A Restatement of Hohfeld

Author(s): Max Radin

Source: Harvard Law Review, Vol. 51, No. 7 (May, 1938), pp. 1141-1164
Published by: The Harvard Law Review Association
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 HARVARD

LAW REVIEW
VOL.LI MAY, 1938 No. 7

A RESTATEMENT OF HOHFELD

HE most influential law teacher who ever lived in the United

States-or for that matter in any English speaking com-
munity -was Christopher Columbus Langdell. It was his ex-
pressed belief that the law was to be found in books and he had no
doubt what books these were. Before his time and since his time
there have been many persons who were strongly of the opinion
that this is not so, that the law is to be found in the moral sense
or in the rational convictions of men who had a special capacity
to reason well and a special insight into the fundamentals of hu-
man conduct. And recently there have been a great many per-
sons who in a broadly general way have declared that law is to be
found in life, that is to say, in the varied and incompletelyrational-
ized actions of men attempting to secure economic, social or per-
sonal advantages, or rejecting such advantages for particular rea-
sons. Those who hold this last sort of opinion, realists, actualists,
functionalists, experimentalists, empiricists- I am a member of
all these sects and subscribe to the Thirty Nine Articles of all of
them- are especially resentful of anything that seems to hark
back to the wicked and explodednotion that what is stated in print
or in ink on the pages of a book has any relevance to the law.
Now life is a complicated thing, and the particular aspect of
life with which law deals does seem to have a great deal to do with
human communication-what in the seventeenth century was
called human conversation. When we get to the point that hu-
man conversation will be wholly conducted by signals, stop-
and-go lights, raising of the right hand and the horizontal pros-
142 HARVARD LAW REVIEW [Vol. 51

trations from which we do not seem far removed in our political

conversation, the doctrine that law is in books will be an obvious
anachronism.
But until that time, it is capable of proof that communication
between man and man is conducted by speech and above all that
any judgment or assertion about these communicationsmade by
persons professing to state the law must be made in words. The
question, of course, is what words?
We know that there was a time when the common law, at any
rate, had a " genuine ", " authentic " or " proper " language of its
own, a "language of art ". There is no question that this lan-
guage-" Law French", to wit- could express a great many
things much more precisely than English could and the statement
of Roger North who died in 1734 has often been cited to the effect
that the common law could not be properly expressed in English.'
But the things which Law French could expresswere after all quite
limited and were chiefly connected with procedure. The moment
it left procedure it was forced to use words as vague and as am-
biguous as the English words would be. If we wished to revive a
law language for the common law, it could not be the language
in which Lord Guilford still preferred to write at a time when the
courts in the American colonies were beginning to take renewed
interest in their connectionwith the commonlaw of England.2
We must, therefore,somehowfind in the lange du pails the means
of stating what the law is, whether this law is in the books or not,
particularly because we must state as unambiguously as may be,
what certain relations between persons are, as well as what they
were in times long past. And at present, the men and women
whose lives are to some degree ruled by the common law, do not
express themselves in the Law French.
Unambiguously! To say so much is to recognize the character
of the task. It simply cannot be done. It cannot be done because
of the very nature of human speech which did not grow out of a
need of stating things precisely. There rarely was such a need.
1 A DISCOURSE ON THE STUDY OF THE LAWS
(1824) 13.
2 2 HOLDSWORTH, HISTORYOF ENGLISHLAW (3d ed. I923) 479-82. The most
complete account of the position of Law French in the study of English law is Mait-
land's delightful introduction to the first volume of the Selden Society's edition of
the Year Books. 17 SELDENSOCIETY(Maitland ed. I903) xxxiii-xli.
1938] A RESTATEMENT OF HOHFELD I143

Language probably grew out of the need of warning others of

danger, of securing sympathy and facilitating joint efforts; and,
secondly, out of a need of discharging emotions. There were
doubtless other factors, but it is hard to see that any practical
importance could have attached itself, in the interminable cen-
turies during which human speech was being developed, to the
effort of making sure that our utterances called up in the mind
of their hearers a group of pictures or of picturelike ideas which
were precise and sharp and suggested - each one of them - one
thing and one thing only.3
But if no particularimportancecan be ascribed to precision and
unambiguity in the earlier stages of the development of lan-
guage, a certain practical need for these qualities arises as soon as
the subjects we talk about become so great in amount that they
can be discussedonly by compendiousand generalizingexpressions.
The great burdenof civilized society is its memory. In fact our
type of civilization begins only when the things to be remembered
are so numerous and varied that the burden of rememberingthem
is too great for an individual mind or for any combinationof con-
temporaryand communicatingminds and must be helped by some
system of recordedtransmission. If the things that can be talked
about are only those which any human being can at any time keep
in mind, ambiguities will not arise, or rather they will offer no
stumbling block to communication. But when the matters which
it is necessary in some way to mention are too numerous for that,
when they can only be indicated by collective symbols or by deictic
symbols, symbols which point out how in our opinion fuller and
more detailed experience of a situation can be obtained, we must
take care lest we find ourselves completely misdirectedand lest we
arrive at a result we have no desire to reach.

