LEGAL RIGHTS: HOHFELD ANALYSIS

Analytical table of jural relations1

1. The comprehensiveness of the Hohfeldian relations
(a) The relations apply to the performance of any action or to the existence of any state of affairs
(such as the possession of assets, including physical and psychological welfare) or to the
nonperformance of any action.
(b) The relations can obtain between any person and any number of other people (ranging from one
person to the indefinite group of people who make up the world at large)

Right

No-Right

Duty

Privilege

Duty

No-Right

2. First-order jural relations

(a) RightDuty. The holder of a right is normatively protected (with the backing of the state, if
necessary) against the interference or uncooperativeness of one or more other people. Anyone vis-vis whom the right obtains is under a duty to comply with its terms, whether the terms call for
noninterference or for assistance.
(b) LibertyNo-Right. The holder of a liberty is free of any duty to some other person(s), with
regard to the act or omission or state of affairs covered by the liberty. Everyone vis--vis whom
the liberty is held has no right that would limit the liberty-holder's freedom in the area of conduct
covered by the liberty, though everyone may well have a liberty to interfere with the exercise of
that freedom.
(c) A liberty can be surrounded by a perimeter of rights, which serve to protect ones ability to
exercise the liberty (as Bentham, Hart, and Hillel Steiner have recognized).
(d) Liberties do not entail rights, and rights do not entail liberties. To illustrate the latter point,
consider an example involving fishermen and a factory:-

1Hakim Yasir Abbas; Hohfelds Analysis of Rights (28th August Update) Word Document.
1

The nature of the remedy (damages versus injunctive relief) doesnt affect my point,

especially because the type of remedy is contingent.

The sequence of the lawsuits doesnt matter.
My specifications of the contents of the relevant legal positions are accurate, even though

theyre not uniquely accurate.

The factory owner has a right to commit a wrong i.e., a right against interference with
his commission of a wrong.

(e) Potential for conflicts between duties (example of contract for nonpayment and statute for
payment to elderly parents)
3. Higher-order jural relations
(a) PowersLiabilities. The holder of a power can change or cancel other people's entitlements
and his own entitlements. The bearer of a liability is exposed to amplifications or shifts or
reductions in his or her entitlements.

Shifts in one's entitlements are frequently not unpleasant; a promisee can benefit greatly

from the rights vested in him by a promisor. The explanation here is that the distinctive
functions of the second-order entitlements are defined in a purely non evaluative and
descriptive manner.
Note the contrast with rights, the identification of which inevitably rests on evaluative
assumptions. (Example of duty-to-support-one's-parents and duty-to-inform-on one'sparents.)

(b) ImmunitiesDisabilities. The holder of an immunity is not exposed to the exercise of a

power within the domain covered by the immunity. In that domain, everyone vis--vis whom the
immunity obtains is disabled from changing the immunity holder's entitlements.

Most of the entitlements conferred by so-called bills of rights are immunities.

Immunities must accompany other entitlements to prevent them from being meaninglessly
hollow.

(c) The relationship between the power/liability axis and the immunity/disability axis is precisely
similar to the relationship between the liberty/no-right axis and the right/duty axis. Just as a
liability is the absence of an immunity, and a disability is the absence of a power, so a no-right is
[obviously] the absence of a right, and a duty is the absence of a liberty.
(d) Note that rights are logically parallel to immunities and that liberties are logically parallel to
powers.
SYMBOLS
JURAL OPPOSITE [Jural opposites refer to concepts in human relations
which cannot exist together in one person at the same time].
Hohfelds idea can be understood with the help of symbols 2:-

2Hakim Yasir Abbas; Hohfelds Analysis of Rights (31 st August Update) Word Document.

JURAL CORRELATIVE [Jural correlatives refer to concepts in human

relations of which the existence in one person necessarily implies the
existence of the other (correlative) concept in another person].

