Page:Hohfeld System of Fundamental Legal Concepts.djvu/16

 Hohfeld are not new and two of the combinations ‘right-duty’ and ‘power-liability’ are not new, but the tables as a whole are original. It seems probable that the terms were derived from, or to some extent based upon, the notable manual of Salmond, but the exact method of construction must be at best conjectural unless among Professor Hohfeld’s papers his work-sheets happen to be preserved. We shall not attempt to pursue the inquiry.

What we regard as 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 constructed which would not disclose objections, however symmetrical it might turn out. Professor Hohfeld’s 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 non-jural 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.

A reconstruction of the Hohfeld tables in the light of the objections advanced is as follows: