Hohfeldian 2 PDF

The Hohfeldian System of Fundamental Legal Conceptions
Author(s): DAVID JOHN HISLOP

Source: ARSP: Archiv für Rechts- und Sozialphilosophie / Archives for Philosophy of Law
and Social Philosophy, Vol. 53, No. 1 (1967), pp. 53-89
Published by: Franz Steiner Verlag
Stable URL: https://www.jstor.org/stable/23678299
Accessed: 21-08-2019 16:02 UTC
REFERENCES
Linked references are available on JSTOR for this article:
https://www.jstor.org/stable/23678299?seq=1&cid=pdf-reference#references_tab_contents
You may need to log in to JSTOR to access the linked references.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
Franz Steiner Verlag is collaborating with JSTOR to digitize, preserve and extend access to
ARSP: Archiv für Rechts- und Sozialphilosophie / Archives for Philosophy of Law and
Social Philosophy
This content downloaded from 223.31.174.90 on Wed, 21 Aug 2019 16:02:01 UTC
All use subject to https://about.jstor.org/terms
The Hohfeldian System of Fundamental
Legal Conceptions
BY DAVID JOHN HISLOP, SYDNEY '
I. Introduction
Wesley Newcombe Hohfeld, a Professor of Law at Stanford and later

at Yale University, died in 1917 at the age of thirty nine years. In his
unfortunately short académie lifetime,HoHFELD hadwritten no lengthy
work and comparatively few articles.1 Yet his analysis of fundamental
legal conceptions entitles him to a place amongst the leaders in the
field of analytical jurisprudence.
The express main aim of his two principal essays* was "to empha
size certain oft-neglected matters that may aid in the understanding
and in the solution of practical every-day problems of the law"s and
his diief concern was with the fundamental conceptions of the law —
"the legal elements that enter into ail types of jurai in teres ts".4 Hoh
eeld felt that "One of the greatest hindrances to the clear understand
ing, the incisive statement, and true solution of legal problems fre
quently arises from the express or tacit assumption that all legal rela
tions may be reduced to "rights" and "duties" and that these latter
catégories are therefore adéquate for analysing even the most complex
legal interests".5 But "right" and "duty" are "chamelion-hued" words
and their general use often constitutes a "péril both to clear thought
and to lucid expression".6 An analysis of the word "right" as it is used
* A Solicitor of the Suprême Court of New South Wales, Australia and part
time Teadiing Fellow in Jurisprudence at the University of Sydney. This
article is a shorter version of a paper delivered to the Australiern Society
of Legal Philosophy in December, 1965. The writer wishes to acknowledge
his thanks to the members of the Society who contributed to the discussion
at that meeting.
These articles were collected and published after Hohfeld's death in the
volume entitled Fundamental Legal Conceptions as Applied in Judicial
Reasoning (1923).
W. N. Hohfeld, "Fundamental Legal Conceptions as Applied in Judicial
Reasoning" (1913) Yale L. ]. 16 and another article of the same title (1917)
Yale L. J. 710.
Id., article first cited supia n. 2, at 20. 4 Loc. cit. 5 Ibid. 28. * Ib. 29.
54 David John Hislop
often been used to indícate four différent ideas

or potential activity of one person with referen
pointed out that "inadequacy and ambiguity
reflect, ail too often, corresponding paucity an
actual legal conceptions".7 To avoid confusion
in meaning which resuit from loose termino
that a separate term be used for each of the
ceptions. He then identified eight such basic
labelled each, and sought to show the relationsh
The breakdown of the general word "right
ceptions was begun by Bentham and Austin a
including Windscheid, Bierling and Salmond
feid's work was not really a pioneering effort i
a comprehensive sdieme of fundamental legal co
The HoHEELDian scheme of legal analysis w
hopes of spectacular achievement. In 1919 it wa
as valuable to a lawyer as up-to-date instrum
and the same year the Yale Law Journal espe
tions making use of the new analysis.10 In 1920
of special discussion at a meeting of the Asso
Schools,11 whilst as late as 1956 we were to
Hohfeed's terminology "has been quite gener
can legal writing and has been used in the Resta
Torts".12 One writer expressed his firm beli
tical" legal work was ever done than that which
of Hohfeld's writing..."13 Yet on the other
been said to be of use only to "a lower grade of
Loe. cit.
As to the earlier attemps at analysis of "a right" see R. Pound, 4 Juris
prudence (1959) 74—97.
W. W. Cook, "Hohfeld's Contributions to the Science of Law" (1919) 28
Yale L. J. 721, at 730. This article was later published as the Introduction
to the collection of Hohfeld's articles cited supra n. 1.
(1919) 28 Y aie L. J. 85.
The proceedings of that meeting are contained in Handbook of the Asso
ciation of American Law Sdiools (1920) 184—193,194-98,199-212.
G. L. Williams, "The Concept of Legal Liberty" (1956) 56 Columbia L. R.
1121, at 1131. 13 Cook, article cited supra n. 9, at 730.
M. D. Howe (ed.), 2 Holmes-Pollock Letters (1944) 64, per O. W. Holmes.
letter dated 9. 2.1916.
The Hohfeldian System 55
seen as "an attempt at a legal algebra",15 as "artifici

"based on certain invalid assumptions that necessaril
implementation in the resolution of legal issues".17
In the light of this disparity of opinion concerning
Hohfeld's theory and the fairly recent comments inc
above it might be thought that his analysis has been a
many years. Such, however, is not the case, and indee
this writer that apart from the treatments during the f
after his death HoHFELDian analysis has not received
the attention it deserves.18 The reasons for this would seem
the following:
(i) Hohfeld died before he had a chance to complete h
in particular before he had proper chance to show the
Utility. His leading essays are concerned primarilywit
of his views and statements that his analysis can h
crete problems in the law.
(ii) Allied with the above we must remember that the
designed in the main for law students and are written
simplified form.19
(iii) HoHFELDian analysis was the victim of great ex
suffered from initial overpraise. To say that the schem
a tool as useful to a lawyer as up to date instrum
surgeon"20 is flowery nonsense and this sort of descr
have produced too strong a reaction in the opposite di
(iv) In the years immediately following Hohfeld's dea
ment of his analysis rested with men like Corbin an
This was perhapsunfortunate, for Corbin was rather t
restrict himself to generalities as to the usefulness of th
quibble with Kocourek over aspects of the theory.2
on the other hand developed his own théories build
15 M. Radin, "A Restatement of Hohfeld" (1938) 51 Harva
at 1147.
19 R. Stone, "An Analysis of Hohfeld" (1963) 48 Minnesota L
" Ibid. 313.
18 For critiques and biliography see J. Stone, Legal System and Lawyers'
Reasonings (1964) 137 n. 1 (hereinafter cited as Stone, Legal System) and
Pound, op. cit. supra n. 8, at 83 n. 101.
19 Hohfeld, article first cited supra n. 2, at 20.
20 Cook, article cited supra n. 9, at 730.
21 A. Corbin, "Jurai Relations and Their Classification" (1921) 30 Yale L. J.
222.
feld's foundation.22 It is submitted that th

the analysis far beyond what is practically wo
rek's neologisms and his detailed treatment
to the average lawyer.
(v) Hohfeld wrote at a time when positivism
sophy in Anglo-American Law. With th
engineering" HoHFELDian theory tended to
swing away from legal logic.
Now a half a Century later it seems an appropr
at Hohfeld's analysis. That we should do so now i
of certain other factors: Firstly, HoHFELDian ana
interest because of its links with deontic logic, a
the current agenda in Jurisprudence,-23 Secondly,
on Hohfeld of which this writer is aware, is, we
to show that Hohfeld's fundamental legal co
cial, that they are probably infertile (and) th
impractical".24 In Hohfeld's defence we need to r
to see if such a wholesale attack is justified.
In this paper the aim will be primarily to indic
theory is practically worth while and is worth
study. To this end the following matters will be
An outline of Hohfeld's theory.
The main lines of criticism that have been level
what can be said in Hohfeld's defence.
Submissions as to the application and usefulness of HoHFELDian
analysis.
H A. Kocourek, "The Hohfeld System" (1920) 15 Illinois L. R. 23; id., "Ta
bulae Minores Juiisprudentiae" (1921) 30 Yale L. R. 215; id., Jurai Rela
tions (2 ed. 1928).
13 See e. g. I. Tammelo, "Sketch for a Symbolic Juristic Logic" (1955) 8
Journal of Legal Education 177; id., "On the Logical Structure of the Law
Field" (1959) 45 Archiv für Rechts- und Sozialphilosophie; 95; id., "Legal
Formalism and Formalistic Devices of Juristic Thinking", in S. Hook (ed.),
Law and Philosophy: A Symposium (1964). See also Stone, Legal System
187—197 and the articles and references there cited. As to the links bet
ween Hoheeld and deontic logic generally, see M. Moritz, Über Hehfelds
System der Juridischen Grundbegriffe (1960). The writer is indebted to Mr.
D. B. Taylor, a final year jurisprudence Student in the University of
Sydney, 1965 class, for furnishing a summary in English of the last men
tioned work.
u R. Stone, article cited supra n. 16, at 337. Julius Stone's Chapter on Hoh
feld in his Legal System had gone to print before Roy Stone's article appeared.
II. An Outline of Hohfeld's Theory
As we have noted, Hohfeld's main aim was to break down

"right" and "duty" and to show that precise legal analysis
achieved by using these general words to Cover what are in f
distinct legal relations.25 Terms such as "contract" "mar
"property", and "trust" really involve complex and often var
gates of différent legal relations. Proper analysis requires
aggregates be reduced to their simpler elements and this mea
beyond mere "rights" and "duties". Hohfeld speit out eight
fundamental conceptions — rights (claims), duties, privilèges, no-rights,
powers, liabilities, immunities, and disabilities — which he called "the
lowest common denominators of the law".29 The basic jurai relations
were shown by use of these eight conceptions in tables of jurai
corrélatives and jurai opposites.
Departing from Hohfeld's actual présentation but following its main
lines we can set out his eight fundamental conceptions and the rela
tions between them as follows:27
Power * Immunity
Liability Disability
15 The term "legal relation" or "jurai relation" was used by Hohfeld wit
reference to two persons. Thus one does not have a legal relation to
oneself; nor with two others but only separate lejgal relations with ea
Again there can be no legal relation between a person and a thing. A
called legal relation to a corporation or the State may be reduced to man
legal relations with the individuáis composing the corporation or th
State, though for convenient discussion they may be grouped. As to le
relations generally see A. L. Corbin, "Legal Analysis and Terminology
(1919) 29 Yale L. J. 163, at 164-65.
" Hohfeld, article first cited supra n. 2, at 58.
17 Hohfeld presented his scheme by way of a table of corrélatives an
table of opposites rather than by way of the diagrammatic formulatio
here used. It is feit that the two separate squares not only is more conci
The vertical arrows here indícate the relationsh

that a tight (daim) in A against B implies a d
vice veisa. The diagonal arrows couple what Hohfeld called
"opposites", where the presence of one in A means the absence of the
other in A. Thus a no-iight in A means the absence of a right (daim)
in A. The horizontal arrows are not really important but are included
as the relationship they indícate (not dealt with by Hohfeld) is
mentioned in passing later in this paper.
Before discussing in detail what is meant by the jurai relationships
which Hohfeld called "corrélatives" and "opposites" and the separate
ideas denoted by each of the eight terms in the two squares above there
are two important preliminary points to be appreciated. Firstly as
Julius Stone makes clear, Hohfeld's scheme purports to provide a
logical frame built according to spécifications drawn from the actual
body of the law and not a legal frame based on premises external to the
law and into which a legal System is to be forced.28 Secondly, as Hoh
feld himself says "the strictly fundamental legal relations are, after ail,
sui-generis, and thus it is that attempts at formai définition are always
unsatisfactory, if not altogether useless".29 Accordingly the fundamen
tal legal relations are "exhibited" and "illustrated" rather than
"defined".
(1) The Relationships
(a) Jutai Conelatives
A corrélative is one of two things having a reciprocal relation such
that one of them necessarily implies, or is complementary to the
but also enables us to fully appreciate Hohfeld's comment that a power
bears the same general contrast to an immunity that a claim does to a
privilège. (Hoheeld, article first cited supza n. 2, at 55).
By this remark Hohfeld may be taken to have meant that we can recog
nise two fundamental situations in legal relations. Firstly, where X can
require an act from Y (claim) and secondly where X can act against Y
(power). Now if we take the negative of each of these and make Y the
dominus in each case, then we have respectively the situations where X
cannot require an act from Y (privilège, — no-right) and where X cannot
act against Y (immunity - disability). Thus privilège — no-right is to
claim — duty what immunity — disability is to power — liability, namely
the negative situation, and the two squares présentation enables us to
appreciate this clearly.
Stone, Legal System 137—38. Roy Stone questions how far Hoheeld can
be said to have empirically derived his theory from the cases — see his
article cited supra n. 16, at 325-28 and 337.
Hoheeld, article first cited supra n. 2, at 30.
other, e. g. husband-wife, parent-cbild, teacher-pupil.

corrélative terms constitute one relationship which
through the eyes of either the dominant or the servient p
presence of claim in A implies the presence of duty
versa ; the presence of privilège in A implies the presenc
in B, and vice veisa. This notion of jurai corrélatives
whole HoHFELDian analysis rests on the idea that bilatera
duty relationships is a feature of the structure of law. B
means that whenever a duty is imposed by a norm on
corrélative right is conferred with respect to the same s
on another person or persons and vice versa. There is
debate as to whether this concept is apt for all legal norm
has been suggested that in public law duties exist with
rights. This point will be put aside for the moment a
later in connection with criticisms levelled at HoHFE
Glanville Williams shows that it is important not to
concept of "corrélative" with "corollary". A corollary is a
déduction from a given proposition, generally so obvio
quire separate proof.31 Thus in Cole v. Police Constabl
argued that the "right" of parishioners to attend Church i
theii duty to do so. However this so-called "right" to atte
a mere privilège and follows the duty to attend, not b
corrélative but because it is a corollary stemming fro
"What the law requires it also justifies".33
(b) Juial Opposites

The terms on the diagonals in the présentation a
opposites. The presence of one involves the négation o
the same person so that if A has a right (claim) he canno
time have a no-right in respect of the same thing. A
privilège then he is free from a duty. Hohfeld calis fo
here for when we say that a given privilège is the négati
the two must be in respect of the same subject matter
special reason X has contracted with Y to go on the form
it is obvious that X has, as regards Y, both the privilè
50 See generally, Stone, Legal System 197-202.

31 Williams, article cited supra n. 12, at 1141 n. 16.
33 The duty to attend church is based on the Act of Unif
Edw. 6, ch. 1, (1552) still technically in force in England.
and the duty of entering. The privilège is perfe

sort of duty".83 The opposites in this examp
entering and the duty to stay off. There has
"opposites" on logical grounds which shall be
paper. For présent purposes of explanation it is
Hohfeld does not use opposites to mean contrad
non-A. As Stone points out opposites in the
together exhaust not everything in the wor
entities which consist of legal relations. Stone s
perhaps be better termed "class-complements".3
(2) The Eight Fundamental Legal Conceptions

(a) Pdght (daim)
"Right" is commonly used to denote any s
whether claim, privilège, power or immunit
this broad term to what may be regarded as
of right lies in the corrélative "duty". For righ
the first of Hohfeld's terms is "an enforceab
(action or forbearance)byanother."35Thus if Ah
note to repay £ 100 on demand and B has m
zight to the recovery of the money and A
The expression "right in the strict sense" is
Hohfeld suggests that if we wish to use a s
"right" in this "limited and proper meaning" p
would prove the best.36 "Right" (claim) was n
by Hohfeld. He regarded it as signifying a ve
one easy enough to understand.
(b) Duty
"Duty"is the corrélative of "right in the strict sense" and is explained
by Corbin as "the legal relation of a person B who is commanded by
society to act or to forbear for the benefit of another person A, either
immediately or in the future and who will be penalized by society
for disobedience".37 Thus in the example above A has a duty to pay
" Hohfeld, article first cited supra n. 3, at 32.

84 Stone, Legal System 139. See also ibid. 160 n. 90.
85 Corbin, article cited supra n. 26, at 167.
80 Hohfeld, article first cited supra n. 2, at 32.
to B the sum of £ 100. Again, and to use Hohfeld's

has a claim against Y that he shall stay off the form
corrélative (and équivalent) is that Y is under a duty t
place.
je) Privilège
"Privilège" as it is used in ordinary language has many différent
meanings.38 Thus the term is used in the sense of claim when we
speak of a privilège to obtain a pension; in the sense of power when
we speak of the privilège of a législature to compel the attendance
of witnesses; in the sense of immunity when we speak of diplomatie
privilège; in the sense of capacity when we speak of the privilège
of a corporation to enter into contracts. As used by Hohfeld privilège
is the corrélative of no-right and the opposite or négation of duty.
Stone explains it as that kind of liberty (in the AusTiNian sense)
which the law tolerates but does not support by imposing a duty on
anyone eise.39 Hohfeld explains and illustrâtes privilège by reference
to Gray's shrimp salad example. A, B, C and D are the owners of a
shrimp salad and say to X "eat the salad if you can but we do not
agree not to interfère with you". Here X has a privilège, a liberty to
eat the salad, or to put it in terms of its opposite, the freedom from
a duty not to eat the salad. The corrélative of this is the no-right
of A, B, C and D that X shall not eat the salad; but note that there X
does not have a right (claim) not to be interfered with, and that A, B, C
and D do not have a duty not to prevent X from eating the salad.
"If X succeeds in eating the salad, he has violated no rights of any of
the parties but it is equally clear that if A has sueeeeded in holding
so fast to the dish that X could not eat the contents, no right of X
would have been violated".40
Fallacies often arise because it is assumed that everyone has a right
not to be interfered with in the exercise of his liberties. This is clearly
false. There are two différent propositions involved, viz: —
"I have a liberty (privilège) to do this" and
"I have a right (claim) not to be interfered with in doing this".
This first proposition means that I do not commit a legal wrong by
doing so and so. The second means that you commit a legal wrong by
interfering with my doing so and so. Because of the width of the law
38 See Kocourek, op. cit. supra n. 22, at 6 n. 2. 38 Stone, Legal System 143.
40 Hoheeld, article first cited supra n. 2, at 35.
oí Tort especially in such Torts as assault and f

second proposition often coincides with the f
yet there can be a privilège to do something
be interfered with in doing it.41 If the owner
you can picnic on my land every Sunday, the
the négation of a duty to stay off the land. The
to interfère and he can obviously termínate B
exercising his own privilège to lock B out.42
Hohfeld shows that both the concept and t
find considerable expression in the law43 an
that the right (daim)-privilège distinction is
case law.44
(d) No-Right
"No-right" as used by Hohfeld is the corrélative of privilège and
the opposite of right (claim). It has been explained as "the legal relation
of a person A in whose behalf Society commands nothing of another
B".45 No-right is, then, a very negative concept, so much so, that some
critics, as we shall see later, suggest that it has no juristic significance
at all. It is used in the HoHFELDian scheme to desígnate freedom from
a claim. Thus in the shrimp salad example where X has no affirmative
right (claim) but merely a privilège to eat the salad, A, B, C and D
do not have a duty not to prevent him but merely the absence of a
claim that he will not eat the salad. Kocourek explains that if we see
claim as a capability to require with legal effect an act from another,
then the opposite i. e. the négation of the claim, is the lack of capability
to require an act from another. The connotation of "no-right" to
Kocourek was therefore "inability".48
41 Wilhams, article cited supra n. 12, at 1143—44.

