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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

DUTY AS A CORRELATIVE OF RIGHT (JURAL CORRELATIVES)

JURISPRUDENCE-II

SUBMITTED TO:
Mr. Sreenu M
(FACULTY: JURISPRUDENCE-II)

Rishabh singh
201290 (6th semester)

ABSTRACT
Every person is born free with some rights and duties vested in him. According to Salmond every
legal right has the following five elements or characteristics:- The Person of Inherence, the
Person of Incidence, Contents of the Right, Subject matter of Right, Title of the Right. A legal
right is always vested in a person who may be distinguished as the owner of the right, the subject
of it or the person of inherence. The element of legal right is a very old concept and is achieved
with many revolutions, earlier people were not empowered with legal rights, and they were
subjected to slavery and several restrictions.
Thus there cannot be a legal right without a subject or a person who owns it. However, the owner
of the right need not to be certain or determinate. For instance, an unborn child possesses a legal
right although it is not certain whether he would be born alive or not. Likewise, a right can be
owned by the society at large, it is a valid right though the subject of right is indeterminate.
According to Salmond the object in the instant illustration is the skill, knowledge, strength, time
etc. of the person bound by the duty. This project is not aimed at determining what rights some
person has, but at determining what holding of a right involves and what the essential elements
of it are. A person vested with legal right is empowered with all the freedom which do not violate
the right of other person.

Table of Contents

OBJECTIVES...3
SIGNIFICANCE AND SCOPE OF THE STUDY.......3
REVIEW OF THE LITERATURE..........3
RESEARCH METHODOLOGY..3
Hypothesis....3
RESEARCH QUESTIONS:..........................................................................................................4
INTRODUCTION.............................................................................................................4
1.1

LEGAL WRONGS................................................................................................................4

1.2

DUTIES...............................................................................................................................5

1.3

LEGAL RIGHTS...................................................................................................................5

THEORIES OF LEGAL RIGHTS.....................................................................................6


2.1

THEORIES OF LEGAL RIGHTS.............................................................................................6

HOHFELDS ANALYSIS OF RIGHTS............................................................................7


3.1 ESSENTIAL ELEMENTS OF A LEGAL RIGHT ............................................................................7
3.2 FOUR TYPES OF RIGHTS BY HOHFELD:...................................................................................9
HOHFELD SCHEME OF JURAL RELATIONS............................................................11
RELATION BETWEEN LEGAL CONCEPTIONS........................................................18
5.1 RIGHTS AND DUTIES..............................................................................................................18
5.2 PRIVILEGES AND NO-RIGHTS.................................................................................................19
5.3 POWERS AND LIABILITIES.......................................................................................................21
5.4 IMMUNITIES AND DISABILITIES..............................................................................................23
CONCLUSION & CRITICISM.......................................................................................24
BIBLIOGRAPHY..26

OBJECTIVE:
To study and analyze the scheme of Jural Relations and Legal Conceptions in the backdrop of
Hohfelds analysis of Legal Rights and Duties.
SIGNIFICANCE AND SCOPE OF THE STUDY
The conception of right is of fundamental significance for all civilized societies and are
recognized and enforced by the state. The scope of the topic DUTY AS A CORRELATIVE OF
RIGHT (JURAL CORRELATIVES) widens up to examine and analyse the need of these right
in the current legal scenario of every civilized country.
REVIEW OF THE LITERATURE
The completion of this paper has required collection of relevant information through a number of
law journals, books by renowned authors on jurisprudence and several websites. Since
Jurisprudence is not a new concept, a plethora of information can be found very easily.
RESEARCH METHODOLOGY
This section talks about the methodology which will be used for this piece of research work.
Methodologies vary from research work to work due to the difference in subjects, areas and
study view. Research methodology is a way to systematically solve the research problem. It may
be understood as a science of studying how research is done scientifically. For the purpose of this
project we have used Conceptual Research Methodology. Conceptual research is that related to
some abstract idea(s) or theory. It is generally used by philosophers and thinkers to develop new
concepts or to reinterpret existing ones.

RESEARCH QUESTIONS:
1. What are the different concepts of Legal Rights and Duties as propounded by various
jurists?
2. What are the different types of theories with respect to the nature of legal rights?
3. What are the possible explanations deduced out of the Hohfelds analysis of legal rights?

4. What are the fundamental legal conceptions resulting from Hohfeld Scheme of Jural
relations?
5. What is the inter-relationship between various legal conceptions associated with Legal
Rights and Duties?

CHAPTER 1
INTRODUCTION
The real credit of development of human civilization goes to law and its prohibitive process
which apprised man of his rights and duties as a unit of the society.1 When people come in
contact as members of society, they have certain legal rights and duties towards one another.
These rights and duties are regulated by the law prevalent in the society. It is well known that the
main purpose of law is to protect human interest by regulating the conduct of individuals in the
society. For the attainment of this objective, it is necessary that state should make use of its
physical force for the enforcement of legal rights and punish those who violate these rights.
It, therefore, follows that in all civilized societies law consists of those rules which regulate
human conduct and it is the state which enforces the rights and duties created by such rules. The
conception of right accordingly is of fundamental significance in modern legal theory because
rights are indispensable for all civil societies and are recognized and enforced by the state.
It is to be noted that the term right is closely connected with the terms wrong and duty. It
would, therefore, be desirable to refer to them before analyzing the concept of right.
1.1 LEGAL WRONGS
Salmond defines wrong as an act contrary to the rule of right and justice. A synonym of it is
injury, in its true and primary sense of injuria. In its legal sense, it is known as legal injury which
is against law or jus.
1Subbarao G.C., Jurisprudence (3rd ed.) p. 161.

