HOHFIELD SCHEME AND FUNDAMENTAL CONCEPTS

SUBMITTED BY: SUBMITTED TO:

Janhavi Somvanshi And Kalpesh Bhagat Prof. Aniruddh Panicker

B.A. LL.B. (HONS.) Faculty Of Legal Methods

1st SEMESTER

NATIONAL LAW UNIVERSITY , JODHPUR

SUMMER SESSION

( JULY - NOVEMBER )

DATE - 16/ 08/2018 SIGNATURE-

 ACKNOWLEDGEMENT

On the completion of this project , we would take this opportunity to thank all the people who
contributed in the finishing of the project. Without whose aid and contribution this project
wouldn’t have been completed.

First of all, we would like to express our heartfelt gratitude to our mentor and Legal Methods
faculty Prof. Aniruddh Panicker whose continuous guidance and support provided us with
the much needed impetus to complete this project. His enthusiasm and the urge to make us
learn endeavoured us to get a deep insight in the topic and thus, a greater understanding . He
was kind and helpful throughout the project . We want to thank him for his overall support.

Secondly, we also want to pay our regards to IT staff and library staff who provided us with
the requisite sources to do our research and gave proper guidance to search for appropriate
materials for the project.

Last but not least , we want to thank our parents whose constant support and guidance made
our work easier and way more interesting. The comments given by them helped us a lot in
improving our project . We would like to thank them for providing us the much neede
inspiration for completing this project.

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 TABLE OF CONTENTS

Contents

ACKNOWLEDGEMENT ..................................................................................................... 2

TABLE OF CONTENTS ....................................................................................................... 3

INTRODUCTION ................................................................................................................. 4

OPERATIVE FACTS AND EVIDENTIAL FACTS ............................................................ 4

FUNDAMENTAL JURAL RELATIONS , THEIR SIGNIFICANCE AND CONTRAST . 6

HOHFIELDIAN SQUARES ................................................................................................. 7

CRITICISM ON HOHFIELD MODEL ............................................................................. 10

SQUARE OF OPPOSITION ............................................................................................... 11

TRIANGLE OF POSSIBILITIES ....................................................................................... 12

CONCLUSION .................................................................................................................... 16

BIBLIOGRAPHY ................................................................................................................ 18

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 INTRODUCTION

Concepts are the building blocks of legal doctrine. All legal rules and standards, in fact, are
formed by combining concepts in different ways. But despite their centrality, legal concepts
are not well understood. There is no agreement as to what makes a legal concept useful or
ineffective—worth keeping or in need of revision. Obviously, law seeks to advance values,
like justice, fairness, or democracy, that are not themselves inherently legal in character.
These values provide benchmarks against which legal systems can be measured. But these
are not themselves legal concepts in our view, even if they are used to motivate legal
intervention.

Since the legal and non- legal concepts are used so much simultaneously that people tend to
confuse between them and use them interchangeably. For example- a person wants to transfer
his land on another person’s name. Now , legal concept would say that by doing this he is
transferring all the rights to sell, possess, lease, unrestricted enjoyment and own the land
whereas from the perspective of non- legal concept it would mean the physical possession of
that particular land. Thus, the former was concerned with incorporeal or invisible things and
later was corporeal or visible sense. There are various such examples where the same
confusion arose between legal and non - legal concepts like transferring a car to someone
may mean transferring the physical body or right to own it, use it, and sell it. Further , the
aggregate of legal relations of owner would be far more than lease’s legal relations. 1

This tendency to confuse between the two concepts is because of the loose and light
terminology of the legal terms which should be avoided to get clarity in the mind.

So, to ensure simplicity while distinguishing between jural relations we need to do more
research and more segregating analysis to provide a clear picture of the difference between
legal and non- legal concepts per se.

OPERATIVE FACTS AND EVIDENTIAL FACTS

Fact is defined as something which has been proved or known to be true. We particularly
here are concerned with facts which are related or are a part of the case as such.

1
Wesley Newcomb Hohfield, Yale Law Journal , Some fundamental legal conceptions as applied in Judicial
Reasoning, November , 1913.