42 Even a bare licence cannot be revoket without reasonable notice, so that
until the expiration of the reasonable notice, the licensee is protected by
a right (claim) no to be interfered with in dérogation of the licence. See
Minister for Health v. Bellotti (1944) K. B. 298. This right (claim) is quite
distinct from the privilège granted by the licence. See Williams, article
cited supra n. 12, at 1145 n. 25.
43 Hohfeld, article first cited supra n. 2, at 40-43.
44 See e. g. Allen v. Flood (1898) A. C. 1; Musgrove v. Chun Teeong Toy
(1891) A. C. 272; Chaffers v. Goudsmid (1894) I. Q. B. 186. Other cases are
cited by R. Dias, Jurisprudence (1964) 233.
48 Kocourek, "Tabulae Minores Jurisprudence" cited supra n. 22, at 220-21.
(e) Powei
"Power" in HoHFELDian terms is the legal relation oí A to B when

A's own voluntary act will bring about new legal relations,- it is the
ability to alter the existing legal condition of oneself or another for
better or for worse. Thus, to use one of Hohfeld's examples by way
of illustration, X, the owner of ordinary personal property in a tangible
object has the power to extinguish his own interest (rights, powers,
immunities etc.) through the totality of operative facts known as
abandonment; and to create in other persons privilèges and powers
relating to the abandoned object, e. g. power to acquire title by
appropriating the object. Similarly X has the power to transfer his
interest to Y — that is to extinguish his own interest and concomitantly
create in Y a new and corresponding interest.
Hohfeld feels that it is necessary to distinguish carefully between
the legal power, the physical power to do the things necessary for the
exercise of the legal power, and finally the privilège of doing these
things.47 As to physical and legal power we can note that a person
may have the legal power to make a will even though he is too weak
physically to sign his ñame. The concepts of power and privilège
can easily be confused for both relate to the conduct of the holder
of the privilège or power and so both have a common différence
with claim, which relates to the conduct of another.48
Other examples of power considered by Hohfeld are in the agency
relation and in the offer and acceptance situation. Thus where A
makes an offer by mail to B, the owner of Blackacre to buy land for
£ 10,000 the operative facts create a power as regards B and a
corrélative liability as regards A. As Hohfeld explains the liability
of A will continue for a reasonable time unless in exercise of his power
to do so A previously extinguishes it by the series of operative facts
known as revocation. Now it is interesting to consider in this example
whether A is exercising a "power" in the HoHFELDian sense in making
the initial offer to B. Certainly Kocourek and Goble think so.4'
Both say quite definitely that A has a "power" to place B in the
position of offeree and both treat this as a "power" in Hohfeld's sense.
Hohfeld himself is concemed with B's power to accept the offer and
47 Hohfeld, article first cited supia n. 2, at 52.
48 Kocourek, "Tabulae Minores Jurisprudentiae" cited supra n. 22, at 218.
48 Id., op. cit. supra n. 22, at 67. See also G. Goble, "A Redéfinition of Basic
Legal Terms" (1935) 35 Columbia L. R. 535, at 535.
does not suggest that A also has a power to m

careful reading of Hohfeld's example indicat
that this was not a power.50 With respect t
Goble their analysis seems to represent the
blurringofnon-legal conceptions towhidiHoHFL
The "power" to make an offer, as Stone aptly
a power in Hohfeld's sense at ail but is "a mix
and legal privilège (liberty)".52
Powers often coexist with rights, privilèges, im
and Dias makes three separate situations clear
is where a power is coupled with a privilège,
cannot be penalized for having exercised it or fo
In Clore v. Theatrical Properties Limited,54 Y ha
X's land. X assigned his interest to A and Y assig
A exercised his power to revoke B's privilège. It
do so, and since there was no contract between A
no duty not to exercise the power, i. e. he had
Secondly, we have the situation where the po
duty to exercise it. In R. v. Somerset, Ex Parte E
Limited55 it was held that the statutory power
state a case was coupled with a duty to do so only in cases of
convictions for crimes, but that in other cases there was only a
privilège to do so. Mandamus lies only in the former. The third
situation is where a power is coupled with a duty not to exercise it,
i. e. no privilège to do so. Thus A has the legal power hy assaulting B
of creating a claim to damages in B, but this power is coupled with
the duty not to use it.
M See Hohfeld, article first cited supra 11. 2, at 49-51. His example is very
similar to the one here provided and he says that "the operative facts
thus far mentioned have created a power as regards B" (at 49, emphasis
added). 51 See e. g. ibid. 20-25.
H Stone, Legal System 147. Stone discusses the point in relation to a dis
tinction Kocourek made between mesonomic and 2ygnomic relations.
See generally, Kocourek, op. cit. supra n. 22 and ch. V in Stone, Legal
System 147-49. That distinction is said by Stone to be "no doubt a valu
able one". The présent writer feels that, on the contrary, it is an instance
of Kocourek's unfortunate and too general tendency to take analysis of
jurai relations beyond what is practically worthwhile.
53 Dias, op. cit. supra n. 44, at 241-44. 53 (1936) 3 Ail E. R. 483.
55 (150) I. K. B. 519.
(f) Liability
Liability is the corrélative of power and is the rela
when A may be brought into new legal relations by
act of B. Thus if B has a power to dränge the legal r
either with regard to B or a third party, A, then has a l
legal position will be altered. In the offer and accep
used in connection with power, A having made an o
liability that B will accept the same and create contr
Again if A has by Power of Attorney given B the power
then A has a liability of being brought into property r
It is to be noted that liability is not necessarily disad
though it is with liability to the création of duty with
most often concerned. A has the power to devise Bla
ta B; the corrélative is the liability oí B to have Bla
to him.
(g) Immunity
The isolation of the concept of immunity was one o
additions by Hohfeid to the work of his predecessors
of the term "a right" and Stone sees it as the least discu
satisfying part of Hohfeed's scheme.56 The term is used
or négation of liability and accordingly can be explai
from the legal power or "control" of another as reg
relation. Hohfeld commented that "as indicated by judic
. . . the best synonym is . . . the term 'exemption'".
is immune from an action in defamation for anything
course of giving his judgment. Again, we find "im
powers of taxation and "immunities" in the so-called
diplomatie envoys.
The distinction between privilège and immunity is
by the position of a diplomatie envoy. Though dipl
are immune from power of action for recovery of dam
of a breach of duty they are not free from duties, i
have a privilège in the HoHFELDian sense. In Dickinso
Lord Hewart stated that "diplomatie agents are not by v
privilège as such immune from legal liability for any w
58 Stone, Legal System 147. 57 Hohefeld, article first cited s

68 (1930) I. K. B. 376. This case is cited by Dias, op. cit. sup
5 ARSP LIII/1
The accurate statement is that diplomatie ag

sued in the English Courts unless they subm
"Diplomatie privilège does not import immun
but only exemption from local jurisdiction".69
that the fact that an envoy was under a san
damages was sufficient to involve his insur
onsibility. Here then we see immunity but not
as the négation of duty would exempt the insu
(h) Disability
Disability as the opposite of power means th
to alter a person's legal relations. Thus if A is i
then the Commissioner of Taxation has a cor
again it is important to understand this ter
Hohfeld used it, namely the négation of pow
not to be confused by the common use of "disa
where it relates to the incapacities of abnormal
under 21 and married women at common law.60
III. Criticisms Levelled at Hohfeldian Analysis
(1) Criticisms of the Tetminology

One line of criticism of Hohfeld is to suggest improvements in the
terms he used for his lowest common denominators. Thus Pound
suggests "inability" for "disability" and "risk" for "liability",61
Kocourek prefers "inability" to "no-right",62 and Radin uses
"demand-right" and "privilege-right" in lieu of "claim" and "privilège"
respectively.63 These altérations are for the most part put forward
5U (1930) I.K.B. 376, at 380.