We then took up the first part for discussion and used the example of Right to freedom o

PART I

Concept

Jural Opposite

Jural Correlative

[Vested in a Person A]

[Not Vested in Person A]

[Vested in Person B]

Right

No-Right

Duty

Privilege

Duty

No-Right

Statement 1: If an individual A has a right to freedom of speech and expression under Article 19
(1) (a) of the Constitution, then same imposes a duty on the state to respect and protect this right.
A has a [Right]
[Jural Correlative][Existing in Different People]

State has a [Duty]

Statement 2: If the state invokes Article 19 (2) to impose reasonable restrictions on Right to Free
Speech, then the State will become privileged not to perform the duty.

State has a [Privilege]

State does not have a [Duty]

[Jural Opposite]

[It can be either privilege or duty. Both of them cannot exist simultaneously in the State.
This is why when we say that the state has a privilege; it does not have a duty]

Statement 3: If the State has a privilege for not performing the duty, then As right becomes inoperational.
A has [No-Right]

State has a [Privilege]

Statement 4: If A has no right to free speech because of States privilege, then A cannot claim
any right.
Right

A has [No-Right]

Combining the above situations will give us the follows:

Right

No-Right

Privilege

Duty

PART II

Concept

Jural Opposite

Jural Correlative

[Vested in a Person A]

[Not Vested in Person A]

[Vested in Person B]

Power

Disability

Liability

Immunity

Liability

Disability

Statement 1: If A has the power to enforce his fundamental right under article 32 of the Indian
Constitution, then it can hold the State liable for the violation of the same. Therefore existence
of power in A leads to existence of liability in the State and this makes Power and Liability as
correlative of each other.
A has [Power] to enforce his FRs.

He can hold State [Liable] for violation of the same.

Statement 2: If the State imposes an emergency under article 356 of the Constitution, then it
gets immunity and it cannot be held liable. Therefore, the existence of immunity in the state will
lead to non-existence of liability and therefore it can be said that immunity and liability are
jural opposites and they cannot exist in the state simultaneously.
State has immunity by virtue of emergency

Liability

Statement 3: If the State cannot be held liable because of the immunity, then A becomes
disabled from enforcing his right against the State.
A has [Disability] to enforce his right

State has [Immunity]

Statement 4: Since A has disability, it cannot claim to have power to enforce his right.
Power

Disability

Combining the above four situations will give us following:

Power

Immunity

Disability

Liability

Concept

Jural Opposite

Jural Correlative

[Vested in a Person A]

[Not Vested in Person A]

[Vested in Person B]

Right

No-Right

Duty

Privilege

Duty

No-Right

Power

Disability

Liability

Immunity

Liability

Disability

 Let us take each concept one by one and use an example to explain the same 3.

CONCEPT NUMBER 1: RIGHT

Concept

Jural Opposite

Jural Correlative

[Vested in a Person A]

[Not Vested in Person A]

[Vested in Person B]

Right

No-Right

Duty

If a person A possesses a right, then another person B has a duty in relation to that right and that
is why Right and Duty are treated as Jural Correlative. Remember that for the purpose of Jural
Correlatives two different people/institutions need to be considered. For example, when I claim
Right to Freedom of Speech and Expression, then I as an individual possess that right and the State
as an institution possesses the duty not to violate the same. However, if the state makes a
legislation which passes a constitutionality test by virtue of article 19 (2), then I do not possess a
right and this non-possession of right will extinguish the duty of the state as well. This also
suggests that Jural Correlative cannot exist without one another.

CONCEPT NUMBER 2: PRIVILEGE

Concept

Jural Opposite

Jural Correlative

[Vested in a Person A]

[Not Vested in Person A]

[Vested in Person B]

3Hakim Yasir Abbas; Hohfelds Analysis of Rights (28th August Update) Word Document.
7

Privilege

Duty

No-Right

If a person A has a privilege then the person B will possess no right in relation to that privilege. For
example, one of the privileges enjoyed by a Member of Parliament is that he can say anything in the
house about anyone and such anyone against whom the MP is using his privilege will have no right to
sue or prosecute the MP. However, if such privilege does not exist then the MP is under a duty to
behave in a manner which would not be prejudicial to anyones reputation and if he does that then
such person can sue the MP. Privileges denote the freedom to act in circumstances which would
otherwise be a breach of a duty, thus permitting a cause of action for which there is a correlative
no-right.

