I often find myself going back to my Property casebook (Joseph W. Singer, Property Law: Rules, Policies, and Practices (2d ed. 1997)) to look up certain passages. The first, on p.157, is an excerpt from Arthur Corbin, Jural Relations and their Classification, 30 Yale L.J. 226 (1921):
The concept that the giant will aid A by forcibly controlling B’s conduct we express by saying that A has a RIGHT. If the giant will not so aid A, he has NO RIGHT. If the giant will aid B by using force to control A’s conduct, A has a DUTY. If he will not so aid B, and A is free from such constraint, this fact is expressed by saying that A has a PRIVILEGE. If A can, by his voluntary act, influence the giant’s conduct with respect to B, whether to act or not to act, and whether presently or contingently, A has a POWER. If A cannot do this, he has a DISABILITY. If B can, by his voluntary act, influence the giant’s conduct with respect to A, A has a LIABILITY. If B cannot do this, A has an IMMUNITY.
The second, on p.159, is an excerpt from Joseph W. Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wis. L. Rev. 975:
Hohfeld’s concept of “opposites” conveys the message that one must have one or the other but not both of the two opposites. For example, with regard to any class of acts one must either have a right that others act in a certain manner or no right. Similarly, one must have either a privilege to do certain acts or a duty not to do them.
The concept of “correlatives” is harder to grasp. Legal rights, according to Hohfeld, are not merely advantages conferred by the state on individuals. Any time the state confers an advantage on some citizens, it necessarily simultaneously creates a vulnerability on the part of others. Legal rights are not simply entitlements, but jural relations. Correlatives express a single legal relation from the point of view of the two parties. “[I]f X had a right against Y that he shall stay off the former’s land, the correlative (and equivalent) is that Y is under a duty toward X to stay off the place.” If A has a duty toward B, then B has a right against A. The expressions are equivalent. Similarly, privileges are the correlatives of no-rights. “[W]hereas X has a right or claim that Y, the other man, should stay off the land, he himself has the privilege of entering on the land; or in equivalent words, X does not have a duty to stay off.” If A has no duty toward B, A has a privilege to act and B has no right against A. Thus, if A has the privilege to do certain acts or to refrain from doing those acts, B is vulnerable to the effects of A’s actions. B cannot summon the aid of the state to prevent A from acting in such a manner no matter how A’s actions affect B’s interests.
In any legal dispute, where A is seeking redress from the giant/state and B is resisting the request, several ideas follow from this analysis:
- The state has no choice but to assign A either a right or no right, and B either a duty or a privilege. Whether the state acts or does not act in favor of A, the state will be assigning something. In this sense, non-action is just as regulatory as action.
- The state’s selection of what to assign A automatically and inevitably determines what the state assigns B. If the state assigns A a right, it simultaneously assigns a duty to B to respect this right. If the state assigns A no right, then B is assigned a privilege to act accordingly.
Hohfeldian Terminology …