Wrongs may be of two kinds namely, (1) Moral wrongs and (2) Legal wrongs.
A Moral wrong is an act which is morally or naturally wrong, being contrary to the rule of
natural justice whereas a legal wrong is an act which is legally wrong, being contrary to the rule
of legal justice and a violation of the law. In simpler words, a wrong is a violation of legal right
(injuria).
A legal wrong may or may not be a moral wrong and conversely a moral wrong may or may not
be a legal wrong. For instance, nonpayment of a time-barred debt is a moral wrong but it is not a
legal wrong since the same is not enforceable by law. Generally, recognition of an act as a legal
wrong entails punishment or suppression by the physical force of the state.
1.2 DUTIES
A Duty is an obligatory act i.e., it is an act the opposite of which would be wrong. Thus duties
and wrong are generally co-related. The commission of a wrong is the breach of duty and the
performance of a duty is avoidance of wrong.2
Duties are of two kinds, namely (1) Legal and (2) Moral.
A duty may be moral but not legal or it may be legal but not moral or it may be both moral and
legal at once. Salmond illustrates this by an example. In England, there is a legal duty not to sell,
have for sale adulterated milk whether knowingly or otherwise, and without any question of
negligence.3 Since this duty is irrespective of knowledge and negligence, it is exclusively legal;
and not a moral duty. On the other hand, there is no legal duty in England to refrain from
offensive curiosity about ones neighbor, even if the satisfaction of it does them harm. Here it is
2 Fitzgerald P. J., Salmond on Jurisprudence, (12th ed.) p. 217.

3 The doctrine of constructive mens-rea applies in such cases.

clearly a breach of moral duty and not of legal duty. 4Not to steal is both, ones moral and legal
duty.

1.3 LEGAL RIGHTS


Sir John Salmond defines right as an interest recognized and protected by a rule or justice. It is
an interest in respect of which there is duty and the disregard of which is wrong. A man has
varied interests but all of them are not recognized by law. Many interests exist de facto and not
de jure; they receive no recognition or protection from any rule of right. The violation of them is
no wrong, and respect for them is no duty. Interests are things which are to mans advantage,
e.g., a man has interest in his freedom or reputation.
Like wrongs and duties, rights are either moral or legal. A moral or natural right is an interest
recognized and protected by a rule of morality-violation of which would be a moral wrong. For
example, parents interest to command respect from their children is their moral right but if
children violate it, it is a moral wrong. A legal right, on the other hand is an interest recognized
and protected by a rule of law, violation of which would be a legal wrong. Thus everyone has
right to privacy in his house and if any person interferes with this right, it would be a legal
wrong.
John Austin observes, A party has a right when another or others are bound or obliged by law to
do or forbear towards or in regard of him. This definition has been criticized on the ground that
it overlooks the element of interest involved in the conception of right. John Stuart Mill
illustrates the inadequacy of Austins definition of right by pointing out that when a prisoner is
sentenced to death the jailor is duty-bound to execute him.
Ihiring also defines right as a legally protected interest. He considers law as a means to an end.
4 Fitzgerald P. J., Salmond on Jurisprudence, (12th ed.) p. 217.

The eminent French jurist Duguit is opposed to the view that the basis of a legal right is human
will. He argues that all laws originate from social solidarity hence there is no existence of a right
as such.5 Duguit believes that human will is opposed to social good because it always leads to
conflict of interests between individuals. Therefore, there is no place for the concept of right in
society. Law being an expression of social solidarity, demands that everyone should abide by his
duties and has no right to claim rights. Thus Duguit rejects the concept of rights as immoral
against the interest of the society.

CHAPTER 3
HOHFELDS ANALYSIS OF RIGHTS
Rights claimed in modern society have a contradictory quality about them. We can easily place
strongly affirmed rights in direct conflict. For example, people claim the right to life yet there are
others who claim a right to abortion; people claim the right not to be killed by another, yet there
are also claims to a right to die.These are few examples. The claim to right is thus ultimately a
claim to self-determination, which can produce logical contradictions and is itself in
contradiction to the aspect of social control by law. However, the contradiction is one of degree.
Thus, the issue of rights in the social context is one of balancing conflicting claims and
determining which claims have priority.There are clearly different types of rights but they share
common features. In some extent its fair to say that the concept is used ambiguously. However,
all these rights have demonstrated by different philosophers in the separate ways. They are, for
example, MacCormick, Hart, Bentham, Dworkin and Hohfeld.
3.1 ESSENTIAL ELEMENTS OF A LEGAL RIGHT
According to Salmond every legal right has the following five elements or characteristics:3.1.1 The Person of Inherence- He is also called the subject of right. A legal right is always
vested in a person who may be distinguished as the owner of the right, the subject of it or the
5 Paton, A Text Book of Jurisprudence, p. 222.