3 It was an illuminating statement of Humboldt's (Abh. iiber die Verschieden-

heiten des menschlichen Sprachbaues (1828) ? 8) that a word is not an ergon, i.e.,
a finished product or result, but an organon, an instrument to do things with. Both
Humboldt, whose civilizing effect seems to be doomed to a deliberate repudiation by
the people whose culture he did so much to form, and Vico, whose scienza nuova is
one of the great, if slightly neglected, factors of the modern world, had a clear
sense of the indispensable character of words which was quite consistent with a
refusal to worship them. I may be permitted to refer to the excellent study of Vico
by Mr. E. Gianturco of the Catholic University of Washington, JOSEPHDEMAISTRE
ANDGIAMBATTISTA VICO(1937) (published as a Columbia dissertation).
II44 HARVARD LAW REVIEW [Vol. 51

As far as law is concerned, the results we desire to reach are

definite and a failure to reach the result usually means that a com-
pletely contradictoryone is reached. To be guided adequately is,
therefore, of prime importance and the penalties of selecting the
wrong turning in a statement pointing both ways are extremely
serious.
Efforts at precise statement in law have been made frequently.
They cannot in the nature of things be completely successful.
Even mathematics cannot guarantee its solutions of quadratic
equations against the ambiguity of plus and minus and the choice
between plus and minus is just the ambiguity that a prospective
litigant most fears.
A contrast is often made between life and logic.4 Law, it was
once said, is the place where life and logic meet. One of the great
temptations of the law, it is declared, is to reason logically in mat-
ters that are not susceptible of logic. Under correction,this seems
to be an error. The difficultyis usually that a word has been used
and has been supposed to contain elements that it does not con-
tain at all or at any rate that it need not be made to contain. This
difficulty can be called a logical one because logicians from the
time of Aristotle have namedit. It is clearly a form of the " fallacy
of accident ". At any rate, it could be so described and the error
made is usually not excess of logic but a defect of it. A conclu-
sion is set down which is hastily derived from unimpeachable
premises, but which does not follow at all because we have assumed
a constancy of contact in certain collective and complex terms, and
this constancy does not exist.
We may take the following rather simple difficulty as an ex-
ample. When two persons negotiate for the sale of goods, and the
goods are destroyed without the fault of either, there is always a
question whether the intending purchaser must none the less pay.
We may describe it romantically by asking where the loss must
fall. Courts have declared that this depends on who the owner is
because the " risk of loss follows title ", another semipoetic but
ordinarily quite intelligible phrase. But in many instances the

4 The almost classical discussion of the relation of law and logic is Holmes' fa-
mous paper on The Path of the Law (1897) io HARV.L. REV.457, reprinted in his
COLLECTED LEGALPAPERS(1920) 167-202, esp. I80-84.
1938] A RESTATEMENT OF HOHFELD 1145

judgment thus arrived at contradicts the expectations of traders

in that commodity. This is then said to be a case of reasoning
logically where not logic but experienceand commonsense should
be applied. But the point is that the logic itself is quite bad. The
word "always" has been surreptitiously interpolated into the
statement that "risk follows title ". One incident of the title-
complex which actually does exist in one application of the word
has been used in another application in which there was no reason
to suppose this incident existed.
The difficultyis one of the capital ones of the law for the reasons
already mentioned. There is so much legal material to be dis-
cussed -material that has been accumulated for centuries--
that we cannot manage it at all except by group words. We must
speak of "contracts ", of "tenure", of "insolvency ", of " di-
vorce ", of " property ", of " rights ", because we cannot possibly
arrange in our memories or indicate in our speech a whole series
of special facts that may have a bearing on the situation in which
we need guidance. Since we must use these indeterminatewords
- Mr. Johnson's " determinables "- we run a great risk that we
have improperly used them in a situation which their successive
determinationswill not cover at all.
Those of us who have learned humility have given over the at-
tempt to define law. And we have equally abandoned the effort
to discover whether an act or thing is an " act in the law" or a
"fact in the law" or any of the similar monstrosities created to
prove that we could beget centaurs out of clouds as well as Ixion
or any German metaphysical jurist. But there is an infallible
test for recognizingwhether an imagined course of conduct is law-
ful or unlawful. This infallible test, in our system, is to submit
the question to the judgment of a court. In other systems, exactly
the same test will be used, but it is often more difficult to recog-
nize the court. None the less, although difficult,it can be done in
almost every system at any time.
The court, we may remember, in judging does not " state the
law ", but merely determines the presence of lawfulness or ab-
sence of lawfulness - not right or wrong - in the real or suppos-
ititious act. It declares that A may or may not conduct himself
in the way described. And it is always absolutely specific. It is
a single act of A in regard to B that is before the court. Even
1146 HARVARD LAW REVIEW [Vol. 51

when there are a thousand parties plaintiff and defendant, there

is only one act envisaged at a time. Indeed, whatever the court
may say before or after, or in the course of pronouncingjudgment,
and however much it may envelop the process in mysticism and
poetry and rhetoric, the actual act of rendering judgment is al-
ways specific. It is unique as an act and it deals with two unique
persons, never more.
Since we have this quite infallible way of discoveringa legal fact,
to wit, the lawfulness or the unlawfulness of an act or abstention,
we can dispense with knowing what " law " means. But, when we
ask ourselves how the court answers the difficult,if precise, ques-
tion we put to it, we discover that the court uses not only the term
"law ", but a great many other indeterminate words and feels it
is necessary to employ them in order to get at the answer which
we demand of it and which it could not possibly refuse to give.
We have, therefore, not got away after all from indetermination
and imprecision merely because the most immediately important
matter to a lawyer is so extremely precise as to be unique, i.e.,
whether B may at a given moment of time lawfully refrain from
paying A a perfectly definite sum of money.
But while we have not escaped indeterminationsomewhat fur-
ther back we can, at least at one stage of the law, -the lowest
stage, if one chooses- discuss it from the safe and sure vantage
point of an unmistakably and uniquely determinate fact, the pro-
posed conduct at a definite time of B in respect of A.
We may begin there. Where we shall end, we can never be
sure. We should like to end with the word " law " itself, the largest
determinable we can have, but it is highly unlikely that we shall
reach it.
When we attempt to use Hohfeld's,5or indeed any " analysis "

