I.

Introduction

The first call of the theory of law is that it should fit the facts.
-Justice
Holmes

This paper attempts to do some personal and professional background

research on one of the philosophers, namely Wesley Hohfeld. Wesley
Newcomb Hohfeld is an American jurist, although he died at the age of
39, he was one of the chief writers in the history of American
jurisprudence. He loved music, never married, and walked for creation.
He had occupations including being an author, a professor and a
philosopher. He was the author of the influential Fundamental Legal
Conceptions as Applied in Judicial Reasoning and other Legal Essays.

This paper will also offer a short discussion about some legal
philosophy of Hohfeld which contributes to the study of Law such as
the Fundamental Legal Conceptions, Hohfelds first contribution which
is distinguishing the different type of rights (claim, liberty, authority,
and immunity)

and that each kind of right has a correlative legal

consequences for others.

Ill begin my discussion with the personal and professional background

of the American jurists Wesley Newcomb Hohfeld, then afterwards
identify and discuss some legal philosophy the professor had written

during his days. Lawyers and legal historians are familiar with the
philosopher for other reasons, after all, he was a very famous
professor who in his short life had a considerable impact on analytical
jurisprudence and his influence can be felt in a number of areas of
legal thought today. Hohfeld was a meticulous practical lawyer, he was
convinced

of the

importance of legal theory

and his

way of

approaching legal theory is through legal practice. During his life he

published only a handful of law journal articles; after his death his
work Fundamental Legal Conceptions as Applied to Judicial Reasoning
had been partially revised and the book was published with the
inclusion of the manuscript notes that the late professor had left
including seven other essays.

The painstaking analysis of a keen mind who is enthusiastic to break

through to the authenticity of things legal, no matter how well
acknowledged or time consuming, is evidently shown on every pages
of Hohfelds writings.

Although, the American jurists work has been extremely significant in

many fields, his primary concerned was with the legal rights arising
from trusts, contracts, and partnership agreements. His work could be
found outstandingly in works of other legal philosophers.

It is for a fact that the larger portions of Hohfelds published writing is

dedicated to legal analysis, in which he excelled because of his great
analytical power and sternly logical mind. His writings consist entirely
of articles in legal periodicals and are scattered throughout several
pages of these writings.
2

At the time of his illness and death, the American jurist was planning
the completion and publication in the immediate future of the
analytical work which could be regarded as the most significant
contributions which he made to the fundamental of legal theory.
Hohfeld was a conduit transmission for legal realism from his professor
Gray to the next generation of legal scholars. Deeply suspicious of
legal

traditions

and

formalisms

that

vaguely

use

and

confuse

fundamental legal concept such as right and duty. Hohfeld

demonstrated how an analytical and philosophical jurisprudence can
clarify and disentangle such concepts. He argued that a legal right of a
person has four basic and separable meanings that refers to rightclaim, privilege, power, and immunity in relation to another person,
together with their counterparts as viewed in the perspective of the
second person, namely having a duty, a no-right, a liability, and a
disability, these

eight

concepts

can

serve

as

the

most

basic

components of any more complex legal relationship or situation.

By defining the legal basic concepts exclusively as relations that one
person has to another, Hohfeld set himself against any and all notions
of corporate or group or social rights. Depending on the context, this
individualistic stance on rights and duties can be either a problem for
corporations when the state finds business misconduct, or a useful way
to defend corporate interests when workers petition for organized labor
rights.

II.
Personal and Professional Background

Wesley Newcomb Hohfeld was born on the 8 th of August 1879 in

Oakland, California into an artistic and intellectual family circle.
Hohfeld is a brilliant student during high school in San Francisco and at
the University of California, Berkley, where he received a gold medal
for scholarly achievement and received the degree of Bachelor of Arts
in 1901. Hohfeld demonstrated early an intensity and keenness that
would mark his entire career. After he graduated from College, he
directly went to Harvard Law School, entering in 1901. During his
course in Law, he served on the editorial board of the Harvard Law
Review. He graduated cum laude in 1904. Upon the completion of his
course in Law he returned to San Francisco and engaged in general
practice of law. After a year of practice in San Francisco, at the end of
which he was proferred but refused a partnership, he began his career
as a teacher of law, first as instructor of law in Hastings College of
Law, then he accepted appointment to the faculty of Stanford Law
School where he was promoted rapidly until he left in 1914 to join the
faculty of Yale Law School. Hohfeld was later named Southmayd
Professor of Law, the position that he held at Yale until his unexpected
death on October 21, 1918 in Haven, Connecticut.

