A Restatement of Hohfeld. Max Radin

8/10/2019 A Restatement of Hohfeld. Max Radin

1/25

A Restatement of HohfeldAuthor(s): Max RadinReviewed work(s):Source: Harvard Law Review, Vol. 51, No. 7 (May, 1938), pp. 1141-1164Published by: The Harvard Law Review AssociationStable URL: http://www.jstor.org/stable/1334102.

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2/25

H RV RD

L W

R VI W

VOL.LI

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

com-

munity

-was

Christopher

Columbus

Langdell.

It was his ex-

pressed

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

hu-

man

conduct.

And

recently

there

have been a

great

many

per-

sons

who

in

a

broadly

general

way

have

declared that law is

to

be

found in life, that is to say, in the variedandincompletelyrational-

ized

actions of men

attempting

to secure

economic,

social

or

per-

sonal

advantages,

or

rejecting

such

advantages

for

particular

rea-

sons.

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 wickedand 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

hu-

man

conversation will be

wholly

conducted

by

signals, stop-

and-go

lights,

raising

of the

right

hand and

the

horizontal

pros-


3/25

142

HARVARD LAW REVIEW

[Vol. 51

trations

from

which

we do not seem

far removed

in our

political

conversation,

the

doctrine that law

is

in

books

will

be an

obvious

anachronism.

But

until

that

time,

it

is

capable

of

proof

that

communication

between

man

and

man is

conducted

by

speech

and above

all

that

any judgment

or

assertion

about

these communications

made

by

persons

professing

to

state the

law

must

be

made

in

words.

The

question,

of

course,

is

what

words?

We

know

that there was a time

when the

common

law,

at

any

rate,

had a

"

genuine

",

"

authentic

"

or

"

proper

"

language

of

its

own,

a

"language

of

art

".

There

is

no

question

that this

lan-

guage-"

Law

French",

to wit- could

express

a

great many

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

express

were

after

all

quite

limited

and were

chiefly

connected with

procedure.

The moment

it left procedureit was forced to use words as vague and as am-

biguous

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 common

aw of

England.2

We

must,

therefore,

somehow

ind in

the

lange

du

pails

the

means

of stating what the law is, whetherthis 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,

ISTORY

OF ENGLISHLAW

(3d

ed.

I923) 479-82.

The

most

complete

account of

the

position

of

Law

French in

the

study

of

English

law is Mait-

land's

delightful

introduction

to the

first

volume

of the Selden

Society's

edition

of

the

Year Books.

17

SELDEN OCIETY

Maitland

ed.

I903)

xxxiii-xli.


4/25

1938]

A

RESTATEMENT

OF HOHFELD

I143

Language

probably

grew

out of

the need of

warning

others of

danger,

of

securing sympathy

and

facilitating joint

efforts;

and,

secondly,

out of a

need

of

discharging

emotions.

There were

doubtless

other

factors,

but

it

is

hard to

see

that

any

practical

importance

could have

attached

itself,

in

the

interminable

cen-

turies

during

which

human

speech

was

being

developed,

to

the

effort of

making

sure

that our

utterances

called

up

in the

mind

of their hearers

a

group

of

pictures

or of

picturelike

ideas which

were

precise

and

sharp

and

suggested

-

each

one of

them

-

one

thing

and one

thing

only.3

But if no

particular mportance

can be ascribedto

precision

and

unambiguity

in

the earlier

stages

of the

development

of

lan-

guage,

a

certain

practical

need for

these

qualities

arises as soon as

the

subjects

we talk

about become so

great

in

amount that

they

can

be

discussed

only

by

compendious

and

generalizingexpressions.

The

great

burden

of

civilized

society

is

its

memory.

In

fact

our

type

of

civilization

begins only

when the

things

to be

remembered

are so numerous and variedthat the burdenof remembering hem

is

too

great

for an

individual

mind

or

for

any

combination of

con-

temporary

and

communicating

minds and

must

be

helped

by

some

system

of

recorded

transmission.

If

the

things

that

can be talked

about are

only

those which

any

human

being

can

at

any

time

keep

in

mind,

ambiguities

will

not

arise,

or

rather

they

will offer

no

stumbling

block

to

communication.

But when

the matters

which

it is

necessary

in

some way to mention are too numerous for that,

when

they

can

only

be

indicated

by

collective

symbols

or

by

deictic

symbols, symbols

which

point

out how

in

our

opinion

fuller

and

more

detailed

experience

of

a

situation can

be

obtained,

we must

take

care lest we find

ourselves

completely

misdirected and

lest

we

arrive

at a

result we have

no

desire

to

reach.

3

It

was an

illuminating

statement of

Humboldt's

(Abh.

iiber

die

Verschieden-

heiten des menschlichen Sprachbaues (1828) ? 8) that a word is not an ergon, i.e.,

a

finished

product

or

result,

but

an

organon,

an

instrument

to do

things

with.

Both

Humboldt,

whose

civilizing

effect

seems

to

be

doomed to a

deliberate

repudiation

by

the

people

whose

culture he

did so much

to

form,

and

Vico,

whose scienza

nuova

is

one of the

great,

if

slightly

neglected,

factors of

the modern

world,

had

a clear

sense

of

the

indispensable

character of

words

which

was

quite

consistent with a

refusal

to

worship

them.