5 I have deemed it unnecessary to set forth the Hohfeldian system in the text or
to make any special statement about Hohfeld himself. I refer briefly to the article
on Hohfeld by Professor K. N. Llewellyn, (1932) 7 ENCYC.Soc. SCIENCES 400;
and to the book FUNDAMENTAL LEGALCONCEPTIONS (1923), edited by W. W.
Cook; as well as to the following articles: Goble, A Redefinition of Basic Legal
Terms (I935) 35 COL. L. REV. 535; Pound, Fifty Years of Jurisprudence (I937)
50 HARV.L. REV. 557, esp. 573 et seq. The Hohfeldian system was made a
subject of special discussion at a meeting of the Association of American Law Schools
in 1920 and in the proceedings of that meeting will be found a full account of this
discussion, as well as papers by Professors Corbin, Kocourek and Page. HANDBOOK
1938] A RESTATEMENT OF HOHFELD 1147

we are dealing with an attempt at a legal algebra or a geometry,

the purpose of which is more modest than that which is effected
by the mathematicalorganausually understoodunderthese names.
We are concerned with an algebra that will enable us to describe
some precise and repeated situations, the actual judgments of
courts, in such a way that any judgment can fall into the scheme.
It will be of some service in the larger task either of collecting,
memorizingor teaching these judgments,but not in the much more
vitally importanttask of forecastingthem.
There are certain postulates we begin with. At this level of the
law we must abandona great many of the phrases that are dearest
to lawyers and, above all, carefully eschew anything like a "pre-
sumption " or an " as if ". Those who cannot dispense with such
shining baubles can be consoled with the promise that there are
higher levels of legal discourse in which they can recover all these
precious devices and play with them to their heart's content.
First of all, there is only one unit in the law, as thus formulated,
and that is a human being, every human being and nothing but a
human being. There is no corporation,no state, no quasi-corpora-
tion, no juristic person, no nasciturus, no " estate ", no " entity ",
no " civil death "
Secondly, the only legal fact at our first level is a relation be-
tween two such humanbeings. No relationthat has legal relevance
exists between a human being and a thing, between a human being
and a group of other human beings considered as a group, nor
between a human being and an abstract idea. There is no right
in rem and no action in rem. All these terms are useful and signifi-
cant, as we may discover, in other connections, but they do not
concernus now.
This judgment, by which a proposed course of action is char-
acterized as lawful or unlawful - the first level of legal judgments
and its only determinate level -belongs to the arbitral function
of the magistrate's authority. The essential of the Hohfeldian
system of analysis is that every such judgmentcan be stated in one
of the following forms:
I. B ought to do a particular act that A desires him to do-
OF THE ASSOCIATION OF AMERICAN LAW SCHOOLS (1920) I84-93, I94-98, I99-212.
Professors Commons and Andrews applied the Hohfeldian terms to a special branch
of the law in PRINCIPLES
OFLABOR LEGISLATION (rev. ed. I927).
1148 HARVARD LAW REVIEW [Vol. 51

pay A a specific sum of money, do a definite service that A desires

done.
II. B may refrain from doing a particular act that A desires
him to do.
III. B ought to refrain from a particular act that A does not
desire him to do, i.e., refrain from using a particular commodity,
from making a particular statement, from being in a particular
place, from exercising a particular function.
IV. B may do a particularact that A does not desire him to do.6
These formulas are taken to be exhaustive and that they are
exhaustive is one of the foundations of the system of analysis here
presented.
In the above, I and II are contradictories.7 So are III and IV.
One of the pitfalls of our language is that they do not at once
seem to be contradictories. The difficulty is that in English the
word "ought" does not really admit of being negatived. The
temptation to use " ought not" as a negative leads to confusion.
In the phrase " ought not ", one need scarcely say, " not" is the
negative of the complementaryinfinitive. These four statements
-made " four" to avoid confusion, but they could be made as
two, if one prefers - are those with which we shall be principally
occupied.
The first can also be expressed-and is more familiarly ex-
pressed- by saying that A has a right against B.
The second in ordinarylegal language can also be expressed by
saying that B has a right against A.
The two rights are obviously not of the same sort at all. One is
a right in the form of a demand; and the other is a right in what
Hohfeld called a "privilege ", citing legal warrant enough for the
use of the word in that sense. It, however, may also be called a
" liberty " or a " license " and it turns out that none of these terms,
" privilege ", "liberty ", or " license", is exclusively used in legal
6 In the case of a friendly suit for partition, or in the Roman actions familiae
erciscundae or communi dividundo, what is asked for is a division and limitation of
the property complex. It is really - and not merely by an " as-if " - the estab-
lishment of demand-rights that neither litigant shall exercise control over more than
a portion of a res formerly controlled jointly. The court is asked first to decide
upon the portion to be so delimited.
7 Hohfeld called them "
opposites ". They are, however, quite clearly not " op-
posite " in either the ordinary or in the technically logical sense.
1938] A RESTATEMENT OF HOHFELD 1149

literature in the sense Hohfeld required. " Privilege " will do as

well as any other word, provided we keep in mind that only one
of the several legal meanings of " privilege" is being employed.
But Hohfeld mistakenly insisted that this sort of a privilege is
not to be called a " right " at all. This unfortunately contradicts
so fully established a usage both in law and literature, that it is
idle to suppose that any terminological reform will overcome it.
So clearly are these " privileges " rights, that they are usually the
first thing that are thought of as rights when the word occurs in
speech. This sense is found in such phrases as "a man's right to
do what he likes with his own "; and in so capital an instance as
the expression " bill of rights ", as well as in " fundamental rights ",
and other expressions like them, most of the "rights" involved
are privileges.
It is, therefore, impossible, unless we wish to rewrite a good
part of English literature, to refuse the term "right" to these
situations. The distinction, however, that Hohfeld made is of
first-rate importance, and must be maintained. We shall, there-
fore, distinguish between the " demand-rights" formulated in I
and III and the " privilege-rights" formulatedin II and IV.
We may make further statements about them. A's demand-
right in I is B's duty. B's privilege-right in II is an absence of
duty in B as well as an absence of right in A. Or, we may say,
A's demand-right in I negatives B's privilege-right in II; B's
privilege-rightin II negatives or contradicts his duty in I. Privi-
lege-right, therefore, is paraphrased by absence of duty, just as
demand-right in one person is an assertion of duty in another.
And absence of a demand-rightin one person is an assertion of
privilege-right in another.
It is in the relation of these terms to each other that Hohfeld's
terminology is most in need of revision. He spoke of A's right
and B's duty in I, as " correlatives" of each other. The difficulty
in the use of this term is not merely terminological. It is not
merely that the word is used in a sense different from that ordi-
narily assigned to it. The difficulty arises from the fact that
Hohfeld really regardedthem as correlatives,that is to say, as two
separate things united to each other. The union was, to be sure,
indissoluble,but the two were none the less separablein discourse,
if not in fact.
II50 HARVARD LAW REVIEW [Vol. 51

