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Hohfeld [Hohfeld1913-sflc] defines two groups of four legal relations between individuals, the first group having to do with ordinary actions:

right

Person P has the right to do action A if every other person Q has the duty to allow P to do A.

A right is one's affirmative claim against another [Hohfeld1913-sflc:55].

duty

A duty … is that which one ought or ought not to do. [Hohfeld1913-sflc:32]

privilege

[A] privilege is one's freedom from the right or claim of another [Hohfeld1913-sflc:55].

no-right

Person P has the no-right to do action A if at least one other person Q does not have the duty to allow P to do A.

and the second group having to do with actions that change legal relations:

power

[A] power is one's affirmative ‘control’ over a given legal relation as against another [Hohfeld1913-sflc:55].

disability

disability (no-power) [Hohfeld1913-sflc:55].

immunity

… [A]n immunity is one's freedom from the legal power or control of another as regards some legal relation [Hohfeld1913-sflc:55].

liability

Perhaps the nearest synonym of liability is subjection or responsibility. [Hohfeld1913-sflc:54].

Each relation is paired with its opposite, the relation that is in a sense its negation, and also with its correlative, the relation that is in a sense its inverse (Figures 1 and 2).

If R and R_opp are opposites, then for P to have relation R is equivalent to P to fail to have relation R_opp.

If R and R_corr are correlatives, then for P to have relation R is equivalent to all other persons Q to have a corresponding relation R_corr.

Each relation is fundamentally between two people;  where a relation is presented as between a person P and many or all people, the meaning is the union of all the pairwise relations between P and one of the other people.

For each relation R, its opposite R_opp, and its correlative R_corr:

1. "P has R" is equivalent to "P fails to have R_opp". For the first quartet of relations, R concerns doing an action A;  for the second quartet of relations, R concerns changing a legal relation S. Examples:

   "P has the right to do A"	⇔	"P fails to have the no-right to do A".
   "P has the duty to do A"	⇔	"P fails to have the privilege to not do A".
   "P has the power to change S"	⇔	"P fails to have the disability to change S".
   "P has immunity from changes to S"	⇔	"P fails to have the liability to changes to S".

2. "P has R" is equivalent to "Every person Q other than P has R_corr". Examples:

   "P has the right to do A"	⇔	"Every Q other than P has the duty to allow P to do A".
   "P has the duty to do A"	⇔	"Some Q other than P has a right that depends on P doing A".
   "P has the no-right to do A"	⇔	"Some Q other than P has the privilege to prevent P from doing A".
   "P has the privilege to do A"	⇔	"Every Q other than P has the no-right to do anything prevented by P doing A".
   "P has the power to change S"	⇔	"Some Q other than P has a liability to changes in S".
   "P has the liability to changes in S"	⇔	"Some Q other than P has a power to change S".
   "P has the disability to change S"	⇔	"Every Q other than P has immunity to changes in S".
   "P has immunity to changes in S"	⇔	"Every Q other than P has the disability to change S".

Quotations from Hohfeld's writings

1. 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. (Hohfeld1913-sflc p32)
2. 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 (Hohfeld1913-sflc p32)
3. whereas X has a right or claim that Y, the other man, should stay off the land, he himself has the privilege of entering on the land;  or, in equivalent words, X does not have a duty to stay off. (Hohfeld1913-sflc p32)
4. The privilege of entering is the negation of a duty to stay off. (Hohfeld1913-sflc p32)
5. … when it is said that a given privilege is the mere negation of a duty, what is meant, of course, is a duty having a content or tenor precisely opposite to that of the privilege in question. (Hohfeld1913-sflc p32)
6. … if A has not contracted with B to perform certain work for the latter, A's privilege of not doing so is the very negation of a duty of doing so. (Hohfeld1913-sflc p33)

References

Balkin1990-hals

J. M. Balkin. The Hohfeldian approach to law and semiotics. University of Miami Law Review, 44:1119–1142, 1990.

Abstract

This Essay attempts to show some of the important connections between the Continental tradition of semiotics, American Legal Realism, and the Critical Legal Studies movement. Semiotics, the study of signs and systems of signification, was developed independently by two thinkers, the American philosopher Charles Sanders Peirce and the Swiss linguist Ferdinand de Saussure. Much of the literature in legal semiotics has followed the Peircian tradition, but ironically, its connections with progressive movements in American legal theory have not always been clear. This Essay offers an alternative way of uniting legal semiotics with legal theory in America. It argues that the line of inquiry begun by Saussure, and continued by the French structuralists and post-structuralists, is not only an especially fertile way of approaching the study of legal semiotics, but that this semiotics can be more readily adapted to understanding politics and ideology as they are expressed in and disguised in legal thought. For this reason, there is a very natural affinity between Saussure’s semiology, on the one hand, and the work of the legal realists and the modern Critical Legal Studies movement on the other.

url

Hogan2007-hp

Hunter Hogan. A Hohfeldian primer. Legal Blog. Chicago-Kent College of Law. 20 Dec. 2007.

Abstract

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.

url

Hohfeld1913-sflc

Wesley Newcomb Hohfeld. Some fundamental legal conceptions as applied in judicial reasoning. Yale Law Journal, 23(1):16–59, Nov. 1913.

url

Hohfeld1917-flca

Wesley Newcomb Hohfeld. Fundamental legal conceptions as applied in judicial reasoning. Yale Law Journal, 26(8):710–770, 1917.

url

• thomas · alspaugh @ acm · org
• 
• 2019May11Sa10:36
• Attribution