person of inherence. Thus there cannot be a legal right without a subject or a person who owns it.
However, the owner of the right need not to be certain or determinate. For instance, an unborn
child possesses a legal right although it is not certain whether he would be born alive or not.
Likewise, a right can be owned by the society at large, it is a valid right though the subject of
right is indeterminate.
3.1.2 The Person of Incidence- A legal right avails against a person upon whom lies the corelative duty. He is distinguished as the person of incidence. He is a person bound by the duty
and so may be described as subject of the duty.
3.1.3 Contents of the Right- The act or omission which is obligatory on the person bound in
favour of the person entitled. This is called the content or substance of right.
3.1.4 Subject matter of Right- It is something to which the act or omission relates, that is, the
thing over which a right is exercised. This may be called the object or subject-matter of the right.
Some writers, particularly Dr. Holland argue that there are certain rights which have no objects.
He cites an illustration of master and servant relationship. If B is the servant of A, then in this
case A is the person of inherence, B is the person of incidence and reasonable service is the
act to which A is entitled. But in this case the object of right is missing 6 because there is no
material thing to constitute an object in this illustration. Sir Salmond, however, considers that
Holland looks at the object of right with such narrowness that he is forced to conclude that there
are some rights which have no objects. According to Salmond the object in the instant illustration
is the skill, knowledge, strength, time etc. of the person bound by the duty.7

6 Holland, Elements of Jurisprudence, p. 88.

7 Fitzgerald P.J., Salmond on Jurisprudence, (12th ed.) p. 223.

10

3.1.5 Title of the Right- Every legal right has a title, that is, certain facts or events which are
events by reason of which the right has become vested in its owner.
Salmond illustrates these elements of a legal right by referring to an example. If A buys a piece
of land from B, A is the subject or owner of the right so required. The person bound by the
correlative duty are persons in general, for a right of this kind avails against the world at large.
The content of right consists in non interference with the purchasers exclusive use of the land.
The object or the subject-matter of the right is the conveyance by which it was acquired from the
former owners.8
Hohfeld's tablepresents a distinction between four different sets of juridical relationships. This
method of splitting the notion of a right into its constituent elements has many important
benefits. It is this clear and precise method that makes Hohfeld's analysis of rights not only
elegant and attractive but also fundamental to anyone wishing to make an informed and
intelligible assessment of the legal position between the parties involved. This project argues in
support of Hohfeld's analysis of rights. It contends that his approach is highly plausible and helps
us to gain a clear understanding of what rights we have in various circumstances and allows us to
see clearly what the consequence of holding a particular Hohfeldian entitlement or burden is. It
will be argued that Hohfeld's precise exposition of jural relations is essential to jurisprudence and
an understanding of our practices involving rights.
3.2FOUR TYPES OF RIGHTS BY HOHFELD:
Here, A and B are persons and X is a situation.

Claim-rights - A has a claim-right against B with regard to X just in case B has a duty to A to
bring about X.
Example: B borrowed $100 from A. So A has a claim right against B that B
returned $100 to A.

8Ibid

11

Privileges (liberties) - A has a privilege against B to X just in case B has no claim right
against A not to X.
Example: If A the right (against the Japanese Government) to stay in Japan, then
this is a privilege. It means that the Japanese Government has no claim-right
against A that he leaves the country. Or in other words, A has no duty to the
Japanese Government that he leaves Japan.

Powers (authority rights) - A has a power over B with respect to X just in case he can change
B's rights with regard to X.
Example: The librarian has the power over a student with regard to the use of the
library. Normally a student has the right to use the library. But if a student is noisy
then the librarian has the power to take away that right and stop the student from
using the library.

Immunities - A has an immunity against B with respect to X just in case B has no power over
A's rights with respect to X.
Example: Diplomats are supposed to have diplomatic immunity. If they have
committed a crime in their host country, they are immune against arrests and legal
prosecution. In other words, the police would have no power over them. (They
can still be expelled though.).

Notice that these four kinds of rights are related to each other, at least in the following ways:

A claim-right corresponds to the absence of a privilege - Suppose A has a claim-right


against B that B performs some action K. Then B does not have the privilege of not doing
K. For example, if A lends $10 to B, then A has a claim-right against B that B gives $10
back to A. This implies that B does not have the privilege of not giving $10 to B.

A power corresponds to the absence of immunity - Suppose A has power over B with
respect to a certain right of B. Then B lacks immunity against A with respect to that right.
12

An example is that an employer has power over its employees with respect to their rights
to enter the company building. The right to enter the building is granted by the employer,
and can be taken away as the employer sees fit. This means that the employee lacks
immunity against the employer with respect to such a right.