His death was the result of endocarditis (an inflammation of the inner
layer of the heart) which followed by the severe attack of grippe (an
acute febrile contagious virus disease). Since February of 1918, he has
been constantly confined to his bed. During the summer, he returned
to his sisters home in Alameda, California, where his sufferings end on
4

October 21st of the same year. He was thirty-nine years old and a
bachelor when he died. Even during weeks on his illness, his thoughts
were frequently directed towards the School and his return to its work.

As a professor, Hohfeld was motivating to his students, particularly the

qualified ones. He set high standards not only for his students but also
for himself. But many young lawyers who were his previous students,
afterwards written him that the preparation he gave them helped them
a lot in their practice.

While Wesley Hohfeld was a student of numerous branches of the law

and

possessed

knowledge

that

enabled

him

to

attain

an

understanding which is uncommonly wide, it was in the field of

analytical jurisprudence that his deepest interest lay and it is in this
field that he has made the greatest input to legal learning.

At the time of his death he had in preparation casebooks on Trusts,

Evidence and Conflict of Laws, and had collected a mass of material for
publication in further explanation of the principles laid down and
developed in his Fundamental Conceptions.

Below is a list of Wesley Hohfelds publications:

The Nature of Stockholders Individual Liability for Corporation Debts
(1909) 9 Columbia Law Review, 285.
The Individual Liability of Stockholders and the Conflict of Laws (1909)
9 Columbia Law Review, 492; (1910) 10 ibid, 283; 10 ibid, 520.
The Relations between Equity and Law (1913) 11 Michigan Law
Review, 537.
Some Fundamental Legal Conceptions as Applied to Judicial Reasoning
(1913) 23 Yale Law Journal, 16; (1917) 26 ibid, 710.
A Vital School of Jurisprudence and Law (1914) Proceedings of
Association of American Law Schools.
The Conflict of Equity and Law (1917) 26 Yale Law Journal, 767.
Faulty Analysis in Easement and License Cases (1917) 26 Yale Law
Journal, 66.
Hohfelds contribution was to make things easier; he created a very
particular analysis which distinguished between fundamental legal
concepts and then identified the framework of relationship between
them. His work offers a sophisticated method for deconstructing broad
legal principles into their component elements. His major work is just
contained in two articles in which he sets out his analysis of legal
concepts in his famous table of correlative and opposites.

Wesley Newcomb Hohfelds work remains an influential contribution to

modern understanding of the nature of rights and the implication of

liberty. To mirror Hohfelds continuing significance, a chair at Yale

University was named after him.
III.
Legal Philosophies

Fundamental Legal Conceptions

Since the appearance of Hohfelds work, followers and critics had been
attracted to it.

Jural Relations Table

The eight jural relations are the basic parts of the more complex
legal relationships with which the law must deal. Hohfeld divided
the eight into pairs: those which cannot exist together
(opposites), and those which must exist together (correlatives).
Jural
right
Correlatives duty
Jural
Opposites

privilege
no-right

right
privilege
no-right duty

power
liability
power
disability

Immunity
disability
immunity
liability

This represents eight sets of an assortment of Hohfeldian jural

relations. In the first one, the top row contains four types of Hohfelds
legal rights, while the bottom row indicates the legal position required
for the other party in each of the types of right. On the other hand,
pairs of diagonally opposite elements which are two legal positions
that negate each other.
A privilege is the opposite of a duty; a no-right is the opposite of a
right. A disability is the opposite of power; a liability is the opposite of
immunity.

Correlatives signify that these interests exist on opposing sides of a

pair of persons involved in a legal relationship. If someone has a right,
it exists with respect to someone else who has duty. If someone has a
privilege, it exists with respect to someone who has no-right. If
someone has a power, it exists with respect to someone else who has
a liability. If someone has immunity, it exists with respect to someone
who has disability.

