Page:Hohfeld System of Fundamental Legal Concepts.djvu/5

 which are susceptible of continuing exercise (e.g., the right of an annuitant), but even in this case it is an awkward locution to say that the right-holder has the ‘liberty of exercising his right.’ (b) 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. (c) 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 ‘no-privilege’ (no-liberty).

The next category (‘power’—‘disability’) seems unobjectionable from the standpoint, not of ‘opposites,’ but of ‘negatives,’ since ‘disability’ is simply another way of saying ‘no-power.’ Likewise, and for the same reason, the last category (‘immunity’—‘liability’) is formally consistent, since ‘liability’ is only a final statement of the effect of ‘no-immunity.’ If there is ‘no-immunity,’ necessarily there must be ‘liability.’

Since the table is inconsistent in one term regarded by Professor 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.’ (a) 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.’ (b) Again, one might have a ‘no-right’ because of subjection to duty.