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HARVARD
LAW
VOL.LI
REVIEW
MAY, 1938
No. 7
A RESTATEMENT OF HOHFELD
HE most influential law teacher who ever lived in the United
States-or for that matter in any English speaking community -was Christopher Columbus Langdell. It was his expressed belief that the law was to be found in books and he had no
doubt what books these were. Before his time and since his time
there have been many persons who were strongly of the opinion
that this is not so, that the law is to be found in the moral sense
or in the rational convictions of men who had a special capacity
to reason well and a special insight into the fundamentals of human conduct. And recently there have been a great many persons who in a broadly general way have declared that law is to be
found in life, that is to say, in the varied and incompletelyrationalized actions of men attempting to secure economic, social or personal advantages, or rejecting such advantages for particular reasons. Those who hold this last sort of opinion, realists, actualists,
functionalists, experimentalists, empiricists- I am a member of
all these sects and subscribe to the Thirty Nine Articles of all of
them- are especially resentful of anything that seems to hark
back to the wicked and explodednotion that what is stated in print
or in ink on the pages of a book has any relevance to the law.
Now life is a complicated thing, and the particular aspect of
life with which law deals does seem to have a great deal to do with
human communication-what in the seventeenth century was
called human conversation. When we get to the point that human conversation will be wholly conducted by signals, stopand-go lights, raising of the right hand and the horizontal pros-
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[Vol. 51
things much more precisely than English could and the statement
of Roger North who died in 1734 has often been cited to the effect
that the common law could not be properly expressed in English.'
But the things which Law French could expresswere after all quite
limited and were chiefly connected with procedure. The moment
it left procedure it was forced to use words as vague and as ambiguous as the English words would be. If we wished to revive a
law language for the common law, it could not be the language
in which Lord Guilford still preferred to write at a time when the
courts in the American colonies were beginning to take renewed
interest in their connectionwith the commonlaw of England.2
We must, therefore,somehowfind in the lange du pails the means
of stating what the law is, whether this law is in the books or not,
particularly because we must state as unambiguously as may be,
what certain relations between persons are, as well as what they
were in times long past. And at present, the men and women
whose lives are to some degree ruled by the common law, do not
express themselves in the Law French.
Unambiguously! To say so much is to recognize the character
of the task. It simply cannot be done. It cannot be done because
of the very nature of human speech which did not grow out of a
need of stating things precisely. There rarely was such a need.
1 A DISCOURSE ON THE STUDY OF THE LAWS
(1824)
13.
2 2 HOLDSWORTH,
HISTORYOF ENGLISHLAW (3d ed. I923) 479-82. The most
complete account of the position of Law French in the study of English law is Maitland's delightful introduction to the first volume of the Selden Society's edition of
the Year Books. 17 SELDENSOCIETY(Maitland ed. I903) xxxiii-xli.
1938]
A RESTATEMENT OF HOHFELD
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one
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1938]
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1938]
A RESTATEMENT OF HOHFELD
1147
Secondly, the only legal fact at our first level is a relation between two such humanbeings. No relationthat has legal relevance
exists between a human being and a thing, between a human being
and a group of other human beings considered as a group, nor
between a human being and an abstract idea. There is no right
in rem and no action in rem. All these terms are useful and significant, as we may discover, in other connections, but they do not
concernus now.
This judgment, by which a proposed course of action is characterized as lawful or unlawful - the first level of legal judgments
and its only determinate level -belongs to the arbitral function
of the magistrate's authority. The essential of the Hohfeldian
system of analysis is that every such judgmentcan be stated in one
of the following forms:
I. B ought to do a particular act that A desires him to doOF THE ASSOCIATION OF AMERICAN
I84-93,
I94-98,
I99-212.
Professors Commons and Andrews applied the Hohfeldian terms to a special branch
of the law in PRINCIPLES
OFLABOR
LEGISLATION
(rev. ed. I927).
