The Hohfeldian System of Fundamental Legal Conceptions Author(s): DAVID SOHN HISLOP Source: ARSP: Archiv fur Rechts- und Sozialphilosophie / Archives for Philosophy of Law and Social Philosophy. 1967. Vol. 53, No. 1 (1967), pp. 53-89 Published by: Franz Steiner Verlag Stable URL: https://www. jstor.org/stable/23678299 REFERENCES Linked references are available on JSTOR for this article: https://wwvw 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 inva trusted digital archive, We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information sbout TSTOR, please contact supportsjstor org Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at hltps://about jstor.org/terms Franz Steiner Verlag is collaborating with JSTOR to digitize, preserve and extend access 20 FEY FO) igh his Fin ah nd Sephieaphic/ Archives Yor Philosphy of Law nd Soll (eF4 Pg Paitosophy iS FIA) JSTOR content downloaded fom on Fn 2 Feb 2028 05:45 +00:00,The Hohfeldian System of Fundamental Legal Conceptions BY DAVID JOHN HISLOP, SYDNEY *) I. Introduction Westey Newcomse Hoxretp, 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 academic lifetime, Honre.p had written no lengthy work and comparatively few articles." 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 oftneglected matters that may aid in the understanding and in the solution of practical every-day problems of the law”* and his chief concern was with the fundamental conceptions of the law — ‘vehe legal elements that enter into all types of jural interests”. Hon rap 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 categories are therefore adequate for analysing even the most complex legal interests”.$ But “right” and “duty” are “chamelion-hued” words and their general use often constitutes a “peril both to clear thought and to lucid expression”’.* An analysis of the word “right” as itis used * A Solicitor of the Supreme Court of New South Wales, Australia and part time Teaching Fellow in Jurisprudence at the University of Sydney. This article is a shorter version of a paper delivered to the Australian 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 Homrewn's death in the ‘volume entitled Fundamental Legal Conceptions as Applied in Judicial Reasoning (1923). + W. N. Houma, “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913} Yale L. J. 16 and another article of the same title (1917) Yale L. J.710. 8 Id, article first cited supra n.2, at20. * Loc. cit, * Ibid.28. * Ib.29. This content downloaded from 103.105.225,66 on Fri, 02 Feb 2024 05:09:45 ~00:00 ‘Alluse subject to https: /about stor orgterms54 David John Hislop often been used to indicate four different ideas regarding the activity or potential activity of one person with reference to another, He further pointed out that “inadequacy and ambiguity in terms unfortunately reflect, all too often, corresponding paucity and confusion as regards actual legal conceptions”.’ To avoid confusion in thought and shifts in meaning which result from loose terminology Howrey suggested that a separate term be used for each of the fundamental legal con- ceptions. He then identified eight such basic conceptions in the law, labelled each, and sought to show the relationships between them. The breakdown of the general word “right” inta its separate con- ceptions was begun by BENTHAM and AusTIN and carried on by others including Winpsciip, BreRtiNc and SALMOND. However though Hox- raxp’s work was not really a pioneering effort it was he who outlined a comprehensive scheme of fundamental legal conceptions. * The Hoxrepian scheme of legal analysis was greeted with high hopes of spectacular achievement. In 1919 it was referred to as “a tool as valuable to a lawyer as up-to-date instruments are to a surgeon,”* and the same year the Yale Law Journal especially solicited contribu- tions making use of the new analysis, ° In 1920 it was made a subject of special discussion at a meeting of the Association of American Law Schools," whilst as late as 1956 we were told that part at least of Honey's terminology “has been quite generally accepted in Ameri- can Iegal writing and has been used in the Restatement of the Law of Torts". One writer expressed his firm belief that “no more “prac- tical” legal work was ever done than that which is found in the pages of Honreip's writing...’ Yet on the other hand the analysis has been said to be of use anly to “a lower grade of lawyer”. It has been * Loe. cit. © As to the earlier attemps at analysis of “a right” see R. POUND, 4 Juris- prudence (1959) 74-97. * W. W. Coox, “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 Honrstp’s articles cited supra n, 1, 4% (1919) 28 Yale L. J. 85. | The proceedings of that meeting are contained in Handbook of the Asso- ciation of American Law Schools (1920) 184~193, 194-98, 199-212. # GL. WinutaMs, “The Concept of Legal Liberty" (1956) 56 Columbia L. R 1121, at 1131. "1 Coox, article cited supra n. 9, at 730, \ M.D. Howe (ed,), 2 Holmes-Pollock Letters (1944) 64, per O. W. Houmes, letter dated 9.2. 1916. This content downloaded from 103.105.225,66 on Fri, 02 Feb 2024 05:09:45 ~00:00 ‘Alluse subject to https: /about stor orgterms‘The Hobfeldian System 55 seen as “an attempt at a legal algebra’," as “artificial’,'* and as “based on certain invalid assumptions that necessarily preclude its implementation in the resolution of legal issues”. 7 In the light of this disparity of opinion concerning the worth of Houretp’'s theory and the fairly recent comments included in those above it might be thought that his analysis has been argued over for many years. Such, however, is not the case, and indeed it appears to this writer that apart from the treatments during the first few years, after his death Hourexpian analysis has not received anything like the attention it deserves."* The reasons for this would seem to include the following: {i) Howretp died before he had a chance to complete his theories and in particular before he had proper chance ta show their practical utility. His leading essays are concerned primarily with an account of his views and statements that his analysis can help solve con- crete problems in the law. (ii) Allied with the above we must remember that these essays were designed in the main for law students and are written in a fairly simplified form." Honrerpian analysis was the victim of great expectations and suffered from initial overpraise. To say that the scheme “provides a tool as useful to a lawyer as up to date instruments are to a surgeon’’® is flowery nonsense and this sort of description may ‘have produced too strong a reaction in the opposite direction. liv) In the years immediately following Honretp’s death the develop- ment of his analysis rested with men like Corsin and KocoureK. ‘This was perhaps unfortunate, for Corsi was rather too content to restrict himself to generalities as to the usefulness of the scheme orto quibble with Kocoursx over aspects of the theory.*! Kocoursx on the other hand developed his own theories building on Hox- * M. Rapin, “A Restatement of Hohfeld” (1938) 51 Harvard L, R. 1114, ae iua7. ” bo rons, “An Analysis of Hohfeld” (1963) 48 Minnesota L. R. 313, at 337. 3 Ibid. 313 ‘ For critiques and biliography see J. Stone, Legal System and Lawyers’ Reasonings (1964) 137 n. 1 (hereinafter cited as STONE, Legal System) and Pou, op. cit. supra n. 8, at 83 n. 101, Honrexp, article first cited supra n. 2, at 20. ® Cook, article cited supra n. 9, at 730. * A. Corin, “Jural Relations and Their Classification” (1921) 30 Yale L, }. 22. This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps!/aboutjstororgsterms 103.105, ‘Aus56 David John Hislop sixp’s foundation. * It is submitted that this development takes the analysis far beyond what is practically worthwhile and Kocou- xex’s neologisms and his detailed treatment are hardly attractive to the average lawyer. (v) Honey wrote at a time when positivism was the ruling philo- sophy in Anglo-American Law. With the rise of “social engineering” Hoxrexpian theory tended to get caught up in the swing away from legal logic. Now a half a century later it seems an appropriate time to look again at Honrsiy’s analysis. That we should do so now is also fitting because of certain other factors: Firstly, Honreupian analysis is of contemporary interest because of its links with deontic logic, a subject very much on the current agenda in Jurisprudence;* Secondly, the most recent article on Hourexp of which this writer is aware, is, we are told, "an attempt to show that Hoxretp’s fundamental legal conceptions . . . are artifi- cial, that they are probably infertile (and) that they are possibly impractical’. #"In Honraty’s defence we need to re-examine his theory to see if such a wholesale attack is justified. In this paper the aim will be primarily to indicate that Hourexpian theory is practically worth while and is worthy of closer and fuller study. To this end the following matters will be considered: An outline of Honey's theory. The main lines of criticism that have been levelled at the theory and what can be said in Honrein’s defence. Submissions as to the application and usefulness of Houretpian analysis. % A. Kocounsx, "The Hohfeld System" (1920) 15 Illinois L. R. 23; id. “Ta- bulae Minores Jurispradentiae” (1921) 40 Yale L, R. 215, id, Jural Rela- tions (2.ed. 1928). % See ec. g. 1. TaMmsio, “Sketch for a Symbolic Juristic Logic” (1955) 8 Journal of Legal Education 17, id, “On the Logical Structure of the Law Field” (1959) 45 Archiv fuir Rechts- und Sozialphilosophie; 95, id. “Legal Formalism and Formalistic Devices of Juristic Thinking”, in S. Hoox (ed, Law and Philosophy: A Symposium (1964). See also Stowe, Legal System 187-197 and the articles and references there cited. As to the links bet- ‘ween Honrsxp and deontic logic generally, see M. Montrz, Uber Hohfelds System der juridischen Grundbegriffe (1960). The writer is indebted to Mr. D. B. Tavtor, a final year jurisprudence student in the University of Sydney, 1965 class, for furnishing a summary in English of the last men- tioned work. % R Srons, article cited supra n, 16, at 337. JuLTUs Stone's Chapter on Hon sain his Legal System had gone to print before Roy Srowe'sarticle appeared. This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps:!/aboutjstororgiterms 103.105, ‘Aus‘The Hobfeldian System 87 Il, An Outline of Hohfeld’s Theory ‘As we have noted, HoHFELp’s main aim was to break down the words "right" and “duty” and to show that precise legal analysis cannot be achieved by using these general words to cover what are in fact quite distinct legal relations. Terms such as “contract” “marriage”, "property" and trust” really involve complex and often variable aggre- ‘gates of different legal relations, Proper analysis requires that such aggregates be reduced to their simpler elements and this means going beyond mere “rights and "duties". HonrELD spelt out eight fundamental conceptions — rights (claims), duties, privileges, no-rights, powers, liabilities, immunities, and disabilities — which he called “the lowest common denominators of the law".