60 At this point in the paper delivered to the Australiern Society of Legal
Philosophy a reportive account was given of some of the points made by
Hohfeld in his second main essay (cited supra n. 2. ). Here Hohfeld
began a discussion of certain important "overspreading classifications"
applicable to each of the eight conceptions in his scheme. The most im
portant of these and the one considered at length by Hohfeld was the
distinction between relations in peisonam (called "paucital" relations)
and relations in rem (called "multital" relations).
61 Pound, op. cit. supra n. 8, at 81.
62 Kocourek, "Tabouale Minores Jurisprudentiae" cited supra n. 22, at 220-21.
63 Radin, article cited supra n. 15, at 1148-49.
because it is feit that Hohfeld in seeking to avoid loo

words "right" and "duty" uses words which are themselv
or which carry same unfortunate connotation.65 In particular
considerable criticism has been levelled at Hohfeld's use of "privilège"
to denote a liberty in the sense of absence of a duty. Paton points
out that "liberty" means something which is prima facie lawful for all,
whereas "privilège" means something which is available only to some
special class.66 Williams thinks the différence between the concept
and the word "privilège" is such that "liberty" must be substituted
for the word "privilège" in Hohfeld's analysis.67 Pound uses the words
"privilège" and "liberty" for two quite separate conceptions68 while
Stone would retain Hohfeld's "privilège" but recognizes two sub
classes; "common" or "general" privilège and "special" privilège.68
Hohfeld himself is not unaware of the question of choice of terms
here and in fact after considerable discussion selects "privilège" rather
than "liberty" to indicate négation of duty.70
Notwithstanding that criticisms of terminology probably constitute
the most common line of attack directed at Hohfeld, it seems to this
writer that no serious objection to the analysis is raised by them.
If we are going to alter Hohfeld's terminology three ways seem open
to us. Firstly we can Substitute other words. However if we do this it is
extremely doubtful whether we will be any better off. There will
always be peripheral difficulties associated with the use of ordinary
language which by its very nature involves some degree of ambiguity.
Secondly ordinary language could be replaced by the use of neologisms
to denote the fundamental legal conceptions. This, however, is
singularly unattractive. Hohfeld's terms "multital" and "paucital"
were criticized for their "hideous illegitimacy" 71 and further neologisms
81 Kocourek, op. cit. supia n. 22, at 6 n. 2.

85 Thus in ordinary language "liability" suggests something disadvantageous
and this is not necessarily the case with Hohield's "liability". See Radin,
article cited supia n. 15, at 1158; Stone, Legal System 156 n. 69. Again,
"disability" in legal language is used to refer to the disabilities of infants,
of married women at common law and the like, rather than to mean
"absence of power". See Pound, op. cit. supra n. 8, at 80.
88 G. W. Patón, jurisprudence (2 ed. 1951 ¡ 225—26.
87 Williams, article cited supra n. 12, esp. at 1131-35.
88 Pound, op. cit. supra n. 8, at 75. 89 Stone, Legal System 144 n. 22.
70 As to the discussion and reasons for the choice see Hoheeld, article first
cited supra n. 2, at 40—44. 71 Radin, article cited supra n. 15, at 1155.
would send a shudder down the backs of ave

possibility wonld be to resort to symbolic
workers in other sciences have developed sp
bularies72 and with the growth of increasing c
symbolic language and symbolic logic gener
conceptual analysis. However whatever its p
terminology is not advocated here.
Though there are weaknesses in the words c
submitted that their replacement by other
either fail to solve ail difficulties or will in
The better course would seem to be to accep
power etc. are symbols of conceptions about
promote a predetermined understanding as t
application" of these symbols.78
Quite apart from the question of the substitu
symbols for those used by Hohfeld, it has be
criticism of the terminology, that Hohfeld doe
legal rights in the broader sense. This critic
It can scarcely be imputed as a fault to Hohf
into his scheme the broader conception of a
thesis was that that term was often used to cov
of several distinct conceptions. However, as it i
to speak of "a right" in its broad sense it do
speak as Hohfeld does, of "right in the wider se
narrower (or stricter) sense". Kocourek offe
this awkward phraseology when he suggests
for the whole complex and use "claim" fo
corrélative duty.74
(2) Criticisms of the Lowest Common Denomina

Whereas the first line of attack above mentioned involves the
criticism of the terms Hohfeld uses to denote his fundamental legal
conceptions, a second (and more serious) attack is to criticise the
concepts themselves.
As we have seen, Hohfeld thought that his conceptions represent
"the lowest common denominators" of the law. It can be questioned
73 See generally I. M. Copi, Symbolic Logic (1954) 7-9.

73 This Statement of purpose is made by Goble, article cited supra n. 49,
at 547. 71 Kocourek, op. cit. supra n. 22, at 7.
whether this is in fact trae in regard to all eight of Hoh

Taking firstly what may be called the top line of te
"privilège", "power", and "immunity", it is seen that
are always accepted as basic terms. Thus Pound does n
"immunity" is necessary.75 This view seems well sup
Kocourek in a review of the définitions of jurai relati
some fourteen jurists concludes that they turn on the id
power and claim.76 Then again Hart and Sachs note
thought that "liberties" hardly deserve separate tre
arrangements recognizing liberties merely make explicit
whicharepregnant in arrangements which declare the sco
Kocourek has observed that while "claim" and "power" ar
terms "privilège" and "immunity" are negatives.78 B
"privilège" and "immunity" are only derivative ideas,
accorded a place by Kocourek, for when used they i
normal jurai situation differing from the general rale.79
recognize the affirmative and negative aspects of
nominators" and the fact that "claim" and "power" ar
important than "privilège" and "immunity", it is su
as far as the top line at any rate is concerned that eac
basic terms has one, and only one, distinct function,
is worthy of its place as a "lowest common denomina
The worthiness of the terms on the bottom line of
"duty", "no-right", "liability", and "disability", to no
has been the subject of more criticism. Here "no-right" a
have been under heavy fire. Roy Stone thinks it is intere
as significant that there is no word for the jurai opposit
"While the assertion that nomina sunt consequentia
where there is a word for it, there "it" is, or that wh
73 Pound, op. cit. supra n. 8, esp. at 118 ff. Pound in addit

"liberty" uses "privilège" to mean "exemption from liability
73 Kocourek, op. cit. supra n. 22, esp. at 47. The jurists con
Savigny, Kohler, Terry, Salmond, Austin and Bierling.
77 H. M. Hart and A. M. Sachs, Legal Piocess (1956) 97.
78 Kocourek, op. cit. supra n. 22, dis. I, II, and VI.
70 Ibid. 11 n. 5. Goble goes even further than Kocourek her
although all Hohpeld's terms are useful, the basic legal con
and that all other legal concepts are derivative of this one
cited supra n. 49, at 535.
word for it, there is no "it", may be no more th

the fact that there is no judicial usage for the ex
probably stems from the absence of such a co
that in working out his scheme of corrélatives a
followed HEGEiian logic and that the exigen
triads forced him to find basic terms wheth
significance or not.81 The concepts "no-righ
singled out as serving no practical purpose an
artificial symmetry into which the law cannot o
Pound calis "no-right" and "disability" "pseu
are the absence of things put as things".82
It must be at once agreed that "no-right"
negative terms. But to say this does not warr
they therefore mean anything other than t
negatived, and that they have no juristic signifi
out, negative terms, in the sense that they nega
can still express a conception as positive as a
Thus "cold" means simply absence of heat or
absence of light or no light.83 "The thought of
as füll of content as the thought of light. Th
terms are terms of a relation . . . It could w
considérations of physics that the affirmative t
is the absence of daik . . . One might start with
incapacity (disability) legally to affect the stat
and then indicate the negative of it by anoth
Negative terms in our language are useful in c
to describe one of Hohfeld's fundamental co
negative" is not necessarily to deny that it is
"lowest common denominator".
Indeed, if we were to omit negative terms from the scheme it would
appear that the concept of "privilège" would also have to be given up,
for privilège is a negative concept in that it is the absence or négation
of a duty. Oddly, the critics who deride Hohfeld's "no-right" as a
purely negative expression do not find anything laughable in
"privilège". Yet as Glanville Williams has stated, "privilège" "is an
80 R. Stone, article cited supra n. 16, at 333—34.

81 Pound, op. cit. supra n. 8, at 75-81. 82 Ibid. 80.
83 Goble, article cited supra n. 49, at 537. 84 Ibid. 538.
even more negative expression than "no-right" for a

"a no-duty not".85
"No-right" and "disability" cannot be dismissed sim
they are negative terms any more than they can becau
quaint appearance. The question is as to their usefulne
noted the two squares method of présentation of HoHFEL
enables us to see two main jurai relations, namely, rí
powei-liability, each with its respective negative situa
no-right and immunity-disability. It is submitted th
important to spell out these negative situations and t
and "disability" are worthy of nomínate status. In giv
a Court can speak of A's duty to pay damages to B o
(i. e. his privilège not to pay), alternatively, the Court ca
and say that B has a right (claim) to this sum from A, or
no such ríght ¡i. e. a no-right). Again it seems useful
has a power to accept B's offer but that after the offer ha
he has a disability to accept.
While agreeing with Pound that in the analysis of "a right"
schematic exposition and terminology can be carried beyond what is
practically worthwhile, the présent writer does not share his feeling
that Occam's Razor should be applied to Hohfeld's catégories.86
(3) Criticisms of the Relationships

(a) Jurai Opposites
Kocourek criticized Hohfeld's jurai opposites on the ground that

they are not opposites in the strict logical sense. He pointed out that
if they were strict opposites then "no-right" would include an éléphant,
a star or an ángel (because it would everything in the world which is
not a right). Kocourek thought that what Hohfeld had in mind was
not a table of opposites in the sense of logic but a table of négations,
and it was his further opinion that such a table of négations probably
serves no direct or important practical purpose in legal analysis.87
It is true that Hohfeld's opposites are not strictly contradictory
opposites but are only opposites in the sense of contrary opposite or
contrast. Accordingly Hohfeld's use of the word "opposites" is perhaps
85 Williams, article cited supra n. 12, at 1127.