Hohfelds Types of Rights

Law student encounter the idea of right more often, whether it is

legal or moral. Hohfeld is famous for exposing the ambiguity in the
concept of a right and resolving that ambiguity with typology of
rights

that

distinguishes

between

rights

(claims),

privileges

(liberties), power (authorities), and immunities. These are the four

basic components of rights which are known as the Hohfeldian
incidents discovered by Wesley Hohfeld himself. Each of these
Hohfeldian incidents has a distinctive logical form, and the incidents
fit together in characteristic ways to create complex molecular
rights.
The following discuss concisely Hohfelds type of rights and
identifying the correlative legal consequence:
1. Privileges (liberties)
Liberty is merely an absence of duty to abstain from the action.
The correlativity of this jural relationship shows that the person
against whom the liberty is held as a no-right concerning the

activity to which the liberty relates. However, this does not mean
that he does not have a liberty to interfere in the activity.

Illustration:
Say that M is allergic of smoke and his neighbor is a smoker. M
met P, who is a smoker, outside his house and started smoking in
his presence. M told P to stop smoking, but P tells M he has a
right to smoke. P does not have a right to smoke, but it is
merely a privilege. Although M have no-right concerning Ps
activity of smoking, M do have a liberty to delay Ps smoking.

The important point is that in almost every circumstance outside

the natural condition of mankind, a person who acts in line with
his liberty would effectively be shielded from the encroachment
on his privilege by possession of some basic legal Hohfeldian
rights against assault, battery, trespass, etc. Hohfelds analysis
therefore provides us what right P has. Similarly, a license (to
drive, to perform surgery, etc.) provide its holder with a privilege
to engage in the licensed activity.

2. Right (Claims)
A contract between an employer and an employee confers on the
employee a right to be paid his wages.

The employee has a claim that the employer should pay him his
wages, which means that the employer has a duty to the
employee to pay those wages.

The correlativity stipulation commands that if P has a claim-right

against M, this entails M owing a duty to P. He who has the right
must be able to pinpoint another person with a correlative duty
either in terms of shield or assistance. Hohfelds insistence that
every right is a relation between no more than two persons.

Not all claim-rights are created by voluntary actions like signing

a contract like the contract signed by the employee; and not all
claim-rights correspond to duties in just one agent like a
persons claim-right against torture exists independently on
anyones action, and the persons claim-right associate to a duty
in every other person not to abuse him or her.

3. Power (Authority)
M has a power if and only if M has the ability within a set of rules
to alter his or her own or anothers Hohfeldian incidents.
In short, a power is ones ability to alter legal or moral relations.

Illustration:
M can have the power to enter into a contract with P, where the
latter agrees to refrain from smoking in the presence of M. Thus,
M have the power to change their legal relation in that M make P
10

contractually bound as well as M. P now has a liability which is

correlative to power, in that he is liable to having his legal
relations altered by Ms exercise of power.

Hohfelds analysis clears the practical meaning of the term

power. On numerous occasions, law practitioners have created
confusion by referring to a right to do something when, in fact,
they mean a Hohfeldian power to do something.

One example is: P steals the laptop of M. Does P have the right
to sell it to T? If M sells it to T, who is the bona-fide purchaser
for value, he can pass good title onto him. Thus, P has a
Hohfeldian power to perform the sale of Ms laptop. However he
is not at liberty, in Hohfeldian sense, to do so, because liberty is
the absence of duty not to do the act. Therefore, Ps sale of the
stolen laptop to T is a legal wrong and he clearly breaches his
legal duty by selling it.

Ordering, promising, waiving, sentencing, buying, selling, and

abandoning are all examples of acts by which a rightholder
exercises a power to change his own Hohfeldian incidents or
those of another.

4. Immunity
P has an immunity if and only if M lacks the ability within
the set of rules to alter Ms Hohfeldian incident.
11

Illustration:
The Republic of the Philippines lacks the ability within the
constitution to impose upon Filipino citizen a duty to let their
houses be search without warrants.

Since the Congress lacks power, the citizens have immunity. This
immunity is a core element of a Filipinos right to privacy.
Similarly, witnesses in court have a right not to be ordered to
incriminate themselves, and citizens have a right not to kneel
daily before a cross. All of these rights are immunities,
corresponding to an absence of a power in some other party to
alter the right holders normative situation in some way.

This shows that adopting Hohfeldian analysis of rights is very

important given its clarity and precision to ensure that the state
does not overpower the individual or its citizen.
Hohfelds work has been important, not only in the classification
and clarification of rights but also within the relationship
between the non-Hohfeldian term uses of the term right.

Molecular Rights
Each of the atomic incidents (rights, privilege, power, and
immunity) can be a right when it occurs in isolation.