%* The basic jural relations were shown by use of these eight conceptions in tables of jural correlatives and jural opposites. Departing from Honrttp’s actual presentation but following its main lines we can set out his eight fundamental conceptions and the rela- tions between them as follows:?” Right (claim) + Privilege | | Power Immunity ' ' ' >< | Duty NoRight] | Liability Disability % ‘The term “legal relation” or “jural relation” was used by Howreto with reference to two persons. Thus one does not have a legal relation to oneself, nor with two others but only separate legal relations with each. ‘Again there can be no legal relation between a person and a thing. A so- called legal relation to a corporation or the State may be reduced to many legal relations with the individuals composing the corporation or the State, though for convenient discussion they may be grouped. As to legal relations generally see A. L. Conaty, “Legal Analysis and Terminology” {1919} 29 Yale L. J. 163, at 164-65. % Hone, article first cited supra n. 2, at 58. ™ Houreip presented his scheme by way of a table of correlatives and a table of opposites rather than by way of the diagrammatic formulation haere used. It is felt that the two separate squares not only is more concise This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps:!/aboutjstororgiterms 103.105, ‘Aus58 David John Hislop The vertical arrows here indicate the relationship of "correlatives", so that a right (claim) in A against B implies a duty in B towards A and vice versa, The diagonal arrows couple what Honrexp called “opposites”, where the presence of one in A means the absence of the other in A. Thus a no-right in A means the absence of a right (claim) in A. The horizontal arrows are not really important but are included as the relationship they indicate (not dealt with by Howrey) is mentioned in passing later in this paper. Before discussing in detail what is meant by the jural relationships which Hoxretp called “correlatives"” 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 Joutus Stone makes clear, Howretp’s scheme purports to provide a logical frame built according to specifications 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.% Secondly, as Hon- rip himself says “the strictly fundamental legal relations are, after all, sui-generis, and thus it is that attempts at formal definition are always unsatisfactory, if not altogether useless”. Accordingly the fundamen- tal legal relations are “exhibited” and ‘illustrated rather than "defined". (1) The Relationships {a) Jural Correlatives A correlative 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 Honreto’s comment that a power bears the same general contrast to an immunity that a claim does to a privilege, (Homrep, article first cited supra n, 2, at 55 By this remark Honreto 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 ¥ (claim) and secondly where X can act against Y (power). Now if we take the negative of each of these and make ¥ the dominus in each case, then we have respectively the situations where X cannot require an act from Y (privilege ~ no-right) and where X cannot act against Y (immunity ~ disability). Thus privilege — no-right is to claim — daty what immunity — disability is to power — liability, namely the negative situation, and the two squares presentation enables us to appreciate this clearly. % Stone, Legal System 137-38. Roy StonE questions how far Home can be said to have empirically derived his theory from the cases — see his, article cited supra n. 16, at 325-28 and 337. %® Houretp, article first cited supra n. 2, at 30. This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps:!/aboutjstororgiterms 103.105, ‘Aus‘The Hohfeldian System 59) other, ¢. g. husband-wife, parent-child, teacher-pupil. Together two correlative terms constitute one relationship which can be viewed through the eyes of either the dominant or the servient party. Thus the presence of claim in A implies the presence of duty in B, and vice versa; the presence of privilege in A implies the presence of no-right in B, and vice versa. This notion of jural correlatives and indeed the whole Hoxretpian analysis rests on the idea that bilaterality of right- duty relationships is a feature of the structure of law. Bilaterality here means that whenever a duty is imposed by a norm on one person, a correlative right is conferred with respect to the same subject matter ‘on another person or persons and vice versa. There is however still debate as to whether this concept is apt for all legal norms. Thus it has been suggested that in public law duties exist without correlative rights. This point will be put aside for the moment and retumed to later in connection with criticisms levelled at Houreipian analysis. GLANVILLE WiLLIAMs shows that it is important not to confuse the concept of “correlative” with “corollary. A corollary is an immediate deduction from a given proposition, generally so obvious as not to re- quire separate proof." Thus in Cole v. Police Constable 443A Counsel argued that the”’right” of parishioners to attend Church is correlative to their duty to do so. However this so-called “right” to attend Church is a mere privilege and follows the duty to attend, not because it is the correlative but because it is a corollary stemming from the maxim “What the law requires it also justifies". *® (b) Jural Opposites ‘The terms on the diagonals in the presentation above are jural ‘opposites. The presence of one involves the negation of the other in the same person so that if A has a right (claim) he cannot at the same time have a no-right in respect of the same thing. Again if A has a privilege then he is free from a duty. Howe calls for some caution here for when we say that a given privilege is the negation of a duty, the two must be in respect of the same subject matter, "If for some special reason X has contracted with Y to go on the former's own land, it is obvious that X has, as regards Y, both the privilege of entering % See generally, Stone, Legal System 197-200. & Wutsams, article cited supra n. 12, at 1141 n. 16. % The duty to attend church is based on the Act of Uniformity 5 and 6 Edw. 6, ch. 1, 1552} still technically in force in England. This content downloaded from 103.105.225,66 on Fri, 02 Feb 2024 05:09:45 ~00:00 ‘Alluse subject to https: /about stor orgterms60 David John Hislop and the duty of entering, The privilege is perfectly consistent with this sort of duty”.* The opposites in this example are the privilege of entering and the duty to stay off. There has been some criticism of “opposites” on logical grounds which shall be considered later in this, Paper. For present purposes of explanation it is sufficient to say that Houten does not use opposites to mean contradictory opposites: A and non-A. As SToNs points out opposites in the Houretpian scheme together exhaust not everything in the world but only the class of entities which consist of legal relations. STone suggests that they would perhaps be better termed “class-complements’.** (2) The Eight Fundamental Legal Conceptions (a) Right (claim) "Right is commonly used to denote any sort of legal advantage whether claim, privilege, power or immunity. The clue to limiting this broad term to what may be regarded as to core of the concept of right lies in the correlative "duty, For right in the strict sense as the first of Honey's terms is an enforceable claim to performance {action or forbearance] by another.”** Thus if A has given Ba promissory note to repay £ 100 on demand and B has made the demand B has a right to the recovery of the money and A has a duty to repay it. The expression "right in the strict sense" is somewhat unwieldy and Hourevp suggests that if we wish to use a synonym for the term “right! in this "limited and proper meaning” perhaps the word “claim” would prove the best. “Right” (claim) was not dealt with at length by Houretp. He regarded it as signifying a very positive concept and one easy enough to understand, (b) Duty "Duty’"is the correlative of "right in the strict sense” and is explained by Consin 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”. Thus in the example above A has a duty to pay * Houreto, article first cited supra n. 3, at 32. % Stowe, Legal System 139. See also ibid. 160 n. 90. % Conny, article cited supra n. 26, at 167. ™ Houraxp, article first cited supra n. 2, at 32. * Coxsin, article cited supra n. 26, at 167. This content downloaded from 103.105.225,66 on Fri, 02 Feb 2024 05:09:45 ~00:00 ‘Alluse subject to https: /about stor orgterms‘The Hohfeldian System 61 to B the sum of £ 100. Again, and to use Honey's example, if X hhas a claim against Y that he shall stay off the former's land the correlative (and equivalent) is that Y is under a duty to stay off the place. (c) Privilege “Privilege” as it is used in ordinary language has many different ‘meanings. Thus the term is used in the sense of claim when we speak of a privilege to obtain a pension, in the sense of power when we speak of the privilege of a legislature to compel the attendance of witnesses; in the sense of immunity when we speak of diplomatic privilege; in the sense of capacity when we speak of the privilege of a corporation to enter into contracts. As used by Honretp privilege is the correlative of no-right and the opposite or negation of duty. Sron 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 else.® Honreip explains and illustrates privilege 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 interfere with you”. Here X has a privilege, a liberty to at the salad, or to put it in terms of its opposite, the freedom from a duty not to eat the salad. The correlative 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 succeeded in holding so fast to the dish that X could not eat the contents, no right of X would have been violated”.° 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 different propositions involved, viz: “"Thave a liberty (privilege) 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 % See Kocounax, op. cit. supra n.22, at6n.2.* Stone, Legal System 143. ‘ Hour, article frst cited supra n.2, 35. This content downloaded from 103.105.225,66 on Fri, 02 Feb 2024 05:09:45 ~00:00 ‘Alluse subject to https: /about stor orgtermsoe David John Hislop of Tort especially in such Torts as assault and false imprisonment the second proposition often coincides with the first as a matter of law yet there can be a privilege to do something without a claim not to be interfered with in doing it.