I

may

be

permitted

to

refer

to the

excellent

study

of

Vico

by

Mr. E.

Gianturco of

the

Catholic

University

of

Washington, JOSEPH

DEMAISTRE

AND

GIAMBATTISTA

ICO

(1937)

(published

as a

Columbia

dissertation).


5/25

II44

HARVARD

LAW

REVIEW

[Vol.

51

As far as law is

concerned,

the

results

we desire to reach

are

definite

and a failure to

reach

the result

usually

means

that a com-

pletely contradictoryone is reached. To be guidedadequatelyis,

therefore,

of

prime importance

and

the

penalties

of

selecting

the

wrong

turning

in a statement

pointing

both

ways

are

extremely

serious.

Efforts

at

precise

statement

in

law have been

made

frequently.

They

cannot

in

the nature

of

things

be

completely

successful.

Even

mathematics

cannot

guarantee

its

solutions

of

quadratic

equations against

the

ambiguity

of

plus

and

minus and the

choice

between

plus

and minus is

just

the

ambiguity

that a

prospective

litigant

most

fears.

A

contrast

is

often made between

life and

logic.4

Law,

it was

once

said,

is the

place

where life and

logic

meet.

One

of the

great

temptations

of the

law,

it

is

declared,

is

to

reason

logically

in

mat-

ters that

are not

susceptible

of

logic.

Under

correction,

this

seems

to

be an error.

The

difficulty

s

usually

that

a word

has been

used

and has been supposed to contain elements that it does not con-

tain at

all or at

any

rate

that

it

need

not be

made to contain.

This

difficulty

can

be

called a

logical

one because

logicians

from

the

time of Aristotle have

named it.

It

is

clearly

a form

of the

"

fallacy

of accident

".

At

any rate,

it

could be

so described

and the

error

made

is

usually

not excess

of

logic

but

a defect

of it.

A

conclu-

sion

is

set down which is

hastily

derived

from

unimpeachable

premises,but whichdoes not followat all becausewe have assumed

a

constancy

of contact

in

certain collective

and

complex

terms,

and

this

constancy

does

not

exist.

We

may

take

the

following

rather

simple

difficulty

as

an ex-

ample.

When

two

persons

negotiate

for the sale of

goods,

and

the

goods

are

destroyed

without

the fault of

either,

there

is

always

a

question

whether the

intending

purchaser

must none the

less

pay.

We

may

describe it

romantically by

asking

where the

loss

must

fall. Courts

have

declared

that this

depends

on

who the owner

is

because

the

"

risk

of loss follows title

",

another

semipoetic

but

ordinarily quite

intelligible

phrase.

But

in

many

instances

the

4

The

almost

classical discussion of the

relation of law and

logic

is

Holmes'

fa-

mous

paper

on The

Path

of

the Law

(1897)

io

HARV.

L. REV.

457,

reprinted

in

his

COLLECTED

EGAL APERS

1920)

167-202, esp.

I80-84.


6/25

1938]

A

RESTATEMENT

OF

HOHFELD

1145

judgment

thus arrived

at contradicts the

expectations

of

traders

in

that

commodity.

This is then said to

be

a case of

reasoning

logicallywhere not logic but experience

and common

sense should

be

applied.

But the

point

is

that the

logic

itself is

quite

bad.

The

word

"always"

has been

surreptitiously

interpolated

into

the

statement that

"risk

follows

title

". One

incident

of

the title-

complex

which

actually

does

exist

in one

application

of

the

word

has

been used

in

another

application

in

which there

was no

reason

to

suppose

this incident

existed.

The

difficulty

s

one

of the

capital

ones of

the

law

for the

reasons

already

mentioned. There is so much

legal

material to be dis-

cussed

-material that

has

been

accumulated

for

centuries--

that

we

cannot

manage

it at

all

except

by group

words.

We

must

speak

of

"contracts

",

of

"tenure",

of

"insolvency ",

of

" di-

vorce

",

of

"

property

",

of

"

rights

",

because

we

cannot

possibly

arrange

in

our

memories or

indicate

in our

speech

a whole

series

of

special

facts that

may

have a

bearing

on

the

situation

in which

we need guidance. Since we must use these indeterminatewords

-

Mr.

Johnson's

"

determinables

"-

we run a

great

risk

that

we

have

improperly

used

them in a

situation

which their

successive

determinations

will

not cover

at all.

Those

of us who have

learned

humility

have

given

over the

at-

tempt

to

define law. And we

have

equally

abandoned the

effort

to

discover whether

an

act

or

thing

is an

"

act

in

the

law"

or

a

"fact in the law" or any of the similar monstrosities created to

prove

that we

could

beget

centaurs

out

of

clouds

as well

as Ixion

or

any

German

metaphysical

jurist.

But

there

is

an

infallible

test for

recognizing

whether an

imagined

course

of conduct

is law-

ful

or

unlawful.

This

infallible

test,

in

our

system,

is

to

submit

the

question

to the

judgment

of

a

court.

In

other

systems,

exactly

the

same test

will

be

used,

but it

is often

more

difficult

to

recog-

nize

the court.

None

the

less,

although

difficult,

t can

be done

in

almost

every

system

at

any

time.