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[Vol. 51
1938]
A RESTATEMENT OF HOHFELD
1149
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HARVARD
LAW REVIEW
[Vol. 51
But that was error and a sin against the very analysis he was
attempting. It gives a kind of reality to mere words which they
must not be allowed, if we hope to reach realism in law. It also
permits a specious and false emphasis to be placed on duties as
against rights and even makes possible the baneful doctrine that
there may be rights that are absolute, although, to do Hohfeld
justice, he would never have permitted this inference. But it is
implicit in any doctrine that recognizes a duty as such or a right
as such, separated from each other.
A's demand-rightand B's duty in I are not correlativesbecause
they are not separate, however closely connected, things at all.
They are not even two aspects of the same thing. They are two
absolutely equivalent statements of the same thing. B's duty does
not follow from A's right, nor is it caused by it. B's duty is A's
right. The two terms are as identical in what they seek to describe
as the active and passive form of indicating an act; " A was murdered by B "; or " B murdered A." The fact that A and B are
wholly distinct and separate persons must not be allowed to obscure the fact that a relation between them is one relation and no
more.
This is all the more necessary to state because there is an important use for correlatives in any statement of law. There are
demand-rightsand privilege-rights which are correlatives of certain other demand-rightsand privilege-rights. In a sale, the right
to demand delivery is the correlative of the right to demand payment. The two rights may be completely separated. But if either
is absent, the transaction is not a sale. In the relation of parent
and child the privilege-rightof custody of the parent and his duty
of support- which is also the child's demand-right to be supported -are normally correlatives. But they may be separated
and, in divorce, they frequently are.
Hohfeld made the following scheme of his elements:
right
privilege
duty
no right
The phrase " no right " was subjected to a great deal of critical
and destructive comment. "A 'no-right '", one critic once declared, "might be an elephant." But the criticism was scarcely
justified. Those who hyphenated the words created for them-
1938]
A RESTATEMENT OF HOHFELD
1151
selves the straw man whom it was so easy to knock down. The
term " no right " means exactly what it says, that is that in II and
IV, A has no demand-rightto the service or abstention he desires
from B. So far from this being a rare and exceptional situation in
the law, it is one of the two alternatives which are presented to the
judgment of the court in almost every case. The court must find
either for the plaintiff or for the defendant. And this amounts to
saying either that the plaintiff has a demand-right-equivalent
to a duty of the defendant - or that the plaintiff had no demandright, which is equivalent to saying that the defendant was exercising a privilege in not performing the service desired or in doing
the act not desired by the plaintiff.
If we replace Hohfeld's scheme by something like the following,
we shall have:
demand-right
no demand-right
duty
privilege-right
1152
HARVARD
LAW REVIEW
[Vol. 51
The relation of these two duties of B to A- which we may express equally well as two demand-rightsof A against B - are of
a very special sort. They are quite different from each other.
They could not very well be more different in content, that is to
say, in the acts involved. One is an act of avoidance; the other,
an act of paying money. Yet they are indissolubly linked. If the
former duty of B to avoid injuring A is shown not to exist, there
can be no present duty of B to pay money to A. We know of the
existence of his duty of avoidance in past time only because the
court now imposes a duty of payment on B.
A similar situation exists if A sues B for the breach of a duty
to deliver an ordinarychattel. The existence of a duty to deliver
will justify the court in imposing a duty on B to pay a sum of
money. The test of the past duty is the creation of a present different duty, although the differenceis in this case not so great as in
the formerexample.
The differenceis still more reduced in cases when the past duty
was to pay money or to deliver the title to land and is least when
the original duty was a duty to abstain from acts that can be enjoined by a court before they are committed. But the existence of
a time factor of itself creates a differencebetween an original duty
and a duty created by the arbitral determinationof a court. And
in every case we shall not be certain of the presence of the past
duty unless a new duty predicated on the breach or threatened
breach of the past one is created.