CHAPTER 4
HOHFELD SCHEME OF JURAL RELATIONS

The

eight

fundamental

legal

conceptions

resulted

from Hohfeld's

dissatisfaction

with the idea that all the jural relations can be reduced to rights and duties. That was
singled out as the main obstacle to comprehension and successful resolution of legal
issues. According to Hohfeld, there are eight fundamental legal conceptions. Those
fundamental legal conceptions are sui generis, which means that all the attempts aimed at
creating a formal definition are not only dissatisfying but also useless. 9 The most
satisfying approach is to lay down various jural relations in a scheme of opposites and
correlatives and, then, to proceed with stating examples of their individual scope and
application in concrete cases.10 Hohfeld saw every jural relation as a relation between two
persons.His notions might be presented in a slightly modified version of Glanville Williams
table11:
9Id at 36.

10Id.

11Williams, Glanville, The Concept of Legal Liberty, 56 Columbia Law Review 1129, 1135 (1956). Com.
Halpin, supra note 1, at 30.
13

Right

PrivilegePower

Immunity

Duty

No-Right

Liability

Disability

The vertical arrows couple jural correlatives, two legal positions that entail each
other12 whereas the diagonal arrows couple jural opposites, two legal positions that
deny each other. The latter expression is solely Hohfelds while Williams and a large
number of other authors call them jural contradictories.Every pair of correlatives
must always exist together.13Person A as part of the pair cannot have a right if other
person B has no duty. None of the pairs of opposites can exist together. If person A has a
right, he cannot have a no-right in relation to the same subject matter and the same
person.
Hohfeld based his analytical system on earlier Salmonds system. 14 Salmond

12Matthew H. Kramer, Rights Without Trimmings, in Matthew H. Kramer, N. E. Simmonds, and Hillel
Steiner, A Debate Over Rights, Philosophical Enquiries (Oxford University Press, 2002), at 8.

13Arthur L. Corbin, Legal Analysis and Terminology,29 The Yale Law Journal 163, 166 (1919).

14John Salmond, Jurisprudence, (London: Sweet and Maxwell, Limited, 1937). Com. Joseph

William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld,
1982 Wisconsin Law Review 975, 1049 (1982).

14

identified three jural relations. According to Salmond, the notion of right was used in a
wider sense in order to indicate any advantage or benefit which is in any manner
conferred upon a person by a rule of law. Those rights are divided into different
categories:
(1) Rights in the strict sense, which are defined as interests protected by the
law by imposing its duties with respect to the rights upon other persons,
(2)Liberties defined as interests of unrestrained activity and;
(3) Powers when the law actively assists me in making my will effective. Salmond found no
generic term which would be correlative to right in a wider sense, and would include all the
burdens imposed by the law. Nevertheless, he, correlative to those three categories of
advantages or benefits, singled out three types of legal burdens: duties, disabilities and liabilities.
Salmond also made a table of correlatives but he did not pay much attention to the opposites.
On the other hand, Hohfeld cleared out the relation between the eight fundamental legal
conceptions by inventing different terms for the correlatives of liberties and powers and
by designing the relations between the opposites.
Seven decades have passed since Wesley N. Hohfeld defined eight basic Jural relations in his
masterful attempt to clarify legal thinking. Since the appearance of his Fundamental Legal
Conceptions in 1913 his work has attracted both followers and critics; his ideas have appeared in
US Supreme court opinions, and the restatement of property.
The Eight Jural Relations are basic parts of the more complex legal relationships with which the
law must deal. Hohfeld divided the eight into pairs which cannot exist together (opposites), and
those which must exist together (correlatives);
Jural Opposites- Right-No right Privilege-Duty Power-Disability Immunity-Liability

15

Jural Correlatives- Right-Duty Privilege-No right Power-Liability Immunity-Disability


Some analysts have worked to find a unifying theme within Hohfelds ideas. Some have divided the
eight concepts into primary and secondary relations, and others have stated that the eight concepts
are all of a piece, functions of only one or two more general legal concepts.
Hohfeld defined none of his new terms but provided concrete examples from case law. Professor
Corbin, however, took up the challenge of defining formal definitions for Hohfelds concepts and
presented the following in 1919:

RIGHT- An enforceable claim to performance (action or forbearance) by another, it is the


legal relations of A to B when society commands action forbearance by B and will at the

instance of A in some manner penalize disobedience.


DUTY- It is a legal relation of a person, B, who is commanded by the 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 the society for disobedience.


PRIVILEGE- The legal relation of A to B when A(with respect to B) is free or at liberty to
conduct himself in a certain manner for the benefit of B by the command of society; and when
he is not threatened by with any penalty for disobedience, for the reason that society has made

no command.
NO-RIGHT- The legal relation of a person, A, in whose behalf society commands nothing of

another, B.
POWER- The legal relations of A to B when As own voluntary act will cause new legal

relations either between B and A or between B and the third person.


LIABILITY- The relation of A to B when A may be brought into new legal relations by the

voluntary act of B.
IMMUNITY- The relation A to B when B has no legal power to affect someone or more of
the existing legal relations of A, as to that particular existing relation A has an immunity with

respect to B.
DISABILITY- The relation of A to B when by no voluntary act of his own can A extinguish
one (or more) of the existing legal relations of B.