But that was error and a sin against the very analysis he was
attempting. It gives a kind of reality to mere words which they
must not be allowed, if we hope to reach realism in law. It also
permits a specious and false emphasis to be placed on duties as
against rights and even makes possible the baneful doctrine that
there may be rights that are absolute, although, to do Hohfeld
justice, he would never have permitted this inference. But it is
implicit in any doctrine that recognizes a duty as such or a right
as such, separated from each other.
A's demand-rightand B's duty in I are not correlativesbecause
they are not separate, however closely connected, things at all.
They are not even two aspects of the same thing. They are two
absolutely equivalent statements of the same thing. B's duty does
not follow from A's right, nor is it caused by it. B's duty is A's
right. The two terms are as identical in what they seek to describe
as the active and passive form of indicating an act; " A was mur-
dered by B "; or " B murdered A." The fact that A and B are
wholly distinct and separate persons must not be allowed to ob-
scure the fact that a relation between them is one relation and no
more.
This is all the more necessary to state because there is an im-
portant use for correlatives in any statement of law. There are
demand-rightsand privilege-rights which are correlatives of cer-
tain other demand-rightsand privilege-rights. In a sale, the right
to demand delivery is the correlative of the right to demand pay-
ment. The two rights may be completely separated. But if either
is absent, the transaction is not a sale. In the relation of parent
and child the privilege-rightof custody of the parent and his duty
of support- which is also the child's demand-right to be sup-
ported -are normally correlatives. But they may be separated
and, in divorce, they frequently are.
Hohfeld made the following scheme of his elements:
right - duty
privilege - no right
The phrase " no right " was subjected to a great deal of critical
and destructive comment. "A 'no-right '", one critic once de-
clared, "might be an elephant." But the criticism was scarcely
justified. Those who hyphenated the words created for them-
1938] A RESTATEMENT OF HOHFELD 1151

selves the straw man whom it was so easy to knock down. The
term " no right " means exactly what it says, that is that in II and
IV, A has no demand-rightto the service or abstention he desires
from B. So far from this being a rare and exceptional situation in
the law, it is one of the two alternatives which are presented to the
judgment of the court in almost every case. The court must find
either for the plaintiff or for the defendant. And this amounts to
saying either that the plaintiff has a demand-right-equivalent
to a duty of the defendant - or that the plaintiff had no demand-
right, which is equivalent to saying that the defendant was exercis-
ing a privilege in not performing the service desired or in doing
the act not desired by the plaintiff.
If we replace Hohfeld's scheme by something like the following,
we shall have:
demand-right - duty
no demand-right - privilege-right
As has been pointed out, the double statement is merely a matter
of convenience. If A seeks damages from B in an action, the court
may either declare that B has a duty to pay a sum of money to A,
or no duty, i.e., has the privilege-right to refrain from doing so.
Or else the court may begin its statement with A and say that A
has a demand-rightto this sum from B, or has no such demand-
right. It is merely an accident of language that two exactly
equivalent sets of statements are available in English.
The arbitral function of the court8 is set in motion when we
make our infallible test of whether there is or is not the relationbe-
tween A and B expressed in I, II, III and IV. But in our system,
and in every system of law of which we have detailed knowledge,
this test is always made by means of two assertions expressed one
after the other, and placed in a relation of cause or effect. In an
action to recover damages, for example, A may assert that B was
under a duty not to permit A to be injured as a result of his negli-
gent driving and that because he violated that duty B had another
and a new duty -which is the legitimate result of the violation of
the older duty - and that this new duty is to pay a sum of money
to A.
8 What I have in mind in speaking of the " arbitral function " I have attempted
to set forth more fully in The Chancellor's Foot (I935) 49 HARV. L. REV.44.
1152 HARVARD LAW REVIEW [Vol. 51

The relation of these two duties of B to A- which we may ex-

press equally well as two demand-rightsof A against B - are of
a very special sort. They are quite different from each other.
They could not very well be more different in content, that is to
say, in the acts involved. One is an act of avoidance; the other,
an act of paying money. Yet they are indissolubly linked. If the
former duty of B to avoid injuring A is shown not to exist, there
can be no present duty of B to pay money to A. We know of the
existence of his duty of avoidance in past time only because the
court now imposes a duty of payment on B.
A similar situation exists if A sues B for the breach of a duty
to deliver an ordinarychattel. The existence of a duty to deliver
will justify the court in imposing a duty on B to pay a sum of
money. The test of the past duty is the creation of a present dif-
ferent duty, although the differenceis in this case not so great as in
the formerexample.
The differenceis still more reduced in cases when the past duty
was to pay money or to deliver the title to land and is least when
the original duty was a duty to abstain from acts that can be en-
joined by a court before they are committed. But the existence of
a time factor of itself creates a differencebetween an original duty
and a duty created by the arbitral determinationof a court. And
in every case we shall not be certain of the presence of the past
duty unless a new duty predicated on the breach or threatened
breach of the past one is created.
The function, therefore, of a court is, first, that of determining
the presence or absence of a past demand-right-which means,
if one chooses, a past duty. Secondly, if it finds that such a right
has existed and has been violated, the function of the court is fur-
ther to predicate upon this violated right a new and often quite
differentright that can in the nature of things be only an approxi-
mate equivalent. In our modern system, the court will predicate
upon the absence of a right in the plaintiff or demandant, a new
right for a small sum as costs in the defendant, but that is often
dispensed with.
There are consequently two levels at which these terms can be
used, the past right whose existence is to be determined and the
new and transmuted right which the court puts in its place. The
notion of " proceduralconsumption", while of only limited appli-
1938] A RESTATEMENT OF HOHFELD II53