The function, therefore, of a court is, first, that of determining
the presence or absence of a past demand-right-which means,
if one chooses, a past duty. Secondly, if it finds that such a right
has existed and has been violated, the function of the court is further to predicate upon this violated right a new and often quite
differentright that can in the nature of things be only an approximate equivalent. In our modern system, the court will predicate
upon the absence of a right in the plaintiff or demandant, a new
right for a small sum as costs in the defendant, but that is often
dispensed with.
There are consequently two levels at which these terms can be
used, the past right whose existence is to be determined and the
new and transmuted right which the court puts in its place. The
notion of " proceduralconsumption", while of only limited appli-
1938]
A RESTATEMENT OF HOHFELD
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[Vol. 51
The same may be said of the other case. It is, after all, a tangible and tickleable personage who seizes the Stradivarius,and it
is on the basis of the failure of a consignee- a human consignee
- to pay duty that the Stradivariusmay be sold and the proceeds
deposited with a sub-sub-sub-treasurerwho will make an elaborate
record of the transaction for future reference.
What shall we say of other actions that are said to be essentially
in rem or, save the mark! quasi in rem, like bankruptcy or divorce? When an adjudication in bankruptcy is made, a great
many changes in rights and privileges are effected and the persons
whose rights are so changed can for the most part be easily enough
identified. When we speak of the in rem effect of the adjudication,
just what are we trying to say? Surely, scarcely more than that
if any other person, besides the obviously affected persons, meddles with the affairs or the property of the bankrupt, a trustee by no means an abstract trustee - or a receiver, who is equally
concrete, may bring an action against him or initiate criminalproceedings against him, and thereby establish at our lowest level
quite specific demand-rightsagainst a breathing and moving human being.11
Clearly if by using the word in rem we wish merely to indicate
compendiously what we have just been at some pains to state at
length, there is no earthly objection to using it. The syllables in
rem, then, become purely symbolic and are better than the purely
arbitrary syllables, duk-duk, or anything else, only because they
have already been long in use for this purpose. The danger is, of
course, that their symbolic value may be forgotten and that we
may be tempted to suppose that an action in rem really does dispense with the presence somewhereof two human beings who are
declared by the court to have or not to have certain rights in respect of each other.
But the use of the phrase in rem about actions creating or denying demand-rightsat our lowest level is almost literal as compared
with the use of this phrase at the second or higher level, about the
antecedent demand-rightswhich are the correlatives, or the original forms, of these other rights. And a portentous amount of
subtlety has been expended on these " rights in rem ", which have
11 A very similar series of statements may be made about actions of divorce.
1938]
A RESTATEMENT
OF HOHFELD
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[Vol. 51
in rem, where the words in rem, while misleading, do tell us something, although not enough.
It is clear that most of the privilege-rightswhose violations are
torts are indeterminate. We have, as a rule, a right that a great
many persons whose identity we do not yet know shall refrain
from doing us or our property certain kinds of harm. That right
is the basis for the demand-right for damages, when harm has
been done, and obviously that demand-right must be exercised
against a definite and determinateperson.
We have been speaking so far only of two levels of legal relations. There is, however, a still higher level on which legal situations must be contemplated. The series of rights, which are also
the converse of duties, based upon antecedent rights or duties,
takes us to the point of view which is presented by the pleadings
and the argumentsin any case. But the pleadings and arguments
seeking to prove the existence of antecedent rights base themselves on certain acts or facts still further back in time. A claims
a right of possession because he is the heir of M who died intestate, or because he has purchased the articles by a valid contract
providing for delivery at a time now past. Or he claims damages
for the violation of a duty to him and he asserts the duty was
created by the conditions of ordinary intercourse in the community. Many torts are based on these conditions. In any case, the
particular demand-rightor privilege-rightwill actually come into
existence at a moment of time and the court must determine
whether the factors alleged to have created it actually had the
power to create it.