CONCEPT NUMBER 3: POWER

Concept

Jural Opposite

Jural Correlative

[Vested in a Person A]

[Not Vested in Person A]

[Vested in Person B]

Power

Disability

Liability

If a person A has power to do something then the exercise of such power can hold person B liable.
We discussed the example of the Supreme Court of India in this regard. The Supreme Court of
India has the power to enforce FRs by virtue of article 32 of the Indian Constitution, and the
existence of this power makes it possible for the Supreme Court to hold the state (or its
instrumentality) liable for the violation of a fundamental right. However, we see that the SC cannot
do so in relation to DPSPs. This means that the SC has a disability in regards to DPSPs and
therefore the state cannot have any liability for ignoring DPSPs.

CONCEPT NUMBER 4: IMMUNITY

Concept

Jural Opposite

Jural Correlative

[Vested in a Person A]

[Not Vested in Person A]

[Vested in Person B]

Immunity

Liability

Disability

If a person A has been granted immunity against prosecution, then every other person is disabled
from prosecuting A. If A does not possess any such immunity, then any person against whom he
commits an offence shall be able to get him prosecuted and he can be held liable for such an
offence.
Let us solidify our understanding of the topic by some illustrations 4:Each relation is paired with its opposite, the relation that is in a sense its negation, and also with
its correlative, the relation that is in a sense its inverse (Figures 1 and 2).
If R and Ropp are opposites, then for P to have relation R is equivalent to P to fail to have relation
Ropp.
If R and Rcorr are correlatives, then for P to have relation R is equivalent to all other persons Q to
have a corresponding relation Rcorr.
Each relation is fundamentally between two people; where a relation is presented as between a
person P and many or all people, the meaning is the union of all the pairwise relations between P and
one of the other people.
For each relation R, its opposite Ropp, and its correlative Rcorr:
1.

"P has R" is equivalent to "P fails to have Ropp". For the first quartet of relations, R concerns
doing an action A; for the second quartet of relations, R concerns changing a legal relation
S. Examples:

"P has the right to do A"

"P fails to have the no-right to do A".

"P has the duty to do A"

"P fails to have the privilege to not do A".

4THOMAS A. ALSPAUGH,HOHFELDS LEGAL RELATIONS.

9

"P has the power to change S"

"P fails to have the disability to change S".

"P has immunity from changes to S"

"P fails to have the liability to changes to S".

2. "P has R" is equivalent to "Every person Q other than P has R corr". Examples:

"P has the right to do A"

"Every Q other than P has the duty to allow P to do A".

"P has the duty to do A"

"Some Q other than P has a right that depends on P doing

A".

"P has the no-right to do A"

"Some Q other than P has the privilege to prevent P from

doing A".

"P has the privilege to do

A"

"Every Q other than P has the no-right to do anything

prevented by P doing A".

"P has the power to change

S"

"Some Q other than P has a liability to changes in S".

"P has the liability to

changes in S"

"Some Q other than P has a power to change S".

"P has the disability to

change S"

"Every Q other than P has immunity to changes in S".

"P has immunity to changes

in S"

"Every Q other than P has the disability to change S".

We subsequently tried to use the entire table in one statement. The same is as follows:
1

A has a Right to
Free Speech under
Article 19 (1) (a) of
the Constitution

The existence
of a Right in A
imposes a
Duty on the
State not to
violate the
same.

4
A has the
Power to
enforce his/her
FR under
Article 32 of
the
Constitution

5
As power to
impose his FR
empowers
him/her to
Suppose, the State imposes emergency under
hold the State
Article 356 and cannot be held liable for
Liable for
violation of FRs, thereby, it gets Immunity
the violation of
against any legal action under article 32.
the same.

10

Since the
State is
privileged
against
performanc
e of duty,
therefore,
A does not
possess any
Right.

Suppose, the State decides

to invoke art. 19 (2), it does
not have any duty under 19 (1)
(a) and therefore it becomes
Privileged.