88 Pound, o p. cit. supra n. 8, at 82.
87 Kocourek, "Tabulae Minores Jurisprudentiae" cited supra n. 22, at 220
n. 7 and 218. See also id., "The Hohfeld System" cited supra n. 22, at 27 ff.
unfortunate and Julius Stone's "class-comple

better term.88 Yet still it is submitted that Hoh
opposites is clear enough and it is submitted t
it be called it is useful in showing the contrast o
of the eight fundamental concepts and thus mor
their content.
(b) Juial Conelatives

Three distinct criticisms of jurai corrélatives
(i) Pound criticized Hohfeld's idea that there can be only one
corrélative for any given fundamental conception. He cited as an
example that corrélative to A's "legal right of exclusion as owner
of Blackacre is his neighbours duty not to trespass and his liability
for trespass by his cow . . .".89 "Liability" here used by Pound
is in the loose sense rather than as corrélative of powei. Stone is
entirely justified in dismissing this example if not the substantive
point by saying that the term "right" in the example is being used
in the composite sense which is Hohfeld's purpose to expel.90
The explanation of Pound's example is that two distinct claims
are involved each with a corrélative duty thus A has a multital
daim that B and all other unauthorized persons will stay off
Blackacre and this involves corrélative duties in B and ail other
unauthorized persons to stay off. A also has a paucital daim that
his neighbour B will not allow cattle trespass causing damage
to Blackacre, and this involves the corrélative duty in B to prevent
damage from such a case.
(ii) Radin felt that A's daim and B's duty are not corrélatives because
theyarenot separate things at ail but are two absolutely équivalent
Statements and the same thing. "B's duty does not follow from A's
claim nor is it caused by it. B's duty is A's claim. The two terms
are as identical in what they seek to describe as the active and
passive form of indicating an act; 'A was murdered by B' or 'B
murdered A'".91 This criticism can be answered by recalling the
88 Stone, Legal System 139 and 160 n. 90. 89 Pound, op. cit. supia n. 8, at 78.
90 Stone, Legal System 159.
91 Radin, article cited supia n. 15, at 1150. See also R. Stone, article cited
supia n. 16, at 331-32.
way in which Hohfeld used the term "corrélatives"

seen, claim and duty are corrélatives of each other as
and no-right, power and liability, immunity and di
pair of corrélatives must always exist together,- when
of the pair, B necessarily has the other. The pair
relationship which can be looked at from the point of
or B. One of the terms expresses the relation of A to
term expresses the relation of B to A. Similarly we
Sydney is north of Melbourne or Melbourne is sout
Radin speaks of corrélatives not in terms of rights an
of rights and other rights.92 His use of the term
accordingly seems very différent to that of Hohfeld's
(iii) A more compelling line of attack is to ask whet

involve corrélative duties, and conversely, wheth
involve corrélative claims. Hohfeld was primarily conc
private law and it can be asked whether his ideas ca
in the field of administrative law, criminal law, an
generally where duties abound but where there is som
in spelling out the corrélative right (or claim). Dia
feel that Hohfeld at no stage suggested that all du
corrélative claims.™ It is difficult to accept this prop
Hohfeld always seemed to speak as if all claims inv
and vice versa.94 The difficulties in some cases in
corrélative right (claim) may be merely linguistic a
of a general concentration on the duty rather than the
of the relation (or vice versa). Thus although th
strangeness in language we can speak of the right
murdered and the right not to be assaulted as corrélat
duties in criminal law. Then again, however, the diffi
may suggest that bilaterality of right-duty relationsh
as we have seen the whole HoHFELDian scheme is
afeature of every legal norm.Taking this line we woul
9î Radin, article cited supra n. 15, at 1150 says: "There are

and privilege-rights which are corrélatives of certain other
and privilege-rights. In a sale the right to demand deliver
lative of the right to demand payment.
" Dias and Hughes, op. cit. supra n. 66, at 228.
M See especially Hohïeld's example in article first cited su
n. 32 and his use of "équivalent" at 32.
faced with the question whether the right

in fact apt for all legal norms. If the answer
there is no difficulty for HoHFELDian analysi
HoHFELDian analysis is probably not applicable
where bilaterality of right-duty relationships
(4) Cnticism of the Utility of the Analysis

A further line of attack on the HoHFELDian sch
question the Utility of the whole endeavour. H
sections are required to bring out the différent
cluded under this general head.
(a) Firstly, there are those who regard the whole

than not, in a half amused manner, as somethin
but hardly necessary. While it may be some
extracts from private correspondence as expr
considered views, the Holmes-Pollock letters
tion here. Pollock wrote: "In the Y aie Law Revie
called a "Hohfeld System" of classifying 'jurai re
how many rational beings believe the ultímate tr
to be reducible to patterns on a blackboard."9
a similar stand: "Hoheeld was as you surmise an i
as I judge from flying glimpses, pretty good and
the kind that are more needed hy a lower grade
and me. I think ail those systematic schematism
Kocourek in the Illinois Law Review and elsew
and I regard him civilly but as I have written do
whole machinery. I even doubt the profit of the
(the hypostasis of a prophesy); as Hohfeld
naturally I thought well of him, but his indu
that I should give much time to."97
A similar track is taken by those who think
merely a long and often involved way of sta
something which is capable of much easier expre
true that our instinct when we seek to clarify c
The debate on this question still seems open. See

ality of right-duty relationship as a proprium of l
197-99.
Holmes-Pollock Letters, op. cit. supia n. 14, at 63 (letter dated 24. 1. 1921).
Ibid. 64 (letter dated 9. 2.1921).
is to seek to reduce them into the fewest possible terms

cisely this process of abbreviation, said Hohfeld and Koco
can cause technical miscarriages in our thinking and ther
administration of law.98 A true simplification of legal re
a multiplication of working concepts.99
Roy Stone is another who feels that "self-discipline
restatement of old mies in new terms, is needed".100 The
remains that while we can often do without HoHFELDian
will be occasions where failure to adequately disting
concepts results in faulty reasoning.
(b) There are also the critics who feel that there are area
which HoHFELDian analysis is not applicable and in which
can be positively harmful. Benjafield and Whitmore, in a
on Ridge v. Baldwin101 and the concept of "natural ju
nistrative law, comment critically on the application of
distinction between daim and privilège "in areas of th
it is singularly inappropriate".102 The reason for these r
from the fact that the House of Lords in Ridge v. Baldwin
support for the proposition established in earlier ca
criticized, that the audi alteiam paitem mie does not a
"right" of a citizen has been affected but merely a "l
vilège" withdrawn or refused.103 We have already said
the question of the problems of the bilaterality of right
ships in a field such as administrative law.104 Yet even r
it is difficult to see why the daim-piivilege distinctio
inappropriate here. The distinction as we have seen is
one and well recognized in the law. It seems clear that
Whitmore object to the cases in which the courts hav
situation A [daim] the audi alteiam paitem mie appli
98 Homfeld, article first cited supia n. 2, at 19-20; Kocour

n. 22, esp. at 120. 99 Stone, Legal System 152—53.
100 R. Stone article cited supra n. 16, at 329. 191 (1963) 2
102 D. Benjaeield and H. Whitmore, "The House of Lords and Natural
Justice" (1963) 37 Australian L. J. 140, at 143. See also the criticism of
S. A. De Smith. Judical Review of Administrative Action (1959) 131—32.
10:1 Ridge v. Baldwin (1963) 2 W. L. R. 935 per Lord Evershed at 965, per Lord
Hodson, at 999, per Lord Reid, at 941. As to the earlier cases see e. g.
Nakkuda Ali v. Javaratne (1951) A. C. 66 (withdrawal of a taxi driver's
licence); ex parte McCarthy: Re Milk Board ¡1934) 35 S. R. (N. S. W.) 47
(refusai of a milk dealer's licence). 104 See supra III (3).
situation B (privilège) it does not. If they, and ot

tators, wish to see the courts extend the rule to s
recognize that this involves a policy décision
grounds rather thancriticize the analytical tool t
has led to what the commentators feel is a "w
(c) Finally there are the staunch opponents who

to HoHPELDian analysis and who wield heavy
theory. Thus Roy Stone argues that HoHFEtDi
certain fundamental errors that necessarily prec
in the resolution of legal issues.105 These errors h
(i) The idea that we can establish a logical Syst

legal conceptions and then test language and it
the laws of logic as a yardstick to test the tru
uistic Statements, propositions and the like.
(ii) The very basis of the analysis which is som

rid legal thought and legal language of word
venient a part of argument and judgment.
The first of these "errors" seem to involve a

Hohfeld was trying to do. Roy Stone states that
his analysis would "help in deciding legal cases".1
cannot agree with this interprétation at ail bu
Julius Stone when he says that Roy Stone's
voked by his taking too literally what are only
ultra vires excursions" by Hohfeld. 107
The second "error" is surely another overstatem
Hohfeld's position. Hohfeld did not seek to "
legal language" of the "richness of ordinary l
thought was necessary was that as a matter of "
ance" we should have "a clear appréciation of
discriminations set forth".109
Roy Stone's attack on Hohfeld seems to be pa
many common lawyers of logic in the service
concern is that logical thought processes are r
105 R. Stone, article cited supra n. 16, esp. at 313—