The

court,

we

may

remember,

in

judging

does not

"

state

the

law

",

but

merely

determines the

presence

of lawfulness

or

ab-

sence

of

lawfulness

-

not

right

or

wrong

-

in

the

real or

suppos-

ititious act. It

declares

that

A

may

or

may

not

conduct

himself

in

the

way

described.

And

it

is

always

absolutely

specific.

It

is

a

single

act of

A

in

regard

to

B

that

is before

the court.

Even


7/25

1146

HARVARD LAW REVIEW

[Vol.

51

when

there

are

a thousand

parties plaintiff

and

defendant,

there

is

only

one

act

envisaged

at

a

time.

Indeed,

whatever

the

court

may say before or after,or in the courseof pronouncing udgment,

and however

much

it

may

envelop

the

process

in

mysticism

and

poetry

and

rhetoric,

the actual act of

rendering judgment

is

al-

ways

specific.

It is

unique

as

an

act and

it

deals with

two

unique

persons,

never

more.

Since we have

this

quite

infallible

way

of

discovering

a

legal

fact,

to

wit,

the lawfulness

or the unlawfulness of

an act or

abstention,

we

can

dispense

with

knowing

what

"

law

"

means.

But,

when we

ask ourselves how the court answers the

difficult,

if

precise,

ques-

tion we

put

to

it,

we

discover that the court uses not

only

the

term

"law

",

but a

great many

other indeterminate

words and feels it

is

necessary

to

employ

them

in

order

to

get

at the answer

which

we

demand

of

it

and

which

it could not

possibly

refuse

to

give.

We

have,

therefore,

not

got away

after

all from indetermination

and

imprecision merely

because the most

immediately important

matter to a lawyer is so extremely precise as to be unique, i.e.,

whether

B

may

at a

given

moment

of

time

lawfully

refrain

from

paying

A

a

perfectly

definite

sum

of

money.

But

while we have not

escaped

indetermination

somewhat

fur-

ther

back

we

can,

at

least

at one

stage

of the

law,

-the

lowest

stage,

if

one chooses

-

discuss

it

from

the

safe

and sure

vantage

point

of

an

unmistakably

and

uniquely

determinate

fact,

the

pro-

posed conduct at a definitetime of B in respectof A.

We

may begin

there.

Where

we shall

end,

we

can never be

sure. We

should

like

to end with

the word

"

law "

itself,

the

largest

determinable

we can

have,

but it

is

highly

unlikely

that we

shall

reach it.

When

we

attempt

to use

Hohfeld's,5

or

indeed

any

"

analysis

"

5

I

have

deemed it

unnecessary

to set

forth

the

Hohfeldian

system

in

the

text

or

to make any

special

statement about Hohfeld himself. I refer briefly to the article

on

Hohfeld

by

Professor K. N.

Llewellyn, (1932)

7

ENCYC.

Soc. SCIENCES

00;

and

to the book FUNDAMENTAL

EGAL

CONCEPTIONS

1923),

edited

by

W.

W.

Cook;

as well as to the

following

articles:

Goble,

A

Redefinition

of

Basic

Legal

Terms

(I935)

35

COL.

L. REV.

535;

Pound,

Fifty

Years

of

Jurisprudence

(I937)

50

HARV.

L. REV.

557,

esp.

573

et

seq.

The

Hohfeldian

system

was

made

a

subject

of

special

discussion at

a

meeting

of the Association

of

American

Law

Schools

in

1920

and

in

the

proceedings

of that

meeting

will

be

found a

full account

of

this

discussion,

as well as

papers

by

Professors

Corbin,

Kocourek

and

Page.

HANDBOOK


8/25

1938]

A RESTATEMENT OF HOHFELD

1147

we

are

dealing

with an

attempt

at a

legal

algebra

or

a

geometry,

the

purpose

of

which is more modest than

that which is

effected

by the mathematicalorganausuallyunderstoodunder thesenames.

We

are concerned

with an

algebra

that will enable us to

describe

some

precise

and

repeated

situations,

the actual

judgments

of

courts,

in such

a

way

that

any judgment

can fall into

the scheme.

It will

be

of some service

in

the

larger

task

either

of

collecting,

memorizing

or

teaching

these

judgments,

but not

in

the

much

more

vitally

important

ask

of

forecasting

them.

There are

certain

postulates

we

begin

with.

At

this

level of the

law we must abandona

great

many

of the

phrases

that are dearest

to

lawyers

and,

above

all,

carefully

eschew

anything

like

a

"pre-

sumption

" or

an

"

as

if

". Those who

cannot

dispense

with such

shining

baubles

can be consoled

with

the

promise

that there

are

higher

levels

of

legal

discourse

in

which

they

can recover all these

precious

devices and

play

with

them

to their heart's

content.

First of

all,

there

is

only

one unit

in the

law,

as thus

formulated,

and that is a humanbeing, every humanbeing and nothing but a

human

being.

There

is

no

corporation,

no

state,

no

quasi-corpora-

tion,

no

juristic

person,

no

nasciturus,

no

"

estate

",

no

"

entity

",

no

"

civil

death

"

Secondly,

the

only

legal

fact at our

first level

is a

relation

be-

tween two such

human

beings.