One thing which at once impresses itself upon one who is familiar with law and especially with the
work of writers upon jurisprudence, who preceded Hohfeld, is that the terms found in this scheme
16

are with one exception not new, but have always been more or less frequently used. To be sure,
they have not ordinarily been used with precision of meaning as in the table we are considering;
on

the

contrary,

they

have

been

given

one

meaning

by

one

person,

another by another, or indeed, different meanings by the same person upon different
occasions.
It is also true that nearly all the concepts which these terms represent in Hohfelds system have been
recognized and discussed by more than one writer upon jurisprudence. A brief consideration
serves to show, however, that the concepts and terms which are new are needed to logically
complete the scheme and make of it a useful tool in the analysis of problems. When so
completed, these legal concepts become the lowest common denominators in terms of
which all legal problems can be stated, and stated so as to bring out with greater distinctness than
would otherwise be possible the real questions involved. Moreover, as previously suggested,
the writers who did recognize many of these concepts failed to make any real use of them in other
portions of their work.
That the word right is often used broadly to cover legal relations in general has probably
been at least vaguely realized by all thoughtful students of law. Thus, to take a concrete
example, nearly all of us have probably noted at some time or other that the right (privilege)
of self-defense is a different kind of right from the right not to be assaulted by another;
but that legal thinking can never be truly accurate unless we constantly discriminate carefully
between these different kinds of rights, few of us have sufficiently realized. We constantly
speak of the right to make a will; the right of a legislative body to enact a given statute; of the
right not to have ones property taken without due process of law, etc. In these and
innumerable other instances it turns out upon examination that the one word right is being
used to denote first one concept and then another, often with resulting confusion of thought.

With the clear recognition of the fact that the same term is being used to represent four
distinct legal conceptions comes the conviction that if we are to be sure of our logic we must
adopt and consistently use a terminology adequate to express the distinctions involved. The
great merit of the four terms selected by Hohfeld for this purpose - right, privilege, power and
17

immunity - is that they are already familiar to lawyers and judges and are indeed at times
used with accuracy to express precisely the concepts for which he wished always to use them.

Right in the narrow sense - as the correlative of duty - is too well known to require
extended discussion at this point. It signifies ones affirmative claim against another, as
distinguished from privilege, ones freedom from the right or claim of another. Privilege is
a term of good repute in the law of defamation and in that relating to the duty of witnesses to
testify. In defamation we say that under certain circumstances defamatory matter is
privileged, that is, that the person publishing the same has a privilege to do so. By this
statement we are not asserting that the person having the privilege has an affirmative claim
against another, i.e., that that other is under a duty to refrain from publishing the defamatory
matter, as we are when we use right in the strict sense, but just the opposite. The assertion
is merely that under the circumstances there is an absence of duty on the part of the one
publishing the defamatory matter to refrain from doing so under the circumstances. So in
reference to the duty of a witness to testify: upon some occasions we say the witness is
privileged, i.e., that under the circumstances there is an absence of duty to testify, as in the
case of the privilege against self-incrimination. Privilege therefore denotes absence of duty, and
its correlative must denote absence of right. Unfortunately there is no term in general use
which can be used to express this correlative of privilege, and the coining of a new term was
necessary. The term devised by Hohfeld was no-right, obviously fashioned upon an analogy
to our common words nobody and nothing. The exact term to be used is, of course, of far less
importance than the recognition of the concept for which a name is sought. The terms
privilege and no-right, therefore, denote respectively absence of duty on the part of the
one having the privilege and absence of right on the part of the one having the no-right.
All lawyers are familiar with the word power as used in reference to powers of
appointment. A person holding such a power has the legal ability by doing certain acts to alter
legal relations, viz., to transfer the ownership of property from one person to another. Now the
lawyers world is full of such legal power, and in Hohfelds terminology any human being who
can by his acts produce changes in legal relations has a legal power or powers. Whenever a power
exists there is at least one other human being whose legal relations will be altered if the power is
exercised. This situation Hohfeld described by saying that the one whose legal relations will
18

be altered if the power is exercised is under a liability. Care must be taken to guard against
misapprehension. Liability as commonly used is a vague term and usually suggests something
disadvantageous or burdensome. Not so in Hohfelds system, for a liability may be a
desirable thing. For example, one who owns a chattel may abandon it. By doing so he confers
upon each person in the community a legal power to acquire ownership of the chattel by taking
possession of it with the requisite state of mind. Before the chattel is abandoned, therefore, every
person other than the owner is under a legal liability to have suddenly conferred upon him a
new legal power which previously he did not have. So also any person can by offering to enter into
a contract with another person confer upon the latter -without his consent, be it noted - a power by
accepting the offer to bring into existence new legal relations. It follows that every person in
the community who is legally capable of contracting is under a liability to have such a power
conferred upon him at any moment.
Another use of the term right, possibly less usual but by no means unknown, is to
denote that one person is not subject to the power of another person to alter the legal relations
of the person said to have the right. For example, often when we speak of the right of a
person not to be deprived of his liberty or property without due process of law, the idea
sought to be conveyed is of the exemption of the person concerned from a legal power on the
part of the persons composing the government to alter his legal relations in a certain way. In
such cases the real concept is one of exemption from legal power, i.e., immunity. At times,
indeed, the word immunity is used in exactly this sense in constitutional law. In Hohfelds
system it is the generic term to describe any legal situation in which a given legal relation
vested in one person cannot be changed by the acts of another person. Correlatively, the one
who lacks the power to alter the first persons legal relations is said to be under a disability,
that is, he lacks the legal power to accomplish the change in question. This concept of legal
immunity is not unimportant, as Salmond in his Jurisprudence seems to indicate by placing
it in a brief footnote. For example, the thing which distinguishes a spendthrift trust from
ordinary trusts is not merely the lack of power on the part of the cestuique trust to make a
conveyance of his interest, but also the immunities of the cestui from having his equitable
interest divested without his consent in order to satisfy the claims of creditors. Ordinary
exemption laws, homestead laws, etc., also furnish striking illustrations of immunities.
19

