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8/10/2019 A Restatement of Hohfeld. Max Radin
1/25
A Restatement of HohfeldAuthor(s): Max RadinReviewed work(s):Source: Harvard Law Review, Vol. 51, No. 7 (May, 1938), pp. 1141-1164Published by: The Harvard Law Review AssociationStable URL: http://www.jstor.org/stable/1334102.
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2/25
H RV RD
L W
R VI W
VOL.LI
MAY,
1938
No.
7
A
RESTATEMENT
OF HOHFELD
HE
most
influential
law
teacher
who
ever lived in
the
United
States-or for
that
matter in
any
English
speaking
com-
munity
-was
Christopher
Columbus
Langdell.
It was his ex-
pressed
belief
that
the
law was
to be found
in
books and
he
had
no
doubt what books these were. Before his time and since his time
there
have
been
many
persons
who were
strongly
of
the
opinion
that this
is
not
so,
that
the
law is
to
be found
in
the moral
sense
or
in
the
rational
convictions of men who had a
special
capacity
to
reason well
and
a
special
insight
into
the fundamentals of
hu-
man
conduct.
And
recently
there
have been a
great
many
per-
sons
who
in
a
broadly
general
way
have
declared that law is
to
be
found in life, that is to say, in the variedandincompletelyrational-
ized
actions of men
attempting
to secure
economic,
social
or
per-
sonal
advantages,
or
rejecting
such
advantages
for
particular
rea-
sons.
Those
who
hold this last
sort of
opinion,
realists,
actualists,
functionalists,
experimentalists,
empiricists
-
I am
a member of
all
these
sects and
subscribe to
the
Thirty
Nine Articles
of all of
them-
are
especially
resentful of
anything
that seems to
hark
back to the wickedand explodednotion that what is stated in print
or
in
ink
on
the
pages
of a book has
any
relevance to
the
law.
Now life
is a
complicated
thing,
and the
particular aspect
of
life
with
which
law
deals does seem to have
a
great
deal
to do
with
human
communication what
in
the seventeenth
century
was
called human
conversation.
When we
get
to the
point
that
hu-
man
conversation will be
wholly
conducted
by
signals, stop-
and-go
lights,
raising
of the
right
hand and
the
horizontal
pros-
8/10/2019 A Restatement of Hohfeld. Max Radin
3/25
142
HARVARD LAW REVIEW
[Vol. 51
trations
from
which
we do not seem
far removed
in our
political
conversation,
the
doctrine that law
is
in
books
will
be an
obvious
anachronism.
But
until
that
time,
it
is
capable
of
proof
that
communication
between
man
and
man is
conducted
by
speech
and above
all
that
any judgment
or
assertion
about
these communications
made
by
persons
professing
to
state the
law
must
be
made
in
words.
The
question,
of
course,
is
what
words?
We
know
that there was a time
when the
common
law,
at
any
rate,
had a
"
genuine
",
"
authentic
"
or
"
proper
"
language
of
its
own,
a
"language
of
art
".
There
is
no
question
that this
lan-
guage-"
Law
French",
to wit- could
express
a
great many
things
much
more
precisely
than
English
could
and
the statement
of
Roger
North who
died
in
1734
has often been
cited
to
the
effect
that
the
common
law
could not be
properly expressed
in
English.'
But
the
things
which Law French could
express
were
after
all
quite
limited
and were
chiefly
connected with
procedure.
The moment
it left procedureit was forced to use words as vague and as am-
biguous
as
the
English
words would be.
If
we
wished to revive a
law
language
for
the common
law,
it
could
not
be the
language
in which
Lord
Guilford still
preferred
to write at a
time when
the
courts
in
the American colonies were
beginning
to take renewed
interest
in
their
connectionwith the common
aw of
England.2
We
must,
therefore,
somehow
ind in
the
lange
du
pails
the
means
of stating what the law is, whetherthis law is in the books or not,
particularly
because we
must
state as
unambiguously
as
may
be,
what
certain
relations between
persons
are,
as
well as
what
they
were
in
times
long
past.
And
at
present,
the men and women
whose
lives are
to
some
degree
ruled
by
the
common
law,
do
not
express
themselves
in
the
Law
French.
Unambiguously
To
say
so
much is
to
recognize
the character
of the
task.
It
simply
cannot be done.
It
cannot be done because
of the
very
nature
of human
speech
which did
not
grow
out
of a
need of
stating things
precisely.
There
rarely
was
such a need.
1
A DISCOURSE ON THE
STUDY
OF
THE
LAWS
(1824) 13.
2
2
HOLDSWORTH,
ISTORY
OF ENGLISHLAW
(3d
ed.
I923) 479-82.
The
most
complete
account of
the
position
of
Law
French in
the
study
of
English
law is Mait-
land's
delightful
introduction
to the
first
volume
of the Selden
Society's
edition
of
the
Year Books.
17
SELDEN OCIETY
Maitland
ed.
I903)
xxxiii-xli.
8/10/2019 A Restatement of Hohfeld. Max Radin
4/25
1938]
A
RESTATEMENT
OF HOHFELD
I143
Language
probably
grew
out of
the need of
warning
others of
danger,
of
securing sympathy
and
facilitating joint
efforts;
and,
secondly,
out of a
need
of
discharging
emotions.
There were
doubtless
other
factors,
but
it
is
hard to
see
that
any
practical
importance
could have
attached
itself,
in
the
interminable
cen-
turies
during
which
human
speech
was
being
developed,
to
the
effort of
making
sure
that our
utterances
called
up
in the
mind
of their hearers
a
group
of
pictures
or of
picturelike
ideas which
were
precise
and
sharp
and
suggested
-
each
one of
them
-
one
thing
and one
thing
only.3
But if no
particular mportance
can be ascribedto
precision
and
unambiguity
in
the earlier
stages
of the
development
of
lan-
guage,
a
certain
practical
need for
these
qualities
arises as soon as
the
subjects
we talk
about become so
great
in
amount that
they
can
be
discussed
only
by
compendious
and
generalizingexpressions.
The
great
burden
of
civilized
society
is
its
memory.
In
fact
our
type
of
civilization
begins only
when the
things
to be
remembered
are so numerous and variedthat the burdenof remembering hem
is
too
great
for an
individual
mind
or
for
any
combination of
con-
temporary
and
communicating
minds and
must
be
helped
by
some
system
of
recorded
transmission.
If
the
things
that
can be talked
about are
only
those which
any
human
being
can
at
any
time
keep
in
mind,
ambiguities
will
not
arise,
or
rather
they
will offer
no
stumbling
block
to
communication.
But when
the matters
which
it is
necessary
in
some way to mention are too numerous for that,
when
they
can
only
be
indicated
by
collective
symbols
or
by
deictic
symbols, symbols
which
point
out how
in
our
opinion
fuller
and
more
detailed
experience
of
a
situation can
be
obtained,
we must
take
care lest we find
ourselves
completely
misdirected and
lest
we
arrive
at a
result we have
no
desire
to
reach.
3
It
was an
illuminating
statement of
Humboldt's
(Abh.
iiber
die
Verschieden-
heiten des menschlichen Sprachbaues (1828) ? 8) that a word is not an ergon, i.e.,
a
finished
product
or
result,
but
an
organon,
an
instrument
to do
things
with.
Both
Humboldt,
whose
civilizing
effect
seems
to
be
doomed to a
deliberate
repudiation
by
the
people
whose
culture he
did so much
to
form,
and
Vico,
whose scienza
nuova
is
one of the
great,
if
slightly
neglected,
factors of
the modern
world,
had
a clear
sense
of
the
indispensable
character of
words
which
was
quite
consistent with a
refusal
to
worship
them.
I
may
be
permitted
to
refer
to the
excellent
study
of
Vico
by
Mr. E.
Gianturco of
the
Catholic
University
of
Washington, JOSEPH
DEMAISTRE
AND
GIAMBATTISTA
ICO
(1937)
(published
as a
Columbia
dissertation).
8/10/2019 A Restatement of Hohfeld. Max Radin
5/25
II44
HARVARD
LAW
REVIEW
[Vol.
51
As far as law is
concerned,
the
results
we desire to reach
are
definite
and a failure to
reach
the result
usually
means
that a com-
pletely contradictoryone is reached. To be guidedadequatelyis,
therefore,
of
prime importance
and
the
penalties
of
selecting
the
wrong
turning
in a statement
pointing
both
ways
are
extremely
serious.
Efforts
at
precise
statement
in
law have been
made
frequently.
They
cannot
in
the nature
of
things
be
completely
successful.
Even
mathematics
cannot
guarantee
its
solutions
of
quadratic
equations against
the
ambiguity
of
plus
and
minus and the
choice
between
plus
and minus is
just
the
ambiguity
that a
prospective
litigant
most
fears.
A
contrast
is
often made between
life and
logic.4
Law,
it was
once
said,
is the
place
where life and
logic
meet.
One
of the
great
temptations
of the
law,
it
is
declared,
is
to
reason
logically
in
mat-
ters that
are not
susceptible
of
logic.
Under
correction,
this
seems
to
be an error.
The
difficulty
s
usually
that
a word
has been
used
and has been supposed to contain elements that it does not con-
tain at
all or at
any
rate
that
it
need
not be
made to contain.
This
difficulty
can
be
called a
logical
one because
logicians
from
the
time of Aristotle have
named it.
It
is
clearly
a form
of the
"
fallacy
of accident
".
At
any rate,
it
could be
so described
and the
error
made
is
usually
not excess
of
logic
but
a defect
of it.
A
conclu-
sion
is
set down which is
hastily
derived
from
unimpeachable
premises,but whichdoes not followat all becausewe have assumed
a
constancy
of contact
in
certain collective
and
complex
terms,
and
this
constancy
does
not
exist.
We
may
take
the
following
rather
simple
difficulty
as
an ex-
ample.
When
two
persons
negotiate
for the sale of
goods,
and
the
goods
are
destroyed
without
the fault of
either,
there
is
always
a
question
whether the
intending
purchaser
must none the
less
pay.
We
may
describe it
romantically by
asking
where the
loss
must
fall. Courts
have
declared
that this
depends
on
who the owner
is
because
the
"
risk
of loss follows title
",
another
semipoetic
but
ordinarily quite
intelligible
phrase.
But
in
many
instances
the
4
The
almost
classical discussion of the
relation of law and
logic
is
Holmes'
fa-
mous
paper
on The
Path
of
the Law
(1897)
io
HARV.
L. REV.
457,
reprinted
in
his
COLLECTED
EGAL APERS
1920)
167-202, esp.
I80-84.
8/10/2019 A Restatement of Hohfeld. Max Radin
6/25
1938]
A
RESTATEMENT
OF
HOHFELD
1145
judgment
thus arrived
at contradicts the
expectations
of
traders
in
that
commodity.
This is then said to
be
a case of
reasoning
logicallywhere not logic but experience
and common
sense should
be
applied.
But the
point
is
that the
logic
itself is
quite
bad.
The
word
"always"
has been
surreptitiously
interpolated
into
the
statement that
"risk
follows
title
". One
incident
of
the title-
complex
which
actually
does
exist
in one
application
of
the
word
has
been used
in
another
application
in
which there
was no
reason
to
suppose
this incident
existed.
The
difficulty
s
one
of the
capital
ones of
the
law
for the
reasons
already
mentioned. There is so much
legal
material to be dis-
cussed
-material that
has
been
accumulated
for
centuries--
that
we
cannot
manage
it at
all
except
by group
words.
We
must
speak
of
"contracts
",
of
"tenure",
of
"insolvency ",
of
" di-
vorce
",
of
"
property
",
of
"
rights
",
because
we
cannot
possibly
arrange
in
our
memories or
indicate
in our
speech
a whole
series
of
special
facts that
may
have a
bearing
on
the
situation
in which
we need guidance. Since we must use these indeterminatewords
-
Mr.
Johnson's
"
determinables
"-
we run a
great
risk
that
we
have
improperly
used
them in a
situation
which their
successive
determinations
will
not cover
at all.
Those
of us who have
learned
humility
have
given
over the
at-
tempt
to
define law. And we
have
equally
abandoned the
effort
to
discover whether
an
act
or
thing
is an
"
act
in
the
law"
or
a
"fact in the law" or any of the similar monstrosities created to
prove
that we
could
beget
centaurs
out
of
clouds
as well
as Ixion
or
any
German
metaphysical
jurist.
But
there
is
an
infallible
test for
recognizing
whether an
imagined
course
of conduct
is law-
ful
or
unlawful.
This
infallible
test,
in
our
system,
is
to
submit
the
question
to the
judgment
of
a
court.
In
other
systems,
exactly
the
same test
will
be
used,
but it
is often
more
difficult
to
recog-
nize
the court.
None
the
less,
although
difficult,
t can
be done
in
almost
every
system
at
any
time.
The
court,
we
may
remember,
in
judging
does not
"
state
the
law
",
but
merely
determines the
presence
of lawfulness
or
ab-
sence
of
lawfulness
-
not
right
or
wrong
-
in
the
real or
suppos-
ititious act. It
declares
that
A
may
or
may
not
conduct
himself
in
the
way
described.
And
it
is
always
absolutely
specific.