No relation that

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

signifi-

cant,

as we

may

discover,

in

other

connections,

but

they

do not

concern

us now.

This

judgment, by

which

a

proposed

course of action

is

char-

acterized 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

judgment

can

be

stated

in

one

of the

following

forms:

I. B

ought

to do a

particular

act that

A

desires

him

to do-

OF THE

ASSOCIATION OF

AMERICAN

LAW

SCHOOLS

(1920)

I84-93,

I94-98,

I99-212.

Professors Commons and Andrews

applied

the Hohfeldian terms

to

a

special

branch

of

the law in PRINCIPLES

F

LABOR EGISLATION

rev.

ed.

I927).


9/25

1148

HARVARD

LAW REVIEW

[Vol.

51

pay

A

a

specific

sum of

money,

do

a definite service

that

A

desires

done.

II. B may refrain from doing a particular act that A desires

him

to do.

III.

B

ought

to

refrain

from a

particular

act that

A

does not

desire

him

to

do, i.e.,

refrain

from

using

a

particular commodity,

from

making

a

particular

statement,

from

being

in

a

particular

place,

from

exercising

a

particular

function.

IV.

B

may

do

a

particular

act

that

A

does not desire

him

to

do.6

These

formulas

are

taken

to be

exhaustive

and

that

they

are

exhaustiveis one of the

foundations of the

system

of

analysis

here

presented.

In

the

above,

I

and

II

are

contradictories.7

So are

III

and IV.

One of

the

pitfalls

of

our

language

is that

they

do

not

at

once

seem to

be

contradictories.

The

difficulty

is

that

in

English

the

word

"ought"

does

not

really

admit of

being negatived.

The

temptation

to

use

"

ought

not" as a

negative

leads

to

confusion.

In the phrase " ought not ", one need scarcely say, " not" is the

negative

of

the

complementary

nfinitive.

These four

statements

-made

"

four"

to

avoid

confusion,

but

they

could be

made as

two,

if

one

prefers

-

are

those

with which

we

shall

be

principally

occupied.

The

first

can

also be

expressed

and is

more

familiarly

ex-

pressed

-

by

saying

that

A

has a

right

against

B.

The secondin ordinary egal languagecan also be expressedby

saying

that

B

has a

right against

A.

The two

rights

are

obviously

not

of

the

same sort

at

all.

One is

a

right

in

the form of a

demand;

and the

other is

a

right

in

what

Hohfeld

called a

"privilege

",

citing legal

warrant

enough

for

the

use of

the word

in

that sense.

It, however,

may

also be

called a

"

liberty

"

or a

"

license

"

and it

turns

out

that

none of

these

terms,

"

privilege ",

"liberty ",

or

"

license",

is

exclusively

used

in

legal

6

In the

case of a

friendly

suit

for

partition,

or

in the

Roman

actions

familiae

erciscundae or communi

dividundo,

what is

asked for is a

division

and

limitation

of

the

property

complex.

It

is

really

-

and

not

merely by

an

"

as-if

"

-

the

estab-

lishment of

demand-rights

that

neither

litigant

shall

exercise

control

over

more

than

a

portion

of

a

res

formerly

controlled

jointly.

The

court

is

asked

first

to

decide

upon

the

portion

to be

so delimited.

7

Hohfeld

called

them

"

opposites

".

They

are,

however,

quite

clearly

not

"

op-

posite

"

in

either

the

ordinary

or

in

the

technically logical

sense.


10/25

1938]

A

RESTATEMENT

OF HOHFELD

1149

literature

in the

sense Hohfeld

required.

"

Privilege

"

will

do as

well

as

any

other

word,

provided

we

keep

in

mind

that

only

one

of

the several

legal meanings

of

"

privilege"

is

being employed.

But Hohfeld

mistakenly

insisted

that this sort of

a

privilege

is

not

to be called a

"

right

"

at all.

This

unfortunately

contradicts

so

fully

established a

usage

both

in

law and

literature,

that it

is

idle

to

suppose

that

any terminological

reform

will

overcome

it.

So

clearly

are these

"

privileges

"

rights,

that

they

are

usually

the

first

thing

that are

thought

of

as

rights

when the word occurs

in

speech.

This sense is found

in

such

phrases

as

"a man's

right

to

do what he likes with his own

";

and in so

capital

an instance as

the

expression

"

bill of

rights ",

as well as

in

"

fundamental

rights ",

and

other

expressions

like

them,

most of the

"rights"

involved

are

privileges.

It

is, therefore, impossible,

unless

we

wish

to rewrite

a

good

part

of

English

literature,

to refuse

the

term

"right"

to

these

situations.

The

distinction,

however,

that

Hohfeld

made

is of

first-rateimportance,and must be maintained. We shall, there-

fore,

distinguish

between the

"

demand-rights

" formulated in I

and

III

and the

"

privilege-rights

"

formulated

in

II

and

IV.

We

may

make

further statements

about

them.

A's demand-

right

in

I

is B's

duty.

B's

privilege-right

in II

is an absence

of

duty

in

B

as

well

as

an absence

of

right

in

A.

Or,

we

may say,

A's

demand-right

in I

negatives

B's

privilege-right

in

II;

B's

privilege-right n II negatives or contradicts

his

duty

in

I.

