
Property Law
from the lens of Hohfledian Diads
Hohfeld — An Introduction
Wesley Newcomb Hohfeld (1879-1918) was born in
California. He graduated from the University of California and was
subsequently, while he was in Harvard Law School, the editor of Harvard Law
Review from where he graduated in 1904. For a brief period Hohfeld taught at
Stanford Law School from where he moved to Yale Law School, where he taught
until his death in 1918.
He was the authored a book named Fundamental Legal Conceptions
as Applied in Judicial Reasoning and Other Legal Essays (1919). The
book together with his two articles in Yale Law Journal (1913) and (1917)
embodies most of Hohfeld’s jurisprudence.
Hohfeld’s analysis remains a powerful contribution to modern
understanding of the nature of rights. To reflect Hohfeld’s continuing
importance, a chair at Yale University is named after him. As this paper seeks
to demonstrate in its succeeding chapters, even after hundred years from his
demise, Hohfeld’s theories continue to be relevant even today.
Intention of Hohfeld
behind giving his theory
Hohfeld’s mission was neither a philosophical
inquiry nor a study of the nature of legal relations as an end in itself. His
theory was intended on the other hand, to “aid in the understanding and …
solution of practical, every day problems of the law”. In other words, Hohfeld
only endeavoured to lay out a conceptual understanding of what rights,
privileges, powers and immunities are, hoping thereby to bring clarity to legal
literature and judicial reasoning.
Hohfeld
defines a “right” as that legal interest which imposes a correlative duty. In
Hohfeld’s own words, “if X has 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.” Similarly, a “privilege” imposes a
corresponding and correlative no-right, power results in a correlative
liability and immunity, in consequent disability.
Jural Opposites
Rights |
Privilege |
Power |
Immunity |
No-rights |
Duty |
Disability |
Liability |
Jural Correlatives
Right |
Privilege |
Power |
Immunity |
Duty |
No-right |
Liability |
Disability |
According
to this scheme, in a legal situation where a person has a legal duty, he cannot
simultaneously have a privilege, duty being the opposite of privilege. Besides,
there must be some other person who has a corresponding right, right being the
correlative of duty. In fact, any correlative presents two ends of a single
relation that exists between two persons. As regards the notion of opposite, it
amounts to a contradiction that tends to explain a situation in a negative way,
that is, what a given situation is not.
According
to Hohfled, term “right” should not be used indiscriminately to cover what in a
given situation is a privilege, a power or an immunity. Hohfeld has
demonstrated how cases of privilege, power and immunity are fundamentally
different from those of right. He uses the term “right” only when it has a
corresponding duty. He says that “right” signifies one’s affirmative claim
against another and should be distinguished from “privilege”, which signifies
one’s freedom from the right or claim of another. An example may help make this
distinction clear. A person X has a privilege to look at his neighbour Y. From
the point of view of its correlative, Y has no-right against X to prevent him
from doing it. Here we cannot use “right” in place of “privilege” because if we
say that X has a right to look at Y, it will imply that it is Y’s duty to let
himself be looked at by X, which is not the case. It is only a matter of
privilege on the part of X and a matter of no-right on the part of Y in the
sense that he cannot prevent X from doing it. Such cases where law does not
impose any duty are cases of privilege. “Privilege” is, therefore, not the
presence of a right but the absence of a duty. The expression “that’s your
privilege” amounts to saying “you’re under no duty to do otherwise”.
As
a privilege-no-right situation is different from a right-duty situation, so is
a power-liability situation. A power is one’s affirmative control over a given
legal relation as against another (whereas a right is a claim against another).
Besides, whenever a power is exercised, there is at least one other human being
whose legal relation is altered. Such a person can be said to be under a
liability. “Liability” should, therefore, be distinguished from “duty”. The
statute reading “all free male persons who are twentyone years of age and not
over sixty shall be liable to serve as jurors except as hereinafter provided”
imposes a liability—a liability to have a duty created.
Similarly, an “immunity” is also not a right for
it merely implies one’s freedom or exemption from the legal power of another
and not a claim against another. The constitutional rule reading “no Parliament
can take away or abridge fundamental human rights guaranteed to the citizens
without due process of law” expresses an immunity on the part of the citizens.
Hohfeldian Diads and
Property Law
It
is difficult to understand the most important property rights without
understanding these diads. In fact, I will try to argue that the essence of
property law lies in these Diads.
The
four diads as analysed by Hohfeld are:
1.
Right-Duty
2.
Power-Liability
3.
Immunity-Disability
4.
Privilege-No Right
The
Hohfeldian diads are can be illustrated by property transactions:
1. Right-Duty:
The test for whether a right-duty relationship exists is whether one can
directly sue the other.
For example, the whole world is bound not to
interfere with one’s proprietary possession, i.e.the whole world has a duty due
to the nature of a proprietary interest. The owner of the possessory right can
enforce this duty against and sue anyone who interferes with it. This
proposition form the essence of S. 5 and 6 of Specific Relief Act, 1963. S 5
SRA states that one can recover the specific immovable property and S.6 SRA
states that the one recover possession if he is dispossessed illegally.
Right |
The owner can recover possession if he
is dispossessed illegally |
Duty |
The world at large is duty bound not to
disturb peaceful possession of owner |
2. Power-Liability:
A “power” denotes the control exercised
by a person as regards his legal relations with another,
For
example, a mortgagee has POWER coerce mortgagor (holder of the right of redemption) to pay the mortgage-money and
mortgagor is under LIABILITY to pay the mortgage money.
Similarly
the lessor has POWER to coerce lessee to pay rent and lessee is under DUTY to
pay rent.
3. Immunity-Disability:
“Immunity” indicates one’s freedom from the
legal power or “control” of another.
If
the mortgagor transfers his property to mortgagee then mortgagee is IMMUNE from
exercise of right to redemption by mortgagor until condition has been fulfilled
or mortgage money is paid and mortgagor is DISABLED from exercising their right
of redemption against mortgage.
4. Privilege-No
Right:
For
example: A, a lessee, is relieved from B, a lessor, from forfeiture of lease
term under s. 114 and 114-A TPA. In this case, A has got a PRIVILEGE to use the
leased property. From the point of view of its correlative, B after giving
relieve to A has NO-RIGHT to evict him(A) as the lease has become alive.