A power, therefore, bears the same general contrast to an immunity that a right does to a privilege.
A right is ones affirmative claim against another, and a privilege is ones freedom from the right or
claim of another. Similarly, a power is ones affirmative control over a given legal relation as
against another; whereas immunity is ones freedom from the legal power or control of another as
regards some legal relation.
Rights, privileges, powers, immunities - these

four seem fairly

comprehensive general classification of legal rights in the

to constitute a

generic sense.

The four

correlative terms - duty, no-right, liability and disability - likewise sufficiently classify the legal
burdens which correspond to the legal benefits. It is interesting in passing to note that of the two
writers who preceded Hohfeld, neither Terry nor Salmond had completed the scheme.
In Terrys Principles of Anglo-American Law, rights strictosensu appears as correspondent
rights, privileges as permissive rights, privileges as permissive rights, powers as faculative
rights; but immunities not at all. Moreover the correlatives are not worked out. In Salmonds
Jurisprudence privileges are called liberties - mere question of phraseology, -immunities are
treated as relatively unimportant, and liability is treated as the correlative of both liberty
(privilege) and power. This assignment of a single correlative for two independent
conceptions must result sooner or later in confusion of thought, for if the distinction
between privilege and power be valid - as it clearly is - then the distinction between the
correlatives, no-right and liability, must be equally valid.

CHAPTER 5
RELATION BETWEEN LEGAL CONCEPTIONS

5.1RIGHTS AND DUTIES


Rights and Duties are the very important elements of law. The administration of justice, in most
part, consists of the enforcement of rights and the fulfillment of duties. Rights and Duties are
correlated to each other in such a way that one cannot be conceived of without the other. In other
20

words, the existence of the one depends on the existence of the other as there can be no child
without a father and no father without a child. A right is always against someone upon whom the
correlative duty is imposed. In the same a duty is always towards someone in whom the
correlative right vests. There are some jurists who do not agree to this view. They said that there
can be duties without a corresponding right. They call duties as absolute duties.
Hohfeld did not spend much time on the relation between rights and duties. 15According to
him, the term rights is incorrectly used for denoting something that, in a certain case, might be a
privilege, a power, or immunity, and not a right in the strictest sense.16A solution for the
limitation of the word right to its precise and most appropriate meaning is to be found in
the correlative (and equivalent) duty. 17As a correlative, legal right always have a legal duty.18
This pair of terms expresses the same jural relation, although seen from different points of view.19
15He dedicated somewhat less than three pages to that relation. See Hohfeld, FLC, supra note 16, 36-38

16Id at 36.

17Id at 38.

18Corresponds to Corbin's second question which was proposed for determining jural relations: What must A (or B)
do, under threat of societal penalty assessed for the benefit of the other? Corbin, supra note 25, at 165

19Singer, supra note 26, at 988.

21

Hohfeld gave an example wherein X has a right against Y that he shall stay off the Xs land.
The invariable correlative thereof is comprised in the fact that Y is under a duty towards X to
stay off Xs land. In Hohfelds opinion, the word claim is the most suitable synonym for the
word right in terms of its precise and most appropriate meaning. 20A genuine right or claim is
enforceable, by means of state coercion, if necessary.21
Being granted or having a legal right (or a claim according to Hohfeld) consists of
legal protection against other peoples interference or against refusal of providing aid or
remuneration regarding a particular action or a particular state of affairs. A person that is
supposed to abstain from interference or to provide assistance or remuneration is under a
duty to act in that manner. A right or claim is a legal position arising from imposition of a
duty on someone else.22

5.2 PRIVILEGES AND NO-RIGHTS


Hohfelds main goal was to clarify the basic difference between rights (or claims)
and privileges.23 The non-distinction between these terms leads to confusion or blurring of
ideas.24 He wished to correct the faulty classical viewpoint that privileges are necessarily
accompanied with other peoples duties not to interfere with such permitted actions.25
Consequently, Hohfeld criticized classical analytical writers such as Thomas Holland and John
20Hohfeld, FLC, supra note 16, at 38

21Kramer, supra note 24, at 9.

22Id

22

Chipman Gray who incorrectly deduced duties from privileges. A privilege as a jural relation
means a bare negation of duties.
Most of the subsequent jurists prefer the term liberty over the term privilege. 26 In Hohfelds
analysis these two terms have the same structural position, although Hohfeldhimself favoured the
term privilege.
Privileges are permissions to act in a certain way without being responsible for the damage done to
other people who, simultaneously, are not in position to call in the authorities to prevent such
action. As Hohfeld pointed out: To the extent that the defendants have privileges the plaintiffs
have no rights. Rights (claims) and privilege cannot be in conflict.
Hohfeld commented John Chipman Grays example who, in a chapter called Legal
Rights and Duties of his book The Nature and Sources of Law wrote about the property
right:
The eating of shrimp salad is an interest of mine, and, if I can pay for it, the
23Hohfeld, FLC, supra note 16, at 39. See also Singer, supra note 26, at 987.