12

In this figure, the first-order rights are my legal rights directly to my

property which is my computer. The privilege on the first level entitles
me to use my computer. The claim correlates to a duty for other
person not to use my computer.
The second-order rights are my legal rights concerning the alteration
of these first-order rights. I have several powers with respect to my
claim, I can waive my claim and grant permission to others so they
could use my computer; I can annul my claim; or transfer the claimmaking the computer a property of another. Also on the second-order,
my immunity prevents others from altering my first-order claim over
my computer. The four incidents together constitute a significant
portion of my property right.

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IV.
Comments & Critics on Legal Philosophies

Among the merits of Wesley Hohfelds system according to Albert

Kocourek are the following:
1. It was the first attempt at a complete methodical arrangement of
jural relation. A half-dozen or more Germans had already treated
in a meticulous way the active (power) side of jural relations.
The most complete of these attempts was that of Bierling, but no
writer in any country, preceding to Hohfeld, had sought to give
systematic account, with appropriate terminology, of the passive
side of jural relations. Partial efforts to state the correlatives,
both the active and passive side of jural relations, had been
made by Terry and Salmond, but the table of opposites is
altogether a novelty.
2. It made noticeable, as never been before, the great complication
of jural threads found in concrete legal relationships. The usual
method of legal operation and of legal thinking lies in the realm
of molar physics, where often qualitative analysis is demanded.
Without trenching on the medieval debate of nominalism and
realism, it is clear enough that where words are lacking, ideas
are usually wanting. Confusion of all jural relations under one
undifferentiated idea, rights, cannot but result in inaccurate
thinking, and, as likely as not, occasionally, in incorrect legal
solutions.
3. It made prominent the distinctiveness of jural relations as
existing only between two persons, and never more than two
persons. The confusion existed on this point was disastrous in
cases of rights in personam involving correal or solidary
14

obligation. Nothing in Hohfelds system points more clearly to the

sharpness of insight of Hohfeld and his colleagues than this
important and necessary distinction.
4. It gave to the concept liability a new and useful extension,
which includes advantages as well as detriment. A certain
linguistic contamination adheres to the term liability which a
layman might find it difficult to remove, but in legal science this
may readily be ignored. The utility of a two-sided correlative to
power as a juristic fact seems indispensable, and no substitute
probably could be found without a Benthamic coinage which
would require for its establishments two or three generations of
insistent repetition.

Arthur Corbin, one of the earliest defender of Hohfelds work, who

called Hohfelds work fundamental: because they are constant
elements, into which all of our variable combinations can be analyzed,
common denominators to which the superficially dissimilar, like law
and equity, property and contract, can be reduced.

Own perception:
Wesley Hohfelds typology of rights became very helpful in Judicial
Reasoning by giving the different meaning or type of rights. Hohfelds
work lend us a hand in knowing what type of right a person is stating
in a given situation or incident. These can also assist many law
students or any laymen in knowing the differences of right-claim,
privileges, power, and immunity on certain given situations or
incidents, whether that person really have that right.

15

Demerits of Hohfelds work according to Albert Kocourek:

The table of jural opposites (a) is in part inconsistent, and (b) it
has little, if any, juristic utility.
(a)

It is inconsistent. But what is an opposite? It is said that

when dealing jural opposites we are looking at two different
situations from the point of view of the same person. In
logic, opposites as distinguished from contradictories are the
extreme terms of quantity. Thus +a is the opposite of a. In
the case of legal relations to have a claim for payment of a
certain amount of money would be the opposite of a duty in
the same person to pay the said amount of money. Yet we
find in Professor Hohfelds table that the opposite of right is
not duty but no-right. Now it is clear that right and noright are not opposites-at least not in the sense of logic- but
are rather contradictories.
The next enumeration of opposites in Professor Hohfelds
table is privilege and duty. Here is a clear change of
position, since on the basis of contradictories or negatives,
the negative of privilege must be no-privilege and not
duty. Hohfelds illustration at this point will be useful
... whereas X has a right or claim that Y, the other man
should stay off the land [of X], he himself [X] has the
privilege of entering on the land; or, in equivalent words, X
does not have a duty to stay off. The privilege of entering is
the negation of a duty to stay off.
The term privilege is used here apparently in the sense of
liberty, a non-jural concept, as we think; but the true
negative of liberty is no-liberty, just as the negative of
right is no-right.