6
Since A is
disabled
from
enforcing
his right, it
means he no
longer
possess the
Power.

Since the State has

immunity against legal
action, A has a
Disability in relation
to enforcing his/her
FR.

Among the merits of Professor Hohfelds System are 5:1. 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,6 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 Terry 7 and Salmond;8 but the table of opposites is altogether a novelty
whether useful or not we shall have occasion to examine.

Albert Kocourek, The Hohfeld System of Fundamental Legal Concepts (1920).Kritik der juristischen
Grundbegriffe; Juristische Principienlehre.

6
7Leading Principles of Anglo-American Law (1884).
11

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.
3. It made conspicuous the uniqueness (singleness) of jural relations as existing only between two
persons, and never more than two persons. 9The confusion which existed on this point was disastrous
in cases of rights in personam involving correal or solidary obligations. Nothing in Hohfelds 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.10 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 twosided 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.
We now pass to what we regard as the demerits of the system: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.11 So far, so
good. But there is still a difficulty. In logic, opposites as distinguished from contradictories are the

8Jurisprudence (1902).
9Prof. Corbin has especially emphasized this point: Legal Analysis and Terminology, Yale L. Jour., XXIX, 165.
10Prof. 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).

11Fund. Concepts, p. 10, n. 13.

12

extreme terms of quantity. Thus

is the opposite of

. In the case of legal relations to have a

claim to payment of $100 would be the opposite of a duty in the same person to pay $100. Yet we
find in Professor Hohfelds table that the opposite of right is not duty, but no-right. Now it is
clear that right and no-right are not oppositesat least not in the sense of logicbut are rather
contradictories (negatives).
The next enumeration of opposites in Professor Hohfelds 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
Hohfelds illustration at this point will be useful
. . .

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.12

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 possessioiuris of rights in personam which
are susceptible of continuing exercise (e.g., the right of an annuitant), but even in this
case it is an awkward locution to say that the right-holder has the liberty of exercising
his right.

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.
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).

12 Id., p. 39.
13

The next category (powerdisability) 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 (immunityliability) 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.13
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 contrariusactus 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 noright and yet occupy an important jural position. For example, he may have a jural power (e.g., power
of appointment). 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.

Other thinkers take on Hohfelds idea:Professor Schiller has aptly said of contradictories (Formal Logic, p. 30)
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

13On 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.

14

law of excluded middle. Thus we might say that particular legal concepts are either colloidal or not
colloidal, isosceral or not isosceral, ponderable or not ponderable, etc., etc.
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 fundamentumdivisionis is opposites, in the logical sense (i.e., extreme terms of quantity),
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 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.
A number of other suggestions may be grouped.
Professor Hohfeld avoids definition as always unsatisfactory, if not altogether useless. 14 His
repugnance to definition was the lawyers instinct long ago expressed by Iavolenus: Omnis definitio
in iurecivilipericulosaest; parumestenim, ut non subverti posset. 15
He did not have in mind, it is fair to assume, the objections to formal definition raised by nonEuclidian 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

14 Id., p. 36.
15D. 50, 17, 202: de reg. iur.
15

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 privilegeno right and immunitydisability.
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.16In 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, 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 rightduty and powerliability 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 Hohfeldsessays

17

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 multiple 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.

16Formal Logic, p. 28.

17Fund. Concepts, p. 96.
16

Second, A has an indefinite number of legal

HARMING THE LAND, ETC.,

policy, he has

PRIVILEGES

of entering on the land,

that is, within the limits fixed by law on grounds of social and economic

PRIVILEGES OF DOING ON OR TO THE LAND WHAT HE PLEASES ;

legal privileges are respective

Third, A has the

USING THE LAND,

LEGAL NO-RIGHTS

and

CORRELATIVE

to all such

of other persons.

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;18 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. Correlative to all such legal powers are

the legal liabilities in other personsthis meaning that the latter are subject nolensvolens to the
changes of jural relations involved in the exercise of As powers.
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.