107 Stone, Legal System 161 n. 65. And see infra IV (5
108 R. Stone, article cited supra n. 16, at 330.
10® Hohfeld, article first cited supia n. 2, at 58.
reas legal reasoning is empirical and discretionary and

logic in juristic thinking would make law rigid.110 Certa
together with generality is a rieh resource of the law, h
inclination to avoid anything that might deprive them
rially hamper its use. Whatever the merit of this attitud
involve a total denial of the usefulness of HoHFELDi
suggests though that we must be careful to avoid overre
for fear that logic generally and the attempt to arti
recourse to it might lead to undesirable results.
IV. Submissions as to the Application und Usefulnes

of Hohfeldian Analysis
As we hâve previously noted, although Hohfeld stre

tical Utility" of his scheme of analysis, he died before h
opportunity to adequately bring out this contended u
séquent commentaries and critiques have for the most
take the matter of the application of the scheme mu
position in which Hohfeld left it. Accordingly, it is t
while, and in keeping with Hohfeld's main aims as we
of this paper, to now make certain submissions as to
and usefulness of HoHFELDian theory.
(1) It facilitâtes claríty of language and concepts

HoHFELDian analysis by breaking down the range of me
general words "right" and "duty" enables us to spell out e
concept covered by the general word "right" we have
first level of usefulness, then, involves a translation o
guous language into Hohfeld's more precise termino
express every shade of a general right-duty relationship.
By way of illustration we take an example which, it
have appealed to Hohfeld. 111 T, the Trustée under a Tru
110 See generally A. G. Guest, "Logic in the Law" in A. G

ford Essays in Jurisprudence (1961) 176, esp. at 177-78.
Legal System 195.
111 The nature of équitable Claims, privilèges, and powers an
the cestui qui trust was a topic of particular interest to
Hohfeld, "The Relations between Equity and Law" (1913)
L. R. 537; id., article first cited supra n. 2, at 16-19; id.,
cited supra n. 2, at 766-67.
seeks the advice of S, a Solicitar, as to the inter

ment. This advice is erroneous, and in acting
trust conveys part of the Trust property to P, a
value without notice of the interest of the ben
ship between the various parties can be seen to
As between T and B. T has a powei to convey
the corrélative is that P has a liability to hav
veyed to him.
As between B and P. P is immune from an ac
very of the trust property, and B has corrélat
As between T and B. T has a duty (or in term
piivilege) not to act in breach of trust. When
trust property to P, B then has the iight (cla
recovery of the proceeds of the sale and t
caused by the breach of trust.
As betweenTand S. T has a ríght (claim) to su
Now it may be suggested that the above is j
and that translation of a problem into Hohfe
nominators" is a waste of time. Obviously w
Problems without reference to HoHFELDian ana
suggested that we cannot take account of dif
"right" without resort to HoHFELDian theory
mitted is that there will often be cases where i
precisely what sort of "right" is involved, an
run the risk that confusion in language will br
thought.
A good example of most of the points here being made is seen in
ex paite Wilkes; ie Minister foi Education.113 This was a case where
the Court did not use HoHFELDian analysis but still was able to dist
inguish différent types of "right". Yet the language is strained, the
différent concepts not always clear, and one feels that the décision
11! When this example was set as a problem question in the 1962 annual
Jurisprudence Examination Paper in the University of Sydney, some stu
dents said that because T had sought the advice of a Solicitor before acting
in breach of trust, he had a privilège or an immunity as against B. This is
clearly incorrect. The advice of a solicitor as to the interprétation of a
trust instrument does not excuse the trustée if the advice should be erro
neous. See The National Trustées Company of Austialasia v. General
Finance Company of Australasia (1905) A. C. 373; see also K. S. Jacobs,
The Law of Trusts (1958) 388 and 399 and the cases there cited.
»* (1961) N. S. W. R. 989.
could have been reached much more simply by reference

to Hohfeld's claim-pnvilege distinction.
The case concerned certain infant school children who had received
advice by letter from the District Inspector of Schools that they could
no longer attend Beecroft Public School, which they had been attending
for some time, and that they had to attend another public school in the
area. The parents of the children sought Writs of Mandamus directed to
the Minister for Education and other persons to direct them to allow
the children to remain at the school they had previously been attending.
The applications were heard together and the question was whether the
applicants had a "right" sufficient to support the issue of Writs of Man
damus. The issue in HoHFELDian terms was whether this "right" was a
daim with corrélative duty on the Minister and others not to interfère
with it, or a privilège which as we have seen involves no corrélative
duty. The füll Suprême Court114 considered the issue in terms of
whether there was "the relevant type of public duty" on the respondent
Minister,115 and they spoke of the "parent's right (in the relevant
sense)"118 of "the claimed right",117 of "the unfettered legal right",118
and of "the requisite right".110 The end resuit was that the Court
thought that the applications failed because of "the absence of the
relevant public duty and the requisite right".120 It was not until near
the end of the judgment that the distinction here seen as the crux of
the whole case [daim or privilège) was clearly speit out of a tangle of
confused language. The Court recognized that "the requirements of a
legal "right" necessary to support the issue of the prérogative writ do
not admit of ambiguity and doubt either as regards its existence or
ambit. It seems natural in Acts of this type to imply a permission
without creating a right...".121
At the very lowest level of usefulness HoHFELDian analysis induces
caution when dealing with the words "right" and "duty"; more signifi
cantly it offers a method of clarifying terminology and concept and
helps us to "think straight".
(2) It fadlitates the distinguishing of another case

Hohfeld thought that his System would facilitate comparison of
complex legal relations by reducing them to common terms. He spoke
111 Evatt, C. J., Collins, J. and Wallace, J. 115 (1961) N. S. W. R. 989, at 993,996.
»« Ibid. 992,995. »'Ib. 993. 118Ib. 995. »»2b. 996. "Hb. 996.
1!1 Ib. 995, referring to Act 43 Vic. No. 23, and Act No. 15 of 1916 as amended
by Act No. 7 of 1944.
ai his eight conceptions as "lowest common d

fractions (1/3, 2/5, etc.) may seem so superficial
another as to defy comparison. If, however, they
of their lowest common denominators (5/15
parison is easy and fundamental similarity m
same thing is trae as regards the lowest generic
any and all "legal quantities may be reduced".1
sales of personality, escrow transactions, opti
relations and powers of appointment can be r
generic terms then "the conceptions of legal pow
are seen to be dominantly, though not exclusi
such a process Hohfeld thought we could
(i) "Discern common principies of justice and
various jurai problems involved",124 and
(ii) Find and "use as persuasive authorities ju
might otherwise seem altogether irrelevant".12
As to the first of these propositions I agree with

is acceptable if we take it to mean that HoHFELD
us to indicate clearly an area where policy déc
to highlight the questions of "justice" involve
of this shortly. However I cannot join with my
the second claim above mentioned which seems a
Yet while, with respect, disagreeing with Ho
it is submitted that if we take the negative aspe
we can find value in HoHFELDian analysis. In
Hohfeld's lowest common denominators will p
to analogy we can say that they may be of assist
distinguish another case; in other words they m
that a particular case is not persuasive. This i
and whose example may serve as illustration.12
122 Hohfeld, article first cited supra n. 2, at 58-5

124 Loc. cit. 125 Loe. cit. 128 Stone, Legal System 161.
127Stone says: "Hohfeld sufficiently justified his painstaking and someti
mes brilliant performance, when he claimed for it (1) the practical value
of facilitating comparison of complex legal relations by reducing them so
far as possible to common terms,- (2) the practical value of permitting a
fruitful resort to analogy even in legal situations quite dissimilar, and thus
(3) of making available for use as persuasive authorities judicial précédents
which might otherwise seem altogether irrelevant" (loc. cit.).
128 Dias, op. cit. supra n. 44, at 235. 129 (1937) 1 K. B. 818.
it was held that to call a person an "informer" was no

Now if Byrne v. Deane is cited as an authority in a later
allégation is that the plaintiff is a "conscientious objec
distinguished. An "informer" is a person who gives in
crime and there is in law a duty to do so. Byrne's Case de
is not defamatory to say that a man has performed a leg
is however only a privilège to be a "conscientious ob
Byrne's case is thus no authority for saying that it canno
tory to allege that a person has exercised this privilège.
(3) It provides an analytical tool for the critical exami

ments
It is generally accepted as necessary that we sharpen and sophisticate

the intellectual tools by which the law is applied, criticized and devel
oped. It is now submitted that HoHFELDian analysis provides a tool
having a twofold usefulness in the critical examination of judgments.
Firstly, it can be used to expose faulty reasoning which in turn helps in
assessing the worth of decided cases, for bad reasoning will weaken the
authority of a case especially if there is also a well reasoned dissenting
opinion. Secondly, it can be used to highlight areas of policy décision
which are often masked by the indefinite language of rights and duties.
At times faulty reasoning and policy décisions seem to go hand in hand,
for since judges do not readily admit to making law, recourse to a
fallacy is often the only acceptable mode of establishing a new rule.
(a) As an example of faulty reasoning we can note Thomas v. Saw
kins130 where the Court failed to distinguish between right (claim) and
right (privilège). In this case the Court reasoned that a policeman was
a member of the public and as such had a "right" to attend public
meetings. If there was a "right" to attend it followed that there was a
duty not to prevent the policeman from attending such a meeting, and
accordingly the Court held that a policeman who had refused to leave
a meeting when requested to do so was not liable for technical assault
committed by him in resisting the attempt to eject him. It has been
generally recognized by the Courts that although members of the public
have the "right" to attend public meetings they do not have the right
not to be prevented or ejected.131 The right to attend a public meeting
130 (1935) 2 K. B. 249.

