A Hohfeldian Primer

In 1913, Wesley Newcomb Hohfeld published a seminal article about fundamental legal terminology. He argued that the description of legal relationships was unnecessarily complicated by a lack of precise use of legal terms. The Hohfeldian system is atomistic in that all legal relationships can be described with only eight terms: right, duty, power, liability, immunity, disability, privilege, and “no-right.” These terms form a semiotic system: a set of interrelated terms whose individual meanings are not clear unless viewed in the context of the entire set of terms. There are four fundamental rules that apply to the system: 1) all legal relationships are between exactly two persons, 2) the state’s monopoly on violence is necessary to implement the system, 3) each term has one correlative term and one opposite term; and 4) a relationship can be described using either term from a correlative pair.

All legal relationships, no matter how complex, can be described using one or more of the eight terms. Some basic examples include: Person X has a right to exclude from her land Person Y; during war, Person X has the privilege to kill the enemy soldier Person Y. Person X has the power to nullify her contract with Corporation C; and Person X, a foreign diplomat in State S, is immune from prosecution for acts related to her diplomatic role in State S by the court of State S. As these examples show, all relationships are between exactly two legal persons (a natural person, a corporation, or a state).

More complex relationships are constructed by describing multiple relationships. “Ownership” of land in the Hohfeldian system, for example, is a collection of legal relationships: X has the right to exclude Y from the land, X has immunity from Y expropriating the land, X has the power to grant a privilege to Y to enter the land, and X has the duty to not to use the land to harm Y.

Each term has one correlative term and a legal relationship can be expressed using the correlative term. If X has the right to exclude Y, then Y has the duty not to enter X’s land. The correlative of X having the privilege to kill the enemy soldier Y is that Y has “no-right” to sue X if X uses her privilege. The correlative of power is liability. If X has the power to nullify her contract with C, then C has the liability that X may nullify the contract. Finally, if X has an immunity from prosecution by S, then S is disabled from prosecuting X.

Basic definitions of the terms

As a semiotic system, it is difficult to understand the individual terms without understanding all of the terms. This section defines the terms, and the remaining sections elaborate the system.

A right is a claim against another person, and the rightholder may summon the violence of the state to prevent or remedy a violation of that right by the other person.

“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.” Hohfeld at 32.

A privilege is the negation of a duty: it is permission to do an act that would normally be a breach of a duty.

A “no-right” is the opposite of right, and the correlative of a privilege: because the other person has a privilege, one has “no-right” to summon the state’s violence to prevent or remedy an act that would otherwise be a breach of a duty.

Power is the ability to change a legal relationship.

Liability is the possibility that one’s legal relationship will be changed when another person uses their power.

Immunity is an exception to the legal power of another: in the absence of the immunity, the other person could summon the violence of the state to change the legal relationship.

Disability is the opposite of power, and the correlative of an immunity: one is disabled from changing a particular legal relationship that one would normally be able to change.

Contrasting right and privilege

The difference between a right and a privilege is one of the hardest things to understand about this system. On close examination, however, there are clear differences.

Take Persons X and Y. X has a right to live, as related to Y. Every right must have a correlative duty, therefore Y has a duty not to kill X. Now assume that in a war, X and Y are enemy soldiers. Even during war, the right and duty still exist: if Y captures X, then Y cannot summarily execute X. If Y were to summarily execute X, then it would be a breach of Y’s duty not to kill X. A breach of a duty can be remedied by state violence, therefore X’s estate could sue Y for breach of the duty not to kill X.

If X and Y were to meet on the battlefield as armed combatants, however, Y would have the privilege to kill X. In this case, because a privilege is the opposite of a duty, Y’s privilege (to kill an enemy soldier) negates the duty (not to kill X). If Y successfully uses her privilege and kills X during a war, then X’s estate has “no-right” to sue Y for breaching Y’s duty not to kill X.

A right has the following characteristics: 1) it describes a legal relationship between exactly two legal persons, 2) it must be possible to describe the exact same relationship between the same two legal persons using the term “duty”, and 3) the rightholder must be able to summon the state’s monopoly on violence to prevent or remedy a breach of the correlative duty.