Privi-

lege-right, therefore,

is

paraphrased

by

absence

of duty,

just

as

demand-right

in

one

person

is

an

assertion of

duty

in

another.

And

absence

of

a

demand-right

n

one

person

is

an assertion of

privilege-right

in

another.

It

is

in the

relation

of

these

terms to

each

other that

Hohfeld's

terminology

is

most

in

need

of

revision. He

spoke

of

A's

right

and

B's

duty

in

I,

as

"

correlatives

"

of

each

other.

The

difficulty

in the use of this term is not

merely

terminological.

It is not

merely

that

the

word

is

used

in

a sense

different

from that

ordi-

narily

assigned

to

it.

The

difficulty

arises

from the fact

that

Hohfeld

really regarded

hem as

correlatives,

that is to

say,

as

two

separate

things

united

to each other.

The

union

was,

to be

sure,

indissoluble,

but

the

two

were

none

the

less

separable

in

discourse,

if

not

in

fact.


11/25

II50

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-right

and B's

duty

in I

are

not correlatives

because

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

mur-

dered

by

B

";

or

"

B

murdered

A."

The

fact

that

A

and

B

are

wholly distinct and separate persons must not be allowed to ob-

scure

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

im-

portant

use

for

correlatives

in

any

statement of law.

There are

demand-rights

and

privilege-rights

which are

correlatives of cer-

tain other

demand-rights

and

privilege-rights.

In

a

sale,

the

right

to demanddelivery is the correlative of the right to demandpay-

ment.

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-right

of

custody

of

the

parent

and

his

duty

of

support

-

which

is

also the

child's

demand-right

to be

sup-

ported

-are

normally

correlatives.

But

they may

be

separated

and,

in

divorce,

they

frequently

are.

Hohfeld

made

the

following

scheme of

his

elements:

right

-

duty

privilege

-

no

right

The

phrase

"

no

right

"

was

subjected

to a

great

deal

of critical

and

destructive

comment.

"A

'no-right

'",

one

critic

once

de-

clared,

"might

be

an

elephant."

But the

criticism was

scarcely

justified.

Those

who

hyphenated

the

words created for

them-


12/25

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-right

o

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

demand-

right,

which

is

equivalent

to

saying

that

the

defendant

was

exercis-

ing

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

-

duty

no

demand-right

-

privilege-right

As

has

been

pointed

out,

the double

statement

is

merely

a

matter

of

convenience.

If A

seeks

damages

from

B

in

an

action,

the court

may

either

declare

that

B

has a

duty

to

pay

a

sum of

money

to

A,

or

no

duty,

i.e.,

has

the

privilege-right

to

refrain

from

doing

so.

Or

else the

court

may

begin

its statement

with

A

and

say

that

A

has

a

demand-right

to

this

sum from

B,

or

has

no such

demand-

right.

It is

merely

an

accident

of

language

that

two

exactly

equivalent

sets

of

statements

are available

in

English.

The arbitral function of the court8 is set in motion when we

make

our infallible

test of

whether

there

is or

is not the relation

be-

tween

A

and

B

expressed

in

I,

II,

III

and

IV.

But in

our

system,

and

in

every system

of law

of

which

we have detailed

knowledge,

this

test

is

always

made

by

means of

two assertions

expressed

one

after

the

other,

and

placed

in

a relation

of cause

or effect.

In an

action

to recover

damages,

for

example,

A

may

assert

that

B

was

under a duty not to permitA to be injuredas a result of his negli-

gent

driving

and

that

because

he violated

that

duty

B

had

another

and a new

duty

-which is the

legitimate

result

of the violation

of

the older

duty

-

and

that this new

duty

is to

pay

a

sum of

money

to

A.

8

What

I

have

in

mind

in

speaking

of the

"

arbitral

function

"

I

have

attempted

to

set

forth more

fully

in

The

Chancellor's

Foot

(I935)

49

HARV. L.

REV.

44.


13/25

1152

HARVARD LAW REVIEW

[Vol.

51

The relation of

these

two

duties of

B

to

A-

which

we

may

ex-

press

equally

well as two

demand-rights

of

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

ordinary

chattel.

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

dif-

ferent

duty, although

the difference s

in

this

case

not so

great

as

in

the former

example.

The

difference s

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

en-

joined 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

determination

of

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 fur-

ther to

predicate upon

this

violated

right

a new and

often

quite

different

right

that

can

in

the nature of

things

be

only

an

approxi-

mate

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

"

procedural

consumption

",

while of

only

limited

appli-


14/25

1938]

A

RESTATEMENT

OF

HOHFELD

II53

cation

in

either

Roman

or

common

law

in

its

technical

sense,

is

in

a

larger

sense

essential

to

nearly

all the

systems

in which

a

special-

ized

court

machinery

has been

developed.9

The two

rights

mentioned are

essential

to each

other,

and

con-

dition

each

other. No

transmuted

or

new

right

could

arise

unless

there

had

been

an

"

original

"

one;

and

the test

of

the

existence

of

the

"

original

"

one is

the

willingness

of

the

court

to

transmute

it

into

a new

one. This

fact,

and the

essential difference

in

content

between

the

two,

are

important

elements

in

the

Hohfeldian

system.

