Page:Hohfeld System of Fundamental Legal Concepts.djvu/9

 other words, create in X a privilege of entering in the land. .”

The correlatives, ‘right’—‘duty’ and ‘power’—‘liability,’ are well-seasoned and they are not questioned. We have already pointed out that Professor Hohfeld has given the term ‘liability’ a wider meaning than that which prevailed, and this extension we regard as original and useful, at least for juristic facts as distinguished from jural relations. Before passing to a discussion of the other two correlatives, some variations of usage may be pointed out.

Professor Hohfeld speaks of “the householder’s privilege of ejecting the trespasser.” This seems a confusion of liberty and power. When one acts for himself without legal consequences, as by walking on his land, he exercises a liberty, but when the owner puts a trespasser off the land, it would seem that he exercises a power., i.e., he does something which is a disadvantage to another.

A license is regarded as a “particular” kind of ‘privilege’ (liberty). Surely there is a juristic difference between what one may do on his own land and what one may do, outside of an agency transaction, on the land of another. A license, therefore, is either a kind of power, or it has not been provided for, since as against the owner of the land it cannot be a liberty (‘privilege’) without doing violence to the ordinary meaning of the term ‘liberty,’ and, likewise, confusing the non-jural concept of ‘liberty’ with the jural concept of ‘power.’

A constable is said to have a “privilege” of killing dogs without collars. This also is a power and not a mere liberty. Professor Cook says of privileged defamation that “the person publishing the same has a privilege to do so.” The present writer agrees that ‘privilege’ is the right word, both in lawyers’ parlance and in jurisprudence, but submits it is the wrong word in the Hohfeld System,