Wesley Newcomb Hohfeld

“ The general duty resting on all mankind not to destroy the property of another, is as cogent in favor of an obligee as it is in favor of the owner of a horse. And the violation of this duty is as pure a tort in the one case as in the other. ”

“ As already intimated, the term "rights" tends to be used indiscriminately to cover what in a given case may be a privilege, a power, or an immunity, rather than a right in the strictest sense; and this looseness of usage is occasionally recognized by the authorities. As said by Mr. Justice Strong in People v. Dikeman: [26]
The word "right" is defined by lexicographers to denote, among other things, property, interest, power, prerogative, immunity, privilege (Walker's Dict. word 'Right') . ”

“ It is contrary to the policy of the law that there should be any outstanding titles, estates, or powers, by the existence, operation or exercise of which, at a period of time beyond lives in being and twenty-one years and a fraction thereafter, the complete and unfettered enjoyment of an estate, with all the rights, privileges and powers incident to ownership, should be qualified or impeded. ”

“ Lawful dissolution of a corporation will destroy all its corporate franchises or privileges vested by the act of incorporation; but if it holds rights, privileges, and franchises in the nature of property, secured by contract based on valuable consideration, these will survive the dissolution of the corporation, for the benefit of those who may have a right to or just claim upon its assets. ”

“ A more imporant or more comprehensive privilege than a perpetual immunity from taxation can scarcely be imagined. It contains the essential idea of a peculiar benefit or advantage, of a special exemption from a burden falling upon others. ”

“ In view of what has already been said, very little may suffice concerning a liability as such. The latter, as we have seen, is the correlative of power, and the opposite of immunity (or exemption) . While no doubt the term "liability" is often loosely used as a synonym for "duty," or "obligation," it is believed, from an extensive survey of judicial precedents, that the connotation already adopted as most appropriate to the word in question is fully justified. ”

“ Sir Frederick Pollock, in his volume on jurisprudence (2nd ed., 1904) , 62, seems in effect to deny that legal liberty represents any true legal relation as such. Thus, he says, inter alia: "The act may be right in the popular and rudimentary sense of not being forbidden, but freedom has not the character of legal right until we consider the risk of unauthorized interference. It is the duty of all of us not to interfere with our neighbors' lawful freedom. ”

“ In his chapter on "Legal Rights and Duties" the distinguished author takes the position that a right always has a duty as its correlative; [37] and he seems to define the former relation substantially according to the more limited meaning of "claim." Legal privileges, powers, and immunities are prima facie ignored, and the impression conveyed that all legal relations can be comprehended under the conceptions, "right" and "duty." But, with the greatest hesitation and deference, the suggestion may be ventured that a number of his examples seem to show the inadequacy of such mode of treatment. ”

“ Property ratione privilegii is the right which by a peculiar franchise anciently granted by the Crown, by virtue of prerogative, one may have of taking animals ferae naturae on the land of another; and in like manner the game when taken by virtue of the privilege becomes the absolute property of the owner of the franchise. ”

“ Recognizing, as we must, the very broad and indiscriminate use of the term, "right," what clue do we find, in ordinary legal discourse, toward limiting the word in question to a definite and appropriate meaning. That clue lies in the correlative "duty," for it is certain that even those who use the word and the conception "right" in the broadest possible way are accustomed to thinking of "duty" as the invariable correlative. ”

“ A duty or a legal obligation is that which one ought or ought not to do. "Duty" and "right" are correlative terms. When a right is invaded, a duty is violated. [32]
In other words, if X has a right against Y that he shall stay off the former's land, the correlative (and equivalent) is that Y is under a duty toward X to stay off the place. If, as seems desirable, we should seek a synonym for the term "right" in this limited and proper meaning, perhaps the word "claim" would prove the best. ”

“ Shutting our eyes, then, to the fact that equitable rights are a fiction, and assuming them to have an actual existence, what is their nature, what their extent, and what is the field which they occupy? ”