cation in either Roman or common law in its technical sense, is in

a larger sense essential to nearly all the systems in which a special-
ized court machinery has been developed.9
The two rights mentioned are essential to each other, and con-
dition each other. No transmuted or new right could arise unless
there had been an " original" one; and the test of the existence of
the " original " one is the willingness of the court to transmute it
into a new one. This fact, and the essential differencein content
between the two, are importantelements in the Hohfeldian system.
That all legal rights, at either the first level or the second, are
relations between two persons seems to fall foul of an ancient
enemy of sanity in law, the phrase in rem. Lawyers have talked
of actions in rem and rights in rem so long that it has become nec-
essary to set up a complementary action or right in personam in
order to give a place to the only way in which, when we come to
grips with reality or describable experience, the law can act at
all. Not only do we see a flesh and blood citizen "suing" the
Steam Ship Pinafore, her boilers, rigging etc., in a libel in the
admiralty court, but the books contain such cases as United States
v. One Stradivarius Violin, in which a wholly unreal and fantastic
entity,?1a federated state, is presented as claiming rights against a
few pieces of lifeless matter.
I fancy, however, that if we followed the libellant into court we
should find that he is claiming that a most indubitably living per-
son shall pay him a definite, if hopefully exaggerated, sum of
money and that this demand-right is the transmuted form of an
antecedent demand-right that the libellant was not to be hurt in
body or that a promise made to him was to be kept. The libel
merely means that until this money is paid, the libellant intends
to prevent the ship from sailing and that, if the court declares that
the right had existed - the right at the first level - then the ship
itself will be sold to pay the money, unless it is otherwise forth-
coming.
9 Cf. Wenger, INSTITUTIONEN DESROMISCHEN ZIVILPROZESSRECHTS (I925) I67-
68; and Wlassak, DER URSPRUNG DERROMISCHEN EINREDE(1910) 9-13.
10 I permit myself this expression, because in the Aristotelian sense phantazo,
from which " fantastic " comes, deals with things apparent, indeed, but not to the
senses, and because " entity " is properly " beingness " and is thus two removes from
our physical apprehension. Matters so protected from physical contact are excellent
terms to use for corporate personalities.
II54 HARVARD LAW REVIEW [Vol. 51

The same may be said of the other case. It is, after all, a tan-
gible and tickleable personage who seizes the Stradivarius,and it
is on the basis of the failure of a consignee- a human consignee
- to pay duty that the Stradivariusmay be sold and the proceeds
deposited with a sub-sub-sub-treasurerwho will make an elaborate
record of the transaction for future reference.
What shall we say of other actions that are said to be essentially
in rem or, save the mark! quasi in rem, like bankruptcy or di-
vorce? When an adjudication in bankruptcy is made, a great
many changes in rights and privileges are effected and the persons
whose rights are so changed can for the most part be easily enough
identified. When we speak of the in rem effect of the adjudication,
just what are we trying to say? Surely, scarcely more than that
if any other person, besides the obviously affected persons, med-
dles with the affairs or the property of the bankrupt, a trustee -
by no means an abstract trustee - or a receiver, who is equally
concrete, may bring an action against him or initiate criminalpro-
ceedings against him, and thereby establish at our lowest level
quite specific demand-rightsagainst a breathing and moving hu-
man being.11
Clearly if by using the word in rem we wish merely to indicate
compendiously what we have just been at some pains to state at
length, there is no earthly objection to using it. The syllables in
rem, then, become purely symbolic and are better than the purely
arbitrary syllables, duk-duk, or anything else, only because they
have already been long in use for this purpose. The danger is, of
course, that their symbolic value may be forgotten and that we
may be tempted to suppose that an action in rem really does dis-
pense with the presence somewhereof two human beings who are
declared by the court to have or not to have certain rights in re-
spect of each other.
But the use of the phrase in rem about actions creating or deny-
ing demand-rightsat our lowest level is almost literal as compared
with the use of this phrase at the second or higher level, about the
antecedent demand-rightswhich are the correlatives, or the origi-
nal forms, of these other rights. And a portentous amount of
subtlety has been expended on these " rights in rem ", which have
11 A very similar series of statements may be made about actions of divorce.
1938] A RESTATEMENT OF HOHFELD 1155

been so long solemnly distinguished and divided betwixt the north

and northwest side that there is literally no excuse for doubting
that lawyers do use the expression. In modern times, it has been
deemed advisable to say that in rem means "good against the
world ", which at least makes sense, but is unfortunately not true.
Hohfeld declared that these rights while not literally good
against the world were good against a great many people, and,
therefore, might be called " multital" to distinguish them from,
let us say, contract rights which are good only between a small
number and should, therefore, be called "paucital ". The two
neologismssent a shudderdown the backs of the spiritual descend-
ants of Lindley Murray and Gould Brown, and would in any case
have withered under the cold contempt of schoolmasters and dic-
tionary makers. But the real difficulty with them is not their
hideous illegitimacy. They do not describe the distinction in-
tended much better than in rem and in personam.
The privilege-rightof A, an owner of property, to use and enjoy
his goods is a right in rem, good " against the world ", a " multi-
tal " right, in Hohfeld's words. But the difference between this
privilege and his privilege of making a false statement in good
faith to his superior officer about B, an applicant for a position,
does not lie in the number of persons involved but in the fact that
at the second level - at which we are examiningthem just now-
A's privilege of user relates to indefinite or indeterminatepersons,
while A's privilege of a bona fide false statement relates to defi-
nite and determinatepersons. When the matter is tested in court,
however, i.e., when they are placed on the first level, or "trans-
muted ", they will be quite determinate in both cases. The privi-
lege of user cannot be asserted in court unless a particular person
challenges it and the court will give A a determinate demand-
right to damages or to an injunction, because A had an indetermi-
nate privilege-rightof user. Or, the court will deny to B any de-
mand-right to damages because A had a determinate privilege-
right of making a false statement in good faith.
Again, there would be no harm in using in rem and in personam,
instead of " indeterminate" and " determinate", if we knew what
we meant. But the other words are also law words of a kind and
are just as easy to use and there is less reason to fall back on sym-
bols that point in a wrong directionhere than in the case of actions
1156 HARVARD LAW REVIEW [Vol. 51

