislation.

5. Duty

Y must respect X’s right.[22]

6. No-Right (No-Claim)

Where X has a liberty, Y has no claim that X should not exercise that liberty.[23]

7. Liability

A person is in a position where their legal situation can be changed by another’s power.[24] Dias submits that a distinction needs to be drawn between liability, which is correlative to power (a jural relation), and what may be termed “subjection,” namely the position of a person which is liable to be altered by non-volitional events (not a jural relation).[25]

8. Disability

A party has an inability to change another person’s legal position.[26]

It is important to emphasize that Hohfeld was examining legal rights and that the meanings attributed to his terms are technical and don’t accord with their common usage.[27]

The Glanville Williams Diagram

Professor Glanville Williams devised a geometric representation of Hohfeld’s scheme.[28] Dias utilizes this model, which can be set out with arrows indicating the relationships:

       Right(Claim)    Liberty(Privilege)    Power    Immunity
              |               |                |          |
       -------↓-------  -------↓-------  ------↓------  --↓--
              |               |                |          |
         Duty          No-Claim(No-Right)   Liability  Disability

Jural Correlatives are shown by vertical arrows. Jural Opposites exist within the same person. Jural Contradictories are diagonal relations.[29]

The problem with this diagram is that while it appears to work on its face, it doesn’t use the same terminology as Hohfeld himself used and has therefore perhaps added to the confusion. On examination, the arrows for jural correlatives are inverted with the arrows for jural contradictories. On the definitions offered by Hohfeld for his own terminology, it would appear that a claim could not be regarded as the correlative of a liberty in the sense that the presence of a claim in one implies the absence of its contradictory (a liberty) in another. This point is however not settled.[30]

Practical Application

Consider a person who has fulfilled all statutory requirements for annual driver’s license renewal. Assume the government clerk has no discretion to refuse renewal upon tendering the appropriate fee.

Applying the Hohfeldian scheme, the presence of the right to have the license renewed in the citizen implies the absence of a privilege in the clerk not to renew. The presence of the duty in the clerk to renew implies an absence of a privilege in the clerk not to renew. The presence of a right in the citizen implies the presence of a duty in the clerk.[31]

Important Notes

Hohfeld believed that if lawyers and judges were to think in his terms (not necessarily talk in them), clarity would reign.[32] As Dias put it: “What is important is not the words but the ideas they represent. One may think Hohfeld without talking Hohfeld. Every lawyer can utilize the analysis to keep his mind clear when grappling with problems, and may then state the result in any language he pleases.”[33]

Despite some criticism, Hohfeld’s work has gained a significant measure of acceptance and approval. The Hohfeldian vocabulary has been utilized regularly in the American Restatement, and along similar lines, Dias suggests that although the courts may not be using exact Hohfeldian language, they are thinking it.[34]

Value of the Hohfeldian Analysis

Professor Corbin explained why Hohfeld’s scheme is valuable: “Hohfeld’s articles disturbed the mental complacency of professors of law as well as of students. This was due not only to the fact that mastery of his work is a severe disciplinary process, but also to the fact that they got the erroneous impression that his analysis of concepts and terms was offered as a method of determining social and legal policy.”[35]

However, as Corbin reminds us: “One whose own mind is cloudy and confused is certain to convey only cloudy and confused thoughts to others, but the identification of a specific word that will convey an exact thought and no other is an almost necessary process in the clarification of one’s own mind.”[36]

Hohfeld’s analysis gives great aid in analyzing legal problems and breaking down our complex and variable terms. It involves no problem of social or juristic policy, but it does much to define and clarify the issue in dispute, increasing the probability of an informed and sound conclusion.[37]

Evaluation and Criticism

Advantages

Hohfeld’s scheme is complete and concise, using familiar terms rather than creating new words.[38] It enables reduction of any legal transaction to relative simplicity and precision and enables recognition of its universality.[39] Harris identifies three important advantages: it enables real normative choices to be disentangled from verbal confusions; if lawyers and judges were to apply his terminology, clarity would reign; and Hohfeld believed that juristic problems concerning the nature of compound concepts could be dissolved.[40]

Criticisms

Some Concepts Lack Juridical Significance: Critics, including Pound, argue that liberty, liability, and disability lack juridical significance.[41] The answer is that liberty is necessarily related to other concepts. With regards to liability, the objection is that its use is contrary to accepted usage. Dias submits that a distinction needs to be drawn between liability (correlative to power) and “subjection” (liability to be altered by non-volitional events, which is not a jural relation).[42]

Analysis Incorrect and Incomplete: Various allegations suggest Hohfeld’s analysis was incorrect and incomplete in places.[43] There’s truth in this, and critics have done constructive service in removing errors. It requires straining of language to bring wrongful powers under “rights.” Non-correlative duties and subjections don’t fit into his scheme, and the power concept needs greater refinement.

Unusual Terminology: Some object that the terminology is unusual and it’s unrealistic to expect the profession to make such a radical change in vocabulary.[44] However, the response is that one can think Hohfeld without talking it.