“ If the owner of Blackacre says to B you can picnic on my land every Sunday, then B has a privilege or the negation of a duty to stay off the land. There is no duty in A not to interfere and he can obviously terminate B's privilege to enter by exercising his own privilege to lock B out.** Hoxretp shows that both the concept and the term "privilege" find considerable expression in the law‘ and there is little doubt that the right (claim)-privilege distinction is well recognized in the case law." (a) No-Right “No-right”’ as used by Hoxretp is the correlative of privilege 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 BY."8 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 Horexpian scheme to designate freedom from a claim. Thus in the shrimp salad example where X has no affirmative right (claim) but merely a privilege 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. Kocourex explains that if we see claim as a capability to require with legal effect an act from another, then the opposite i.e. the negation of the claim, is the lack of capability to require an act from another. The connotation of “no-right” to Kocounex was therefore “inability”. 41 Wautzams, article cited supra n. 12, at 1143-44, «Even a bare licence cannot be revoket without reasonable notice, so that until the expiration of the reasonable notice, the licensee is protected by 1 right (claim) no to be interfered with in derogation of the licence. See Minister for Health v. Bellotti (1944) K. B. 298. This right (claim) is quite distinct from the privilege granted by the licence. See Witttams, article cited supra n. 12, at 1145 n. 25. 4 Houretp, article first cited supra n. 2, at 40-43. # 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. 4 Consin, article cited supra n. 26, at 168. Kocounsx, "Tabulae Minores Jurisprudentiae” cited supra n.22,at220-21 This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps:!/aboutjstororgiterms 103.105, ‘Aus‘The Hohfeldian System 63 (e) Power “Power” in Houseipian terms is the legal relation of 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 Horeip'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 privileges 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 ¥ a new and corresponding interest. Houretp 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 privilege of doing these things.” 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 name. The concepts of power and privilege can easily be confused for both relate to the conduct of the holder of the privilege or power and so both have a common difference with claim, which relates to the conduct of another. # Other examples of power considered by Hours 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 correlative liability as regards A. As Hoxretp 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 Honretpian sense in making the initial offer to B. Certainly Kocourex and Goste think so. 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 Houreto’s sense. Houten himself is concerned with B’s power to accept the offer and © Honreun, article first cited supra n. 2, at 52. © Kocounek, “Tabulae Minores Jurisprudentiae” cited supra n. 22, at 218. Id, op. cit. supra n. 22, at 67. See also G. Gosts, “A Redefinition of Basic Legal Terms" [1935] 35 Columbia L. R. 535, at $38 This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps:!/aboutjstororgiterms 103.105, ‘Aus“ David John Hislop does not suggest that A also has a power to make the offer. Indeed a careful reading of Honey's example indicates that he would say that this was not a power. With respect to both Kocourex and Goste their analysis seems to represent the kind of blending and blurring of non-legal conceptions to which Hourtep so strongly objects. The "power" to make an offer, as Stone aptly remarks, is not really 4 power in Honey's sense at all but is “a mixture of physical ability and legal privilege (liberty]". Powers often coexist with rights, privileges, immunities, and duties, and Dras makes three separate situations clear. The first of these is where a power is coupled with a privilege, i. e. where the person cannot be penalized for having exercised it or for not having done so. In Clore v. Theatrical Properties Limited, Y had a privilege to be on X's land, X assigned his interest to A and Y assigned his interest to B. A exercised his power to revoke B's privilege. It was held that he could do so, and since there was no contract between A and B, A was under no duty not to exercise the power, i. e. he had the privilege to do so. Secondly, we have the situation where the power is coupled with a duty to exercise it. In R. v. Somerset, Ex Parte E. P. Cole and Partners Limited® it was held that the statutory power of Quarter Sessions to 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 privilege 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 privilege to do so. Thus A has the legal power by assaulting B of creating a claim to damages in B, but this power is coupled with the duty not to use it. See Honre, article first cited supra n. 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). * Secee. g. ibid. 20-25. % Stone, Legal System 147. Stowe discusses the point in relation to a dis- tinction Kocourek made between mesonomic and zygnomic relations. See generally, Kocounex, op. cit. supra n. 22 and ch. V in Stowe, Legal System 147-49, That distinction is said by Stowe to be “no doubt a valu- able one". The present writer feels that, on the contrary, itis an instance of Kocovnex's unfortunate and too general tendency to take analysis of jural relations beyond what is practically worthwhile. % Dias, op. cit. supra n. 44, at 241-44, (1936) 3 AIIE, R. 483, 8 (150) 1. K. B. 519. This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps!/aboutjstororgsterms 103.105, ‘Aus‘The Hohfeldian System 65 (f) Liability Liability is ‘the correlative of power and is the relation of A to B when A may be brought into new legal relations by the voluntary act of B. Thus if B has a power to change the legal relationship of A cither with regard to B or a third party, A, then has a liability that his legal position will be altered. In the offer and acceptance example used in connection with power, A having made an offer now has a liability that B will accept the same and create contractual relations. Again if A has by Power of Attorney given B the power to convey to C, then A has a liability of being brought into property relations with C. It is to be noted that liability is not necessarily disadvantageous even though it is with liability to the creation of duty with which we are most often concemed. A has the power to devise Blackacre by Will to B; the correlative is the liability of B to have Blackacre devised to him, (s) Immunity The isolation of the concept of immunity was one of the principal additions by Hone to the work of his predecessors in the analysis, of the term “a right” and Stowe sees it as the least discussed and least satisfying part of Honrswy’s scheme. The term is used as the opposite or negation of liability and accordingly can be explained as freedom from the legal power or “control” of another as regards some legal relation. Honre.p commented that "as indicated by judicial expressions «the best synonym is. . . the term ‘exemption’“.®? Thus a judge is immune from an action in defamation for anything he says in the course of giving his judgment. Again, we find "immunities" from powers of taxation and “immunities” in the so-called “privileges” of diplomatic envoys. ‘The distinction between privilege and immunity is well illustrated by the position of a diplomatic envoy. Though diplomatic envoys are immune from power of action for recovery of damages arising out of a breach of duty they are not free from duties, i, e. they do not have a privilege in the Hoxretpian sense, In Dickinson v. Del Solar*® Lord Hewart stated that "diplomatic agents are not by virtue of their privilege as such immune from legal liability for any wrongful acts.” % Srowe, Legal System 147." Honest, article first cited supra n. 2, at 57. ‘% (1930) 1. K. B. 376. This case is cited by Dias, op. cit. supra n. 44, at 246. 5 ARSP LI This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps!/aboutjstororgsterms 103.105, ‘Aus66 David John Hislop The accurate statement is that diplomatic agents are not liable to be sued in the English Courts unless they submit to the jurisdiction. “Diplomatic privilege does not import immunity from legal liability, but only exemption from local jurisdiction’. * In this case it was held that the fact that an envoy was under a sanctionless duty to pay damages was sufficient to involve his insurance company in resp- onsibility. Here then we see immunity but not privilege, for privilege as the negation of duty would exempt the insurance company. (h) Disability Disability as the opposite of power means the absence of an ability to alter a person’s legal relations. Thus if A is immune from taxation then the Commissioner of Taxation has a correlative disability. Here again it is important to understand this term in the way in which Honretp used it, namely the negation of power, and this concept is not to be confused by the common use of "disability” in legal parlance where it relates to the incapacities of abnormal persons, e. g. children under 21 and married women at common law. ° IIL. Criticisms Levelled at Hohfeldian Analysis (1) Criticisms of the Terminology One line of criticism of Honretp is to suggest improvements in the terms he used for his lowest common denominators. Thus Pounp suggests “inability” for “disability” and “risk” for "liability”,*" Kocourex prefers “inability” to “no-right’, and Rapin uses ‘demand-right” and "privilege-right” in lieu of "claim" and “privilege” respectively. These alterations are for the most part put forward 4 (1930) 1. K. B. 376, at 380. © At this point in’ the paper delivered to the Australian Society of Legal Philosophy a reportive account was given of some of the points made by Honretp 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 Homretp was the distinction between relations in personam (called “paucital” relations) and relations in rem (called “maultital” relations}. * Pounp, op. cit. supra n. 8, at 81. © Kocounsx, “Tabouale Minores jurisprudentiae” cited supran.22, at 220-21. © Rapm, article cited supra n. 15, at 1148-49, This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps!/aboutjstororgsterms 103.105, ‘Aus‘The Hobfeldian System or because it is felt that Houraup in secking to avoid loose uses of the words “right” and duty’ uses words which are themselves ambiguous or which cary some unfortunate connotation. In particular considerable criticism has been levelled at Honrsip’s use of "privilege” 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 “privilege” means something which is available only to some special class.” Wiutiams thinks the difference between the concept and the word “privilege” is such that “liberty” must be substituted for the word “privilege” in Honretp's analysis.* PouND uses the words "privilege" and “liberty” for two quite separate conceptions® while Stone would retain Houretp’s “privilege” but recognizes two sub- classes; “common” or “general” privilege and “special” privilege." Hourewp himself is not unaware of the question of choice of terms here and in fact after considerable discussion selects “privilege” rather than “liberty” to indicate negation of duty. 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 Hours.o's terminology three ways seem open ta 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. Houreip's terms “multital’” and “paucital’’ were criticized for their “hideous illegitimacy’** and further neologisms © Kocounsx, op. ct, supra n. 22, at 6 n.2. ‘© ‘Thus in ordinary language “liability” suggests something disadvantageous and this is not necessarily the case with Honre.n's “liability”. See RADIN, article cited supra 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 Pour, op. cit. supra n. 8, at 80. “* G.W. Paton, Jurisprudence (2 ed. 1951) 225-26. © Winiams, article cited supra n. 12, esp. at 1131-35 © Pounp, op. cit. supra n. 8, at 75. Stone, Legal System 144.n. 22, % As to the discussion and reasons for the choice see Honrtzp, article first cited supra n.2, at 40-44, Rapin, article cited supra n. 15, at 1155. o This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps!/aboutjstororgsterms 103.105, ‘Aus68 David John Hislop would send a shudder down the backs of average lawyers. The third possibility would be to resort to symbolic terminology. Certainly workers in other sciences have developed specialized technical voca- bularies™ and with the growth of increasing complex legal situations symbolic language and symbolic logic generally may be an aid in conceptual analysis. However whatever its potentiality symbolic terminology is not advocated here. Though there are weaknesses in the words chosen by Homey it is submitted that their replacement by other words or symbols will either fail to solve all difficulties or will involve fresh problems. The better course would seem to be to accept that claim, privilege, power etc. are symbols of conceptions about things and to seek "to Promote a predetermined understanding as to the significance and application” of these symbols. Quite apart from the question of the substitution of other terms or symbols for those used by Horexp, it has been also said, by way of criticism of the terminology, that Honretp does not take into account legal rights in the broader sense. This criticism does not seem just. Tt can scarcely be imputed as a fault to Howretp that he did not fit into his scheme the broader conception of a "right when his entire thesis was that that term was often used to cover a confused compound of several distinct conceptions. However, as it is sometimes necessary to speak of “a right” in its broad sense it does seem cumbersome to speak as Howrey does, of "right in the wider sense” and “right in the narrower (or stricter) sense”. Kocoursx offers welcome relief from this awkward phraseology when he suggests that we reserve “right” for the whole complex and use "claim" for the legal right with correlative duty. (2) Criticisms of the Lowest Common Denominators Whereas the first line of attack above mentioned involves the criticism of the terms Honey uses to denote his fundamental legal conceptions, a second [and more serious) attack is to criticise the concepts themselves. ‘As we have seen, Houretp thought that his conceptions represent "the lowest common denominators” of the law. It can be questioned % See generally I. M, Cort, Symbolic Logic (1954) 7-9. 1% This statement of purpose is made by Gosts, article cited supra n. 49, at547.™ Kocourer, op. cit. supra n. 22, at 7. This content downloaded from 103.105.225,66 on Fri, 02 Feb 2024 05:09:45 ~00:00 ‘Alluse subject to https: /about stor orgterms‘The Hohfeldian System o whether this is in fact true in regard to all eight of Honretp's terms, Taking firstly what may be called the top line of terms, "right", "privilege", "power", and “immunity”, it is seen that not all of these are always accepted as basic terms. Thus Pounp does not think that “immunity” is necessary.’ This view seems well supported, for Kocoursx in a review of the definitions of jural relations offered by some fourteen jurists concludes that they turn on the ideas of liberty, power and claim.” Then again Hanr and Sacus note that it may be thought that “liberties” hardly deserve separate treatment “since arrangements recognizing liberties merely make explicit the negatives which are pregnant in arrangements which declare the scope of duties”.7” Kocounex has observed that while "claim’ and "power" are affirmative terms “privilege” and “immunity” are negatives.” But although “privilege” and “immunity” are only derivative ideas, they are still accorded a place by Kocouner, for when used they indicate an ab- normal jural situation differing from the general rule. While we may recognize the affirmative and negative aspects of Howretp’s "de- nominators’ and the fact that “claim” and "power" are much more important than “privilege” and "immunity", it is submitted that, as far as the top line at any rate is concemed that each of Honrety’s basic terms has one, and only one, distinct function, and therefore is worthy of its place as a “lowest common denominator’. The worthiness of the terms on the bottom line of the analysis, "duty", "no-tight", “liability”, and “disability”, to nominate status has been the subject of more criticism. Here “no-right” and “disability” have been under heavy fire. Roy Stone thinks it is interesting as well as significant that there is no word for the jural opposite of “right”. “While the assertion that nomina sunt consequentia rerum, that where there is a word for it, there “it” is, or that where there is no % Pounn, op. cit. supra n. 8, esp. at 118 ff, POUND in addition to the term ‘liberty uses “privilege” to mean “exemption from liability”. ™ Kocounsx, op. cit. supra n. 22, esp. at 47. The jurists considered include Savicny, Konen, Tenny, SAtMOND, AUSTIN and BIERLING. 77 HLM. Har and A. M. Sac, Legal Process (1956) 97. % Kocounsx, op. cit, supra n. 22, chs. I, I and VI % Ibid. In. 5. Gone goes even further than Kocounex here and says that although all Houretp’s terms are useful, the basic legal concept is “power” and that all other legal concepts are derivative of this one. Goste, article cited supra n. 49, at $35. This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps!/aboutjstororgsterms 103.105, ‘Aus70 David John Hislop word for it, there is no "it", may be no more than mere nominalism, the fact that there is no judicial usage for the expression of a "no-right” probably stems from the absence of such a conception".® Pounp felt that in working out his scheme of correlatives and opposites HonFeLD followed Hecstian logic and that the exigencies of the scheme of triads forced him to find basic terms whether they have juristic significance or not.® The concepts “no-right” and “disability” are singled out as serving no practical purpose and as an indulgence of artificial symmetry into which the law cannot or should not be forced. Pounp calls “no-right" and “disability” "pseudo-conceptions which are the absence of things put as things’. ® Tt must be at once agreed that "no-right” and "disability" are negative terms. But to say this does not warrant the conclusion that they therefore mean anything other than the one specific thing negatived, and that they have no juristic significance. As Goste points out, negative terms, in the sense that they negate a certain condition, can still express a conception as positive as any other conception. Thus “cold” means simply absence of heat or no heat, "dark" means absence of light or no light.** "The thought of dark is as positive and as full of content as the thought of light. This is true because both terms are terms of a relation . . . It could well be said apart from considerations of physics that the affirmative term is dark, and light is the absence of dark . . . One might start with the conception of A’s incapacity (disability) legally to affect the status of another, label it, and then indicate the negative of it by another convenient term’. ‘Negative terms in our language are useful in conveying meaning and to describe one of Hoursip’s fundamental conceptions as "wholly negative” is mot necessarily to deny that it is entitled to rank as a “lowest common denominator". Indeed, if we were to omit negative terms from the scheme it would appear that the concept of "privilege would also have to be given up, for privilege is a negative concept in that it is the absence or negation of a duty. Oddly, the critics who deride Hourenp’s “no-right” as a purely negative expression do not find anything laughable in privilege”. Yet as GLANvite Witttams has stated, “privilege” "is an © R Sronz, article cited supra n. 16, at 333-34. % Pounp, op. cit. suptan. 8 at 75-81. Tbid. 80 © Gosts, article cited supra n. 49, at 537. Ibid. $38. This content downloaded from 103.105.225,66 on Fri, 02 Feb 2024 05:09:45 ~00:00 ‘Alluse subject to https: /about stor orgterms‘The Hohfeldian System n even more negative expression than "no-right" for a “privilege” is "ano-duty not’. "Noright” and "disability" cannot be dismissed simply because they are negative terms any more than they can because they are of quaint appearance. The question is as to their usefulness. As we have noted the two squares method of presentation of Hourstpian analysis enables us to see two main jural relations, namely, right-duty, and power-liability, each with its respective negative situation, privilege- no-right and immunity-disability. It is submitted that it is often important to spell out these negative situations and that “no-right” and “disability” are worthy of nominate status, In giving judgment a Court can speak of A’s duty to pay damages to B or his no-duty (i.e. his privilege not to pay), alternatively, the Court can start with B and say that B has a right (claim) to this sum from A, or that he has no such right (i. e. a no-right). Again it seems useful to say that A has a power to accept B’s offer but that after the offer has been revoked he has a disability to accept. ‘While agreeing with Pounp that in the analysis of "a right” schematic exposition and terminology can be carried beyond what is practically worthwhile, the present writer does not share his feeling that Occam's Razor should be applied to Hoursty’s categories. (3) Criticisms of the Relationships (a) Jural Opposites Kocourex criticized Honrety’s jural 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 elephant, a star or an angel (because it would everything in the world which is not a right). Kocourex thought that what Howretp had in mind was not a table of opposites in the sense of logic but a table of negations, and it was his further opinion that such a table of negations probably serves no direct or important practical purpose in legal analysis.