It
is
a
single
act of
A
in
regard
to
B
that
is before
the court.
Even
8/10/2019 A Restatement of Hohfeld. Max Radin
7/25
1146
HARVARD LAW REVIEW
[Vol.
51
when
there
are
a thousand
parties plaintiff
and
defendant,
there
is
only
one
act
envisaged
at
a
time.
Indeed,
whatever
the
court
may say before or after,or in the courseof pronouncing udgment,
and however
much
it
may
envelop
the
process
in
mysticism
and
poetry
and
rhetoric,
the actual act of
rendering judgment
is
al-
ways
specific.
It is
unique
as
an
act and
it
deals with
two
unique
persons,
never
more.
Since we have
this
quite
infallible
way
of
discovering
a
legal
fact,
to
wit,
the lawfulness
or the unlawfulness of
an act or
abstention,
we
can
dispense
with
knowing
what
"
law
"
means.
But,
when we
ask ourselves how the court answers the
difficult,
if
precise,
ques-
tion we
put
to
it,
we
discover that the court uses not
only
the
term
"law
",
but a
great many
other indeterminate
words and feels it
is
necessary
to
employ
them
in
order
to
get
at the answer
which
we
demand
of
it
and
which
it could not
possibly
refuse
to
give.
We
have,
therefore,
not
got away
after
all from indetermination
and
imprecision merely
because the most
immediately important
matter to a lawyer is so extremely precise as to be unique, i.e.,
whether
B
may
at a
given
moment
of
time
lawfully
refrain
from
paying
A
a
perfectly
definite
sum
of
money.
But
while we have not
escaped
indetermination
somewhat
fur-
ther
back
we
can,
at
least
at one
stage
of the
law,
-the
lowest
stage,
if
one chooses
-
discuss
it
from
the
safe
and sure
vantage
point
of
an
unmistakably
and
uniquely
determinate
fact,
the
pro-
posed conduct at a definitetime of B in respectof A.
We
may begin
there.
Where
we shall
end,
we
can never be
sure. We
should
like
to end with
the word
"
law "
itself,
the
largest
determinable
we can
have,
but it
is
highly
unlikely
that we
shall
reach it.
When
we
attempt
to use
Hohfeld's,5
or
indeed
any
"
analysis
"
5
I
have
deemed it
unnecessary
to set
forth
the
Hohfeldian
system
in
the
text
or
to make any
special
statement about Hohfeld himself. I refer briefly to the article
on
Hohfeld
by
Professor K. N.
Llewellyn, (1932)
7
ENCYC.
Soc. SCIENCES
00;
and
to the book FUNDAMENTAL
EGAL
CONCEPTIONS
1923),
edited
by
W.
W.
Cook;
as well as to the
following
articles:
Goble,
A
Redefinition
of
Basic
Legal
Terms
(I935)
35
COL.
L. REV.
535;
Pound,
Fifty
Years
of
Jurisprudence
(I937)
50
HARV.
L. REV.
557,
esp.
573
et
seq.
The
Hohfeldian
system
was
made
a
subject
of
special
discussion at
a
meeting
of the Association
of
American
Law
Schools
in
1920
and
in
the
proceedings
of that
meeting
will
be
found a
full account
of
this
discussion,
as well as
papers
by
Professors
Corbin,
Kocourek
and
Page.
HANDBOOK
8/10/2019 A Restatement of Hohfeld. Max Radin
8/25
1938]
A RESTATEMENT OF HOHFELD
1147
we
are
dealing
with an
attempt
at a
legal
algebra
or
a
geometry,
the
purpose
of
which is more modest than
that which is
effected
by the mathematicalorganausuallyunderstoodunder thesenames.
We
are concerned
with an
algebra
that will enable us to
describe
some
precise
and
repeated
situations,
the actual
judgments
of
courts,
in such
a
way
that
any judgment
can fall into
the scheme.
It will
be
of some service
in
the
larger
task
either
of
collecting,
memorizing
or
teaching
these
judgments,
but not
in
the
much
more
vitally
important
ask
of
forecasting
them.
There are
certain
postulates
we
begin
with.
At
this
level of the
law we must abandona
great
many
of the
phrases
that are dearest
to
lawyers
and,
above
all,
carefully
eschew
anything
like
a
"pre-
sumption
" or
an
"
as
if
". Those who
cannot
dispense
with such
shining
baubles
can be consoled
with
the
promise
that there
are
higher
levels
of
legal
discourse
in
which
they
can recover all these
precious
devices and
play
with
them
to their heart's
content.
First of
all,
there
is
only
one unit
in the
law,
as thus
formulated,
and that is a humanbeing, every humanbeing and nothing but a
human
being.
There
is
no
corporation,
no
state,
no
quasi-corpora-
tion,
no
juristic
person,
no
nasciturus,
no
"
estate
",
no
"
entity
",
no
"
civil
death
"
Secondly,
the
only
legal
fact at our
first level
is a
relation
be-
tween two such
human
beings.
No relation that
has
legal
relevance
exists
between a
human
being
and a
thing,
between a
human
being
and a group of other human beings considered as a group, nor
between
a human
being
and
an
abstract
idea. There
is
no
right
in
rem
and no action
in
rem.
All
these
terms
are
useful and
signifi-
cant,
as we
may
discover,
in
other
connections,
but
they
do not
concern
us now.
This
judgment, by
which
a
proposed
course of action
is
char-
acterized as lawful
or unlawful
-
the first
level
of
legal
judgments
and
its
only
determinate level
-belongs
to
the
arbitral
function
of the
magistrate's
authority.
The essential of the Hohfeldian
system
of
analysis
is
that
every
such
judgment
can
be
stated
in
one
of the
following
forms:
I. B
ought
to do a
particular
act that
A
desires
him
to do-
OF THE
ASSOCIATION OF
AMERICAN
LAW
SCHOOLS
(1920)
I84-93,
I94-98,
I99-212.
Professors Commons and Andrews
applied
the Hohfeldian terms
to
a
special
branch
of
the law in PRINCIPLES
F
LABOR EGISLATION
rev.
ed.
I927).
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pay
A
a
specific
sum of
money,
do
a definite service
that
A
desires
done.
II. B may refrain from doing a particular act that A desires
him
to do.
III.
B
ought
to
refrain
from a
particular
act that
A
does not
desire
him
to
do, i.e.,
refrain
from
using
a
particular commodity,
from
making
a
particular
statement,
from
being
in
a
particular
place,
from
exercising
a
particular
function.
IV.
B
may
do
a
particular
act
that
A
does not desire
him
to
do.6
These
formulas
are
taken
to be
exhaustive
and
that
they
are
exhaustiveis one of the
foundations of the
system
of
analysis
here
presented.