19

THUS A

HAS THE IMMUNITY THAT NO ORDINARY PERSON CAN ALIENATE

AGGREGATE OF JURAL RELATIONS TO ANOTHER PERSON ;

AS

LEGAL INTEREST OR

the immunity that no ordinary person can

extinguish As own privileges of using the land; the immunity that no ordinary person can extinguish
As 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.

The correlatives, rightduty and powerliability, 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 householders privilege of ejecting the trespasser. This seems
a confusion of liberty and power. 20 When one acts for himself without legal consequences, as by

18Here is a clear example of the confusion of a power considered as a juristic fact with power considered as
a jural relation.

19 Overlooking the more important function of immunity in a jural relation; e.g., immunity from an illegal levy
on exempt property.

20Fund. Concepts, pp. 33, 41, n. 39.

17

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.21
A license is regarded as a particular kind of privilege (liberty). 22 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.
A constable is said to have a privilege of killing dogs without collars. 23 This also is a power and
not a mere liberty. Professor Cook says of privileged defamation that the person publishing the
same has a privilege to do so.24 The present writer agrees that privilege is the right word, both in
lawyers parlance and in jurisprudence, but submits it is the wrong word in the Hohfeld
System, where privilege means liberty, unless power and privilege overlap, in which case it will
become necessary to register another quite obvious objection.
Professor Cook also speaks of the privilege against self-crimination, 25 and he seems also to
say26 that this privilege is a right strictosensu and also an immunity. The same observation above
made may be here repeated so far as the capacity against self-crimination is regarded as a
privilege. It may be further objected, if Professor Cook has not been misunderstood, that it is a
curious situation that the same jural situation can be at once a privilege, a right, and an immunity.
If so much diversity of jural aspect is possible in the Hohfeld System, it is patent that the System
needs reduction to Professor Hohfelds ideal, the lowest common denominators. 27
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

21See note 9 supra.

22Fund. Concepts, p. 50.
23Id., p. 41 n. 39.
24Id., p. 7
25Ibid. See also Yale L. Jour., XXVIII, 387 (391).
26Id., p. 7 n. 3.
27Id., p. 64.
18

now pass to a brief consideration of the validity of the two groups of correlatives denominated
privilegeno-right and immunitydisability.
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

considered the correlative

to
of

point

out

privilege

that
than

no-right
is

is

not

no-power.

any
( b)

more
Again,

entitled
the

to

be

correlatives

immunitydisability, 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 lack legal
power (which is the sense in which the term disability is used in the Hohfeld System, 28) but may
there not be a disability, also, because of the existence of duty?
Like the table of opposites, the category of correlatives, immunitydisability, 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 Hohfelds 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 immunitydisability is an empty oneit 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 liabilitysomething reala 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.

28Id., pp. 96-97; Corbin, Legal Analysis, Yale L. Jour., XXIX, 170.
19

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 immunitydisability are of
fundamental juristic importance in the limited use made of immunity in Professor Hohfelds
System.
If the category of supposed juristic correlatives, immunitydisability, is a case of blanks on both
sides, so it will be found also with the supposed juristic category of correlatives, privilege noright. This category is another case of negatives with 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.29
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 are a breach 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 negativesthe 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 Hohfelds 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

29 Professor Hohfeld in a personal letter (Nov. 19, 1917, citing Pollock, Del Vecchio, and Gareis) snowed his
understanding of the objection without, however, changing his position: (see Yale L. Jour., XXIII, 16, 42 n. 59;
XXVII, 66, 71 n. 12).

20

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 noright 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 Corbins explanation of
privilege as another name for no-duty30makes this still more evident. Here it is clear that no-duty
and no-right are both mere negations and that as such they cannot 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 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 As 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 As
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 As title would be wholly lacking in legal
consequences. Accordingly, As 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.