*” It is true that Hourexn’s opposites are not strictly contradictory opposites but are only opposites in the sense af contrary opposite or contrast. Accordingly Houretp’s use of the word “opposites is perhaps 'S Wuiu1aMs, article cited supra n. 12, at 1127. % Pouxp, op. cit. supra n. 8, at 82. ™ Kocounsx, “Tabulae Minores Jurisprudentiae” cited supra n. 22, at 220 1n7 and 218, See also id., “The Hohfeld System" cited supra n. 22, at 27 ff. This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps!/aboutjstororgsterms 103.105, ‘Ausn David John Hislop unfortunate and Juttus Srons’s “class-complements’ is probably a better term.** Yet still it is submitted that Houretn’s concept of jural ‘opposites is clear enough and it is submitted that regardless of what it be called it is useful in showing the contrast or the negation of each of the eight fundamental concepts and thus more precisely delimiting their content. (b) Jural Correlatives ‘Three distinct criticisms of jural correlatives can be observe (i) Pounp criticized Horrsun’s idea that there can be only one correlative for any given fundamental conception. He cited as an example that correlative 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 . . ."." "Liability" here used by PounD is in the loose sense rather than as correlative of power. 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 Hoxretp’s purpose to expel. The explanation of Pouno’'s example is that two distinct claims are involved each with a correlative duty thus A has a multital claim that B and all other unauthorized persons will stay off Blackacre and this involves correlative duties in B and all other unauthorized persons to stay off. A also has a paucital claim that his neighbour B will not allow cattle trespass causing damage to Blackacre, and this involves the correlative duty in B to prevent damage from such a case, (ii) Rapwy felt that A’s claim and B’s duty are not correlatives because they are not separate things at all but are two absolutely equivalent 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 BY or 'B murdered A’”.* This criticism can be answered by recalling the ® Srone, Legal System 139 and 160 n. 90. ® Pounp, op. cit. supra n. 8, at 78, © Srone, Legal System 159. ™ Rapin, article cited supra n. 15, at 1150. See also R. Stove, article cited supra n, 16, at 331-32. This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps!/aboutjstororgsterms 103.105, ‘Aus‘The Hohfeldian System 73 way in which Honrexp used the term “correlatives”. As we have seen, claim and duty are correlatives of each other as are privilege and no-right, power and liability, immunity and disability. Each pair of correlatives must always exist together; when A has one of the pair, B necessarily has the other. The pair create one relationship which can be looked at from the point of view of A or B. One of the terms expresses the relation of A to B; the other term expresses the relation of B to A. Similarly we can say that Sydney is north of Melbourne or Melbourne is south of Sydney. Rapin speaks of correlatives not in terms of rights and duties but of rights and other rights." His use of the term “correlative” accordingly seems very different to that of Hourexp's. (iii) A more compelling line of attack is to ask whether all claims involve correlative duties, and conversely, whether all duties involve correlative claims. Honreip was primarily concerned with private law and it can be asked whether his ideas can be applied in the field of administrative law, criminal law, and public law generally where duties abound but where there is some strangeness in spelling out the correlative right (or claim). Dias and HucHes feel that Honey at no stage suggested that all duties involved correlative claims.% It is difficult to accept this proposition, for Houretp always seemed ta speak as if all claims involved duties and vice versa.“ The difficulties in some cases in finding the correlative right (claim) may be merely linguistic and the result of a general concentration on the duty rather than the right aspect of the relation (ar vice versa). Thus although there is some strangeness in language we can speak of the right not to be murdered and the right not to be assaulted as correlatives of the duties in criminal law. Then again, however, the difficulties here may suggest that bilaterality of right-duty relationships, on which as we have seen the whole Hoxretpian scheme is based, is not a feature of every legal norm. Taking this line we would be squarely * Rapmy, article cited supra n. 15, at 1150 says: “There are demand-rights and privilege-rights which are correlatives of certain other demand-tights and privilege-tights. In a sale the right to demand delivery is the corre- lative of the right to demand payment. *® Dias and Hucus, op. cit, supra n. 66, at 228. % See especially Hoursty's example in article first cited supra n. 2, at 32 1.32 and his use of “equivalent at 32, This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps!/aboutjstororgsterms 103.105, ‘Aus74 David John Hislop faced with the question whether the right-duty relationship is in fact apt for all legal norms. If the answer is affirmative then there is no difficulty for Honretpian analysis; if negative, then Hourexpian analysis is probably not applicable in areas of the law where bilaterality of right-duty relationships is not a feature. *> (4) Criticism of the Utility of the Analysis ‘A further line of attack on the Hontretpian scheme of analysis is to question the utility of the whole endeavour. Here again separate sub- sections are required to bring out the different types of criticisms in- cluded under this general head. (a} Firstly, there are those who regard the whole analysis, more often than not, in a half amused manner, as something perhaps interesting but hardly necessary, While it may be somewhat unfair to take extracts from private correspondence as expressions of the authors’ considered views, the Houmes-Pottock letters provide a good illustra- tion here. Pottock wrote: “In the Yale Law Review I read of something called a "Hohfeld System” of classifying ‘jural relations’... it is strange how many rational beings believe the ultimate truths of the universe to be reducible to patterns on a blackboard.” Houmes in reply took a similar stand: "HOHFELD was as you surmise an ingenious gent, taking as I judge from flying glimpses, pretty good and keen distinctions of the kind that are more needed by a lower grade of lawyer than by you and me. I think all those systematic schematisms rather bores: and now Kocourex in the Illinois Law Review and elsewhere adds epicycles — and I regard him civilly but as I have written don’t much care for the whole machinery. I even doubt the profit of the terminology of rights (the hypostasis of a prophesy}; as Honretp used to crack me up naturally I thought well of him, but his industry was not of a kind that I should give much time to." A similar track is taken by those who think that the analysis is merely a long and often involved way of stating ot working out something which is capable of much easier expression or solution. It is true that our instinct when we seck to clarify complex legal relations * ‘The debate on this question still seems open. See generally as to bi-later- ality of right-duty relationship as a proprium of law, Stone, Legal System 197-99. Hotmts-Poutocx Letters, op. cit. supra n. 14, at 6 (letter dated 24, 1. 1921}. * Ibid. 64 (letter dated 9. 2. 1921}, This content downloaded from 103.105.225,66 on Fri, 02 Feb 2024 05:09:45 ~00:00 ‘Alluse subject to https: /about stor orgterms‘The Hobfeldian System 75 is to seck to reduce them into the fewest possible terms. Yet it is pre- cisely this process of abbreviation, said Honretp and Kocourex, which can cause technical miscarriages in our thinking and therefore in the administration of law." A true simplification of legal relations requires a multiplication of working concepts.” Roy Srone is another who feels that "self-discipline rather than a restatement of old rules in new terms, is needed”. The point however remains that while we can often do without Honrexpian analysis there will be occasions where failure to adequately distinguish different concepts results in faulty reasoning. (b) There are also the critics who feel that there are areas of the law in which Honrexpian analysis is not applicable and in which if applied it can be positively harmful. BenjarieLp and WiTMokg, in a joint article on Ridge v. Baldwin" and the concept of “natural justice’ in admi- nistrative law, comment critically on the application of the Hourezpian distinction between claim and privilege “in areas of the law in which it is singularly inappropriate”."** The reason for these remarks stems from the fact that the House of Lords in Ridge v. Baldwin seems to give support for the proposition established in earlier cases, and much criticized, that the audi alteram partem rule does not apply where no "right" of a citizen has been affected but merely a “licence” or "pri- vilege”” withdrawn or refused. We have already said something of the question of the problems of the bilaterality of right-duty relation- ships in a field such as administrative law. ™ Yet even recognizing this, it is difficult to see why the claim-privilege distinction is singularly inappropriate here. The distinction as we have seen is a meaningful one and well recognized in the law. It seems clear that BENJAFIELD and ‘Wurrmors object to the cases in which the courts have said that in situation A (claim) the audi alteram partem rule applies but that in Hourep, article first cited supra n. 2, at 19-20; Kocounex, op cit. supra 1.22, esp. at 120, ™ Stone, Legal System 152-53, 10 R, Stowe article cited supra n. 16, at 329. 49% (1963) 2 W. L. R.935. weD, Benjartexp and H. Wurrmone, “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. 403 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 €. & 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 (refusal of a milk dealer's licence). "See supra TI (3). This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps!/aboutjstororgsterms 103.105, ‘Aus76 David John Hislop situation B (privilege) it does not. If they, and other leaned commen- tators, wish to see the courts extend the rule to situation B, they should recognize that this involves a policy decision and argue the policy grounds rather than criticize the analytical tool the application of which has led to what the commentators feel is a "wrong" or "bad" result. {c) Finally there are the staunch opponents who would deny any utility to Hourspian analysis and who wield heavy blows at the whole theory. Thus Roy Stone argues that Honrezpian analysis is based on certain fundamental errors that necessarily preclude its implementation in the resolution of legal issues. * These errors he contends to be: (i) The idea that we can establish a logical system of fundamental legal conceptions and then test language and its usage by applying the laws of logic as a yardstick to test the truth or falsity of ling- uistic statements, propositions and the like. (ii) The very basis of the analysis which is some sort of desire to rid legal thought and legal language of words that form too con- venient a part of argument and judgment. The first of these “errors” seem to involve a misconception of what Hourexp was trying to do. Roy STone states that Honrexp thought that his analysis would "help in deciding legal cases". The present writer cannot agree with this interpretation at all but instead concurs with Juttus Stone when he says that Roy Srone’s sharpness may be pro- voked by his taking too literally what are only “occasional gratuitous ultra vires excursions“ by Horeip. "** The second “error“ is surely another overstatement by Roy Stone of Hourevp's position. Horrerp did not seck to "rid legal thought and legal Ianguage”’ of the “richness of ordinary language’.*% What he thought was necessary was that as a matter of “great practical import- ance” we should have “a clear appreciation of the distinctions and discriminations set forth’. 1 Roy Stone's attack on Honrexp seems to be part of the distrust of many common lawyers of logic in the service of the law. The chief concem is that logical thought processes are rigid and inflexible whe- 406 Srons, article cited supra n. 16, esp. at 313-15. 496 Ibid. 318. 40 Stowe, Legal System 161 n. 65. And see infra IV (5) 1 R. Stowe, article cited supra n. 16, at 330. 1 Hourep, article first cited supra n. 2, at 58. This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps!/aboutjstororgsterms 103.105, ‘Aus‘The Hohjeldian System 7 reas legal reasoning is empirical and discretionary and that too much logic in juristic thinking would make law rigid." Certainly vagueness together with gencrality is a rich resource of the law, hence lawyers’ inclination to avoid anything that might deprive them of it or mate- jally hamper its use. Whatever the merit of this attitude, it does not involve a total denial of the usefulness of Hoxreupian analysis. It suggests though that we must be careful to avoid overrefining the law for fear that logic generally and the attempt to articulate rules by recourse to it might lead to undesirable results. IV, Submissions as to the Application und Usefulness of Hobfeldian Analysis As we have previously noted, although Honretp stresses the "prac- tical utility” of his scheme of analysis, he died before he had any real opportunity to adequately bring out this contended usefulness. Sub- sequent commentaries and critiques have for the most part failed to take the matter of the application of the scheme much beyond the position in which Honretp left it. Accordingly, it is thought worth- while, and in keeping with Howe's main aims as well as the aims of this paper, to now make certain submissions as to the application and usefulness of Honretpian theory. (1) It facilitates clarity of language and concepts Hourtrpian analysis by breaking down the range of meanings of the general wards “right” and “duty” enables us to spell out exactly which concept covered by the general word “right” we have in mind. The first level of usefulness, then, involves a translation of general ambi- guous language into Honretp’s more precise terminology so as to express every shade of a general right-duty relationship. By way of illustration we take an example which, it is felt, would have appealed to Houretp.™ T, the Trustee under a Trust instrument 19 See generally A. G. Gussr, “Logic in the Law” in A. G. Gusst (ed.), Ox- ford Essays in Jurisprudence (1961) 176, esp. at 177~78. See also Stoxe. Legal System 195. 14 The nature of equitable claims, privileges, and powers and immunities of the cestui qui trust was a topic of particular interest to HOHFELD. See Honan, “The Relations between Equity and Law” (1913) 11 Michigan L. R, 537) id, article first cited supra n. 2, at 16-19, id, article second cited supra n. 2, at 766-67. This content downloaded from 103.105.225,66 on Fri, 02 Feb 2024 05:09:45 ~00:00 ‘Alluse subject to https: /about stor orgterms78 David John Hislop secks the advice of S, a Solicitor, as to the interpretation of that instru- ment. This advice is erroneous, and in acting upon it T in breach of trust conveys part of the Trust property to P, a bona fide Purchaser for value without notice of the interest of the beneficiary B. The relation- ship between the various parties can be seen to be as follows: — As between T and B. T has a power to convey the legal estate to P; the correlative is that P has a liability to have the legal estate con- veyed to him. As between B and P. P is immune from an action by B for the reco- very of the trust property, and B has correlative disability. As between T and B. T has a daty (or in terms of its opposite, no privilege) not to act in breach of trust. When T conveys part of the trust property to P, B then has the right (claim) to sue T for the recovery of the proceeds of the sale and to make good any loss caused by the breach of trust. As between and 8. T has a right (claim) to sue S for negligence.*** Now it may be suggested that the above is just some kind of game and that translation of a problem into Hoxrenp’s “lowest common de- nominators" is a waste of time. Obviously we can and do solve legal problems without reference to Hourexpian analysis and it is not here suggested that we cannot take account of different conceptions of a “sight without resort to Honretpian theory. What is, however, sub- mitted is that there will often be cases where it is important to delimit precisely what sort of "right" is involved, and that in such cases we run the risk that confusion in language will bring with it confusion in thought. ‘A good example of most of the points here being made is seen in ex parte Wilkes; re Minister for Education. *! This was a case where the Court did not use Houretpian analysis but still was able to dist- inguish different types of "tight. Yet the language is strained, the different concepts not always clear, and one feels that the decision When this example was set a5 a problem question in the 1962 annual Jurisprudence Examination Paper in the University of Sydney, some stu- dents said that because Thad sought the advice of aSolicitor before acting in breach of trust, he had a privilege or an immunity as against B. This is clearly incorrect. The advice of a solicitor as to the interpretation of a trust instrument does not excuse the trustee if the advice should be erro- neous, See The National Trustees Company of Australasia v. General Rinance Company of Australasia (1905) A. C. 373; see also K. S, Jacoss, ‘The Law of Trusts (1958) 388 and 399 and the cases there cited. 483 (1961) N.S, W. R, 989. This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps!/aboutjstororgsterms 103.105, ‘Aus‘The Hohfeldian System 79 could have been reached much more simply by reference at the outset to Houretp’s claim-privilege 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 Honrepian terms was whether this “right” was a claim with correlative duty on the Minister and others not to interfere with it, or a privilege which as we have seen involves no correlative duty. The full Supreme Court considered the issue in terms of whether there was "the relevant type of public duty” on the respondent Minister," and they spoke of the “parent's right (in the relevant sense)" of “the claimed right,” of "the unfettered legal right’, 1° and of "the requisite right’. The end result was that the Court thought that the applications failed because of "the absence of the relevant public duty and the requisite right”. It was not until near the end of the judgment that the distinction here seen as the crux of the whole case (claim or privilege) was clearly spelt out of a tangle of confused language. The Court recognized that "the requirements of a legal “right” necessary to support the issue of the prerogative 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. . "1 ‘At the very lowest level of usefulness Honrexpian 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 facilitates the distinguishing of another case Houretp thought that his system would facilitate comparison of complex legal relations by reducing them to common terms. He spoke ‘Evatt, C.J, Collins, J. and Wallace, J. 1 (1961) N. S. W. R. 989, at 993, 996. 118 Tid, 992,995. 117.993. 118 1b. 995, 996. Tb, 96, 491 Th, 995, referring to Act 43 Vic. No. 23, and Act No. 15 of 1916 as amended by Act No. 7 of 1944. This content downloaded from 103.105.225,66 on Fri, 02 Feb 2024 05:09:45 ~00:00 ‘Alluse subject to https: /about stor orgterms80 David John Hislop of his eight conceptions as “lowest common denominators". "Ten fractions (1/3, 2/5, etc.) may seem so superficially different from one another as to defy comparison, If, however, they are expressed in terms of their lowest common denominators (5/15, 6/15, etc.) then com- parison is easy and fundamental similarity may be discovered. The same thing is true as regards the lowest generic conceptions to which any and all “legal quantities may be reduced”. Thus if conditional sales of personality, escrow transactions, option agreements, agency relations and powers of appointment can be reduced to their lowest generic terms then "the conceptions of legal power and legal liability are seen ta be dominantly, though not exclusively, applicable"."