in rem, where the words in rem, while misleading, do tell us some-

thing, although not enough.
It is clear that most of the privilege-rightswhose violations are
torts are indeterminate. We have, as a rule, a right that a great
many persons whose identity we do not yet know shall refrain
from doing us or our property certain kinds of harm. That right
is the basis for the demand-right for damages, when harm has
been done, and obviously that demand-right must be exercised
against a definite and determinateperson.
We have been speaking so far only of two levels of legal rela-
tions. There is, however, a still higher level on which legal situa-
tions must be contemplated. The series of rights, which are also
the converse of duties, based upon antecedent rights or duties,
takes us to the point of view which is presented by the pleadings
and the argumentsin any case. But the pleadings and arguments
seeking to prove the existence of antecedent rights base them-
selves on certain acts or facts still further back in time. A claims
a right of possession because he is the heir of M who died intes-
tate, or because he has purchased the articles by a valid contract
providing for delivery at a time now past. Or he claims damages
for the violation of a duty to him and he asserts the duty was
created by the conditions of ordinary intercourse in the commu-
nity. Many torts are based on these conditions. In any case, the
particular demand-rightor privilege-rightwill actually come into
existence at a moment of time and the court must determine
whether the factors alleged to have created it actually had the
power to create it.
Evidently the factors are usually numerousenough, and if one is
selected or only a few of them, the choice will be more or less
arbitrary. What has happened when A and B after a protracted
negotiation are said to have formed a contract? A great many
words have passed between them. An economic and social back-
groundand a course of conduct extending over an appreciabletime
gives a definite significanceto the words used. Of all these things,
the court - following a discoverable customary practice - selects
some particular word or words as the final explosion point of the
contract. There is necessarily involved a certain amount of arbi-
trary discretion.
The Romans, it must be admitted, were somewhat more prac-
1938] A RESTATEMENT OF HOHFELD 1157

tical. The explosion point was a definite and fixed, but extremely
simple and flexible form. It was the " stipulation ", consisting of
question and answer, and its advantage consisted in the fact that
the attention of both parties was called to the fact that a contract
was being entered into.
Once the court finds that the single determiningevent occurred,
as a rule two demand-rightswere thereby created. And since in
this case the act was that of a human being, the question whether
that human being had the power to create it is a relevant one.
A man not mentally competent cannot perform the necessary
act, nor could a very young child. At commonlaw, only one of the
two persons, distinguished as the offeree, performs the act, if the
contract is made by a sequence of communications. In all these
cases, we can say that the " power " to create the contract and the
rights (duties) resulting from it is very much a legal element and
one of first-rate importance.
Hohfeld had eight elements in his scheme, and not four. They
consisted of:
right, privilege, power, immunity (I)
duty, no right, liability, disability (II)
It is, however, quite clear that neither of these " sets " of " cor-
relatives" (I or II) will bear logical examination if all its four
elements are treated as coordinate. In neither set can the elements
be four members of a single group because there is no principle
of division in the set. " Right " and " privilege " (i.e., demand-
right and privilege-right), however, have such a principle, since a
privilege in A is merely the contradictoryof a demand in B. And
the same is true of "power" and "immunity ". But within a
single universe of discourse there is no means of transition from
"rights" to "powers "; the universe of "rights" is a universe
differentfrom that in which we find ourselvestalking of " powers ".
Powers, as a matter of fact, take us to a level of legal facts that
is exactly one step higher than the one with which we have been
dealing. Whether or not an asserted demand-right is to be de-
clared by the court depends on whether certain conditions
are present. In most, but not in all cases, one of those conditions
is an apparentlypurposive human act.
Not all such acts are the exercise of legal powers. It is the task
1158 HARVARD LAW REVIEW [Vol. 51

of the court to discriminatethose acts in which a legal power was

exercisedfrom those in which no power existed. The four Hohfeld-
ian terms
power immunity
liability disability
are exactly parallel to the other four:
demand-right privilege
duty no demand-right
And they may be symbolically represented in the corresponding
manner.
power (A's) = liability (B's); immunity (B's) = disability (A's)
power (A's) --disability (A's); immunity (B's) - liabil-
ity (B's)
Obviously the terms are defective since " liability " is commonly
used as the equivalent of " obligation ", but the contradictionsbe-
tween ordinary speech and this terminology are not so serious be-
cause the occasions for referringto any element except the power
itself are relatively few. That is particularly the case for the
words " immunity " and " disability ". In the case of " liability ",
it is unfortunate that some better term cannot be discovered. A
literary equivalent may perhaps be found in the word " subjec-
tion ", but the associations are quite wrong and the word has prac-
tically no legal history, that is, it has scarcely been used by lawyers
at all.
The importance of the " power group "- at this third level of
legal factors- is easily made clear. Transactions that require
purposive actions are extremely common in the law and in any of
them it is possible to ask whether the purpose was found to be
present, and whether the person was in fact clothed with a power
to create a demand- or privilege-rightagainst another; or whether
the particularperson in that particularcase, whatever his purpose,
was without such power, i.e., was under a disability.
In modern times, roughly since the general rise of a credit or
capitalist economy - for which the year i600 A.D. may be taken
as the approximatedate - the notion of " power " has come into
an importance that was necessarily unknown in earlier develop-
ments. Societies in which the transactions are begun and con-
1938] A RESTATEMENT OF HOHFELD II59