Review of the Hohfeldian Analysis in the Light of Modern Practice 31

The influence of Hohfeld's analysis and the impact of the imperative contained in those analyses to
be discriminatory in the use of rights terminology, although persuasive must not be exaggerated 32,
especially when it has to be admitted that in reality the strength of the hypothesis has been
confined to the field of analytical legal philosophy. In practice the language of rights in almost
every context including the context of judicial reasoning, but especially in the informal context, has
developed without regard to the Hohfeldian imperative. The long standing constitutional provisions
relating to rights in the USA - the Bill of Rights are stated more in terms of immunities and
disabilities than claim rights. The First Amendment to the American Constitution for instance, in

30 Legal Analysis, Yale L. Jour., XXIX, 167-8.

31Michael K. Addo, Does Hohfeld Still Matter? 29 B. L. J. 7 (1997).
32Jeremy Waldron, Theories of Rights (OUP 1992) p. 8.
21

providing that "Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the government for redress", creates an immunity for
individuals with a correlative disability on the part of the government. The supposed (mis)labelling in
the American constitution has not prevented the recognition and use of the constitutional
provisions as rights. Academic and practising lawyers, have not found sufficient reason to re-label
theJeremy Waldron for instance is prepared to acknowledge that Hohfeld's work was done within
the context oflegal rights. It is also entirely plausible to apply Hohfeld's analysis in a moral
context. Because of the inability of the law to deal with every aspect of human endeavour, a large
part of human behaviour, including claims and the exercise of power fall within a moral sphere.
There are moral rights, privileges, powers and immunities.
American constitutional provisions affecting individual rights and liberties. Indeed to refer to the
constitutional provisions in Hohfeldian terms as the "Bill of Immunities and Disabilities" would have
been extremely odd and perhaps misleading.
In the United Kingdom, it is agreed that there are no recognised legal limitations on the powers of
Parliament. In other words, Parliament is not subject to any disabilities 33. In addition, that there is
no written Bill of Rights but only a constitutional presumption that individuals are entitled to all
rights except those expressly removed by law. This entitlement to all "rights" has come to be used
in generic terms to refer to claim rights, privileges, powers and immunities. Even in instances
involving obvious claim rights - with correlative duties34 - these are enjoyed subject to
Parliamentary approval. This subjection of all claim rights to Parliamentary approval in this way,
adjusts them into privileges or liberties in Hohfeldian terms. In practice, terms such as rights,
liberties and freedoms continue to be used interchangeably, evidently in breach of the Hohfeldian
prescriptions. An insistence on the use of the appropriate terminology is unlikely to prove
acceptable. The suggestion that there are no individual rights in the UK but only privileges and
liberties, although acceptable under Hohfeld's analysis will surely come as a surprise to the average
person.
Hohfeld has not only failed to make an impact on constitutional structures which predate his essay
but also modern constitutions have not been entirely as rigorous as Hohfeld proposes. The practice
in most legal systems is to mix up rights, privileges, powers and immunities under the rubric of legal
or constitutional protection of rights.35 The practice of a disinclination to separate and isolate only
claim rights for protection, is not entirely different within the context of international human
33 Constitutional Law, A Critical Introduction (Butterworths 1996) Ch. 2.Obvious claim rights such as the

3.

entitlement of an arrested person to be informed of the grounds for his arrest (police and Criminal
Evidence Act 1984, S. 28(3); and if held in custody to have one friend or relative informed of his
arrest and detention (Police and Criminal Evidence Act 1984, S. 56(1).
See for instance, the Canadian Charter of Rights and Freedoms (1982), and the Constitution of Ghana
(1992).