** By such a process HonrEip thought we could {i) “Discern common principles of justice and policy underlying the various jural problems involved”, and Find and “use as persuasive authorities judicial precedents that might otherwise seem altogether irrelevant”, #5 As to the first of these propositions I agree with Jutius Stone that this is acceptable if we take it to mean that Honrerpian analysis will enable us to indicate clearly an area where policy decisions are involved and to highlight the questions of "justice” involved." More will be said of this shortly. However I cannot join with my teacher and also accept the second claim above mentioned which seems altogether too wide. #7 Yet while, with respect, disagreeing with Honretp and Srowe here it is submitted that if we take the negative aspect of this point then we can find value in Honretpian analysis. Instead of alleging that Honrexy’s lowest common denominators will permit a fruitful resort to analogy we can say that they may be of assistance in helping us to distinguish another case; in other words they may assist an argument that a particular case is not persuasive. This is a point made by Dias and whose example may serve as illustration. # In Byrne v. Deane*®* 4 Honan, article first cited supra n.2, at 58-59. 1 Ibid. 59. #4 Loc, cit, #5 Loc, ct. 1 Srons, Legal System 161. 4 Srons says: “Hohfeld sufficiently justified his painstaking and someti- ‘mes brilliant performance, when he claimed for it (I) 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 precedents ‘which might otherwise seem altogether irrelevant" (loc. cit). Dias, op. cit supra n, 44, a 235, 1 (1937) 1K. B. 818. This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps!/aboutjstororgsterms 103.105, ‘Aus‘The Hohfeldian System 81 it was held that to call a person an “informer’ was not defamatory. Now if Byme v. Deane is cited as an authority in a later case where the allegation is that the plaintiff is a “conscientious objector” it can be distinguished. An “informer” is a person who gives information of crime and there is in law a duty to do so. Byrne’s Case decides that it is not defamatory to say that a man has performed a legal duty. There is however only a privilege to be a “conscientious objector’, and Byme’s case is thus no authority for saying that it cannot be defama- tory to allege that a person has exercised this privilege. (3) It provides an analytical tool for the critical examination of judg- ments It is gencrally 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 Honretpian 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 decision which are often masked by the indefinite language of rights and duties. At times faulty reasoning and policy decisions 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- kins!” where the Court failed to distinguish between right (claim) and right (privilege). 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. " The right to attend a public meeting 180 (1935) 2 K. B. 249. 1 See e. g. Bailey v. Williamson (1873) L. R. 8 Q. B. 118; De Morgan v. Me- tropoiitan Board of Works (1880) § QB. D. 155. 6 aRsP LL This content downloaded from 103.105.225,66 on Fri, 02 Feb 2024 05:09:45 ~00:00 ‘Alluse subject to https: /about stor orgterms82. David John Hislop can be seen as merely a privilege and accordingly it does not carry with it the correlative duty spelt out by the Court in Thomas v. Sawkins, {b) The application of Hohfeldian analysis to the field of conspiracy cases and cases relating to restraint of trade reveals numerous instances of fallacious propositions stemming from very indefinite and rapidly shifting meanings with which the word “right” is used. It also clearly brings out that this is an area of delicate policy decisions. Hohfeld when discussing the failure to distinguish claim and privilege considered Lord Lindley’s reasoning in Quinn y. Leathem'* and Lord Bowen's remarks in Mogul Steamship Company v. McGregor." Just as illustrative of the present point are the speeches of Lord Parker in Attorney General v. Adelaide S. 8. Company'** and Lord Wright in the Harris Tweed Case.! These cases involve questions as to the plaintiff's “right” not to be interfered with in the exercise of his trade and the defendant's “right” to carry on his business as seems best to him provided he commits no wrong to others. Lord Lindley stated in Quinn v. Leathem that "the plaintiff had the ordinary rights of the British subject. He was at liberty to eam his living in his own way, provided that he did not violate some special law prohibiting him from doing so, and provided he did not infringe the rights of other people. This liberty involved the liberty to deal with other persons who were willing to deal with him. This liberty is a right recognized by law; its correlative is the general duty of everyone not to prevent the free exercise of this liberty except so far as his own liberty or action may justify him in so doing. But a person's liberty or right to deal with others is nugatory unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him". "7 4 Policy reasons may have caused the creation of this special rule for poli- ceman. See Dras, op. cit. supra n. 44, at 62. 8/1901) A. C. 495, at 534. 434 (1889) 23 Q.B.D. 598, at 611. (1913) A.C. 781, at 793. 4 (1942) A. C. 435, at 462-63. See generally Stone, Legal System 14445 and ‘Wrttiams article cited supra n. 12, at 1146, An interesting recent case in the tradition of the conspiracy cases here mentioned is Rookes v. Barnard (1964) A. C. 1129, There an unanimous decision of the Court of Appeal was set aside by an equally unanimous decision of the House of Lords. This startling reversal is again indicative of the policy decisions in this, general area of the law. 4397 (1901) A. C. 495, at 534 This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps!/aboutjstororgsterms 103.105, ‘Aus‘The Hohfeldian System 83 Hourep commented on this reasoning that a “liberty” considered as a legal relation (or’right’ in the loose and generic sense of that term) must mean, if it have any definite content at all, precisely the same thing as privilege, and certainly that is the fair connotation of the term as used the first three times in the passage quoted. It is equally clear, as already indicated, that such a privilege or liberty to deal with others at will might very conceivable exist without any peculiar concomitant rights against "third parties" as regards certain kinds of interference. Whether there should be such concomitant rights (or claims) is ultimately a question of justice and policy; and it should be considered, as such, on its merits. The only correlative logically implied by the privileges or liberties in question are the “no-rights” of "third parties”. Tt would therefore be a non sequitur to conclude from the mere existence of such liberties that third parties” are under a duty not to interfere,ete. Yet in the middle of the above passage from Lord Lindley’s opinion there is a sudden and question-begging shift in the use of terms. First, the “liberty” in question is transmuted into a “right” and then, possibly under the seductive influence of the latter word, itis assumed that the “correlative” must be "the general duty of everyone not to prevent’, etc, Houretpian analysis will clearly show that the position is similar with the other judgments above cited, It is by such reasoning that a tort of interfering with trade, however socially desirable it may be, is made to materialize out of the thin air of a logical fallacy. (4) It facilitates our perception of legal and social problems Ie is submitted that Honestpian analysis will also supply us with an important tool that can sometimes be used in confused arcas of the law to enable us to clear the ground and lay bare the underlying legal and social problems. Of course we may be able to do this without Hourscpian analysis, but this is a keener and more powerful analytical weapon; without it we nun the risk that we may not see the problem at all, or if we do, that we may become confused in our analysis of it by our own verbosity. An example of the way in which the analysis can be thus used can be seen by examining the English and Australian cases dealing with the so-called deserted wife's "right" to occupy the matrimonial home. This has been a troubled field of the common law 1 Hourenp, article first cited supra n.2, at 36-37 a This content downloaded from 103.105.225,66 on Fri, 02 Feb 2024 05:09:45 ~00:00 ‘Alluse subject to https: /about stor orgtermsore David John Hislop for the past twenty years or so. The doctrine of the deserted wife's “right” or “equity” in the matrimonial home suffered some mortal blows in New South Wales in Dickson v, McWhinnie*™ and has now been laid to rest by the House of Lords in England in National Provincial Bank Limited v. Ainsworth. ™® The kind of problems that arose before Ainsworth’s Case for consideration by the Courts included the following: — Could a deserting husband being the sole lessee of the matrimonial home surrender his tenancy to the Landlord? Cauld the deserting husband — the sole owner of the frechold sell the previous matrimonial home with vacant possession? If the husband could sell the house with vacant possession, could he sell it to anyone at all? 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 sell the security with vacant possession? If the deserting husband became bankrupt, could his trustee in bankrupty recover possession against the wife?!" Honrerpian analysis is of help in examining the cases to see whether the wife's alleged “right” to possession is a privilege merely to occupy the matrimonial home; or a privilege coupled with an immunity so that the husband cannot get her out without a Court Order; or a claim which exists s0 as to bind third parties such as purchasers or mortgages wishing to exercise power of sale; or perhaps something else. But, more important, and the point here made, is that Hosretpian analysis in seeking to clarify and more precisely delimit what sort of "right" is involved focuses our attention on the consequences which stem from saying that this “rightis a privilege, a privilege coupled with an immunity, a claim, or whatever the case may be. It is in this way that Honrewpian analysis can shed a light which enables us more readily to appreciate the underlying problems and perhaps recognize the need for early legislative activity. 438 (1958) SR (N.S. W.) 179. 