cluded between parties that know each other and see each other
constantly, raise questions of power only in the limited sense al-
ready indicated. When we are confronted with societies in which
political and economic relations are sustained between people who
are not and cannot be in continuouspersonal contact, a great many
persons must be invested with powers to create rights of both sorts
between other persons.
The developmentof a real system of agency is an outgrowth of
this economicsituation. The olderagency doctrine,best illustrated
by the Roman mandate, was quite ineffective. The mandatary
was never a person merely or primarily vested with a power. He
was a man whose own rights involved incidentalobligationsto other
persons, or he was a purely ministerial agent - a living instru-
mentality - approximatingthe status of a slave or servant.
Similarly,the idea of " negotiation "involved as its primarycon-
stituent, the doctrine of a power. Its predecessor," assignment",
whether by mandate or otherwise, had the same defect as the im-
perfect agency already mentioned. The assignee was an instru-
ment, a " representative", a servant, of the assignor. The nego-
tiator had powers that were derived from his position in the trans-
action and not from the man who preceded him or who selected
him, and created legal obligations, not merely a moral duty to use
rights on behalf of someone else.
Our economicstructureis largely based on the existence of such
capacities to bind persons legally in transactions inter absentes.
Without capacitieslike these, paper money and token money would
be unworkable schemes and the overwhelming majority of com-
mercial transactions would be almost impossible. Above all, the
most striking development of modern commercial organization,
the corporation,could not be managed at all.
As far as the Anglo-Americanlaw is concerned, one of its most
characteristicinstitutions, the " trust ", is based almost wholly on
the idea of power. The rights and duties of the trustee are obvi-
ously of considerable importance but what gives him his special
position is his extraordinarypowers.
As a matter of fact, the concept of power is an incident of what
seems at the present time the one nearly essential element of prop-
erty, more really essential than even the right of exclusion and of
misuser. That is the right of " alienating ", the ius disponendi.
II6o HARVARDLAW REVIEW [Vol. 51

Obviously it is only by an arbitraryselection that this last element

has been so much dwelt on, but the insistence upon it is a natural
reflex of existing economic conditions.
"Alienation ", however, is a matter of power. The figure of
speech contained in the word " transfer " has done real mischief.
It is the origin of the famous rule that nobody can give to someone
else what he has not got. The reply is quite simple. The " trans-
fer " exists only in the word. Actually the " transferor" simply
destroys certain rights and powers in himself and creates others -
not necessarily the same ones - in someone else. A great deal of
the mystery of bulk-sales acts, " reservationof ownership", nego-
tiation, and such common transactions as bills of lading and in-
stallment sales, disappears if the question is treated entirely as
one based on the existence of a power or a disability.
Perhaps the chief use of the Hohfeldian notion of "power " is
to lay that persistent and ubiquitous ghost or Poltergeist, the
" juristic person ". If those who use this term could be persuaded
to continue using it precisely as they do now, without feeling the
necessity of justifying it by metaphysics or theology or mathe-
matics, no great harm would be done. But that seems too much
to hope for. Instead of treating the expressionin its almost literal
sense, as a mask or a device by which real persons- and the only
real persons are human beings - seek to effect legal ends, that is,
ends about which a court can be persuadedto make a judgment of
lawfulness or unlawfulness, the partisans of the juristic person
seem to take the name as a challenge to their ingenuity to create
mythical entities and to derive results from the imaginedexistence
of these entities, that are a serious obstruction to the needs which
legal machinery attempts to satisfy.12
If we apply the Hohfeldian doctrines to this ancient stumbling
block, it can be avoided by the simple process of kicking it aside.
Even those who find it impossible to abandon their idolon fori ad-
mit that transactions " in the name " of their fetish must be con-
12 If it did not show an
unbecoming familiarity on the part of academic persons
with popular frivolities, I should have said that the corporate person is the Charlie
McCarthy of the law since like a ventriloquist's dummy it merely seems to speak
and the words it uses are really the words of its manipulator. A more dignified
analogy may perhaps be found in the Putois of Anatole France, who was com-
pounded out of a series of extemporized attributes and managed to get involved in
a scandal.
I938] A RESTATEMENT OF HOHFELD ii6I

ducted between actual flesh and blood persons. If, for example, a
contract is made with the X Co. by A, it must be made with B,
an agent of "the Company" who derives his power to make it
from his selection for that and other purposes by C, D, E, and F,
the directors of "the Company ", who themselves derive their
power to select B and to confirmhis agreements from the vote of
S1 to Sn, the stockholders of " the Company ". And these stock-
holders again have obtained the power to vote for the directors
by the payment of money to a specified person or the assumption
of a duty to pay it to such a person.
Evidently if we can avoid this lengthy - and still incomplete
statement of the sequence of events involved, by using the single
phrase " A made a contract with the X Co.", it is highly desirable
to do so, but it is not necessary to call in the aid of mysticism or
mythology. The short phrase is exactly what it seems to be, a
brief and compendiousformula for what otherwise is an intermin-
able and complicated narrative.
What we have, consequently, is a chain of powers which begins
with the actual person who conducts the negotiation and ends with
the public officials whose license or approval permits this chain
of powers to be initiated. Indeed, it may go still further, to the
sequence of political acts which empower these officials to give
these licenses. Evidently a shorthand symbol which will imply
all that is an eminently useful device, but that is not sufficientrea-
son for dressing it up and pretending that it is a human being or
something just as good as a human being.
But the chain of powers is not the only thing that is described
by the words " A has made a contract with the X Co." There is
also the fact that the claims or demand-rightscreated by the per-
sons empoweredwithin this sequence or association are even more
conditioned than is ordinarily the case. Most demand-rights at
their lowest level are conditional as far as their subsequent effects
are concerned. The court will by its judgment find that a duty
to pay exists and this judgment will create a power to attach -
that is, a power to create demand-rightsand privileges of various
sorts in various persons but this power can be exercised only over
nonexemptproperty over which the judgment debtor has a certain
amount of control and which he has neither concealed nor im-
properly put into someone else's control. When the judgment is
 II62 HARVARD LAW REVIEW [Vol. 51