34
22

rights law. The treaties which have emerged in international law for the protection of rights, for
instance, are a reflection of the approach taken in the municipal context. Article 3 of the European
Convention on Human Rights,36 for instance, provides that "No one shall be subjected to torture or
inhuman or degrading treatment or punishment". In Hohfeldian terms, this is not a statement of
rights but rather a declaration of an individual immunity with a correlative disability on the part of
governments and other persons. The representation of immunities as rights is commonplace in
international human rights treaties.
There is another dimension of the practice of domestic and international human rights which
undermines Professor Hohfeld's linguistic prescriptions and this is the resort to the use of
permissible limitations.
No one shall be held in slavery or servitude"; Article 7 - "No one shall be held guilty of a criminal
offence on account of any act or omission which did not constitute a criminal offence under national
or international law at the time when it was committed". There are similar provisions in the United
Nations International Covenant on Civil and Political Rights (1966)for the prevention of crime or
disorder. These permissible limitations are usually expressly provided for in written Bills of Rights
and also in international human rights treaties.37 Permissible limitations expose claim rights to wide
discretion of the judiciary in their interpretation of individual rights and the insecurities that
become associated with claim rights as a result of such interpretations can in flex claim rights into
privileges and liberties. Other individuals, in the light of the permissible limitations will be expected
not to have duties but rather "no-rights". In other words, the interpretation of rights can affect
the label to be placed upon a particular entitlement.
That linguistically there are differences between claim rights, privileges, powers and immunities is
obvious enough but it is equally true that in practice, hardly anybody (including lawyers and judges)
pays much attention to the recommendation to keep them separate in usage. While such a
restricted impact may be said to have judged the Hohfeldian analysis harshly, it is by no means
unfair. Hohfeld made the fundamental error of limiting his prescriptions to the narrow field of legal
reasoning. Bearing in mind that rights are manifestly multi-disciplinary in nature, it is no surprise
that other disciplines did not appreciate the value of Hohfeld's work. In his restricted analysis
Hohfeld omitted to factor into his work certain crucial characteristics of rights, such as their
dynamic and constantly changing nature and also the fact that developments in the social, political,
and historical fields can affect the language of rights as used in judicial reasoning. In truth the
language of rights used today has been influenced inter alia by centuries of historical developments
such as the reformation, the enlightenment, the French and American revolutions and more
recently, by the two world wars, the bi-polar politics of the cold war era, the emergence of
international intergovernmental organisations such as the United Nations and the Council of Europe
as well, no doubt, as the founding of the modern welfare state. The loose and unstructured use of

35
36Convention for the Protection of Human Rights and Fundamental freedoms (Rome 1950).
37See for instance Article 36 of the South African Constitution (1996).
23

words such as rights, freedoms and liberties are a consequence of these and other changing
developments. In general, the terms have assumed a rather technical character - terms of art - and
in the process, claims which would normally not qualify by Hohfeldian standards to be "rights" have
found their way into the general language, and this must not be ignored.
Hohfeld was rather too concerned with words and the ideal of their correct usage, he isolated
himself in the field of analytical jurisprudence and ignored the impact of practical events. In his
analysis he is able to identify the mistaken usages of the terms but fails to explain why such
misuses continue to persist. He was complacent in his thought that getting the words right will
automatically correct the practice, forgetting that the practice is the result of many and varied
factors and events over a long period of time. Hohfeld also underestimated the strength of the
character of inter-relatedness of the claims he so strenuously sought to separate. Traditional claim
rights such as the right to life and the right to a fair trial are not solitary and separable from
everything else. In reality they are clusters of claim rights and duties, privileges and no-rights,
powers and liabilities as well as immunities and disabilities. In the United Kingdom for instance, the
right to life may impose a general duty on others not to take the life of their fellows arbitrarily,
but at the same time, judges may also have the power to order the death penalty for specific
offences, such as regicide, for which the death penalty is still an available option. In the same vein,
other offences such as burglary and murder for which the death penalty has ceased to apply,
individuals have an immunity in this regard with a correlative disability on the part of the
government and the courts to take an offender's life. All of this is subject to the whim of
Parliament which may decide to alter the scope of the right to life at any time, thus recharacterising the traditional claim right into no more than a privilege or liberty.
In assessing the nature of rights, it is not insignificant to note that it has become the norm in the
modem characterisation of rights to perceive them in terms of a total package made up of rights,
privileges, freedoms, powers and immunities all of which together, in a complementary way
represent and uphold core human and social values. In serving this purpose all the different claims
have come to be labelled as "rights" and presented as an indivisible whole. In his analysis Professor
Hohfeld makes no reckoning of these modern attitudes towards rights. In other words, while it is
possible that not every claim bearing the label of "right" may qualify by the test of the Hohfeldian
analysis, it is seen as no less deserving of that label because of its role in achieving the wider social
purpose. The inevitability of change in individual and social values means that the use of prescribed
standards may be of limited value in the assessment of rights.