131 See e. g. Bailey v. Williamson (1873) L. R. 8 Q. B. 118; De Morgan v. Me
tropolitan Board of Works ¡1880) 5 Q. B. D. 155.
6 ARSP LIII/1
can be seen as merely a privilège and accordingly

it the corrélative duty speit out by the Court in
(b) The application oí Hohfeldian analysis to t

cases and cases relating to restraint of trade rev
of fallacious propositions stemming from very i
shifting meanings with which the word "right"
brings out that this is an area of delicate pol
when discussing the failure to distinguish
considered Lord Lindley's reasoning in Quinn v
Bowen's remarks in Mogul Steamship Company
as illustrative of the présent point are the speec
Attorney General v. Adelaide S. S. Company13
the Harris Tweed Case.lst These cases involve
plaintiff's "right" not to be interfered with in t
and the defendant's "right" to carry on his bu
him provided he commits no wrong to others.
Lord Lindley stated in Quinn v. Leathem that "
ordinary rights of the British subject. He was
living in his own way, provided that he did n
law prohibiting him from doing so, and provide
the rights of other people. This liberty invol
with other persons who were Willing to deal
is a right recognized by law,- its corrélative
everyone not to prevent the free exercise of thi
as his own liberty or action may justify him in
liberty or right to deal with others is nugatory u
to deal with him if they choose to do so. Any in
liberty to deal with him affects him".137
1,2 Policy reasons may have caused the création of

ceman. See Dias, op. cit. supia n. 44, at 62. 153 (
134 (1889) 23 Q. B. D. 598, at 611. 135 (1913) A. C.
133 (1942) A. C. 435, at 462-63. See generally Stone, L
Williams article cited supia n. 12, at 1146. An int
the tradition of the conspiracy cases here mentio
(1964) A. C. 1129. There an unanimous décision o
was set aside by an equally unanimous décision
This startling reversal is again indicative of the
general area of the law. 137 (1901) A. C. 495, at
Hohfeld commented on this reasoning that a "liber

as a legal relation (or "right" in the loose and generic sen
must mean, if it have any definite content at all, pr
thing as privilège, and certainly that is the fair connota
as used the first three times in the passage quoted. It is
as already indicated, that such a privilège or liberty to
at will might very conceivable exist without any peculi
rights against "third parties" as regards certain kinds o
Whether there should be such concomitant rights
ultimately a question of justice and policy; and it should
as such, on its merits. The only corrélative logically
privilèges or liberties in question are the "no-rights" of
It would therefore be a non sequitui to conclude fr
existence of such liberties that "third parties" are unde
interfère, etc. Yet in the middle of the above passage fro
opinion there is a sudden and question-begging shift in t
First, the "liberty" in question is transmuted into a "ri
possibly under the seductive influence of the latter wor
that the "corrélative" must be "the general duty of
prevent", etc.138
HoHFELDian analysis will clearly show that the pos
with the other judgments above cited. It is by such
a tort of interfering with trade, however socially désir
is made to materialize out of the thin air of a logical fall
(4) It facilitâtes oui perception of legal and social pioblem
It is submitted that HoHFELDian analysis will also

an important tool that can sometimes be used in confus
law to enable us to clear the ground and lay bare the un
and social problems. Of course we may be able to d
HoHFELDian analysis, but this is a keener and more pow
weapon,- without it we run the risk that we may not s
at ail, or if we do, that we may become confused in our
by our own verbosity. An example of the way in wh
can be thus used can be seen by examining the English a
cases dealing with the so-called deserted wife's "right
matrimonial home. This has been a troubled field of the common law
138 Homfeld, article first cited supia n. 2, at 36—37.
6*
for the past twenty years or so. The doctrine

"right" or "equity" in the matrimonial home
blows in New South Wales in Dickson v. McWhinnie139 and has now
been laid to rest by the House of Lords in England in National
Provincial Bank Limited v. Ainsworth.140
The kind of problems that arose before Ainsworth's Case for
considération by the Courts included the following: — Could a
deserting husband being the sole lessee of the matrimonial home
surrender his tenancy to the Landlord? Could the deserting husband
— the sole owner of the freehold seil the previous matrimonial home
with vacant possession? If the husband could seil the house with
vacant possession, could he seil it to anyone at ail? Or only those
without notice of the wife's interest? If the deserting husband defaulted
on a mortgage, could the mortgagee have the wife ejected from what
had been the matrimonial home so as to be able to seil the security
with vacant possession? If the deserting husband became bankrupt,
could his trustée in bankrupty recover possession against the wife?141
HoHFELDian analysis is of help in examining the cases to see whether
the wife's alleged "right" to possession is a privilège merely to occupy
the matrimonial home,- or a privilège coupled with an immunity so
that the husband cannot get her out without a Court Order; or a
claim which exists so as to bind third parties such as purchasers or
mortgagees wishing to exercise power of sale,- or perhaps something
eise. But, more important, and the point here made, is that HoHFEiDian
analysis in seeking to clarify and more precisely delimit what sort of
"right" is involved focuses our attention on the conséquences which
stem from saying that this "right"is a privilège, a privilège coupled
with an immunity, a claim, or whatever the case may be. It is in this
way that HoHFELDian analysis can shed a light which enables us more
readily to appreciate the underlying problems and perhaps recognize
the need for early legislative activity.
ls» (1958) SR (N. S. W.) 179. 140 (1965) 3 WLR 1.

141 The cases on this subject were examined in the Paper delivered to the
Australian Society of Legal Philosophy and have been omitted from the
présent article. The cases include the following as well as the two listed
n. 139 and n. 140 above: Old Gate Estâtes Limited v. Alexander ¡1950)
1 K. B. 311, Thompson v. Eaithy (1951) 2. K. B. 596, Bendall v. McWhirter
(1952) 2 Q. B. 466 (a leading case), Fenis v. Weavei (1952) 2 All E. R. 233,
Jess B. Woodcock ¿> Sons Limited v. Hobbes (1955) 1 All E. R. 445, Brennen
v. Thomas (1953) VTR 450, Shakespeare v. Atkinson (1955) N.Z.L.R. 1011.
(5) The widei claims

It is feit that this section of the paper cannot be conclu
saying something of two very ambitious claims sometim
to Hohfeld and which, on the face of it, seem to be im
of Hohfeld's more enthusiastic language.142
(a) Unity in the law

Hohfeld concluded his first main essay with the wor
the deeper the analysis, the greater becomes one's p
fundamental unity and harmony in the law."143 As Juliu
if Hohfeld was here actually suggesting that we
fundamental unity and harmony in a living system
logical relations between its legal propositions then t
be rejected as illusory.144
However it is doubtful if this is what Hohfeld meant and this can
be more readily appreciated if we consider some of Hohfeld's remarks
in his "A Vital School of Jurisprudence and Law" which was written
about the same time as the above.145 Thus Hohfeld said: "I believe
that Judge Holmes once stated that one of the marks of a great lawyer
is the capacity for broad generalization. This is true and it is equally
true that nothing conduces more to the perception of fundamental
unities in legal problems, and henee to broad generalization, than
perfect analysis and réduction of the various problems to the lowest
generic conceptions known to the law. I wish I had time to exemplify
but I must hasten on."146 Again when speaking of formal or analytical
jurisprudence in a general way Hohfeld suggested that "this sort of
study is of the utmost importance if we are gradually to bring order
out of chaos and develop something like a real system out of our
présent conglomeration of judicial précédents and piecemeal Statutes,
partly with the immédiate purpose of making new législation fit in
more harmoniously and partly with a view to what has been called
'tacit codification', and ultimately, perhaps, legislative codification."147
141 The writer is here following the interprétation of Stone, Legal System
161. It is interesting to not that Stone's 1964 interprétation of Hohfeld's
remarks regarding his wider Claims is rather more generous to Hoheeld
than that inThe Province and Function of Law (1946) 133—34.
143 Hohfeld, article first cited supra n. 2, at 59. 144 Stone, Legal System 161.
"'Hohfeld, address delivered before the Association of American Law
Schools in December 1914, reprinted in Fundamental Conceptions as Ap
plied in Judicial Reasoning [1923] 33 7. 143 Ibid. 348—49. 147 Ib. 350.
What Hohfeld seemed to have in mind whe

analysis and discovering fundamental unity a
was not, it seems, that we can ever hope to
completely logical System. Instead he seems
the same sort of thing as A. G. Guest when the
acts as a kind of geography, explaining t
propositions and their relationship one to the ot
(b) Justice
Hoheeld also thought that through the process of reducing legal

relations to their lowest generic terms "it becomes possible ... to
discern common principies of justice and policy underlying the various
jurai problems involved."148 It was formerly suggested by Julius Stone
that Hohpeld is thus purporting to deal with a field other than his own,
namely the field of justice, and that in so doing he has ignored the
human interests involved.150 Stone now takes a rather différent view
and considers that Hohpeld's statement above must mean that clear
thinking about the meaning of concepts used would remove obstacles
to the discernment of justice and policy rather than that Hohfeld
was claiming to deal with justice and policy.151
This later interprétation seems correct. It is perhaps unfortunate that
Hohfeld uses the language here that he does, but it seems that ail
he means is that in our striving for justice we need to be equipped
with the keenest and most powerful analytical weapons. This view
seems entirely in order and indeed it may be asked how can we
administer justice in a world of almost infinite variety except with
rules articulated to a vast complex of significant différences.152
V. Conclusion
In conclusion an appeal is entered on behalf of HoHFELDian analysis.