24Hohfeld, FLC, supra note 16, at 40

25Singer, supra note 26, at 1014

26According to Thomson, the concept that privileges are rights is not Hohfeld's but is featured by a long
history and can be found in Hobbes' Leviathan, Chapter 13, which describes the state of nature as ''the war
of all against all''. In the state of nature, people have no claims. What they have are privileges and their
privileges are their natural rights, and thus rights.

23

law will protect that interest, and it is therefore a right of mine, to eat shrimp salad which I have
paid for, although I know that shrimp salad always gives me the colic27.

Hohfeld thought that this passage deals with two types of relations: the first one refers to the
privilege of eating salad and the second one relates to a partys claim for not being disturbed while
doing so. Privileges may be accompanied with rights that impose duties on other people not to
interfere. However, privileges can sometimes exist without the existence of a right.28
A, B, C and D, being the owners of the salad, might say to X: Eat the salad
if you can; you have our license to do so, but we don't agree not to interfere
with you. In such a case the privileges exist, so that if X succeeds in eating
the salad, he has violated no rights of any of the parties. Butif A had succeeded in holding so
fast to the dish that X couldn't eat the content, no right of X would have been violated.
As privileges do not imply rights, rights do not imply privileges. For instance, a
remainder person has no privilege to enter the land but retains a right to keep trespassers
off.29
It is also relevant to take notice that Hohfelds example is one of conflicting liberties: As
privilege to keep salad for himself, conflicts with the privilege of person X to take it from him.
27
J. Gray, The Nature and Sources of the Law sec. 48 (1909) according to Hohfeld, FLC, supra note 16, at 41

28
Hohfeld, FLC, supra note 16, at 41

29
Id.

24

As said by Singer, Hohfeld showed how privileges can be legitimately in conflict. Such
interferences represent a special case of damage for which victims have no legal recourse. X and
Y can both have the legal liberty to eat the salad from the table. The dominancy will not result
from common instruments of law but from power struggle which the state will not participate in.

5.3 POWERS AND LIABILITIES


Whereas the first two pairs of legal positions (right/duty and liberty/noright) are first order relations, the following two pairs are second order relations
(power/liability and immunity/disability).30 Some first order relations are applied
directly to human conduct and social intercourses, without mediation of any second order
relation. On the other hand, all the second order relations are applied directly to human
entitlements and only indirectly to human conduct and social intercourses.31
Pursuant to Hohfeld, a jural relation can be modified in two ways: by means of
facts that are not under the volitional control of one or more persons or by means of facts
which are not under volitional control of human beings. 32He defined powers by reference
to the second group of cases, a person with the dominant volitional control has a legal power to
effect a particular change of jural relations.33Similar to other jural relations, this relation is held
between two persons with respect to particular actions or states of affairs. Hohfeld listed
30
Kramer, supra note 24, at 20.

31
Id.

32
Hohfeld, FLC, supra note 16, at 50

25

various examples of legal powers, property-related powers (property abandonment and


power to transfer property), power to create contractual obligation, the creation of agency
relation etc. Liability is susceptibility to someones exercising of a power. Deference to a
change within someones entitlement is not necessarily unpleasant. A promisee may have a
benefit from an entitlement vested by a promisor, as well as an inheritor.
When it comes to liability, Hohfeld mentioned the position of the people engaged
in a public callings such as innkeepers. Unlike the usual perception that innkeepers are
under a duty towards all other parties, Hohfeld emphasized that an innkeeper is under the
liability and travellers are in possession of a correlative power. Therefore, travellers have
a legal power by making an adequate tender to impose a liability on an innkeeper to
receive them as guests. There would be a great fuss if jurist confused Hohfeldian
powers with rights. Simmonds, provides an example wherein a power may be combined
with a duty not to exercise it, which happens when a non-owner has a power to pass title
in property, but will commit an offence while exercising the power. If we describe the
power as a right, than we will have to say that the non-owner has a right to sell the
property.

5.4 IMMUNITIES AND DISABILITIES


Immunity is state of being safe from modifications of ones entitlements by another.34
Disability is a lack of power to change legal entitlements.Powers bear the same general contrast
33
Id. at 51. The power-liability relation corresponds with the third of Corbin questions: What can A (or B) do, so as to
change the existing legal relations of the other? (This has no reference to mere physical power) Corbin, supra note 25, at
165.

34
Singer, supra note 26, at 986.

26

towards immunities as rights towards privileges. A right is an affirmative claim against another
whereas a privilege is someones freedom from the right-claim of another. Similarly, a power is
an affirmative control over a given jural relation as against another while an immunity is
someones freedom from a legal power or control of another with respect to some jural relations.
For example, If A has an immunity against B, B is under a disability with respect to
exercising powers referring to entitlements covered by the immunity. Immunity rights
can be frequently found in constitutional texts. Consequently, legislature, if the people
are granted the freedom of speech by the constitution, cannot exercise a power in that
respect. The people have immunity rights to the freedom of speech while legislature is
under a disability.