16

(i)

The field of liberty, so far as it is connectible with

anything of jural consequence, is limited to the
enjoyment of the things for which rights and powers
themselves since they denote another group of
ideas. What liberty can the holder have in a chosein action? Yet there is a duty. It is clear that not
every duty is the opposite of a liberty, as any right
in personam suffices to demonstrate. It may be
possible to speak of a possessio iuris of rights in
personam

which

are

susceptible

of

continuing

exercise (i.e., the right of an annuitant), but even in

this case it is an awkward phrase to say that the
right-holder has the liberty of exercising his right.
(ii) Again, the liberty of the owner of land to go on
his land might stand opposite a contractual duty in
the same person not to stay off the land, but to go
on it. (iii) Furthermore, the liberty of an owner of
land to go on his land might stand opposite his
equal liberty to stay off his own land. Liberty to stay
off the land is just as much an opposite of liberty to
go on the land as is the duty to stay off. These
illustrations are put to show that privilege (liberty)
and duty are neither true opposites nor negatives,
and that this division is wanting in logical coherence.
The real negatives are privilege (liberty) and noprivilege (no-liberty).
The next category power (powerdisability) seems
unobjectionable from the standpoint, not of opposites, but
of negatives, since disability is simply another way of

17

saying no-power. Likewise, and for the same reason, the

last category (immunityliability) is formally consistent,
since liability is only a final statement of the effect of noimmunity. If there is no-immunity, necessarily there must
be liability.
Since the table is inconsistent in one term regarded by
Wesley Hohfeld as fundamental, it might be supposed that
the learned author was dealing neither with opposites nor
with negatives (contradictories), in the application of
logic, but with a third term, contraries, in the sense that a
wrongful act is the contrary of a duty, or in the sense of
the contrarius actus of Roman law; but without prolonging
the discussion at this point, a cursory examination of the
table will show that this possibility is not borne out.
Moreover, the scope of contraries as applied to jural
concepts is very limited.
(b)

It has little, if any, juristic utility. Since jural relations must be

completely isolated and identified, it is of no profit to know
that no-right is the negative of a right. (i) One may have
no-right and yet occupy an important jural position. For
example, he may have a jural power (e.g., power of
appointment). The thing of importance is to isolate and
identify the power, in the example given, and not to
determine that a jural power is a no-right. (ii) Again, one
might have a no-right because of subjection to duty.
The basic defect of his method is his failure to search for and
to proceed from the fundamental concept of jural relation.
Without a clear understanding of this primary juristic idea, it
was nearly inevitable that no table of jural relations could be

18

constructed which would not disclose objections, however

symmetrical it might turn out. Professor Hohfelds use of
terms shows an entire lack of recognition of the important
distinction between jural relations and juristic facts, and this
confusion of ideas may account for the circumstance that half
of his table deals with situations which do not involve any
jural relation whatsoever. Our conclusion, not arrived at
without much reflection, is that the System, in so far as it
shows originality, is without juristic value; that at one point
where the term privilege is used to mean liberty, the table
is objectionable on the double ground that liberty is a nonjural concept and that its double usage, which includes
power, is a misapplication likely to lead to much confusion in
the solution of delicate legal problems; and that at another
point the term immunity is unduly narrowed to exclude the
important function of jural relation.

Own insight:
For beginners, it would really be difficult to understand Hohfelds
analysis if there would be no example or there would be no situation
stated for every elements. As a student of law, I could say that
Hohfelds analysis could really be a good help in distinguishing these
rights from one another. But then again, people nowadays would just
use simple words, such as using the term right, in every situation
rather than using Hohfelds type of rights (i.e., I have the privilege to

19

smoke.., Every citizen have the immunity, and the like.). If the said
method could have been explained much further it would not mislead
to much confusion on solving delicate legal problems.

V.
References

Dictionary of Modern American Philosophers, Volume 1 (2005).

Thoemmes Continuum. 5RR, England. Edited by John R. Shook
https://archive.org/details/fundamentallegal00hohfuoft
http://www.austlii.edu.au/au/journals/MurUEJL/2005/9.html#Bibliogra
phy:_T

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http://plato.stanford.edu/entries/rights/#2.1
http://www.law.yale.edu/cbl/3075.htm
http://www.jstor.org/stable/786851?seq=3
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=5383&context=fss_papers
http://www.jstor.org/discover/10.2307/40319668?
uid=2483552993&uid=2134&uid=2&uid=70&uid=3&uid=60&sid=2110
4612388013

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