Page:Hohfeld System of Fundamental Legal Concepts.djvu/11

 3. Like the table of ‘opposites,’ the category of ‘correlatives,’ ‘immunity’—‘disability,’ is a novelty. While it is logically incomplete, as it seems to us, in not including under disability the presence of duty as well as the absence of power, it may be objected to for the more important reason that, as limited, it is juristically of no consequence.

‘Immunity,’ if it means anything at all of importance, is immunity from something; but, in Professor Hohfeld’s System, an immunity is an immunity from nothing. One would hardly be considered immune in any practical sense from a disease which has never existed and which will never come into existence. Likewise, in the law, what has never existed and never will exist is not worth consideration either by lawyers or jurists.

The category ‘immunity’—‘disability’ is an empty one—it has absolutely no content. It may be conceded that in the administration of justice the question often may be, and is, litigated whether A has the power to divest the title of B. A either has such a power or he has not. If A has the power, we are not dealing with an immunity but with a liability—something real—a positive concept; but if A does not have the power, even though A asserts it, there are blanks on both sides. What, therefore, Professor Hohfeld means to say is that where there is a ‘no-power’ on one side, there is a correlation of ‘no-liability’ on the other. This way of stating the matter must, we think, disclose that one nothing opposed to another nothing cannot be regarded either as juristic correlatives, or as having any juristic connection or utility.

The term ‘immunity’ is well known to the law and we believe it can be usefully employed in a juristic sense, which is reasonably consistent with prevailing professional usage, and it seems to us unfortunate that an effort was not made to incorporate it in a juristic table where its actual fundamental operation would be disclosed. Nor do we deny that it may rarely be convenient to use a negative category of terms to facilitate communication of ideas, as. for example, when we speak of “immunity from prosecution.” What we deny is that the terms ‘immunity’—‘disability’ are of fundamental juristic importance in the limited use made of ‘immunity’ in Professor Hohfeld’s System.

4. If the category of supposed juristic correlatives, ‘immunity’—‘disability,’ is a case of blanks on both sides, so it will be found also with the supposed juristic category of correlatives, ‘privilege’—