against the X Co., the power can be exercised only if there is

property available which was created by the contributions of the
shareholders or has been acquired since by acts of the persons in
the corporate sequence acting under their powers. But this con-
dition or limitation on the rights created in other persons by the
acts of men in the corporatesequence does not in any sense change
the nature of the legal transactions involved and can scarcely
transform a convenient verbal symbol into a man.
Much the same thing can be done in the case of the State. A
claim against the State or a claim asserted by the State is always a
claim assertedby some living flesh and blood person empoweredin
some way that the court will recognizeto create these claims. The
determinationby a " Court of Claims " of such a claim is obviously
conditioned, even in the ordinary statement of these matters, on
the vote of a legislative body appropriatingmoney to pay it. The
assertion by " the State " of a demand-rightagainst an individual
at once creates a question whether the person- the flesh and
blood man- who appears to assert is empowered to do so and
whetherthe claim was created by the acts of other men empowered
to create it.
We can then spare ourselves the verbal maneuvering to which
courts resort in such crises as the rearrangementof European po-
litical organizations after the war. If the Tsarist government in
1917 had funds in New York banks deposited by its officials,there
is no real difficulty in creating claims against the bank which are
to be limited to the existence of such funds, if the court is satisfied
that a contract had been made or a tort committed by some em-
powered person in the chain of legally powerful persons culminat-
ing in the Tsar of Russia. The connection of a transmuted right
against the bank with an antecedent or original right created by a
Tsarist official or agent makes no demand on superhuman inge-
nuity, and the fact that the governmentwhich has to a large extent
succeeded to that of the Tsars does not control exactly the same
population and territory as that which the Tsar controlled, or that
this new governmenthad at the time no diplomatic relations with
the governmentof the United States, is surely immensely and em-
phatically irrelevant.13
13 I do not assert
that any particular case in which this matter has been involved
can be exhaustively described in this way. But I am strongly of the opinion that
every such case will yield to an analysis very similar to that indicated in the text.
1938] A RESTATEMENT OF HOHFELD 1163

We may summarizeby saying that a restated Hohfeldian analy-

sis may safely discard a great many of the detailed terms that
Hohfeld-rather tentatively -used, and even some which he
apparently regarded as of high importance. We may even - in
fact we must -reject some of the logical relationships he found
in these terms. Rights and powers cannot be put in a single line.
Rights and duties are not correlative, but identical. The hieratic
symbols in rem and in personam are distinguishable not by the
number of persons affected but by their unspecific and specific
character.
But the essentials of Hohfeld's methodmake a workable scheme.
There are three levels at which the law operates. The first - the
lowest, if one likes, but at any rate the one with which we must
perforce begin - involves a court that exercises the arbitral func-
tion of pronouncingon the lawfulness or unlawfulness of a claim
by the plaintiff, calling it a demand-rightif it is lawful, or calling
its absence a privilege-righton the part of the defendant. Or else
in the formercase it may prefer to call it a duty of the defendant,
or in the latter case, confine itself to stating that the plaintiff had
no demand-right. These rights and privileges are always stated
for the future.
The second level is the right or privilege which had precededthe
right just declared. The court finds that some preceding demand
or privilege has been transmuted into the form which it declares
for the future. A certain amount of discretionaryaction is almost
essential in this act of finding the indispensable and inseparable
antecedent right.
The third or still higher level deals with the factors that have
created the antecedent or original right. When an important fac-
tor is the act of a human being, that factor is describedas a power.
The existence of a power requires a relation of the empowered
person to another person or to an indeterminategroup of persons
subject to that power (liability); and the absence of a power (dis-
ability) as far as any determinateor indeterminategroup of per-
sons is concernedmay sometimesinduce us to speak of these latter
persons as possessors of an " immunity ".
These powers are frequently created by other powers, but, at
some time, the last link in the chain of powers will be seen in the
organizationof the community,as fixed and modifiedby custom or
by the deliberate or implicit determination of all the members
of it.
II64 HARVARD LAW REVIEW [Vol. 51

The function of the court, both conscious and unconscious, is,

of course, essential. Its first and most definite act, the creation of
rights for the future, often itself establishes the entire series of
legal elements. The transmuted right demands as an indispen-
sable condition a pre-existing right, which may, therefore, be
created ad hoc. Frequently a power may be found in some person,
when the only reason for finding it is the need of creating the pre-
existing right, itself postulated by the new right the court desires
to establish. But it does not in the least follow that any consider-
able part of this process is conscious, and that the court spins the
elements of the second level and of the third level out of its con-
cededly arbitrary desire to create a certain result. It may safely
be said that this type of conduct is so rare as to be negligible.
The rationalization by which antecedent rights are found to
justify -in the literal sense-the new rights created, and by
which persons are discovered who have the power to create these
antecedent rights, produces, when put in verbal form, what law-
yers call " the law " and what, when it is formulated in " rules ",
laymen think of as the law. With this part of the legal process, the
Hohfeldian system cannot concern itself. It professes, however,
-and, I think, successfully-to be able to reduce any legal
transaction, however complicated, to its actual constituent ele-
ments or atoms, and its use may save lawyers from the fallacy of
accident, the subtlest and most insidious of the pitfalls of the law.
For that reason, it ought to be precious to realists. Lawyers,
jurists, philosophersand statesmen may say what they like about
the law, and realists ought not be heard to object to any statement
that is made, no matter how metaphysical, ornate, literary or
abstruse it is. The law speaks many languages and with greater
or less difficulty is intelligible in any one of them. The important
result is that when we reach that level in the law at which a de-
mandantis armedwith quasi-policepowers if his claim is adjudged
lawful, we must be able to translate any one of the juristic lan-
guages into a specific and unique statement of a relation between
two identifiable and living human beings. A system of analysis
must be judged by its capacity to effect this translation.
Max Radin.
SCHOOL OF JURISPRUDENCE,
UNIVERSITY OF CALIFORNIA.