It is recognized that there are barriers to any form of general
148Guest, essay supia n. 110, at 197. He speaks of the time when the law of
torts was no more than "chaos with füll index" and he attributes the
achievements which have been made in analysing and testing legal prin
cipies in that field "in no small measure to the use of this 'geographical
technique' ". 149 Hohfeld, article first cited supia n. 2, at 59.
150 Stone, op. cit. supia n. 142, at 133, approving a criticism by Pound.
151 Ibid. 161.
152 As to this view see also Corbin, article cited supia n. 21, at 237—38.
acceptance. Not the least oí these is the disinclinatio

practising lawyers to recognize the usefulness of jurispr
form. Again, and as mentioned above, there is a distrust
logic in the law and a widespread feeling that logic m
Further, it might be thought that HoHFELDian anal
préoccupation with minute distinctions and distract
attention from basic principies of equity and justice.
Yet despite such factors, despite the sometimes too amb
despite the fact that vagueness and generality are indeed
of the law, and notwithstanding that the writer is on
feel that schematic présentation and analytical theorizing
beyond what is worthwhile in practice, it is here su
HoHFELDian analysis is valuable and "practical" even
narrow sense of the latter word. We cannot hope th
analysis will provide a tool making for easy solution o
hard problems of the law; to claim too much will al
lead to frustration. What is claimed is that HoHFELD
useful in the ways outlined above and that it provides
analytical tool that can, and should, be added to the arsen
available for both the académie and the practising law
the law can be over-refined but not to refine it adeq
danger.
DAVID JOHN HISLOP
Das System von Hohfelds Grundbegriffe des Redits
Zusammenfassung
Wesley Newcombe Hohfeld war Professor der Rechte an der Yale

Universität. Er starb 1917 im Alter von erst 39 Jahren und hat kein
größeres Werk, sondern nur verhältnismäßig wenige Aufsätze hinter
lassen. Seine Untersuchung juristischer Grundbegriffe jedoch sollte ihm
eine führende Stellung auf dem Gebiet der analytischen Rechts
wissenschaft sichern. Seine Analyse hat befremdlicherweise nicht die
verdiente Beachtung gefunden,- einige Gründe dafür sollen hier er
wogen werden.
Im Verfolg der Werke früherer Autoren, darunter Austin, Wind
scheid und Bierling, meinte Hoheeld, eines der größten Hindemisse
für die klare Erfassung und richtige Lösung von

darin, daß man glaube, alle Rechtsverhältnis
„Recht" und „Pflicht" bringen zu können. Das
deutige Wörter. Hohfeld untersuchte, in we
drücke im juristischen Sprachgebrauch verwende
so zur Aufstellung eines Systems juristischer G
in den allgemeinen Wörtern „Recht" und „P
Hauptbegriffe enthalten sind.
Im vorliegenden Aufsatz wird die Ansicht ve
Analyse einen beachtenswerten Beitrag zur an
des theoretischen, wie des praktischen Juristen
hält Hohfelds Theorie für wertvoll und für prak
Sinne des Wortes, so daß es sich lohnt, näher un
einzugehen. Folgende Gegenstände werden in die
( 1 ) Eine kurze Darstellung von Hohfelds Theori
(2) Die hauptsächlichen Einwendungen, die geg
worden sind, und was darauf zur Rechtfertig
widern ist. Die hier behandelten Einwendung
Hohfelds Terminologie, gegen seine grundsät
gegen die von ihm geschilderten Grundbezie
praktische Verwertbarkeit der ganzen Analyse.
(3) Die praktische Anwendung der HoHFELDsc
Vorteile. Sie fördert Klarheit des Ausdrucks u
leichtert die Unterscheidung von Fällen, sie l
Werkzeug zur Nachprüfung von Entscheidun
Verständnis rechtlicher und sozialer Probleme. In diesem Abschnitt
werden englische und australische Fallentscheidungen zur Veranschau
lichung herbeigezogen.
DAVID JOHN HISLOP
Le Système Hohfeldien de Concepts Fondamentaux du Droit
Résumé
WesleyNewcombeHohfeld était Professeur en Droit à Yale University

et il est mort en 1917 à l'âge de 39 ans, n'ayant écrit aucune oeuvre
et laissant comparativement peu d'articles. Cependant il y a un
sentiment que son analyse de concepts fondamentaux juridiques lui
donne le droit à une place parmi les premiers dans le

théorie analytique du droit. Malheureusement, l'analys
n'a pas reçu l'attention qu'il mérite. Quelques unes de
ceci sont examinées dans cet article.
Hohfeld, suivant l'œuvre des écrivains précédents y compris Austin,
Windscheid et Bierling, croyait qu'une des choses qui empêchait le
plus la bonne compréhension et la véritable solution des problèmes
juridiques survenait de la supposition que toutes les relations peuvent
être réduites aux «droits» et «devoirs». Mais «droit» et «devoir»
sont des mots ambigus et une analyse concernant la manière de laquelle
ces terms sont utilisés dans les discours normaux juridiques amena
Hohfeld à formuler un système de concepts fondamentaux juridiques,
qui impliquait huit concepts fondamentaux de la loi contenue dans les
mots courants «droit» et «devoir».
Dans cet article il est proposé que l'analyse HoHFELDienne fournit un
outil valable d'analyse qui peut, et qui doit, être ajouté à l'arsenal des
armes à la disposition du juriste, soit académique, soit praticien.
L'auteur de cet article propose que la théorie HoHFELDienne est valable
et «pratique» même dans le sens le plus étroit du dernier mot, et
qu'elle est digne d'une étude plus complète et de plus près. Les sujets
suivants sont discutés ici:
Io Une esquisse de la théorie de Hohfeld.
2° Les lignes principales de la critique qui ont été lancées à la théorie
et ce que l'on peut dire en défense de Hohfeld. La critique considérée
ici est de la terminologie de Hohfeld, de ses concepts fondamentaux,
des relations fondamentales qu'il esquisse, et de l'utilité de l'analyse
entière.
3° Des soumissions concernant l'application et l'utilité de l'analyse

HoHFELDienne. Celles-ci inclurent le fait qu'il avance la clarté de
langage et de concepts, qu'il facilite la distinction d'un autre cas,
qu'il fournit un outil d'analyse pour l'examen critique de jugements,
et qu'il facilite notre perception des problèmes juridiques et sociaux.

Hohfeldian 2 PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Hohfeldian 2 PDF

Uploaded by

Copyright:

Available Formats

The Hohfeldian System of Fundamental Legal Conceptions

Author(s): DAVID JOHN HISLOP

Wesley Newcombe Hohfeld, a Professor of Law at Stanford and later

often been used to indícate four différent ideas

seen as "an attempt at a legal algebra",15 as "artifici

feld's foundation.22 It is submitted that th

II. An Outline of Hohfeld's Theory

As we have noted, Hohfeld's main aim was to break down

The vertical arrows here indícate the relationsh

other, e. g. husband-wife, parent-cbild, teacher-pupil.

(b) Juial Opposites

50 See generally, Stone, Legal System 197-202.

and the duty of entering. The privilège is perfe

(2) The Eight Fundamental Legal Conceptions

" Hohfeld, article first cited supra n. 3, at 32.

to B the sum of £ 100. Again, and to use Hohfeld's

oí Tort especially in such Torts as assault and f

41 Wilhams, article cited supra n. 12, at 1143—44.

"Power" in HoHFELDian terms is the legal relation oí A to B when

does not suggest that A also has a power to m

58 Stone, Legal System 147. 57 Hohefeld, article first cited s

The accurate statement is that diplomatie ag

III. Criticisms Levelled at Hohfeldian Analysis

(1) Criticisms of the Tetminology

5U (1930) I.K.B. 376, at 380.

because it is feit that Hohfeld in seeking to avoid loo

81 Kocourek, op. cit. supia n. 22, at 6 n. 2.

would send a shudder down the backs of ave

(2) Criticisms of the Lowest Common Denomina

73 See generally I. M. Copi, Symbolic Logic (1954) 7-9.

whether this is in fact trae in regard to all eight of Hoh

73 Pound, op. cit. supra n. 8, esp. at 118 ff. Pound in addit

word for it, there is no "it", may be no more th

80 R. Stone, article cited supra n. 16, at 333—34.

even more negative expression than "no-right" for a

(3) Criticisms of the Relationships

Kocourek criticized Hohfeld's jurai opposites on the ground that

85 Williams, article cited supra n. 12, at 1127.

unfortunate and Julius Stone's "class-comple

(b) Juial Conelatives

way in which Hohfeld used the term "corrélatives"

(iii) A more compelling line of attack is to ask whet

9î Radin, article cited supra n. 15, at 1150 says: "There are

faced with the question whether the right

(4) Cnticism of the Utility of the Analysis

(a) Firstly, there are those who regard the whole

The debate on this question still seems open. See

is to seek to reduce them into the fewest possible terms

98 Homfeld, article first cited supia n. 2, at 19-20; Kocour

situation B (privilège) it does not. If they, and ot

(c) Finally there are the staunch opponents who

(i) The idea that we can establish a logical Syst

(ii) The very basis of the analysis which is som

The first of these "errors" seem to involve a

105 R. Stone, article cited supra n. 16, esp. at 313—

reas legal reasoning is empirical and discretionary and

IV. Submissions as to the Application und Usefulnes

As we hâve previously noted, although Hohfeld stre

(1) It facilitâtes claríty of language and concepts

110 See generally A. G. Guest, "Logic in the Law" in A. G

seeks the advice of S, a Solicitar, as to the inter

could have been reached much more simply by reference

(2) It fadlitates the distinguishing of another case