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OPERATIVE FACTS

Operative facts are legally relevant fact which tend to decide the legal questions at court.
They are also called “casual”, and “dispositive “ facts. These facts are generally used under
application of law to change the legal relation i.e., either create a new legal relation or
extinguish old relation. Sometimes they do both the functions simultaneously.

For example- during the formation of a legal contract, the operative facts can be that both the
persons are human being and there was an offer and an acceptance to form a valid contract.

The above mentioned operative facts are affirmative in nature . The other category is negative
affirmative facts like the first person did not intentionally misguided the other person of the
place of receiving the assignment.

The “facts in issue” basically mean the issues which are raised in pleading before the court.
The operative facts used in pleadings are generic in nature. The real or specific facts are more
or less not put before the court. Like- if my pen is stolen by my friend intentionally then we
don’t need to know about the brand of pen which is specific in nature . Therefore, we need to
put generic operative facts before the court during pleadings.

EVIDENTIAL FACTS

These are the facts which determine the truth or falsehood of an assertion before the court.
They provide a logical basis to operative facts or supports the operative facts. It is used for
inferring some other facts.

Thus, in a pleading before court , operative facts have primary importance whereas evidential
facts just supports some facts therefore being secondary in nature during a pleading.

For example- If a person named J enters in contract with K on August 14 , 2014 regarding
land purchase and they signed a legal document. Now, there arises a dispute between them
regarding ownership and they approached the court to get relief. Now, to prove the
contractual relations before court the legal document will act as an evidential fact whereas

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they formed a contract is operative fact. But at the time of formation of contract , the legal
document acted as an operative fact.2

This can arise some confusion in the mind of people but the thing to remember is that
operative facts comes first in importance than evidential facts. Here also , people confuse
between legal ad non- legal concepts which is manifested in words like “possession”,
“ownership”, “domicile” and “capacity”. These confusions should be resolved through
proper use of terminology in proper sense.

FUNDAMENTAL JURAL RELATIONS , THEIR SIGNIFICANCE AND CONTRAST

Jural Relation

The term "jural relation" scarcely finds a place in books written in English, and in none of
them treat it properly. Savigny speaks of jural relation as "a relation between person and
persons determined by a rule of law. This determination by a rule of law consists in the
assignment to the individual will of a province in which it is to rule independently of every

foreign will.

Most confusing thing is that people think that all legal relations can be reduced to right and
duty which is not the case. According to Hohfield the possible solution would be to exhibit
various relations in the form of “opposites” and “correlatives”. . HE also makes the point to
exemplify their individual scope and application in significant cases. This can further help in
solving the legal problems if we are clear about our problem. To explain this he gave us two
squares of jurisprudence.

2
Supra note 1.

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 HOHFIELDIAN SQUARES

Fig 1 Fig 2

Now, further explaining the eight fundamental legal concepts that Hohfield basically explain
by using the square concepts. The diagram is explained in basically two parts:

 The vertical arrows point to jural correlatives that entail each other.
 The diagonal arrows point to jural opposites that deny each other’s position

Two points that must be true to make the diagrams exist is as follows:

 Every pair of correlatives must always exist together.

 No pair of opposites can exist together . For eg: If a person A has a right then he
cannot have a no- right relation in the same subject matter and against the same
person.

Now, coming to the fundamental concepts mentioned by Hohfield in figure 1:

OPPOSITE OPPOSITE

CORRELATIVE DUTY RIGHT

CORRELATIVE PRIVILEGE NO RIGHT

Fundamental concepts are defined as follows:

 RIGHTS : Right is basically generic in nature which embraces whatever can be

lawfully claimed. Right is often confused with privileges but they are used according

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 to the circumstance or context in which they are used. Claim can be seen as a
synonym of right .
 DUTY : Duty is basically defined as moral obligation or responsibility i.e., which one
ought to do or ought not to do. Duty and right have a connection that “ when rights
are invaded, duty is violated.” For eg: X has a right against Y that Y should stay away

his land then Y has a duty towards X to stay away from his place. Thus, they act as
correlative.