That

all

legal rights,

at either

the first level

or the

second,

are

relations between two

persons

seems to fall foul of an ancient

enemy

of

sanity

in

law,

the

phrase

in

rem.

Lawyers

have

talked

of

actions in rem

and

rights

in

rem so

long

that

it

has

become nec-

essary

to

set

up

a

complementary

action or

right

in

personam

in

order to

give

a

place

to the

only

way

in

which,

when

we come

to

grips

with

reality

or

describable

experience,

the law

can

act

at

all. Not

only

do

we see

a flesh

and blood

citizen

"suing"

the

Steam Ship Pinafore, her boilers, rigging etc., in a libel in the

admiralty

court,

but

the books

contain such

cases as United

States

v.

One

Stradivarius

Violin,

in

which

a

wholly

unreal

and

fantastic

entity,?1

a

federated

state,

is

presented

as

claiming rights against

a

few

pieces

of

lifeless

matter.

I

fancy,

however,

that if

we followed

the libellant into

court we

should

find

that he

is

claiming

that a most

indubitably

living

per-

son shall pay him a definite, if hopefully exaggerated, sum of

money

and

that

this

demand-right

is

the transmuted

form

of

an

antecedent

demand-right

that

the libellant was

not

to be

hurt

in

body

or

that

a

promise

made

to

him

was

to be

kept.

The

libel

merely

means that until

this

money

is

paid,

the libellant

intends

to

prevent

the

ship

from

sailing

and

that,

if

the

court

declares

that

the

right

had existed

-

the

right

at

the

first level

-

then

the

ship

itself

will

be sold

to

pay

the

money,

unless it is

otherwise forth-

coming.

9

Cf.

Wenger,

INSTITUTIONEN

ES

ROMISCHEN

IVILPROZESSRECHTS

I925)

I67-

68;

and

Wlassak,

DER

URSPRUNG

ER

ROMISCHENINREDE

1910) 9-13.

10

I

permit

myself

this

expression,

because

in

the

Aristotelian

sense

phantazo,

from which

"

fantastic

"

comes,

deals with

things

apparent, indeed,

but

not

to the

senses,

and

because

"

entity

"

is

properly

"

beingness

"

and is thus

two

removes

from

our

physical

apprehension.

Matters

so

protected

from

physical

contact are

excellent

terms

to use

for

corporate

personalities.


15/25

II54

HARVARD

LAW REVIEW

[Vol.

51

The same

may

be

said of the

other

case.

It

is,

after

all,

a

tan-

gible

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

Stradivarius

may

be

sold

and the

proceeds

deposited

with

a sub-sub-sub-treasurer

who 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 di-

vorce?

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,

med-

dles 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 criminal

pro-

ceedings against him, and thereby establish at our lowest level

quite

specific

demand-rightsagainst

a

breathing

and

moving

hu-

man

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 dis-

pense

with

the

presence

somewhere

of two human

beings

who

are

declared

by

the

court

to

have

or not to

have

certain

rights

in

re-

spect

of each

other.

But

the use

of

the

phrase

in

rem about actions

creating

or

deny-

ing

demand-rights

at our lowest level is almost literal as

compared

with the

use

of this

phrase

at the second

or

higher

level,

about the

antecedent

demand-rights

which

are

the

correlatives,

or

the

origi-

nal

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.


16/25

1938]

A

RESTATEMENT

OF HOHFELD

1155

been so

long

solemnly

distinguished

and divided

betwixt

the

north

and

northwest

side

that

there

is

literally

no

excuse

for

doubting

that

lawyers

do use the

expression.

In modern

times,

it has

been

deemed

advisable

to

say

that

in

rem

means

"good against

the

world

",

which at least makes

sense,

but

is

unfortunately

not

true.

Hohfeld declared that

these

rights

while

not

literally

good

against

the

world

were

good against

a

great

many people, and,

therefore, might

be called

"

multital" to

distinguish

them

from,

let us

say,

contract

rights

which

are

good

only

between

a small

number

and

should,

therefore,

be

called

"paucital

".

The

two

neologismssent a shudderdownthe backs of the

spiritual

descend-

ants

of

Lindley

Murray

and Gould

Brown,

and

would

in

any

case

have

withered

under

the cold

contempt

of

schoolmasters and dic-

tionary

makers.

But

the real

difficulty

with

them

is not

their

hideous

illegitimacy. They

do not

describe

the

distinction

in-

tended

much

better

than

in

rem

and

in

personam.

The

privilege-right

of

A,

an owner

of

property,

to

use and

enjoy

his goods is a right in rem, good " against the world", a

"

multi-

tal

"

right,

in

Hohfeld's words.

But

the difference between this

privilege

and his

privilege

of

making

a

false statement in

good

faith

to his

superior

officer

about

B,

an

applicant

for

a

position,

does not

lie

in

the

number of

persons

involved but

in

the fact that

at

the

second

level

-

at

which

we

are

examining

them

just

now-

A's

privilege

of

user relates

to indefinite

or

indeterminate

persons,

while A's

privilege

of

a bona fide

false statement

relates to

defi-

nite

and

determinate

persons.

When

the

matter

is

tested

in

court,

however, i.e.,

when

they

are

placed

on

the

first

level,

or

"trans-

muted

",

they

will be

quite

determinate

in

both cases.