In
the
above,
I
and
II
are
contradictories.7
So are
III
and IV.
One of
the
pitfalls
of
our
language
is that
they
do
not
at
once
seem to
be
contradictories.
The
difficulty
is
that
in
English
the
word
"ought"
does
not
really
admit of
being negatived.
The
temptation
to
use
"
ought
not" as a
negative
leads
to
confusion.
In the phrase " ought not ", one need scarcely say, " not" is the
negative
of
the
complementary
nfinitive.
These four
statements
-made
"
four"
to
avoid
confusion,
but
they
could be
made as
two,
if
one
prefers
-
are
those
with which
we
shall
be
principally
occupied.
The
first
can
also be
expressed
and is
more
familiarly
ex-
pressed
-
by
saying
that
A
has a
right
against
B.
The secondin ordinary egal languagecan also be expressedby
saying
that
B
has a
right against
A.
The two
rights
are
obviously
not
of
the
same sort
at
all.
One is
a
right
in
the form of a
demand;
and the
other is
a
right
in
what
Hohfeld
called a
"privilege
",
citing legal
warrant
enough
for
the
use of
the word
in
that sense.
It, however,
may
also be
called a
"
liberty
"
or a
"
license
"
and it
turns
out
that
none of
these
terms,
"
privilege ",
"liberty ",
or
"
license",
is
exclusively
used
in
legal
6
In the
case of a
friendly
suit
for
partition,
or
in the
Roman
actions
familiae
erciscundae or communi
dividundo,
what is
asked for is a
division
and
limitation
of
the
property
complex.
It
is
really
-
and
not
merely by
an
"
as-if
"
-
the
estab-
lishment of
demand-rights
that
neither
litigant
shall
exercise
control
over
more
than
a
portion
of
a
res
formerly
controlled
jointly.
The
court
is
asked
first
to
decide
upon
the
portion
to be
so delimited.
7
Hohfeld
called
them
"
opposites
".
They
are,
however,
quite
clearly
not
"
op-
posite
"
in
either
the
ordinary
or
in
the
technically logical
sense.
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RESTATEMENT
OF HOHFELD
1149
literature
in the
sense Hohfeld
required.
"
Privilege
"
will
do as
well
as
any
other
word,
provided
we
keep
in
mind
that
only
one
of
the several
legal meanings
of
"
privilege"
is
being employed.
But Hohfeld
mistakenly
insisted
that this sort of
a
privilege
is
not
to be called a
"
right
"
at all.
This
unfortunately
contradicts
so
fully
established a
usage
both
in
law and
literature,
that it
is
idle
to
suppose
that
any terminological
reform
will
overcome
it.
So
clearly
are these
"
privileges
"
rights,
that
they
are
usually
the
first
thing
that are
thought
of
as
rights
when the word occurs
in
speech.
This sense is found
in
such
phrases
as
"a man's
right
to
do what he likes with his own
";
and in so
capital
an instance as
the
expression
"
bill of
rights ",
as well as
in
"
fundamental
rights ",
and
other
expressions
like
them,
most of the
"rights"
involved
are
privileges.
It
is, therefore, impossible,
unless
we
wish
to rewrite
a
good
part
of
English
literature,
to refuse
the
term
"right"
to
these
situations.
The
distinction,
however,
that
Hohfeld
made
is of
first-rateimportance,and must be maintained. We shall, there-
fore,
distinguish
between the
"
demand-rights
" formulated in I
and
III
and the
"
privilege-rights
"
formulated
in
II
and
IV.
We
may
make
further statements
about
them.
A's demand-
right
in
I
is B's
duty.
B's
privilege-right
in II
is an absence
of
duty
in
B
as
well
as
an absence
of
right
in
A.
Or,
we
may say,
A's
demand-right
in I
negatives
B's
privilege-right
in
II;
B's
privilege-right n II negatives or contradicts
his
duty
in
I.
Privi-
lege-right, therefore,
is
paraphrased
by
absence
of duty,
just
as
demand-right
in
one
person
is
an
assertion of
duty
in
another.
And
absence
of
a
demand-right
n
one
person
is
an assertion of
privilege-right
in
another.
It
is
in the
relation
of
these
terms to
each
other that
Hohfeld's
terminology
is
most
in
need
of
revision. He
spoke
of
A's
right
and
B's
duty
in
I,
as
"
correlatives
"
of
each
other.
The
difficulty
in the use of this term is not
merely
terminological.
It is not
merely
that
the
word
is
used
in
a sense
different
from that
ordi-
narily
assigned
to
it.
The
difficulty
arises
from the fact
that
Hohfeld
really regarded
hem as
correlatives,
that is to
say,
as
two
separate
things
united
to each other.
The
union
was,
to be
sure,
indissoluble,
but
the
two
were
none
the
less
separable
in
discourse,
if
not
in
fact.
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But
that was
error
and a
sin
against
the
very
analysis
he
was
attempting.
It
gives
a
kind
of
reality
to
mere words which
they
must not be allowed, if we hope to reach realism in law. It also
permits
a
specious
and false
emphasis
to
be
placed
on duties
as
against
rights
and
even
makes
possible
the
baneful
doctrine that
there
may
be
rights
that
are
absolute,
although,
to do Hohfeld
justice,
he
would never
have
permitted
this inference. But
it
is
implicit
in
any
doctrine
that
recognizes
a
duty
as such
or
a
right
as
such,
separated
from
each other.
A's
demand-right
and B's
duty
in I
are
not correlatives
because
they
are not
separate,
however
closely connected, things
at all.
They
are not even two
aspects
of
the
same
thing.
They
are two
absolutely
equivalent
statements
of the
same
thing.
B's
duty
does
not follow
from
A's
right,
nor is
it caused
by
it. B's
duty
is
A's
right.
The
two terms are
as identical
in
what
they
seek to
describe
as
the
active and
passive
form of
indicating
an
act;
" A
was
mur-
dered
by
B
";
or
"
B
murdered
A."
The
fact
that
A
and
B
are
wholly distinct and separate persons must not be allowed to ob-
scure
the
fact
that
a relation between
them is
one
relation
and
no
more.
This
is
all the
more
necessary
to
state because
there
is
an
im-
portant
use
for
correlatives
in
any
statement of law.
There are
demand-rights
and
privilege-rights
which are
correlatives of cer-
tain other
demand-rights
and
privilege-rights.
In
a
sale,
the
right
to demanddelivery is the correlative of the right to demandpay-
ment.
The
two
rights
may
be
completely separated.
But
if
either
is
absent,
the
transaction is
not
a
sale.