49 (1965) 3 WLR 1. “1 The cases on this subject were examined in the Paper delivered to the Australian Society of Legal Philosophy and have been omitted from the present article, The cases include the following as well as the two listed n. 139 and n. 140 above: Old Gate Estates Limited v. Alexander (1950) 1K. B. 311, Thompson vy, Earthy (1951) 2. K. B. 596, Bendall v. McWhirter (1952) 2 Q. B. 46 (a leading case), Ferris v. Weaver (1952) 2 All E. R. 233, Jess B, Woodcock 6) Sons Limited v. Hobbes (1955) 1 All E. R. 445, Brennan v. Thomas (1953) VIR 450, Shakespeare v. Atkinson (1955) N.Z..R. 1011. This content downloaded from 103.105.225,66 on Fri, 02 Feb 2024 05:09:45 ~00:00 ‘Alluse subject to https: /about stor orgterms‘The Hohfeldian System 85 (5) The wider claims Its felt that this section of the paper cannot be concluded without saying something of two very ambitious claims sometimes attributed to Honrexp and which, on the face of it, seem to be implied in some of Honretp’s more enthusiastic language. “# (a) Unity in the law Hourewp concluded his first main essay with the words: “In short, the deeper the analysis, the greater becomes one’s perception of fundamental unity and harmony in the law.” #8 As JULIUS STONE says, if Honrep was here actually suggesting that we can find any fundamental unity and harmony in a living system of law in the logical relations between its legal propositions then the claim must be rejected as illusory. However it is doubtful if this is what Hoxretp meant and this can be more readily appreciated if we consider some of Howrs.p’s remarks in his A Vital School of Jurisprudence and Law" which was written about the same time as the above.'“5 Thus Hours 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 tre that nothing conduces more to the perception of fundamental unities in legal problems, and hence to broad generalization, than perfect analysis and reduction 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.”4* Again when speaking of formal or analytical jurisprudence in a general way Honrstp 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 present conglomeration of judicial precedents and piecemeal statutes, partly with the immediate purpose of making new legislation fit in more harmoniously and partly with a view to what has been called ‘tacit codification’, and ultimately, perhaps, legislative codification.” #7 4 The writer is here following the interpretation of Stowe, Legal System 161. It is interesting to not that Stonr’s 1964 interpretation of Hobfeld’s remarks regarding his wider claims is rather more generous to HouFELD than that inThe Province and Function of Law (1946) 133-34. \ Hourep, article first cited supra n.2, at 59. Stone, Legal System 161. MsHoureip, address delivered before the Association of American Law Schools in December 1914, reprinted in Fundamental Conceptions as Ap- plied in Judicial Reasoning (1923) 337. “Ibid. 348-49. "Ib, 350. This content downloaded from 103.105.225,66 on Fri, 02 Feb 2024 05:09:45 ~00:00 ‘Alluse subject to https: /about stor orgterms86 David John Hislop What Honrerp seemed to have in mind when he spoke of deeper analysis and discovering fundamental unity and harmony in the law ‘was not, it seems, that we can ever hope to find that the law is a completely logical system, Instead he seems to be suggesting much the same sort of thing as A. G. Gussr when the latter said that “logic acts as a kind of geography, explaining the directive force of propositions and their relationship one to the other.”™° {b) Justice Houretp also thought that through the process of reducing legal relations to their lowest generic terms "it becomes possible ... to discern common principles of justice and policy underlying the various jural problems involved.” It was formerly suggested by JuLtus STONE that Honrezp 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. Stone now takes a rather different view and considers that Honrezp's statement above must mean that clear thinking about the meaning of concepts used would remove obstacles, to the discemment of justice and policy rather than that Honr1> ‘was claiming to deal with justice and policy. ‘This later interpretation seems correct. Itis perhaps unfortunate that Honretp uses the language here that he does, but it seems that all hhe 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 differences, V. Conclusion In conclusion an appeal is entered on behalf of Honretpian analysis. Tt is recognized that there are barriers to any form of general +“ Guxst, essay supra n, 110, at 197. He speaks of the time when the law of torts was no more than “chaos with full index” and he attributes the achievements which have been made in analysing and testing legal prin- ciples in that field “in no small measure to the use of this ‘geographical technique’, 4 Honan, article first cited supra n. 2, at 59. 4 Stowe, op. cit. supra n, 142, at 133, approving a criticism by PouND. 451 Ibid, 161. 482 As to this view see also Const, article cited supra n. 21, at 237-38, This content downloaded from 5,66 on Fri, 02 Fe 2024 05:09:45 +00:00 subject to tps!/aboutjstororgsterms 103.105, ‘Aus‘The Hohjeldian System 87 acceptance. Not the least of these is the disinclination of many practising lawyers to recognize the usefulness of jurisprudence in any form. Again, and as mentioned above, there is a distrust of too much logic in the law and a widespread feeling that logic makes law rigid. Further, it might be thought that Houretpian analysis involves a preoccupation with minute distinctions and distracts wholesome attention from basic principles of equity and justice. Yet despite such factors, despite the sometimes too ambitious claims, despite the fact that vagueness and generality are indeed rich resources of the law, and notwithstanding that the writer is one of those who feel that schematic presentation and analytical theorizing can be taken beyond what is worthwhile in practice, it is here submitted that Hourewpian analysis is valuable and “practical” even in the most narrow sense of the latter word. We cannot hope that use of this analysis will provide a tool making for easy solution of all the really hard problems of the law; to claim too much will almost certainly lead to frustration, What is claimed is that Hourepian analysis is useful in the ways outlined above and that it provides a worthwhile analytical tool that can, and should, be added to the arsenal of weapons available for both the academic and the practising lawyer. Certainly the law can be over-refined but not to refine it adequately is also a danger. DAVID JOHN HISLOP ‘Das System von Hohfelds Grundbegriffe des Rechts Zusammenfassung Wester Newcomns Honretp war Professor der Rechte an der Yale- Universitat. Er starb 1917 im Alter von erst 39 Jahren und hat kein gréeres Werk, sondem nur verhiltnismafig wenige Aufsitze hinter- lassen. Seine Untersuchung juristischer Grundbegriffe jedoch sollte ihm eine fithrende Stellung auf dem Gebiet der analytischen Rechts- wissenschaft sichern, Seine Analyse hat befremdlicherweise nicht die verdiente Beachtung gefunden; einige Griinde dafiir sollen hier er- wogen werden. Im Verfolg der Werke frtherer Autoren, darunter Ausrmy, Winp- sce und BreRLinc, meinte Honretp, eines der gréBten Hindernisse This content downloaded from 103.105.225,66 on Fri, 02 Feb 2024 05:09:45 ~00:00 ‘Alluse subject to https: /about stor orgterms88 David John Hislop far die klare Erfassung und richtige Lésung von Rechtsproblemen liege darin, da man glaube, alle Rechtsverhaltnisse auf die Formel von Recht" und ,Pilicht” bringen zu konnen. Das sind jedoch zwei mehr- deutige Worter. Honrexp untersuchte, in welchem Sine diese Aus- riicke im juristischen Sprachgebrauch verwendet werden, und gelangte so zur Aufstellung eines Systems juristischer Grundbegriffe, wonach in den allgemeinen Wortern ,Recht” und ,Pflicht’ acht getrennte Hauptbegriffe enthalten sind. Im vorliegenden Aufsatz wird die Ansicht vertreten, da Honretps Analyse einen beachtenswerten Beitrag zur analytischen Ausriistung des theoretischen, wie des praktischen Juristen liefert. Der Verfasser hilt Honretps Theorie fur wertvoll und fr praktisch im eigentlichen Sinne des Wortes, so daft es sich Iohnt, naher und vollstandiger auf sie einzugehen. Folgende Gegenstinde werden in diesem Aufsatz behandelt: (1) Eine kurze Darstellung von Houretps Theorie. (2) Die hauptsachlichen Einwendungen, die gegen die Theorie erhoben worden sind, und was darauf zur Rechtfertigung der Theorie zu er- widern ist. Die hier behandelten Einwendungen richten sich gegen Houreis Terminologie, gegen seine grundsitzlichen Auffassungen, gegen die von ihm geschilderten Grundbezichungen und gegen die praktische Verwertbarkeit der ganzen Analyse. (3) Die praktische Anwendung der Horretpschen Analyse und ihre Vorteile, Sie frdert Klarheit des Ausdrucks und der Begriffe, sie er- Ieichtert die Unterscheidung von Fallen, sie liefert ein analytisches ‘Werkzeug zur Nachpriifung von Entscheidungen und hilft uns zum Verstindnis rechtlicher und sozialer Probleme. In diesem Abschnitt werden englische und australische Fallentscheidungen zur Veranschav lichung herbeigezogen. DAVID JOHN HISLOP Le Systéme Hohfeldien de Concepts Fondamentaux du Droit Résumé ‘Westry Newcomnr Honrezp était Professeur en Droit 4 Yale University et il est mort en 1917 a Vage de 39 ans, n’ayant écrit aucune ceuvre et laissant comparativement peu d’articles. Cependant il y a un sentiment que son analyse de concepts fondamentaux juridiques Ini This content downloaded from 103.105.225,66 on Fri, 02 Feb 2024 05:09:45 ~00:00 ‘Alluse subject to https: /about stor orgterms‘The Hohfeldian System 9 donne le droit & une place parmi les premiers dans le domaine de la théorie analytique du droit. Malheureusement, analyse Hohfeldienne ‘n’a pas regu l’attention qu'il mérite, Quelques unes des raisons pour ceci sont examinées dans cet article. Houreip, suivant 'ceuvre des écrivains précédents y compris AUSTIN, ‘Winpscueip et Brextinc, croyait qu’une des choses qui empéchait le plus la bonne compréhension et la véritable solution des problémes juridiques survenait de la supposition que toutes les relations peuvent Gtre réduites aux «droits» et «devoirs», Mais «droit» et «devoir» sont des mots ambigus et une analyse concernant la maniée de laquelle ces terms sont utilisés dans les discours normaux juridiques amena Hours A formuler un systtme 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 propos¢ que l’analyse Honretpienne fournit un util valable d’analyse qui peut, et qui doit, étre ajouté & arsenal des armes & la disposition du juriste, soit académique, soit praticien. L’auteur de cet article propose que la théorie Honretpienne est valable et «pratique» méme dans le sens le plus étroit du dernier mot, et qu'elle est digne d'une étude plus complete et de plus pris. Les sujets ‘suivants sont discutés ici 1° Une esquisse de la théorie de Honrexp. 2° Les lignes principales de la critique qui ont été lancées a la théorie et ce que I’on peut dire en défense de Honre. La critique considérée ici est de la terminologie de Howrey, de ses concepts fondamentaux, des relations fondamentales qu’il esquisse, et de Vutilité de analyse entiére. 3° Des soumissions concernant I’application et I’utilité de I'analyse Hourexpienne. 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 examen critique de jugements, et quill facilite notre perception des problémes juridiques et sociaux. 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