CONCLUSION&CRITICISM

Hohfeld did not only correct minor technical mistakes but he also offered a radical critique of

27

previous concepts of legal rights and liberties.35 In the end, there is a question of the utility of
Hohfelds scheme. The discussion on Hohfelds scheme of jural relations has turned out to be one
of the most complex discussions in the history of legal analysis. The process of the evaluation of its
utility and relevance is still going on.36
Hohfeld himself stressed the great practical importance of a clear appreciation of
the distinctions and discriminations set forth.37 The eight proposed terms-rights and
duties, privileges and no-right, powers and liabilities, immunities and disabilitiesrepresent the lowest common denominators of the law to which all legal quantities
may be reduced.38 They enable discovering essential similarities and illuminating analogies
in the midst of what appears superficially to be infinite and hopelessvariety to discern
common principles of justice and policy to use as persuasive authorities judicial precedents that
might otherwise seem altogether irrelevant.39
35
Id at 979.

36
Singer gives on almost two pages a bibliography related to Hohfeld. Since then (the article was published
in 1982) there have been a number of articles (reviews) and books thereabout. See Singer, supra note 16, at
989-91 n. 22
37

Hohfeld, FLC, supra note 16, at 63


38

Id at 64.
39

28

Finally, it is important to grasp that Hohfelds endeavour is analytical and definitional


rather than empirical or substantive.40 Hohfeld put forth a scheme of jural relations in which
legal positions are connected with each other by purely logical relations of entailment and
negation.41 This is the central feature of his analytical scheme which diminishes all the critiques
involving an empirical denial of Hohfelds theses. 42Hohfelds goal was to provide a precise
analyze of legal rights and thus prevent confusions arising from "inadequacy and ambiguity of
terminology that refers to the use of rights, liberties and powers etc. in practice.

Hohfeld stipulates that the atomic rights elements in his analytical framework are, by definition,
always correlative. His idea that this relationship of mutual entailment between rights and duties
as well as other elements is correlative was not a product of some empirical assessment of the
nature of rights; rather, he presented the notion of correlativity as a definitional foundation of his
analysis. For Hohfeld, it was a matter of logical necessity that there must be some kind of
axiomatic mutual entailment between the rights-elements which is congruent with the notion that
his analysis is stipulative and analytical rather than empirical or justificatory. Given the
axiomatic nature of Hohfeld's stipulation of correlativity, which I will refer to as the
'Correlativity Axiom', one should not attempt to try and refute it by empirical counter-examples
Id.
40

Kramer, supra note 24, at 22.


41

Id.
42

Id at 23.
29

because, as I have shown above, it is not susceptible to such attacks.

Be that as it may, there have been a number of distinguished jurists who have tried to refute
Hohfelds Correlativity Axiom. The most notable critic in this respect is MacCormick in whose
view a legal right is not (or does not) have to be correlative to a duty placed upon some other
individual. Thus, he states that to rest an account of claim rights solely on the notion that they
exist whenever a legal duty is imposed by a law intended to benefit assignable individuals ... is to
treat rights as being simply the reflex of logically prior duties'.He further notes that a law
conferring a right is 'best understood in terms of a standard intention to confer some form of
benefit. When such benefit is conferred, the law will then provide a normative protection to that
individual and this normative protection may include 'any or all of the various modes identified
by Hohfeld and others', such as duties, disabilities etc placed on others. Therefore, MacCormick
sees legal rights as 'grounds' of duties, or reasons for imposing duties rather than simply being a
correlative of the duty. On the face of it, this mounts a direct attack on the Hohfeldian
Correlativity Axiom because, it will be recalled, and that for Hohfeld each of the pairs of legal
positions must be mutually entailed by definition.

BIBLIOGRAPHY
1. SHANKER RAO, C.N. Sociology Primary Principles. 3rd ed 2000. Published by S. Chand &
Company Ltd New Delhi.
2. MAYNENI, S.R. JURISPRUDENCE (LEGAL THEORY.2nd ed reprint 2007.S.P. Gogia (Asia
Law House)Hyd.
3. MAHAJAN, V.D. JURISPRUDENCE AND LEGAL THEORY.5th ed reprint 2006. Eastern
Book Company. Luknow.
4. POUND ROSCOE. JURISPRUDENCE.VOL- III.2000. The Law Book Exchange Ltd.
5. MANI TRIPATHY, B.N. AN INTRODUCTION TO JURISPRUDENCE LEGAL
THEORY.15th ed 2004. Allahabad Law Agency

30

6. FREEMAN, M.D.A THOMSON. LLOYDS INTRODUCTION TO JURISPRUDENCE. 8th


ed 2008. Reuters legal Ltd
7. PANDEY, J.N. CONSTITUTIONAL LAW OF INDIA. 42nd ed 2005.Central Law Agency
Allahabad.
8. MISHRA, S.N .IPC.16th ed 2008. Central Law Publication.

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