In
the relation of
parent
and
child
the
privilege-right
of
custody
of
the
parent
and
his
duty
of
support
-
which
is
also the
child's
demand-right
to be
sup-
ported
-are
normally
correlatives.
But
they may
be
separated
and,
in
divorce,
they
frequently
are.
Hohfeld
made
the
following
scheme of
his
elements:
right
-
duty
privilege
-
no
right
The
phrase
"
no
right
"
was
subjected
to a
great
deal
of critical
and
destructive
comment.
"A
'no-right
'",
one
critic
once
de-
clared,
"might
be
an
elephant."
But the
criticism was
scarcely
justified.
Those
who
hyphenated
the
words created for
them-
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RESTATEMENT
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HOHFELD
1151
selves
the
straw
man whom
it
was
so
easy
to
knock down.
The
term
"
no
right
"
means
exactly
what
it
says,
that
is that
in II
and
IV,
A has
no
demand-right
o
the service or abstention
he
desires
from
B.
So far
from
this
being
a
rare
and
exceptional
situation
in
the
law,
it is one
of
the two
alternatives
which
are
presented
to the
judgment
of
the
court
in
almost
every
case.
The
court
must
find
either for
the
plaintiff
or
for
the
defendant.
And
this amounts
to
saying
either
that the
plaintiff
has
a
demand-right
equivalent
to a
duty
of the
defendant
-
or
that
the
plaintiff
had
no
demand-
right,
which
is
equivalent
to
saying
that
the
defendant
was
exercis-
ing
a
privilege
in not
performing
the service desired or in
doing
the act not desired
by
the
plaintiff.
If we
replace
Hohfeld's
scheme
by
something
like
the
following,
we
shall
have:
demand-right
-
duty
no
demand-right
-
privilege-right
As
has
been
pointed
out,
the double
statement
is
merely
a
matter
of
convenience.
If A
seeks
damages
from
B
in
an
action,
the court
may
either
declare
that
B
has a
duty
to
pay
a
sum of
money
to
A,
or
no
duty,
i.e.,
has
the
privilege-right
to
refrain
from
doing
so.
Or
else the
court
may
begin
its statement
with
A
and
say
that
A
has
a
demand-right
to
this
sum from
B,
or
has
no such
demand-
right.
It is
merely
an
accident
of
language
that
two
exactly
equivalent
sets
of
statements
are available
in
English.
The arbitral function of the court8 is set in motion when we
make
our infallible
test of
whether
there
is or
is not the relation
be-
tween
A
and
B
expressed
in
I,
II,
III
and
IV.
But in
our
system,
and
in
every system
of law
of
which
we have detailed
knowledge,
this
test
is
always
made
by
means of
two assertions
expressed
one
after
the
other,
and
placed
in
a relation
of cause
or effect.
In an
action
to recover
damages,
for
example,
A
may
assert
that
B
was
under a duty not to permitA to be injuredas a result of his negli-
gent
driving
and
that
because
he violated
that
duty
B
had
another
and a new
duty
-which is the
legitimate
result
of the violation
of
the older
duty
-
and
that this new
duty
is to
pay
a
sum of
money
to
A.
8
What
I
have
in
mind
in
speaking
of the
"
arbitral
function
"
I
have
attempted
to
set
forth more
fully
in
The
Chancellor's
Foot
(I935)
49
HARV. L.
REV.
44.
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The relation of
these
two
duties of
B
to
A-
which
we
may
ex-
press
equally
well as two
demand-rights
of
A
against
B
-
are of
a very special sort. They are quite different from each other.
They
could
not
very
well be
more different
in
content,
that is to
say,
in
the
acts
involved.
One is an act of
avoidance;
the
other,
an act
of
paying money.
Yet
they
are
indissolubly
linked. If
the
former
duty
of
B
to avoid
injuring
A
is shown not
to
exist,
there
can be no
present
duty
of
B
to
pay money
to
A.
We know
of
the
existence
of
his
duty
of
avoidance
in
past
time
only
because
the
court
now
imposes
a
duty
of
payment
on B.
A similar situation exists if A sues B for the breach of a
duty
to
deliver an
ordinary
chattel.
The existence of a
duty
to deliver
will
justify
the court
in
imposing
a
duty
on
B
to
pay
a sum
of
money.
The
test of
the
past
duty
is
the
creation of a
present
dif-
ferent
duty, although
the difference s
in
this
case
not so
great
as
in
the former
example.
The
difference s
still
more
reduced
in
cases when
the
past
duty
was to pay money or to deliver the title to land and is least when
the
original duty
was
a
duty
to
abstain
from acts that
can
be
en-
joined by
a
court
before
they
are committed.
But
the
existence of
a
time
factor
of
itself
creates
a differencebetween an
original
duty
and a
duty
created
by
the
arbitral
determination
of
a
court.
And
in
every
case we
shall
not
be
certain
of
the
presence
of
the
past
duty
unless a new
duty predicated
on
the breach
or threatened
breach of the past one is created.
The
function,
therefore,
of
a
court
is, first,
that
of
determining
the
presence
or absence of a
past demand-right
which
means,
if
one
chooses,
a
past
duty.
Secondly,
if it
finds that
such a
right
has
existed
and
has been
violated,
the function
of
the
court
is fur-
ther to
predicate upon
this
violated
right
a new and
often
quite
different
right
that
can
in
the nature of
things
be
only
an
approxi-
mate
equivalent.
In
our
modern
system,
the
court will
predicate
upon
the absence of a
right
in the
plaintiff
or
demandant,
a new
right
for
a small sum
as costs
in
the
defendant,
but
that
is
often
dispensed
with.
There are
consequently
two levels at
which
these terms can
be
used,
the
past
right
whose
existence
is
to be determined
and the
new
and
transmuted
right
which the court
puts
in
its
place.
The
notion
of
"
procedural
consumption
",
while of
only
limited
appli-
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II53
cation
in
either
Roman
or
common
law
in
its
technical
sense,
is
in
a
larger
sense
essential
to
nearly
all the
systems
in which
a
special-
ized
court
machinery
has been
developed.9
The two
rights
mentioned are
essential
to each
other,
and
con-
dition
each
other. No
transmuted
or
new
right
could
arise
unless
there
had
been
an
"
original
"
one;
and
the test
of
the
existence
of
the
"
original
"
one is
the
willingness
of
the
court
to
transmute
it
into
a new
one. This
fact,
and the
essential difference
in
content
between
the
two,
are
important
elements
in
the
Hohfeldian
system.
That
all
legal rights,
at either
the first level
or the
second,
are
relations between two
persons
seems to fall foul of an ancient
enemy
of
sanity
in
law,
the
phrase
in
rem.