Evidently the factors are usually numerousenough, and if one is
selected or only a few of them, the choice will be more or less
arbitrary. What has happened when A and B after a protracted
negotiation are said to have formed a contract? A great many
words have passed between them. An economic and social backgroundand a course of conduct extending over an appreciabletime
gives a definite significanceto the words used. Of all these things,
the court -
selects
1938]
A RESTATEMENT
OF HOHFELD
1157
tical. The explosion point was a definite and fixed, but extremely
simple and flexible form. It was the " stipulation ", consisting of
question and answer, and its advantage consisted in the fact that
the attention of both parties was called to the fact that a contract
was being entered into.
Once the court finds that the single determiningevent occurred,
as a rule two demand-rightswere thereby created. And since in
this case the act was that of a human being, the question whether
that human being had the power to create it is a relevant one.
A man not mentally competent cannot perform the necessary
act, nor could a very young child. At commonlaw, only one of the
two persons, distinguished as the offeree, performs the act, if the
contract is made by a sequence of communications. In all these
cases, we can say that the " power " to create the contract and the
rights (duties) resulting from it is very much a legal element and
one of first-rate importance.
Hohfeld had eight elements in his scheme, and not four. They
consisted of:
right, privilege, power, immunity (I)
duty, no right, liability, disability (II)
It is, however, quite clear that neither of these " sets " of " correlatives" (I or II) will bear logical examination if all its four
elements are treated as coordinate. In neither set can the elements
be four members of a single group because there is no principle
of division in the set. " Right " and " privilege " (i.e., demandright and privilege-right), however, have such a principle, since a
privilege in A is merely the contradictoryof a demand in B. And
the same is true of "power" and "immunity ". But within a
single universe of discourse there is no means of transition from
"rights" to "powers "; the universe of "rights" is a universe
differentfrom that in which we find ourselvestalking of " powers ".
Powers, as a matter of fact, take us to a level of legal facts that
is exactly one step higher than the one with which we have been
dealing. Whether or not an asserted demand-right is to be declared by the court depends on whether certain conditions
are present. In most, but not in all cases, one of those conditions
is an apparentlypurposive human act.
Not all such acts are the exercise of legal powers. It is the task
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[Vol. 51
privilege
no demand-right
--disability
liabil-
ity (B's)
Obviously the terms are defective since " liability " is commonly
used as the equivalent of " obligation ", but the contradictionsbetween ordinary speech and this terminology are not so serious because the occasions for referringto any element except the power
itself are relatively few. That is particularly the case for the
words " immunity " and " disability ". In the case of " liability ",
1938]
A RESTATEMENT
OF HOHFELD
II59
cluded between parties that know each other and see each other
constantly, raise questions of power only in the limited sense already indicated. When we are confronted with societies in which
political and economic relations are sustained between people who
are not and cannot be in continuouspersonal contact, a great many
persons must be invested with powers to create rights of both sorts
between other persons.
The developmentof a real system of agency is an outgrowth of
this economicsituation. The olderagency doctrine,best illustrated
by the Roman mandate, was quite ineffective. The mandatary
was never a person merely or primarily vested with a power. He
was a man whose own rights involved incidentalobligationsto other
persons, or he was a purely ministerial agent - a living instrumentality - approximatingthe status of a slave or servant.
Similarly,the idea of " negotiation "involved as its primaryconstituent, the doctrine of a power. Its predecessor," assignment",
whether by mandate or otherwise, had the same defect as the imperfect agency already mentioned. The assignee was an instrument, a " representative", a servant, of the assignor. The negotiator had powers that were derived from his position in the transaction and not from the man who preceded him or who selected
him, and created legal obligations, not merely a moral duty to use
rights on behalf of someone else.
Our economicstructureis largely based on the existence of such
capacities to bind persons legally in transactions inter absentes.