In contrast to a right, one may not summon the violence of the state to prevent or remedy a “violation” of a privilege. In the above example, Y has the privilege to kill X because they are enemy soldiers. To contrast right and privilege, recast the privilege to kill enemy soldiers as a “right.” All rights have a correlative duty, so the correlative of Y’s “right” to kill the enemy soldier X, is X’s “duty” to let Y kill her. Furthermore, if X breached her duty to let Y kill her, Y would be able to sue X. In the Hohfeldian system, this relationship is clearly not a “right” to kill X.

The proper correlative of Y’s privilege to kill X is X’s “no-right” to sue Y if Y attempts to use her privilege. While X may not sue Y if Y uses her privilege, X may still actively interfere with Y’s use of her privilege. If Y has a privilege to kill X, X can try to prevent Y from killing her. Again, if this were a duty, X could not interfere with Y’s actions, but since Y merely has a privilege, X can interfere and the law will not prevent the interference.

A privilege has the following characteristics: 1) it describes a legal relationship between exactly two legal persons; 2) the privilege of Y, in relation to X, negates a duty owed by Y to X; 3) Y may not summon state violence if X “violates” Y’s use of her privilege, even if X actively interferes with the privilege; and 4) X may not summon state violence to prevent Y from using her privilege, even though in the absence of the privilege, Y would owe a duty to X to not perform the same act.

A word on jural opposites

Two terms are jural opposites if one negates the other. As shown above, a privilege negates a duty. It is sometimes useful to speak about a lack of privilege or a lack of duty. In the above example, it is acceptable to say that Y does not have the privilege to summarily execute the enemy soldier X. Y is under a duty not to kill X, and it is logically equivalent to say that Y has “no-privilege” to kill X.

Concomitant rights blur the distinction between a right and a privilege

Identifying a legal relationship as a privilege or a right may be complicated by a concomitant right: a right granted by the state to a privilege-holder with the effect that the privilege appears to be protected by the violence of the state. For example, Y may have an easement to cross X’s land. In the Hohfeldian system, this is clearly a privilege. Absent the easement, X has the right to exclude Y, and Y has the correlative duty not to enter the land. The easement/privilege, however, negates that duty and Y may enter without fear of X suing for trespass. The Hohfeldian analysis of this relationship, however, is blurred by the observed fact that Y could sue X if X unreasonably interfered with the easement.

As explained above, one may actively interfere with a privilege without fear of a lawsuit. Yet, the privilege-holder (Y has an easement) may sue X if X unreasonably interferes with the privilege (the easement). The Hohfeldian system explains this situation with concomitant rights. When Y acquired her privilege (the easement), the law automatically granted her a right to use that easement free from unreasonable interference by X. The correlative of that right is X’s duty to not unreasonably interfere with Y’s easement. If the duty is breached, then the lawsuit is for the violation of the concomitant right, and not for a “violation” of the privilege.

Power and liability

Power is the ability to change legal relationships. Take Person X and State S. X normally has the right to free movement, as related to S. S has the duty not to curtail X’s free movement. If X is accused of a crime and meets all of the state’s jurisdiction requirements, then S has the power to change X’s right to free movement. If S indicts, convicts, and sentences X to jail, then S is exercising its power and removing X’s right to free movement. Note that removing the right simultaneously removes the duty. Liability is the correlative of power. If S has the power to remove X’s right of freedom, then X has the liability that S will remove that right.

As another example, Person X and Corporation C have a contract. X is a minor, and the law allows X to rescind the contract within a reasonable time of reaching the age of majority. The ability to rescind the contract is X’s power to change the legal relationship; the correlative is that C has the liability that X may rescind the contract.

Liability is not necessarily a negative term. X owns $1,000 and is feeling charitable. X has the power to transfer ownership of the money to Y. Correlatively, Y has the liability that X will give him the money.

Immunity and disability

As the opposite of liability, immunity is the negation of liability. Take Person X, a foreign diplomat in State S. If X commits a crime, S would normally have the power to prosecute X for the crime. As a diplomat, however, X has immunity from S’s courts. The correlative is that S is disabled from prosecuting X.

For a second example, take Corporation C, Corporation D, and Person X. Person X signs a contract with C for the sale of widgets. By signing the contract, X is using her power to create contracts. One provision in the contract, however, states that X shall not sell any widgets to Corporation D. Normally, X has the power to sign a contract with D, but she is under a disability to sign a contract for the sale of widgets with D because of her contract with C.

My thanks go to Professor Henry H. Perritt, Jr. for his help.

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