Lawyers
have
talked
of
actions in rem
and
rights
in
rem so
long
that
it
has
become nec-
essary
to
set
up
a
complementary
action or
right
in
personam
in
order to
give
a
place
to the
only
way
in
which,
when
we come
to
grips
with
reality
or
describable
experience,
the law
can
act
at
all. Not
only
do
we see
a flesh
and blood
citizen
"suing"
the
Steam Ship Pinafore, her boilers, rigging etc., in a libel in the
admiralty
court,
but
the books
contain such
cases as United
States
v.
One
Stradivarius
Violin,
in
which
a
wholly
unreal
and
fantastic
entity,?1
a
federated
state,
is
presented
as
claiming rights against
a
few
pieces
of
lifeless
matter.
I
fancy,
however,
that if
we followed
the libellant into
court we
should
find
that he
is
claiming
that a most
indubitably
living
per-
son shall pay him a definite, if hopefully exaggerated, sum of
money
and
that
this
demand-right
is
the transmuted
form
of
an
antecedent
demand-right
that
the libellant was
not
to be
hurt
in
body
or
that
a
promise
made
to
him
was
to be
kept.
The
libel
merely
means that until
this
money
is
paid,
the libellant
intends
to
prevent
the
ship
from
sailing
and
that,
if
the
court
declares
that
the
right
had existed
-
the
right
at
the
first level
-
then
the
ship
itself
will
be sold
to
pay
the
money,
unless it is
otherwise forth-
coming.
9
Cf.
Wenger,
INSTITUTIONEN
ES
ROMISCHEN
IVILPROZESSRECHTS
I925)
I67-
68;
and
Wlassak,
DER
URSPRUNG
ER
ROMISCHENINREDE
1910) 9-13.
10
I
permit
myself
this
expression,
because
in
the
Aristotelian
sense
phantazo,
from which
"
fantastic
"
comes,
deals with
things
apparent, indeed,
but
not
to the
senses,
and
because
"
entity
"
is
properly
"
beingness
"
and is thus
two
removes
from
our
physical
apprehension.
Matters
so
protected
from
physical
contact are
excellent
terms
to use
for
corporate
personalities.
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The same
may
be
said of the
other
case.
It
is,
after
all,
a
tan-
gible
and
tickleable
personage
who seizes the
Stradivarius,
and
it
is on the basis of the failure of a consignee
-
a human consignee
-
to
pay duty
that
the
Stradivarius
may
be
sold
and the
proceeds
deposited
with
a sub-sub-sub-treasurer
who will
make
an
elaborate
record of
the transaction for
future reference.
What
shall
we
say
of
other actions
that are said to be
essentially
in rem
or,
save the
mark
quasi
in
rem,
like
bankruptcy
or di-
vorce?
When an
adjudication
in
bankruptcy
is
made,
a
great
many
changes
in
rights
and
privileges
are effected
and the
persons
whose
rights
are so
changed
can for the most
part
be
easily
enough
identified.
When
we
speak
of the
in rem
effect of
the
adjudication,
just
what
are
we
trying
to
say? Surely,
scarcely
more than that
if
any
other
person,
besides the
obviously
affected
persons,
med-
dles with the affairs
or
the
property
of the
bankrupt,
a trustee
by
no
means an
abstract
trustee
-
or a
receiver,
who
is
equally
concrete, may
bring
an
action
against
him
or initiate criminal
pro-
ceedings against him, and thereby establish at our lowest level
quite
specific
demand-rightsagainst
a
breathing
and
moving
hu-
man
being.11
Clearly
if
by using
the word
in
rem we wish
merely
to
indicate
compendiously
what we have
just
been at some
pains
to state at
length,
there
is no
earthly
objection
to
using
it.
The
syllables
in
rem,
then,
become
purely
symbolic
and
are better than
the
purely
arbitrary syllables, duk-duk, or anything else, only because they
have
already
been
long
in
use
for this
purpose.
The
danger
is,
of
course,
that
their
symbolic
value
may
be
forgotten
and that
we
may
be
tempted
to
suppose
that
an
action
in
rem
really
does dis-
pense
with
the
presence
somewhere
of two human
beings
who
are
declared
by
the
court
to
have
or not to
have
certain
rights
in
re-
spect
of each
other.
But
the use
of
the
phrase
in
rem about actions
creating
or
deny-
ing
demand-rights
at our lowest level is almost literal as
compared
with the
use
of this
phrase
at the second
or
higher
level,
about the
antecedent
demand-rights
which
are
the
correlatives,
or
the
origi-
nal
forms,
of
these
other
rights.
And a
portentous
amount
of
subtlety
has
been
expended
on these
"
rights
in rem
",
which
have
11
A
very
similar series
of
statements
may
be
made
about actions
of
divorce.
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been so
long
solemnly
distinguished
and divided
betwixt
the
north
and
northwest
side
that
there
is
literally
no
excuse
for
doubting
that
lawyers
do use the
expression.
In modern
times,
it has
been
deemed
advisable
to
say
that
in
rem
means
"good against
the
world
",
which at least makes
sense,
but
is
unfortunately
not
true.
Hohfeld declared that
these
rights
while
not
literally
good
against
the
world
were
good against
a
great
many people, and,
therefore, might
be called
"
multital" to
distinguish
them
from,
let us
say,
contract
rights
which
are
good
only
between
a small
number
and
should,
therefore,
be
called
"paucital
".
The
two
neologismssent a shudderdownthe backs of the
spiritual
descend-
ants
of
Lindley
Murray
and Gould
Brown,
and
would
in
any
case
have
withered
under
the cold
contempt
of
schoolmasters and dic-
tionary
makers.
But
the real
difficulty
with
them
is not
their
hideous
illegitimacy. They
do not
describe
the
distinction
in-
tended
much
better
than
in
rem
and
in
personam.
The
privilege-right
of
A,
an owner
of
property,
to
use and
enjoy
his goods is a right in rem, good " against the world", a
"
multi-
tal
"
right,
in
Hohfeld's words.
But
the difference between this
privilege
and his
privilege
of
making
a
false statement in
good
faith
to his
superior
officer
about
B,
an
applicant
for
a
position,
does not
lie
in
the
number of
persons
involved but
in
the fact that
at
the
second
level
-
at
which
we
are
examining
them
just
now-
A's
privilege
of
user relates
to indefinite
or
indeterminate
persons,
while A's
privilege
of
a bona fide
false statement
relates to
defi-
nite
and
determinate
persons.
When
the
matter
is
tested
in
court,
however, i.e.,
when
they
are
placed
on
the
first
level,
or
"trans-
muted
",
they
will be
quite
determinate
in
both cases.
