A Restatement of HohfeldAuthor(s): Max RadinSource: Harvard Law Review, Vol. 51, No. 7 (May, 1938), pp. 1141-1164Published by: The Harvard Law Review AssociationStable URL: http://www.jstor.org/stable/1334102Accessed: 08/12/2010 21:59

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HARVARD

LAW REVIEW 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 varied and incompletely rational- 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 wicked and exploded notion 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-

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 procedure it 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 connection with the common law of England.2

We must, therefore, somehow find in the lange du pails the means of stating what the law is, whether this law is in the books or not, particularly because we must state as unambiguously as may be, what certain relations between persons are, as well as what they were in times long past. And at present, the men and women whose lives are to some degree ruled by the common law, do not express themselves in the Law French.

Unambiguously! To say so much is to recognize the character of the task. It simply cannot be done. It cannot be done because of the very nature of human speech which did not grow out of a need of stating things precisely. There rarely was such a need.

1 A DISCOURSE ON THE STUDY OF THE LAWS (1824) 13. 2 2 HOLDSWORTH, HISTORY OF ENGLISH LAW (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 SOCIETY (Maitland ed. I903) xxxiii-xli.

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 importance can be ascribed to 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 generalizing expressions.

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 varied that the burden of remembering them 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 DE MAISTRE AND GIAMBATTISTA VICO (1937) (published as a Columbia dissertation).

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 contradictory one is reached. To be guided adequately is, 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 is 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 which does not follow at all because we 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 LEGAL PAPERS (1920) 167-202, esp. I80-84.

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 logically where 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 is 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 indeterminate words - 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, it 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

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 course of pronouncing judgment, 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 definite time of B in respect of 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 400; and to the book FUNDAMENTAL LEGAL 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

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 mathematical organa usually understood under these names. 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 task of forecasting them.

There are certain postulates we begin with. At this level of the law we must abandon a 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 human being, every human being 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 OF LABOR LEGISLATION (rev. ed. I927).

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

exhaustive is 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 infinitive. 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 second in ordinary legal language can also be expressed by 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.

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-rate importance, 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 in 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 in 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 them 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.

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 demand delivery is the correlative of the right to demand pay- 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-

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 to 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 permit A to be injured as 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.

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 is in this case not so great as in the former example.

The difference is 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 difference between 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-

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 DES ROMISCHEN ZIVILPROZESSRECHTS (I925) I67- 68; and Wlassak, DER URSPRUNG DER ROMISCHEN EINREDE (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.

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-rights against 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.

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 neologisms sent a shudder down the 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-right to 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

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-rights whose 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 in 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-

1938] A RESTATEMENT OF HOHFELD 1157

tical. The explosion point was a definite and fixed, but extremely simple and flexible form. It was the " stipulation ", consisting of question and answer, and its advantage consisted in the fact that the attention of both parties was called to the fact that a contract was being entered into.

Once the court finds that the single 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 could a 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

1158 HARVARD LAW REVIEW [Vol. 51

of the court to discriminate those acts in which a legal power was exercised from those in which no power existed. The four Hohfeld- ian terms

power immunity liability disability

are exactly parallel to the other four:

demand-right privilege duty no demand-right

And they may be symbolically represented in the corresponding manner.

power (A's) = liability (B's); immunity (B's) = disability (A's) power (A's) --disability (A's); immunity (B's) - liabil-

ity (B's)

Obviously the terms are defective since " liability " is commonly used as the equivalent of " obligation ", but the contradictions be- tween ordinary speech and this terminology are not so serious be- cause the occasions for referring to any element except the power itself are relatively few. That is particularly the case for the words " immunity " and " disability ". In the case of " liability ", it is unfortunate that some better term cannot be discovered. A literary equivalent may perhaps be found in the word " subjec- tion ", but the associations are quite wrong and the word has prac- tically no legal history, that is, it has scarcely been used by lawyers at all.

The importance of the " power group "- at this third level of legal factors- is easily made clear. Transactions that require purposive actions are extremely common in the law and in any of them it is possible to ask whether the purpose was found to be present, and whether the person was in fact clothed with a power to create a demand- or privilege-right against another; or whether the particular person in that particular case, whatever his purpose, was without such power, i.e., was under a disability.

In modern times, roughly since the general rise of a credit or capitalist economy - for which the year i600 A.D. may be taken as the approximate date - the notion of " power " has come into an importance that was necessarily unknown in earlier develop- ments. Societies in which the transactions are begun and con-

1938] A RESTATEMENT OF HOHFELD II59

cluded between parties that know each other and see each other constantly, raise questions of power only in the limited sense al- ready indicated. When we are confronted with societies in which political and economic relations are sustained between people who are not and cannot be in continuous personal contact, a great many persons must be invested with powers to create rights of both sorts between other persons.

The development of a real system of agency is an outgrowth of this economic situation. The older agency doctrine, best illustrated by the Roman mandate, was quite ineffective. The mandatary was never a person merely or primarily vested with a power. He was a man whose own rights involved incidental obligations to other persons, or he was a purely ministerial agent - a living instru- mentality - approximating the status of a slave or servant.

Similarly, the idea of " negotiation "involved as its primary con- stituent, the doctrine of a power. Its predecessor, " assignment ", whether by mandate or otherwise, had the same defect as the im- perfect agency already mentioned. The assignee was an instru- ment, a " representative ", a servant, of the assignor. The nego- tiator had powers that were derived from his position in the trans- action and not from the man who preceded him or who selected him, and created legal obligations, not merely a moral duty to use rights on behalf of someone else.

