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HOHFELD’S Vocabulary and its Limitations
By arlene | May 10, 2008
If the law views property as relations among persons with respect to things, which relations are involved? A start on an answer lies in Hohfeld’s Fundamental Legal Conceptions.’ Writers sometimes refer to the Hohfeldian analysis of property. The reference is misleading. For a reason that will be given at the end of this section, it is more accurate to think of Hohfeld’s theory as an analytical vocabulary. The vocabulary treats certain legal concepts as basic and explains their interrelations.
To understand the key features of Hohfeld’s theory, consider the example. The “fundamental legal conceptions” are the eight items in the elements and correlatives columns. Hohfeld’s notion of a correlative involves two-way entailment.’ The statement that A has a claim-right to $100 from B entails, and is entailed by, the statement that B has a duty to pay $100 to A. Very different from a claim-right — or, as Hohfeld usually says, simply a right or claim — is a privilege. A privilege is a legal liberty or freedom. It involves not a correlative duty but the absence of a right on someone else’s part to interfere. A claim-right is also quite different from a power. A person has a legal power when, by some act, he can alter his legal position or that of someone else. The correlative of a power is a liability. Hohfeld’s term “liability” is not equivalent to tort or criminal liability. Nor need a liability be disadvantageous. Rather, a liability is a susceptibility to having one’s legal position altered. If A can transfer a farm to B by signing certain documents, A has a power of transfer and B a correlative liability to receive. Finally, a claim-right differs from an immunity. An immunity is a lack of susceptibility to having one’s legal position altered by someone else. Its correlative is not a duty on someone else to refrain from altering one’s legal position but rather the absence of a power in someone else to alter one’s legal position in the way protected by the immunity. If B cannot legally compel A to sell his farm, A has an immunity with respect to B’s forcing a sale of the farm. Correlatively, B has no power to force a sale.
Hohfeld’s notion of an opposite involves external rather than internal negation. Consider the second row, where privilege and duty appear as opposites. Suppose that A has a duty to pay $100 to B. The opposite is not the internal negation: “A has a duty not to pay $100 to B.” It is the external negation: “It is not the case that A has a duty to pay $100 to B.” Since an absence of a duty of opposite tenor is a privilege, the external negation is equivalent to “A has a privilege to pay $100 to B.”
Hohfeld’s vocabulary has no serious rival of its kind in intellectual clarity, rigor, and power. It does, however, have limitations. One limitation is that there are reservations about Hohfeld’s claim that the eight conceptions are the “lowest common denominators of the law.”‘ Some reservations relate to interdefinability, distinctness, completeness, and irreducibility. (1) If conceptions in the first two rows are interdefinable, and if the same holds of conceptions in the next two rows, then conceptions within these respective groupings do not seem distinct in any potent sense. Perhaps the only potent claim is that there are two distinct groupings of not wholly distinct conceptions. (2) As to completeness, Hohfeld presents no argument that the eight conceptions are all the fundamental legal conceptions there are. (3) Even if the conceptions are distinct and complete, they may not be irreducible. One can argue, for example, that Hohfeld’s eight conceptions can be reduced to two more primitive and slightly different conceptions of “duty” and “power.”‘ Nevertheless, these reservations are essentially technical doubts. They do not impair the usefulness of Hohfeld’s terminology for most legal and philosophical purposes.’
Another limitation is that Hohfeld’s theory does not manage to clarify the sense in which disparate legal relations can all be considered rights. In fact, Hohfeld insists that the only proper sense of the word “right” is that in which it involves a correlative duty on the part of someone else,’ and that to use the word also to cover a privilege, power, or immunity is “looseness of usage.”‘ But this insistence ignores, or underemphasizes, a unifying feature of the conceptions in the elements column. They are all rights in the broad sense of being individual advantages secured by law — where advantages include both choices and benefits. It is just that the advantage is sometimes secured by something other than a correlative duty on another person.
A different limitation is that Hohfeld’s vocabulary cannot be mechanically applied. The point is not that people can find the vocabulary hard to master — although many law students will testify that it is not easy. Rather, the point is that people cannot employ it accurately without a grasp of the relevant law. A good illustration is the case of Quinn v. Leathem, discussed by Hohfeld and other writers.’ Quinn tried to get Leathem, a butcher, to substitute union members for his nonunion employees. When Leathem refused, Quinn threatened to strike at the shop of one of Leathem’s customers unless he stopped doing business with Leathem. After the customer ceased to buy meat from him, Leathem sought damages for unfair competition. The key issue here is whether Leathem had only a privilege, or also had a claim- right, to carry on a lawful business. The latter would involve a correlative duty on Quinn not to interfere, whereas the former would not. A mastery of Hohfeld’s vocabulary is not enough to resolve the issue. One also needs to know the law and to make sound policy decisions about it. The beginnings of a resolution might go like this. The then-existing English law of unfair competition recognized certain specific duties stemming from the torts of intimidation, conspiracy, and inducement of breach of contract. Yet Leathem’s asserted claim-right was not, under then-existing English law, correlative with any of these specific duties. Hence, to make out Leathem’s case it was vital to establish some further duty on Quinn not to interfere. Hohfeld’s system enables one to distinguish a privilege from a claim-right. It also enables one to see that if a claim-right is recognized, some new duty of noninterference must be imposed. An analytical vocabulary does not dictate an answer, but it does clarify the choice a judge must make in imposing, or refusing to impose, a new duty.
For immediate purposes, however, the chief limitation is that Hohfeld’s system does not say which conceptions are involved in the idea of property. His vocabulary is as applicable to tort and contract and civil procedure as it is to property. What is needed is some way of identifying which conceptions, perhaps specified more fully, might be peculiar to property.
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