The
privi-
lege
of
user
cannot be
asserted
in
court unless
a
particular
person
challenges
it
and
the
court will
give
A
a determinate
demand-
right
to
damages
or
to an
injunction,
because A
had
an
indetermi-
nate
privilege-right
of user.
Or,
the court
will
deny
to
B
any
de-
mand-rightto
damages
because A had a determinate
privilege-
right
of
making
a
false
statement in
good
faith.
Again,
there would
be no harm in
using
in
rem
and
in
personam,
instead of
"
indeterminate
"
and
"
determinate
",
if
we
knew what
we
meant.
But
the
other
words
are
also law
words of
a
kind
and
are
just
as
easy
to use
and there is
less reason
to
fall
back
on
sym-
bols
that
point
in
a
wrong
direction
here
than
in
the case
of
actions
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in
rem,
where the words
in
rem,
while
misleading,
do
tell us some-
thing,
although
not
enough.
It is clear that most of the privilege-rightswhose violations are
torts are
indeterminate. We
have,
as a
rule,
a
right
that a
great
many persons
whose
identity
we do not
yet
know shall
refrain
from
doing
us
or our
property
certain
kinds
of
harm.
That
right
is
the
basis
for the
demand-right
for
damages,
when
harm has
been
done,
and
obviously
that
demand-right
must
be
exercised
against
a
definite
and determinate
person.
We
have
been
speaking
so far
only
of two
levels
of
legal
rela-
tions. There
is, however,
a still
higher
level on which
legal
situa-
tions must
be
contemplated.
The
series
of
rights,
which are also
the
converse
of
duties,
based
upon
antecedent
rights
or
duties,
takes
us to
the
point
of view which
is
presented
by
the
pleadings
and
the
arguments
n
any
case.
But
the
pleadings
and
arguments
seeking
to
prove
the
existence
of
antecedent
rights
base
them-
selves on
certain
acts
or
facts
still further
back
in
time.
A
claims
a right of possession because he is the heir of M who died intes-
tate,
or
because he
has
purchased
the
articles
by
a valid
contract
providing
for
delivery
at a
time
now
past.
Or
he claims
damages
for the
violation of
a
duty
to
him
and
he
asserts
the
duty
was
created
by
the
conditions
of
ordinary
intercourse
in the commu-
nity.
Many
torts
are
based
on
these
conditions.
In
any
case,
the
particular
demand-right
or
privilege-right
will
actually
come into
existence at a moment of time and the court must determine
whether
the
factors
alleged
to
have
created
it
actually
had the
power
to create it.
Evidently
the
factors
are
usually
numerous
enough,
and
if
one
is
selected or
only
a few
of
them,
the
choice
will be
more
or
less
arbitrary.
What
has
happened
when
A
and
B
after a
protracted
negotiation
are
said to have formed
a
contract?
A
great
many
words have
passed
between them.
An economic
and social back-
ground
and
a course
of conduct
extending
over an
appreciable
time
gives
a
definite
significance
to the words used.
Of
all
these
things,
the
court
-
following
a
discoverable
customary practice
-
selects
some
particular
word
or
words
as
the final
explosion
point
of the
contract.
There is
necessarily
involved
a
certain amount
of
arbi-
trary
discretion.
The
Romans,
it
must
be
admitted,
were somewhat
more
prac-
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tical.
The
explosion
point
was
a definite and
fixed,
but
extremely
simple
and flexible
form.
It
was the
"
stipulation
",
consisting
of
question and answer,and its advantageconsisted in the fact that
the attention
of both
parties
was called
to the fact that
a
contract
was
being
entered into.
Once
the court
finds
that the
single
determining
event
occurred,
as a
rule
two
demand-rights
were
thereby
created.
And since
in
this
case
the
act was that
of
a human
being,
the
question
whether
that
human
being
had the
power
to
create
it
is
a
relevant
one.
A
man
not
mentally
competent
cannot
perform
the
necessary
act,
nor coulda
very young
child. At common
law, only
one of the
two
persons,
distinguished
as the
offeree,
performs
the
act,
if
the
contract
is made
by
a
sequence
of
communications.
In
all
these
cases,
we
can
say
that
the
"
power
"
to
create
the contract
and the
rights (duties) resulting
from
it
is
very
much a
legal
element and
one
of
first-rate
importance.
Hohfeld had
eight
elements
in
his
scheme,
and
not
four.
They
consisted of:
right,
privilege,
power,
immunity
(I)
duty,
no
right, liability,
disability
(II)
It
is, however,
quite
clear
that neither
of
these
"
sets "
of
"
cor-
relatives"
(I
or
II)
will
bear
logical
examination
if
all its
four
elements
are treated as
coordinate.
In neither set can the elements
be
four
members
of a
single group
because
there
is
no
principle
of division
in
the set.
"
Right
" and
"
privilege
"
(i.e.,
demand-
right
and
privilege-right),
however,
have
such
a
principle,
since a
privilege
in
A
is
merely
the
contradictory
of
a
demand
in B. And
the same
is
true of
"power"
and
"immunity
".
But within
a
single
universe
of
discourse there is
no means of transition
from
"rights"
to
"powers
";
the universe
of
"rights"
is
a
universe
different
from
that
in
which we find ourselves
talking
of
"
powers
".
Powers,as a matter of fact, take us to a level of legal facts that
is
exactly
one
step
higher
than the one with
which we
have been
dealing.
Whether
or not an asserted
demand-right
is
to be
de-
clared
by
the
court
depends
on
whether
certain
conditions
are
present.
In
most,
but not
in
all
cases,
one
of
those conditions
is an
apparently
purposive
human
act.
Not
all
such acts
are the
exercise
of
legal
powers.
It
is the
task
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Obviously
it is
only by
an
arbitrary
selection that
this
last element
has been
so much dwelt
on,
but
the insistence
upon
it
is
a
natural
reflexof existing economic conditions.
"Alienation
",
however,
is
a
matter
of
power.
The
figure
of
speech
contained
in
the
word
"
transfer
"
has done real
mischief.
It
is
the
origin
of the famous rule that
nobody
can
give
to someone
else
what he
has not
got.
The
reply
is
quite
simple.
The
"
trans-
fer
"
exists
only
in
the word.
Actually
the
"
transferor
"
simply
destroys
certain
rights
and
powers
in
himself and
creates others
-
not
necessarily
the
same
ones
-
in
someone
else.
A
great
deal of
the
mystery
of bulk-sales
acts,
" reservationof
ownership
",
nego-
tiation,
and
such
common transactions
as
bills
of
lading
and
in-
stallment
sales,
disappears
if
the
question
is
treated
entirely
as
one
based
on
the existence
of a
power
or a
disability.