“ Rees Printing Co. (1894) , 41 Neb., 127, 146 (Ryan, C.: "Property, in its broad sense, is not the physical thing which may be the subject of ownership, but is the right of dominion, possession, and power of disposition which may be acquired over it.") .
Since the power of alienation is frequently one of the fundamental elements of a complex legal interest (or property aggregate) , it is obvious that a statute extinguishing such power may, in a given case be unconstitutional as depriving the owner of property without due process of law. ”

“ X, a landowner, has, as we have seen, power to alienate to Y or to any other ordinary party. On the other hand, X has also various immunities as against Y, and all other ordinary parties. For Y is under a disability (i. e., has no power) so far as shifting the legal interest either to himself or to a third party is concerned; and what is true of Y applies similarly to every one else who has not by virtue of special operative facts acquired a power to alienate X's property. ”

“ The term 'property', as commonly used denotes any external object over which the right of property is exercised. In this sense it is a very wide term, and includes every class of acquisitions which a man can own or have an interest in. ”

“ In other words, a man's legal rights include not only the power effectually to call for aid from an organized society against another, but also the power to call effectually upon the society to abstain from aiding others."
This, it is respectfully submitted, seems to confuse the householder's privilege of ejecting the trespasser (and the "no-right" of the latter) with a complex of potential rights, privileges, powers and immunities relating to the supposed action at law. ”

“ The student of Jurisprudence is at times troubled by the thought that he is dealing not with things, but with words, that he is busy with the shape and size of counters in a game of logomachy, but when he fully realizes how these words have been passed and are still being passed as money, not only by fools and on fools, but by and on some of the acutest minds, he feels that there is work worthy of being done, if only it can be done worthily. ”

“ But a person's liberty or right to deal with others is nugatory unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him.
A "liberty" considered as a legal relation (or "right" in the loose and generic sense of that term) must mean, if it have any definite content at all, precisely the same thing as privilege, [42] and certainly that is the fair connotation of the term as used the first three times in the passage quoted. ”

“ A license is merely a permission to do an act which, without such permission, would amount to a trespass * * * nor will the continuous enjoyment of the privilege conferred, for any period of time cause it to ripen into a tangible interest in the land affected. [63]
Powers and Liabilities. As indicated in the preliminary scheme of jural relations, a legal power (as distinguished, of course, from a mental or physical power) is the opposite of legal disability, and the correlative of legal liability. ”

“ The closest synonym of legal "privilege" seems to be legal "liberty." This is sufficiently indicated by an unusually discriminating and instructive passage in Mr. Justice Cave's opinion in Allen v. Flood: [58]
The personal rights with which we are most familiar are: 1. Rights of reputation; 2. Rights of bodily safety and freedom; 3. Rights of property; or, in other words, rights relating to mind, body and estate, * * * In my subsequent remarks the word "right" will, as far as possible, always be used in the above sense ”

“ The former term is far more likely to be used in the sense of physical or personal freedom (i. e., absence of physical restraint) , as distinguished from a legal relation; and very frequently there is the connotation of general political liberty, as distinguished from a particular relation between two definite individuals. Besides all this, the term "privilege" has the advantage of giving us, as a variable, the adjective "privileged". Thus, it is frequently convenient to speak of a privileged act, a privileged transaction, a privileged conveyance, etc. ”

“ But an hereditament, says Sir Edward Coke, is by much the largest and most comprehensive expression; for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal, or mixed. [18]
It is clear that only legal interests as such can be inherited ”

“ The property passes from the donor to the donee directly * * * and after his death it is liable to be divested only in favor of the donor's creditors. * ** His right and power ceased with his death.
Perhaps the nearest synonym of "liability" is "subjection" or "responsibility." As regards the latter word, a passage from Mr. Justice Day's opinion in McElfresh v. Kirkendall [87] is interesting:
The words "debt" and "liability" are not synonymous, and they are not commonly so understood. As applied to the pecuniary relations of the parties, liability is a term of broader significance than debt. ”