Our economic structure is largely based on the existence of such capacities to bind persons legally in transactions inter absentes. Without capacities like these, paper money and token money would be unworkable schemes and the overwhelming majority of com- mercial transactions would be almost impossible. Above all, the most striking development of modern commercial organization, the corporation, could not be managed at all.

As far as the Anglo-American law is concerned, one of its most characteristic institutions, the " trust ", is based almost wholly on the idea of power. The rights and duties of the trustee are obvi- ously of considerable importance but what gives him his special position is his extraordinary powers.

As a matter of fact, the concept of power is an incident of what seems at the present time the one nearly essential element of prop- erty, more really essential than even the right of exclusion and of misuser. That is the right of " alienating ", the ius disponendi.

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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 reflex of 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, " reservation of 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 in 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.

I938] A RESTATEMENT OF HOHFELD ii6I

ducted between actual flesh and blood persons. If, for example, a contract is made with the X Co. by A, it must be made with B, an agent of "the Company" who derives his power to make it from his selection for that and other purposes by C, D, E, and F, the directors of "the Company ", who themselves derive their power to select B and to confirm his agreements from the vote of S1 to Sn, the stockholders of " the Company ". And these stock- holders again have obtained the power to vote for the directors by the payment of money to a specified person or the assumption of a duty to pay it to such a person.

Evidently if we can avoid this lengthy - and still incomplete statement of the sequence of events involved, by using the single phrase " A made a contract with the X Co.", it is highly desirable to do so, but it is not necessary to call in the aid of mysticism or mythology. The short phrase is exactly what it seems to be, a brief and compendious formula for what otherwise is an intermin- able and complicated narrative.

What we have, consequently, is a chain of powers which begins with the actual person who conducts the negotiation and ends with the public officials whose license or approval permits this chain of powers to be initiated. Indeed, it may go still further, to the sequence of political acts which empower these officials to give these licenses. Evidently a shorthand symbol which will imply all that is an eminently useful device, but that is not sufficient rea- son for dressing it up and pretending that it is a human being or something just as good as a human being.

But the chain of powers is not the only thing that is described by the words " A has made a contract with the X Co." There is also the fact that the claims or demand-rights created by the per- sons empowered within this sequence or association are even more conditioned than is ordinarily the case. Most demand-rights at their lowest level are conditional as far as their subsequent effects are concerned. The court will by its judgment find that a duty to pay exists and this judgment will create a power to attach - that is, a power to create demand-rights and privileges of various sorts in various persons but this power can be exercised only over nonexempt property over which the judgment debtor has a certain amount of control and which he has neither concealed nor im- properly put into someone else's control. When the judgment is

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 claim asserted by some living flesh and blood person empowered in 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 appropriating money to pay it. The assertion by " the State " of a demand-right against an individual at once creates a question whether the person- the flesh and blood man- who appears to assert is empowered to 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.

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 regarded as 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's method make a workable scheme. 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 if 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 indispensable and 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 person to another person or to an indeterminate group of persons subject to that power (liability); and the absence of a power (dis- ability) as far as any determinate or indeterminate group of per- sons is concerned may sometimes induce us to speak of these latter persons as possessors of an " immunity ".

These powers are frequently created by other powers, but, at some time, the last link in the chain of powers will be seen in the

organization of the community, as fixed and modified by custom or

by the deliberate or implicit determination of all the members of it.

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The function of the court, both conscious and unconscious, is, of course, essential. Its first and most definite act, the creation of rights for the future, often itself establishes the entire series of legal elements. The transmuted right demands as an indispen- sable condition a pre-existing right, which may, therefore, be created ad hoc. Frequently a power may be found in some person, when the only reason for finding it is the need of creating the pre- existing right, itself postulated by the new right the court desires to establish. But it does not in the least follow that any consider- able part of this process is conscious, and that the court spins the elements of the second level and of the third level out of its con- cededly arbitrary desire to create a certain result. It may safely be said that this type of conduct is so rare as to be negligible.

The rationalization by which antecedent rights are found to justify -in the literal sense-the new rights created, and by which persons are discovered who have the power to create these antecedent rights, produces, when put in verbal form, what law- yers call " the law " and what, when it is formulated in " rules ", laymen think of as the law. With this part of the legal process, the Hohfeldian system cannot concern itself. It professes, however, -and, I think, successfully-to be able to reduce any legal transaction, however complicated, to its actual constituent ele- ments or atoms, and its use may save lawyers from the fallacy of accident, the subtlest and most insidious of the pitfalls of the law.

For that reason, it ought to be precious to realists. Lawyers, jurists, philosophers and statesmen may say what they like about the law, and realists ought not be heard to object to any statement that is made, no matter how metaphysical, ornate, literary or abstruse it is. The law speaks many languages and with greater or less difficulty is intelligible in any one of them. The important result is that when we reach that level in the law at which a de- mandant is armed with quasi-police powers if his claim is adjudged lawful, we must be able to translate any one of the juristic lan- guages into a specific and unique statement of a relation between two identifiable and living human beings. A system of analysis must be judged by its capacity to effect this translation.

Max Radin. SCHOOL OF JURISPRUDENCE, UNIVERSITY OF CALIFORNIA.