Conclusion
The conclusion that Hohfeld's analysis on the language of rights has had rather little impact has
been arrived at with the aid of hindsight. While this may be true, it has to be admitted however
that the strength of the conclusion is undiminished. In fact it is arguable that some of the
criticisms could have been foreseen and addressed. The loose usage of rights terminology can be
traced to the influence of established philosophy in the field of rights. Natural rights philosophy
which traces the origins and nature of rights to the state of nature attributes that term 'right' to

24

a much wider category of human values than Hohfeld proposed in his essay. As far as the positivist
theory is concerned, the assumption is that whatever human or social attribute the law attaches
the designation of 'right' to would assume that character. Similarly, the utilitarian and the Marxist
schools of thought can be read to agree on the flexibility of what the term 'right' stands for. In
other words, the definition of terms such as fight cannot be undertaken in the abstract. It has to
take on board the human role and practice in its definition.
Hohfeld can be deemed to have been aware not only of the doctrinal propositions of the various
philosophers but also the impact that these doctrines have had on constitutional practice in
countries such as the United States, France and the United Kingdom. The influence of the
philosophical explanations of rights were available to Hohfeld at the time he wrote in essays. Had
he taken them into account he probably would have been less exacting on the terminology of rights.
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. In the field of rights today, rhetoric carries great force and for that reason getting
the language right is extremely important. Argument and rhetoric are likely to be more persuasive
and accepted if the choice of terms is correct. Conversely, the abuse of the language of rights can
only contribute to devaluing the subject and must be avoided at all cost.
The vote is therefore cast for Professor Hohfeld. In my opinion, yes Hohfeld still matters!!!

25

BIBLIOGRAPHY
1.
2.
3.
4.
5.
6.
7.
8.

W.N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (Westport,

1978),
Michael K. Addo, Does Hohfeld Still Matter? 29 B. L. J. 7 (1997).
Albert Kocourek, The Hohfeld System of Fundamental Legal Concepts (1920).
Dias, Jurisprudence.
Salmond on Jurisprudence.
Holland,Jurisprudence.
Pollock,Jurisprudence.
Avtar Singh, Jurisprudence.

Online Help

1.
2.
3.
4.
5.

www.Legalservicesindia.com
www.IndianKanoon.com
www.Wikipedia.com
www.lawmatters.in
www.business-standard.com

ACKNOWLEDGMENT

26

As I complete this project it would only be fair to name those who have contributed a lot
for its completion.
First of all I would like to thanks the subject teacher of Jurisprudence, Hakim Yasir
Abbas for his continuous guidance and help in the matter. Also he deserves my utmost
respect for letting me choose the topic of my interest and I thoroughly enjoyed preparing
it.
Then, if it wasnt for my friends Saif, Amaan, Baasir, Razi, Ambar and others this project
couldnt have been completed. They supported me by providing bulk of information on the
topic and other technical assistance.
Finally I must thank my parents for providing an environment suitable for my efforts to
actually culminate into something worth reading.

27

INDEX
S. No.

Topic

1.

Analytical table of jural relations

2.
3.
4.
5.
6.
7.

Page No.
1-2

The comprehensiveness of the Hohfeldian relations

First-order jural relations
Higher-order jural relations
Hohfelds idea understood with the help of symbols

3-7

Concept through illustrations and examples

7-11

Merits of the system

11-12

Demerits of the system

12-14

Other thinkers take on Hohfelds idea

14-20

Review of Hohfeldian Analysis in the Light of Modern Practice

20-23

8.

Conclusion

23-24

9.

Bibliography

25

FACULTY OF LAW
28

JAMIA MILLIA ISLAMIA

Legal Rights: Hohfeld Analysis

Submitted by: Pankaj Kumar
Submitted to: Hakim Yasir Abbas
Subject: Jurisprudence
Course: B.A. LL.B. (H)
Section: A
Roll No.: 26

29

30