Raz’s Four Grave Mistakes

Joseph Raz identified four particularly grave mistakes:[45]

First, Hohfeld considered all rights as sets of any number of his four elementary rights (claim, privilege, power, and immunity). Rights are not sets of these; their possession entails the possession of other rights or of powers and duties. For example, the concept of ownership includes rights of possession, transfer, sale, hire, use, and enjoyment. Ownership creates a set of claims and powers. The concept of ownership can be seen as a set of rights, but it doesn’t denote the relationship between the owner and the tangible object.[46]

Second, he thought every right is a relation between no more than two persons.

Third, he thought all rights are relations between persons.

Fourth, he considered his four elementary rights to be indefinable.

Raz argues that even simple rights are not identical with claims nor are they sets of claims, powers, etc., though they can be represented as such sets.[47]

Conclusion

Hohfeld’s work has earned as much praise as criticism. Despite its limitations, his scheme remains valuable for illustrating different forms that rights can take and the interrelationships between these concepts.[48] Lloyd and Freeman perceive the value of Hohfeld’s analysis in enabling the reduction of any legal transaction to relative simplicity and precision and in enabling the recognition of its universality.[49]

The key is to use Hohfeld’s analytical framework as a tool for clear thinking about legal relationships, whether or not we adopt his exact terminology. Every lawyer can utilize the analysis to keep their mind clear when grappling with problems, and may then state the result in any language they please.[50]

The precision Hohfeld sought to bring to legal thinking remains an admirable goal, even if perfect implementation remains elusive. His greatest contribution was demonstrating that careful analysis of legal concepts can illuminate the structure of legal relationships and help avoid confusion that arises from using the same word to mean different things.

References

[1] University of Ibadan, Department of Jurisprudence & International Law, “Legal Concepts: Hohfeldian Scheme,” Jurisprudence & Legal Theory II Lecture Material, p. 52.

[2] Ronald M. Dworkin, “The Model Rules in Philosophy,” in Graham Hughes (ed.), Law, Reason and Justice (New York: New York University Press, 1969), p. 3.

[3] Gerald L. Gall, The Canadian Legal System (Toronto: Carswell, 1977), p. 20.

[4] Dias, quoted in lecture material, p. 52.

[5] Ibid.

[6] Lecture material, p. 53.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Wesley Newcomb Hohfeld, Fundamental Legal Conceptions As Applied in Judicial Reasoning, ed. W.W. Cook (New Haven: Yale University Press, 1923/1946). See Llewellyn, Jurisprudence (Realism in Theory and Practice) (Chicago: University of Chicago Press, 1962), p. 491.

[11] Holborn teachers, Jurisprudence & Legal Theory Textbook, quoted in lecture material, p. 53.

[12] Lecture material, p. 53.

[13] Ibid.

[14] Ibid.

[15] Ibid., p. 54.

[16] Ibid.

[17] Ibid., p. 55.

[18] Ibid., p. 54.

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Ibid., p. 57.

[26] Ibid., p. 54.

[27] Ibid., p. 55.

[28] Glanville Williams’ diagram, presented in Dias, quoted in lecture material, p. 54-55.

[29] Ibid., p. 55.

[30] Ibid.

[31] Ibid.

[32] Ibid.

[33] Dias, quoted in lecture material, p. 55.

[34] Ibid.

[35] Arthur H. Corbin, “Foreword” to Hohfeld, Fundamental Legal Conceptions As Applied in Judicial Reasoning (New Haven: Yale University Press, 1946), quoted in lecture material, p. 53.

[36] Ibid.

[37] Ibid.

[38] Lecture material, p. 57.

[39] Ibid.

[40] Harris, quoted in lecture material, p. 56-57.

[41] Pound, “Legal Rights,” 26 International Journal of Ethics (1916), pp. 92, 97, quoted in lecture material, p. 57.

[42] Lecture material, p. 57.

[43] Ibid.

[44] Ibid.

[45] Raz, quoted in lecture material, p. 58.

[46] Cook (editor of Hohfeld’s work), quoted in lecture material, p. 56.

[47] Raz, quoted in lecture material, p. 58. See also Honore.

[48] Lecture material, p. 58.

[49] Lloyd and Freeman, quoted in lecture material, p. 56.

[50] Dias, quoted in lecture material, p. 55.

Further Reading

• Dias, R.W.M., Jurisprudence (London: Butterworths, 1985), pp. 24 et seq.
• Wesley Newcomb Hohfeld, Fundamental Legal Conceptions As Applied in Judicial Reasoning, ed. W.W. Cook (New Haven: Yale University Press, 1946).
• Freeman (ed.), Lloyd’s Introduction to Jurisprudence, 7th ed., p. 362 et seq.
• Glanville Williams, Various articles on Hohfeldian analysis.
• Joseph Raz, The Concept of a Legal System.
• A.M. Honore, Various writings on rights.