The

privi-

lege

of

user

cannot be

asserted

in

court unless

a

particular

person

challenges

it

and

the

court will

give

A

a determinate

demand-

right

to

damages

or

to an

injunction,

because A

had

an

indetermi-

nate

privilege-right

of user.

Or,

the court

will

deny

to

B

any

de-

mand-rightto

damages

because A had a determinate

privilege-

right

of

making

a

false

statement in

good

faith.

Again,

there would

be no harm in

using

in

rem

and

in

personam,

instead of

"

indeterminate

"

and

"

determinate

",

if

we

knew what

we

meant.

But

the

other

words

are

also law

words of

a

kind

and

are

just

as

easy

to use

and there is

less reason

to

fall

back

on

sym-

bols

that

point

in

a

wrong

direction

here

than

in

the case

of

actions


17/25

1156

HARVARD

LAW REVIEW

[Vol.

51

in

rem,

where the words

in

rem,

while

misleading,

do

tell us some-

thing,

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 determinate

person.

We

have

been

speaking

so far

only

of two

levels

of

legal

rela-

tions. There

is, however,

a still

higher

level on which

legal

situa-

tions 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

arguments

n

any

case.

But

the

pleadings

and

arguments

seeking

to

prove

the

existence

of

antecedent

rights

base

them-

selves 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 intes-

tate,

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 commu-

nity.

Many

torts

are

based

on

these

conditions.

In

any

case,

the

particular

demand-right

or

privilege-right

will

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

numerous

enough,

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 back-

ground

and

a course

of conduct

extending

over an

appreciable

time

gives

a

definite

significance

to the words used.

Of

all

these

things,

the

court

-

following

a

discoverable

customary practice

-

selects

some

particular

word

or

words

as

the final

explosion

point

of the

contract.

There is

necessarily

involved

a

certain amount

of

arbi-

trary

discretion.

The

Romans,

it

must

be

admitted,

were somewhat

more

prac-


18/25

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 advantageconsisted 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

determining

event

occurred,

as a

rule

two

demand-rights

were

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 coulda

very young

child. At common

law, 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

"

cor-

relatives"

(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.,

demand-

right

and

privilege-right),

however,

have

such

a

principle,

since a

privilege

in

A

is

merely

the

contradictory

of

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

different

from

that

in

which we find ourselves

talking

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

de-

clared

by

the

court

depends

on

whether

certain

conditions

are

present.

In

most,

but not

in

all

cases,

one

of

those conditions

is an

apparently

purposive

human

act.

Not

all

such acts

are the

exercise

of

legal

powers.

It

is the

task


19/25


20/25


21/25

II6o

HARVARDLAW REVIEW

[Vol.

51

Obviously

it is

only by

an

arbitrary

selection that

this

last element

has been

so much dwelt

on,

but

the insistence

upon

it

is

a

natural

reflexof existing economic conditions.

"Alienation

",

however,

is

a

matter

of

power.

The

figure

of

speech

contained

in

the

word

"

transfer

"

has done real

mischief.

It

is

the

origin

of the famous rule that

nobody

can

give

to someone

else

what he

has not

got.

The

reply

is

quite

simple.

The

"

trans-

fer

"

exists

only

in

the word.

Actually

the

"

transferor

"

simply

destroys

certain

rights

and

powers

in

himself and

creates others

-

not

necessarily

the

same

ones

-

in

someone

else.

A

great

deal of

the

mystery

of bulk-sales

acts,

" reservationof

ownership

",

nego-

tiation,

and

such

common transactions

as

bills

of

lading

and

in-

stallment

sales,

disappears

if

the

question

is

treated

entirely

as

one

based

on

the existence

of a

power

or a

disability.

Perhaps

the chief

use

of

the

Hohfeldian notion of

"power

"

is

to

lay

that

persistent

and

ubiquitous

ghost

or

Poltergeist,

the

"

juristic

person

".

If

those

who

use this term

could

be

persuaded

to continue using it precisely as they do now, without feeling the

necessity

of

justifying

it

by metaphysics

or

theology

or

mathe-

matics,

no

great

harm

would

be

done. But that seems too much

to

hope

for. Instead of

treating

the

expression

n

its almost

literal

sense,

as a mask

or a device

by

which

real

persons

-

and

the

only

real

persons

are human

beings

-

seek

to

effect

legal ends,

that

is,

ends about

which a court can

be

persuaded

to make a

judgment

of

lawfulness or unlawfulness, the partisans of the juristic person

seem

to take

the

name as a

challenge

to

their

ingenuity

to

create

mythical

entities and to derive results from

the

imagined

existence

of these

entities,

that

are

a

serious obstruction to

the

needs which

legal

machinery attempts

to

satisfy.12

If

we

apply

the Hohfeldian doctrines

to this ancient

stumbling

block,

it

can

be avoided

by

the

simple process

of

kicking

it aside.

Even those

who

find

it

impossible

to

abandon

their idolon

fori

ad-

mit that transactions

" in

the

name

"

of

their

fetish

must be con-

12

If

it did

not

show an

unbecoming

familiarity

on

the

part

of

academic

persons

with

popular frivolities,

I

should have said that the

corporate person

is the Charlie

McCarthy

of

the

law

since

like

a

ventriloquist's

dummy

it

merely

seems

to

speak

and the words it

uses are

really

the

words of its

manipulator.