“ Is it possible to analyze the conception represented by this constantly employed and very important term of legal discourse? Too close an analysis might seem metaphysical rather than useful; so that what is here presented is intended only as an approximate explanation sufficient for all practical purposes. ”

“ The nearest synonym for any ordinary case seems to be (legal) "ability," [64] —the latter being obviously the opposite of "inability," or "disability." The term "right," so frequently and loosely used in the present connection, is an unfortunate term for the purpose,—a not unusual result being confusion of thought as well as ambiguity of expression. [65] The term "capacity" is equally unfortunate; for, as we have already seen, when used with discrimination, this word denotes a particular group of operative facts, and not a legal relation of any kind. ”

“ For legislative use of the term in question, see the Copyright Act, 8 Anne (1709) c. 19 ("Shall have the sole right and liberty of printing each book and books for the term of * * *") .
Like the word "privilege" (see ante p. 38, n. 48) , the term "liberty" is occasionally used, especially in the older books, to indicate a franchise, or complex of special rights, privileges, powers, or immunities. Thus in Noy's Maxims (1641) there is this definition: "Liberty is a royal privilege in the hands of a subject;" ”

“ To this purpose the buyer has only jus in personam: a right to compel the seller to pass his legal interest; but speaking generally, he has dominium or jus in rem, and the instrument is a conveyance." ↑ (2nd ed., 1907) p. 230: "If we have regard to the essence of the matter rather than to the form of it, a trustee is not an owner at all, but a mere agent, upon whom the law has conferred the power and imposed the duty of administering the property of another person. In legal theory, however, he is not a mere agent, but an owner. ”

“ It is difficult to see, however, why, as between X and Y, the "privilege + no-right" situation is not just as real a jural relation as the precisely opposite "duty + right" relation betwen any two parties. Perhaps the habit of recognizing exclusively the latter as a jural relation springs more or less from the traditional tendency to think of the law as consisting of "commands," or imperative rules. This, however, seems fallacious. A rule of law that permits is just as real as a rule of law that forbids ”

“ Any permanent right which is of a transferable nature, at all events if it has what we may call a territorial ambit, is thought of as a thing that is very like a piece of land. Just because it is a thing it is transferable. This is no fiction invented by the speculative jurists. For the popular mind these things are things. The lawyer's business is not to make them things but to point out that they are incorporeal. The layman who wishes to convey the advowson of a church will say that he conveys the church ”

“ As our law develops it becomes more and more important to give definiteness to its phraseology; discriminations multiply, new situations and complications of fact arise, and the old outfit of ideas, discriminations, and phrases has to be carefully revised. Law is not so unlike all other subjects of human contemplation that clearness of thought will not help us powerfully in grasping it. ”

“ If the tenant have only a bare indemnity or exemption from an action (at law) , if he committed waste, there it is fit he should be restrained by injunction from committing it. [99]
In the latter part of the preceding discussion, eight conception of the law have been analyzed and compared in some detail, the purpose having been to exhibit not only their intrinsic meaning and scope, but also their relations to one another and the methods by which they are applied, in judicial reasoning, to the solution of concrete problems of litigation. ”

“ Ancient German law, like ancient Roman law, sees great difficulties in the way of an assignment of a debt or other benefit of a contract * * * men do not see how there can be a transfer of a right unless that right is embodied in some corporeal thing. ”

“ These two groups of relations seem perfectly distinct; and the privileges could, in a given case exist even though the rights mentioned did not. A. B. C. and D, being the owners of the salad, might say to X: "Eat the salad, if you can; you have our license to do so, but we don't agree not to interfere with you." In such a case the privileges exist, so that if X succeeds in eating the salad, he has violated no rights of any of the parties. But it is equally clear that if A had succeeded in holding so fast to the dish that X couldn't eat the contents, no right of X would have been violated. ”