Perhaps
the chief
use
of
the
Hohfeldian notion of
"power
"
is
to
lay
that
persistent
and
ubiquitous
ghost
or
Poltergeist,
the
"
juristic
person
".
If
those
who
use this term
could
be
persuaded
to continue using it precisely as they do now, without feeling the
necessity
of
justifying
it
by metaphysics
or
theology
or
mathe-
matics,
no
great
harm
would
be
done. But that seems too much
to
hope
for. Instead of
treating
the
expression
n
its almost
literal
sense,
as a mask
or a device
by
which
real
persons
-
and
the
only
real
persons
are human
beings
-
seek
to
effect
legal ends,
that
is,
ends about
which a court can
be
persuaded
to make a
judgment
of
lawfulness or unlawfulness, the partisans of the juristic person
seem
to take
the
name as a
challenge
to
their
ingenuity
to
create
mythical
entities and to derive results from
the
imagined
existence
of these
entities,
that
are
a
serious obstruction to
the
needs which
legal
machinery attempts
to
satisfy.12
If
we
apply
the Hohfeldian doctrines
to this ancient
stumbling
block,
it
can
be avoided
by
the
simple process
of
kicking
it aside.
Even those
who
find
it
impossible
to
abandon
their idolon
fori
ad-
mit that transactions
" in
the
name
"
of
their
fetish
must be con-
12
If
it did
not
show an
unbecoming
familiarity
on
the
part
of
academic
persons
with
popular frivolities,
I
should have said that the
corporate person
is the Charlie
McCarthy
of
the
law
since
like
a
ventriloquist's
dummy
it
merely
seems
to
speak
and the words it
uses are
really
the
words of its
manipulator.
A
more
dignified
analogy
may perhaps
be
found in
the Putois
of Anatole
France,
who
was com-
pounded
out of a series
of
extemporized
attributes and
managed
to
get
involved
in
a
scandal.
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against
the X
Co.,
the
power
can
be
exercised
only
if there
is
property
available
which
was created
by
the contributions
of
the
shareholders
or
has been
acquired
since
by
acts
of the
persons
in
the
corporate sequence
acting
under their
powers.
But this
con-
dition
or
limitation on
the
rights
created
in
other
persons
by
the
acts
of men in
the
corporate
sequence
does
not
in
any
sense
change
the
nature
of
the
legal
transactions
involved and can
scarcely
transform
a
convenient
verbal
symbol
into a man.
Much
the
same
thing
can
be
done in
the
case
of the State.
A
claim
against
the State
or
a
claim
asserted
by
the
State
is
always
a
claimassertedby someliving flesh andbloodpersonempowered n
some
way
that
the
court will
recognize
to create
these
claims.
The
determination
by
a
"
Court
of Claims
"
of such a claim
is
obviously
conditioned,
even
in
the
ordinary
statement
of these
matters,
on
the vote
of
a
legislative
body
appropriatingmoney
to
pay
it.
The
assertion
by
"
the
State
"
of
a
demand-rightagainst
an
individual
at once
creates a
question
whether
the
person-
the flesh
and
blood
man-
who appears to assert is empoweredto do so and
whether
the
claim
was
created
by
the
acts
of other men
empowered
to
create it.
We
can
then
spare
ourselves the
verbal
maneuvering
to which
courts
resort
in
such
crises
as the
rearrangement
of
European
po-
litical
organizations
after
the
war.
If
the Tsarist
government
in
1917
had
funds
in
New York
banks
deposited by
its
officials,
there
is no
real
difficulty
in
creating
claims
against
the
bank which are
to be limited
to
the
existence of
such
funds,
if the
court
is
satisfied
that
a
contract
had
been
made
or
a
tort
committed
by
some em-
powered
person
in
the
chain of
legally
powerful
persons
culminat-
ing
in
the Tsar
of
Russia. The
connection of a transmuted
right
against
the bank
with
an
antecedent
or
original right
created
by
a
Tsarist
official
or
agent
makes
no
demand on
superhuman
inge-
nuity,
and
the
fact
that
the
government
which
has to a
large
extent
succeeded to that of the Tsars does not control exactly the same
population
and
territory
as that
which
the Tsar
controlled,
or
that
this
new
government
had at
the
time
no
diplomatic
relations with
the
government
of
the
United
States,
is
surely
immensely
and
em-
phatically
irrelevant.13
13
I
do
not
assert
that
any
particular
case
in
which
this
matter has been involved
can
be
exhaustively
described
in
this
way.
But
I
am
strongly
of
the
opinion
that
every
such
case will
yield
to an
analysis very similar to that indicated in the text.
8/10/2019 A Restatement of Hohfeld. Max Radin
24/25
1938]
A RESTATEMENT OF
HOHFELD
1163
We
may
summarize
by
saying
that
a restated
Hohfeldian
analy-
sis
may
safely
discard
a
great
many
of
the
detailed
terms that
Hohfeld-rather
tentatively
-used,
and
even
some which
he
apparently regardedas of high importance. We may even- in
fact we must
-reject
some
of the
logical
relationships
he
found
in
these terms.
Rights
and
powers
cannot
be
put
in
a
single
line.
Rights
and
duties
are
not
correlative,
but
identical.
The
hieratic
symbols
in rem
and
in
personam
are
distinguishable
not
by
the
number
of
persons
affected but
by
their
unspecific
and
specific
character.
But the essentials of Hohfeld'smethodmakea workablescheme.
There are
three
levels at
which the
law
operates.
The
first
-
the
lowest,
if
one
likes,
but at
any
rate the
one
with
which
we must
perforce
begin
-
involves a
court that exercises
the arbitral
func-
tion of
pronouncing
on the lawfulness
or
unlawfulness
of a
claim
by
the
plaintiff,
calling
it a
demand-right
f it is
lawful,
or
calling
its
absence
a
privilege-right
on
the
part
of
the
defendant.
Or
else
in
the
former case
it
may
prefer
to call
it a
duty
of
the
defendant,
or
in
the
latter
case,
confine itself
to
stating
that
the
plaintiff
had
no
demand-right.
These
rights
and
privileges
are
always
stated
for
the future.
The
second level is
the
right
or
privilege
which
had
preceded
the
right just
declared.
The
court
finds that
some
preceding
demand
or
privilege
has
been
transmuted
into
the form which
it
declares
for the
future.
A
certain
amount
of
discretionary
action is almost
essential in this act of finding the indispensableand inseparable
antecedent
right.
The third
or
still
higher
level deals
with
the
factors
that have
created
the
antecedent or
original
right.
When an
important
fac-
tor
is
the act of
a human
being,
that factor
is
described
as a
power.
The
existence
of
a
power
requires
a relation
of
the
empowered