Without capacitieslike these, paper money and token money would
be unworkable schemes and the overwhelming majority of commercial transactions would be almost impossible. Above all, the
most striking development of modern commercial organization,
the corporation,could not be managed at all.
As far as the Anglo-Americanlaw is concerned, one of its most
characteristicinstitutions, the " trust ", is based almost wholly on
the idea of power. The rights and duties of the trustee are obviously of considerable importance but what gives him his special
position is his extraordinarypowers.
As a matter of fact, the concept of power is an incident of what
seems at the present time the one nearly essential element of property, more really essential than even the right of exclusion and of
misuser. That is the right of " alienating ", the ius disponendi.
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[Vol. 51
I938]
A RESTATEMENT OF HOHFELD
ii6I
ducted between actual flesh and blood persons. If, for example, a
contract is made with the X Co. by A, it must be made with B,
an agent of "the Company" who derives his power to make it
from his selection for that and other purposes by C, D, E, and F,
the directors of "the Company ", who themselves derive their
power to select B and to confirmhis agreements from the vote of
S1 to Sn, the stockholders of " the Company ". And these stockholders again have obtained the power to vote for the directors
by the payment of money to a specified person or the assumption
of a duty to pay it to such a person.
Evidently if we can avoid this lengthy - and still incomplete
statement of the sequence of events involved, by using the single
phrase " A made a contract with the X Co.", it is highly desirable
to do so, but it is not necessary to call in the aid of mysticism or
mythology. The short phrase is exactly what it seems to be, a
brief and compendiousformula for what otherwise is an interminable and complicated narrative.
What we have, consequently, is a chain of powers which begins
with the actual person who conducts the negotiation and ends with
the public officials whose license or approval permits this chain
of powers to be initiated. Indeed, it may go still further, to the
sequence of political acts which empower these officials to give
these licenses. Evidently a shorthand symbol which will imply
all that is an eminently useful device, but that is not sufficientreason for dressing it up and pretending that it is a human being or
something just as good as a human being.
But the chain of powers is not the only thing that is described
by the words " A has made a contract with the X Co." There is
also the fact that the claims or demand-rightscreated by the persons empoweredwithin this sequence or association are even more
conditioned than is ordinarily the case. Most demand-rights at
their lowest level are conditional as far as their subsequent effects
are concerned. The court will by its judgment find that a duty
to pay exists and this judgment will create a power to attach that is, a power to create demand-rightsand privileges of various
sorts in various persons but this power can be exercised only over
nonexemptproperty over which the judgment debtor has a certain
amount of control and which he has neither concealed nor improperly put into someone else's control. When the judgment is
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We may summarizeby saying that a restated Hohfeldian analysis may safely discard a great many of the detailed terms that
Hohfeld-rather
tentatively -used,
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which persons are discovered who have the power to create these
antecedent rights, produces, when put in verbal form, what lawyers call " the law " and what, when it is formulated in " rules ",
laymen think of as the law. With this part of the legal process, the
Hohfeldian system cannot concern itself. It professes, however,
-and,
I think, successfully-to
transaction, however complicated, to its actual constituent elements or atoms, and its use may save lawyers from the fallacy of
accident, the subtlest and most insidious of the pitfalls of the law.
For that reason, it ought to be precious to realists. Lawyers,
jurists, philosophersand statesmen may say what they like about
the law, and realists ought not be heard to object to any statement
that is made, no matter how metaphysical, ornate, literary or
abstruse it is. The law speaks many languages and with greater
or less difficulty is intelligible in any one of them. The important
result is that when we reach that level in the law at which a demandantis armedwith quasi-policepowers if his claim is adjudged
lawful, we must be able to translate any one of the juristic languages into a specific and unique statement of a relation between
two identifiable and living human beings. A system of analysis
must be judged by its capacity to effect this translation.
Max Radin.
SCHOOL OF JURISPRUDENCE,
UNIVERSITY OF CALIFORNIA.