A

more

dignified

analogy

may perhaps

be

found in

the Putois

of Anatole

France,

who

was com-

pounded

out of a series

of

extemporized

attributes and

managed

to

get

involved

in

a

scandal.


22/25


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II62 HARVARD

LAW

REVIEW

[Vol.

51

against

the X

Co.,

the

power

can

be

exercised

only

if there

is

property

available

which

was created

by

the contributions

of

the

shareholders

or

has been

acquired

since

by

acts

of the

persons

in

the

corporate sequence

acting

under their

powers.

But this

con-

dition

or

limitation on

the

rights

created

in

other

persons

by

the

acts

of men in

the

corporate

sequence

does

not

in

any

sense

change

the

nature

of

the

legal

transactions

involved and can

scarcely

transform

a

convenient

verbal

symbol

into a man.

Much

the

same

thing

can

be

done in

the

case

of the State.

A

claim

against

the State

or

a

claim

asserted

by

the

State

is

always

a

claimassertedby someliving flesh andbloodpersonempowered n

some

way

that

the

court will

recognize

to create

these

claims.

The

determination

by

a

"

Court

of Claims

"

of such a claim

is

obviously

conditioned,

even

in

the

ordinary

statement

of these

matters,

on

the vote

of

a

legislative

body

appropriatingmoney

to

pay

it.

The

assertion

by

"

the

State

"

of

a

demand-rightagainst

an

individual

at once

creates a

question

whether

the

person-

the flesh

and

blood

man-

who appears to assert is empoweredto do so and

whether

the

claim

was

created

by

the

acts

of other men

empowered

to

create it.

We

can

then

spare

ourselves the

verbal

maneuvering

to which

courts

resort

in

such

crises

as the

rearrangement

of

European

po-

litical

organizations

after

the

war.

If

the Tsarist

government

in

1917

had

funds

in

New York

banks

deposited by

its

officials,

there

is no

real

difficulty

in

creating

claims

against

the

bank which are

to be limited

to

the

existence of

such

funds,

if the

court

is

satisfied

that

a

contract

had

been

made

or

a

tort

committed

by

some em-

powered

person

in

the

chain of

legally

powerful

persons

culminat-

ing

in

the Tsar

of

Russia. The

connection of a transmuted

right

against

the bank

with

an

antecedent

or

original right

created

by

a

Tsarist

official

or

agent

makes

no

demand on

superhuman

inge-

nuity,

and

the

fact

that

the

government

which

has to a

large

extent

succeeded to that of the Tsars does not control exactly the same

population

and

territory

as that

which

the Tsar

controlled,

or

that

this

new

government

had at

the

time

no

diplomatic

relations with

the

government

of

the

United

States,

is

surely

immensely

and

em-

phatically

irrelevant.13

13

I

do

not

assert

that

any

particular

case

in

which

this

matter has been involved

can

be

exhaustively

described

in

this

way.

But

I

am

strongly

of

the

opinion

that

every

such

case will

yield

to an

analysis very similar to that indicated in the text.


24/25

1938]

A RESTATEMENT OF

HOHFELD

1163

We

may

summarize

by

saying

that

a restated

Hohfeldian

analy-

sis

may

safely

discard

a

great

many

of

the

detailed

terms that

Hohfeld-rather

tentatively

-used,

and

even

some which

he

apparently regardedas of high importance. We may even- in

fact we must

-reject

some

of the

logical

relationships

he

found

in

these terms.

Rights

and

powers

cannot

be

put

in

a

single

line.

Rights

and

duties

are

not

correlative,

but

identical.

The

hieratic

symbols

in rem

and

in

personam

are

distinguishable

not

by

the

number

of

persons

affected but

by

their

unspecific

and

specific

character.

But the essentials of Hohfeld'smethodmakea workablescheme.

There are

three

levels at

which the

law

operates.

The

first

-

the

lowest,

if

one

likes,

but at

any

rate the

one

with

which

we must

perforce

begin

-

involves a

court that exercises

the arbitral

func-

tion of

pronouncing

on the lawfulness

or

unlawfulness

of a

claim

by

the

plaintiff,

calling

it a

demand-right

f it is

lawful,

or

calling

its

absence

a

privilege-right

on

the

part

of

the

defendant.

Or

else

in

the

former case

it

may

prefer

to call

it a

duty

of

the

defendant,

or

in

the

latter

case,

confine itself

to

stating

that

the

plaintiff

had

no

demand-right.

These

rights

and

privileges

are

always

stated

for

the future.

The

second level is

the

right

or

privilege

which

had

preceded

the

right just

declared.

The

court

finds that

some

preceding

demand

or

privilege

has

been

transmuted

into

the form which

it

declares

for the

future.

A

certain

amount

of

discretionary

action is almost

essential in this act of finding the indispensableand inseparable

antecedent

right.

The third

or

still

higher

level deals

with

the

factors

that have

created

the

antecedent or

original

right.

When an

important

fac-

tor

is

the act of

a human

being,

that factor

is

described

as a

power.

The

existence

of

a

power

requires

a relation

of

the

empowered

A Restatement of Hohfeld. Max Radin

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