The first three sections (pp. 16-28).

You should skip these. They are not important for our discussion. Hohfeld uses them to point out that some terms can be used to refer to both legal concepts and non-legal ones. “Property,” for example, can refer to physical things, like a house, or to the legal rights of property owners.

The Thesis

The essay starts in earnest on page 28, the section titled “Fundamental Jural Relations Contrasted with One Another.”

Here he sets out the motivation for the project. I quoted it earlier, but we can spare the pixels, so I will repeat it here.

One of the great hindrances to the clear understanding … of legal problems frequently arises from the express or tacit assumption that all legal relations may be reduced to “rights” and “duties,” and that these latter categories are therefore adequate for the purpose of analyzing even the most complex legal interests, such as trusts, options, escrows, “future” interests, corporate interests, etc. (Hohfeld 1913, 28)

In other words, the reason for writing this essay is that legal relations cannot be completely characterized using only the concepts of rights and duties. Nonetheless, many people try to do just that. That is the motivation.

Here is the thesis. Hohfeld claims that the following scheme of opposites and correlatives covers all of the possible legal relations (Hohfeld 1913, 30).

The contention is that the four concepts in the first column can be understood in terms of their opposites and correlatives. For example, to have a right means you do not have a no-right and that another party has a correlative duty.

What is a “no-right,” you ask? Look at the second row. A no-right is the correlative of a privilege. The party that has a privilege does not have a duty, as duty is the opposite of privilege. And since the first party does not have a duty, the second party has a no-right, which is another way of saying that the second party does not have a right. If the second party did have a right, the first party one would have a duty; see the first column.

Here is an example. Suppose I have a privilege to open a dry cleaning store. That means I do not have a duty not to open a dry cleaning store. Furthermore, the owner of a competing dry cleaning store, say, does not have a right against my opening a my own store.

The legal relation between me and the competing dry cleaner is that I have a privilege against him and he has a no-right against me. That means that if he should try to sue block my store from opening, I will win.

In this way, the eight terms in that table are all defined in terms of one another.

Rights and Privileges (pp. 30-44).

The word “right” is used in common speech, and often in the law, to refer to all four of the concepts in the first column: right, privilege, power, and immunity (Hohfeld 1913, 30). But, Hohfeld maintains, the central meaning is the one he identifies in the first row.

What it means to have a right, according to this definition, is that a correlative duty exists. What that means is that rights logically entail duties. As Hohfeld puts it “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 towards X to stay off the place” (Hohfeld 1913, 32).

At the end of his discussion of each of his concepts, Hohfeld considers alternative names for them. In the case of “right,” he considers “claim” to be a worthy synonym (Hohfeld 1913, 32).

The discussion of the term “right” takes up less than three pages (Hohfeld 1913, 30–32).

What it means to have a legal privilege, according to Hohfeld, is that one is not under a duty. This is unilateral rather than bilateral. If X owes a contractual duty to Y to get something from X’s house, then X has a duty to enter X’s house. This is compatible with X having a privilege to enter X’s house. But it is not compatible with X having a privilege to stay out of his house (see Hohfeld 1913, 32–33). If X were completely free to do as he wishes, he would have a bilateral privilege to enter or leave his house as he sees fit.

Hohfeld notes that it is common to refer to privileges with the term “right” (or cognate terms in other languages), but he thinks this is an error (Hohfeld 1913, 33–34). For example, he thinks the author of this passage is unwittingly using different concepts as if they were one thing, namely, a right.

If … the power of the State will protect him in so carrying out his wishes, and will compel such acts or forbearances on the part of other people as may be necessary in order that his wishes may be so carried out, then he has a ‘legal right’ so to carry out his wishes. (quoted in Hohfeld 1913, 34).

Is it obvious that this author is making a mistake about what a right is, as Hohfeld alleges? Hohfeld thinks the meaning of the term “right” means “has a correlative duty.” The author he is criticizing thinks that someone who has a right must have the privilege of choosing whether to exercise it or not. A right, for Hohfeld, could be mandatory. For example, children have a right to attend school since the state is obliged to provide them with an education. But they are also required to attend. So do they have a right to go to school? Do prisoners have a right to stay in their cells?

At the end of the discussion of privileges, Hohfeld discusses the appropriateness of the word “privilege” for the concept he has in mind (Hohfeld 1913, 38–41). He follows this with a discussion of possible synonyms, such as “liberty” or “license” (Hohfeld 1913, 41–44). While interesting, I view this as largely digressive material.

Powers and Immunities (pp. 44-58)

Legal powers are abilities to bring about legal changes. They are created by what Hart called enabling rules. Congress has the legal power to pass laws. Judges have the legal powers to declare that defendants are guilty and to pass sentences. And ordinary people have legal powers to make contracts.

Legal powers are notoriously difficult to define. For example, suppose I want a place to stay and to have my meals provided for me so I shoplift in order to be sent to jail.¹ I bring about a change in my legal status. But is that a legal power like the ones listed in the previous paragraph? Most people think it is not.

Hohfeld says that a legal power is the opposite of a legal disability and the correlate of a legal liability. OK, but what is a legal power? He does not think there is a satisfactory abstract definition. Rather, he offers “an approximate explanation sufficient for all practical purposes,” namely, that a legal power exists when a change in legal relations is under the “volitional control” of one or more human beings (Hohfeld 1913, 44).

For example, property owners can transfer their property to someone else. Or they can abandon it, giving anyone a privilege to take it (Hohfeld 1913, 45). Powers are also used in making contracts or authorizing someone to act as an agent (Hohfeld 1913, 46).

One party’s power has as a correlate another party’s liability to change. If I give you my house, I can make you a property owner. If I abandon my house, I give you the privilege of entering it at will. When it was still mine, by contrast, you did not have this privilege.

In escrow, one party has the power to transfer property from the other party. If I agree to sell you my house, it will go into escrow. You have the ability to transfer title provided you meet the conditions of our contract, such as paying for it. Until you meet those conditions, the house belongs to me. But you are capable of changing that; you just have to meet the conditions (Hohfeld 1913, 48). Here, I have a liability that is correlative to your power. I am liable to lose title to the house if you exercise your power to take ownership.

By contrast, if I do not agree to sell you the house, you have the opposite of a power: a disability. You cannot make the house your own without my consent. I, on the other hand, have an immunity; you cannot change my title to the house.

The basic point is that powers and rights (or “claims”) are different things. Someone who has a power can make bring about legal changes. That is not the same thing as being owed a duty (see Hohfeld 1913, 53). By the same token, immunity to changes in one’s legal relations is not the same thing as being owed a duty. If you appear in court and say, falsely, “that house is mine!” you will fail not because you will violate a duty but rather because you have a disability to make the house yours or, to put it the other way around, I have an immunity against your attempts to make the house yours.

Hohfeld discusses immunity and disability specifically on pages 55-58, ending, as always with some consideration of alternative names for the phenomena.