Albert Kocourek

“ We now pass to a brief consideration of the validity of the two groups of correlatives denominated ‘privilege’—‘no-right’ and ‘immunity’—‘disability.’
‘Privilege,’ in the sense of liberty, does not seem to be a relative term at all, but, on the contrary, an absolute term. There is no more of ‘relation’ in ‘privilege’ than may be found in a windmill or a table. ”

“ Our conclusion, not arrived at without much reflection, is that the System, in so far as it shows originality, is without juristic value; that at one point where the term ‘privilege’ is used to mean ‘liberty,’ the table is objectionable on the double ground that ‘liberty’ is a non-jural concept and that its double usage, which includes ‘power,’ is a misapplication likely to lead to much confusion in the solution of delicate legal problems; and that at another point the term ‘immunity’ is unduly narrowed to exclude the important function of jural relation. ”

“ Again, the liberty of the owner of land to go on his land might stand ‘opposite’ a contractual duty in the same person not to stay off the land, but to go on it. (c) Furthermore, the liberty of an owner of land to go on his land might stand ‘opposite’ his equal liberty to stay off his own land. Liberty to stay off the land is just as much an ‘opposite’ of liberty to go on the land as is the duty to stay off. These illustrations are put to show that ‘privilege’ (liberty) and ‘duty’ are neither true opposites nor negatives, and that this division is wanting in logical coherence. ”

“ Fourth, A has an indefinite number of legal immunities, using the term ‘immunity’ in the very specific sense of non-liability, or non-subjection to a power on the part of another person. [18] Thus A has the immunity that no ordinary person can alienate A’s legal interest or aggregate of jural relations to another person; the immunity that no ordinary person can extinguish A’s own privileges of using the land; the immunity that no ordinary person can extinguish A’s right that another person, X, shall not enter on the land, or, in other words, create in X a privilege of entering in the land. ”

“ The person under disability may lack legal power (which is the sense in which the term disability is used in the Hohfeld System, [27] ) but may there not be a disability, also, because of the existence of duty?
3. Like the table of ‘opposites,’ the category of ‘correlatives,’ ‘immunity’—‘disability,’ is a novelty. While it is logically incomplete, as it seems to us, in not including under disability the presence of duty as well as the absence of power, it may be objected to for the more important reason that, as limited, it is juristically of no consequence. ”

“ Likewise, the term ‘immunity,’ as used by Professor Hohfeld, is also absolute. It can not claim for its correlative ‘no-power’ (disability) to the exclusion of ‘no-liability’ or ‘no right.’ If A is the owner of land without outstanding rights or powers in others, he is not in his situation as owner, which gives him certain claims and powers against others, under any duty or liability to such others. There is no right against him (e.g., to make a conveyance as holder of the legal estate in trust) ; nor has any person the power to divest his title. ”

“ What, therefore, Professor Hohfeld means to say is that where there is a ‘no-power’ on one side, there is a correlation of ‘no-liability’ on the other. This way of stating the matter must, we think, disclose that one nothing opposed to another nothing cannot be regarded either as juristic correlatives, or as having any juristic connection or utility. ”

“ The present writer agrees that ‘privilege’ is the right word, both in lawyers’ parlance and in jurisprudence, but submits it is the wrong word in the Hohfeld System, where ‘privilege’ means ‘liberty,’ unless ‘power’ and ‘privilege’ overlap, in which case it will become necessary to register another quite obvious objection. ”

“ Before passing to a discussion of the other two correlatives, some variations of usage may be pointed out.
Professor Hohfeld speaks of “the householder’s privilege of ejecting the trespasser.” This seems a confusion of liberty and power. [19] When one acts for himself without legal consequences, as by walking on his land, he exercises a liberty, but when the owner puts a trespasser off the land, it would seem that he exercises a power., i.e., he does something which is a disadvantage to another. ”

“ In this the law has been the most backward of sciences, and it is really astonishing, when one stops to consider the fundamental importance of ultimate categories in legal reasoning, that the insufficiency of our technical apparatus, in a scientific sense, had not long before impressed itself. ”

“ Without trenching on the medieval debate of nominalism and realism, it is clear enough that where words are lacking, ideas are usually wanting. Confusion of all jural relations under one undifferentiated idea, ‘rights,’ cannot but result in inaccurate thinking, and, as likely as not, occasionally, in incorrect legal solutions. The chief attribute of scientific progress is greater clearness of distinction. ”

“ The declaratory judgment where a plaintiff establishes that he owes no duty to the defendant is not different from the case where the defendant in an action succeeds in getting the judgment of the court that the plaintiff has no cause of action.
A similar confusion of jural and non-jural relations is found in a recent book (“Les transformations générales du droit privé”) by Professor Duguit of the University of Bordeaux (translated in part as one of the chapters of “Progress of Continental Law in the Nineteenth Century” (Cont. L. Hist. Ser., XI, cap. iii) . ”

“ Clearly A’s situation is, as respects others, an absolute legal situation. As to his title, no act can be claimed from him nor any act projected against him. If B, a stranger to the title, should go through the form of making a conveyance of a fee simple right in A’s land, the act would be a legal nullity. Moreover, B is under no legal duty not to make such a paper conveyance. Any act of B attempting to convey A’s title would be wholly lacking in legal consequences. Accordingly, A’s situation, as owner, as to such an act on the part of B, is absolute ”

“ One would hardly be considered immune in any practical sense from a disease which has never existed and which will never come into existence. Likewise, in the law, what has never existed and never will exist is not worth consideration either by lawyers or jurists. ”

“ Since jural relations must be completely isolated and identified, it is of no profit to know that ‘no-right’ is the negative of a ‘right.’ (a) One may have ‘no-right’ and yet occupy an important jural position. ”

“ The term ‘immunity’ is well known to the law and we believe it can be usefully employed in a juristic sense, which is reasonably consistent with prevailing professional usage, and it seems to us unfortunate that an effort was not made to incorporate it in a juristic table where its actual fundamental operation would be disclosed. Nor do we deny that it may rarely be convenient to use a negative category of terms to facilitate communication of ideas, as. ”

“ Corbin in a recent statement issued with collaboration of his associates, seems to limit ‘power’ to the function of creating “new legal relations” (“Legal Analysis and Terminology,” Yale L. Jour., XXIX, 168) .
↑ “Fund. Concepts,” p. 10, n. 13. ↑ Id., p. 39. Note the term ‘negation’ (not emphasized in the original) . ”