 PRIVILEGE : It is literally a special right , advantage or grant given to a particular

person or group. Privilege is opposite of duty and correlative of no right.
Now, take the former example in consideration, if X has a claim against Y to not enter
into his land then X also has privilege to enter his land but X has no duty to stay away
from his land. Privilege is negation of the no right. Taking example into
consideration- the right of plaintiff to defendants is legal right whereas the claim by
defendants to plaintiff is legal privilege. Therefore, they are two distinct cncepts.

Now, often people confuse liberty with privilege . But these are two are different in the sense
that privilege is more suitable word to be used here than liberty. Liberty is not a very definite
and common word as privilege whereas privilege has judicial usage.

Right is also different from privilege as its violation can be remedied or protected by legal
process.

Even license as a word cannot be used here because it talks about a very particular privilege
that if we are permitted to do or not to do enjoy privilege continuously.

 NO -RIGHT : It primarily means that there is no right that a person can claim against
another person. It is the jural opposite of right and correlative of privilege.

Hohfield has proposed that the legal relationship of duty, privilege, right and no-right are so
related among themselves that the following equivalences hold, where tor each duty D the
corresponding privilege, right and no-right are respectively P, R, and N:

"X has duty D relatively to Y if and only if X does not have privilege P relatively to Y.

"Y has right R relatively to X if and only if Y does not have no-right N relatively to X.

"X has duty D relatively to Y if and only if Y has right R relatively to X.

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"Y has no-right N relatively to X and only if X has privilege P relatively to Y.

Now, starting with figure 2 of square:

OPPOSITE OPPOSITE

CORRELATIVE POWER IMMUNITY

CORRELATIVE DISABILITY LIABILITY

Definiton of basic concepts of figure 2:

 POWER : A change in legal relation can be brought through adding superadded facts
either through :
A. Volitional control
B. No volitional control

So, the person having domination over volitional control has the requisite legal power to
change the legal system. Power’s synonym is ability which is legal. Its jural opposite is
disability. Jural correlative is liability.

For example- If X is transferring his land to Y then he is granting powers to Y but also
extinguishing his interest in property which is his liability.

Second example can be making of will where the will maker is discharging his liability by
demolishing his interest in all his property and granting power to the beneficiary. Under
conditional contracts , these liabilities and powers get expire in reasonable time.

 LIABILTY: It basically means the state of responsibility and accountability . Mainly

this is used in the context of contracts. Its jural opposite is immunity and jural
correlative is power.
 DISABILITY : This means not having the power to discharge functions, have claims
and form jural relations. Its jural opposite is power and jural correlative is immunity.
 IMMUNITY : It means that exemption from something like obligation or penalty.
It also entails freedom from someone’s claims. For example – president has immunity
under Article 51(1) . Its jural opposite is liability and jural correlative is disability.

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Second square can have influence over first square. As we can see immunity and privilege in
some way are notions of freedom.

Also, the second square is dynamic because power and all keep on changing itself whereas
first square is static because claim doesn’t change itself.

Hohfield was mainly concerned with the relationship between person to person. For this he
used the method of negation to prove the presence of a concept.

CRITICISM ON HOHFIELD MODEL

Hohfield wanted to examine the device and its applications within legal theory from both
analytical and normative perspective.

Analytical perspective meant that it is relating to or based upon logical reasoning or logical
basis. Normative perspective means that it is relating to or based upon or derived from some
particular norm.

According to Hohfield , a negation of something would prove the existence of something but
which is not always the case as it cannot answer further questions which are possibilities.

For example- If a person doesn’t have a voter card there can be two possibilities either he
didn’t applied for one or he was punished and it was confiscated. But Hohfield stops at that
point and does not ponder deep into this area. There comes the flaw in the reasoning of
Hohfield .

He propounds that no two concepts can exist in same person over same subject matter .Now,
take another example – Article 19 of the Constitution Of India which is providing claim
against people as well as privilege to speak . Thus, conferring both the concepts on same
premise.

Secondly, negation of one concept is leading to truthfulness of other two concepts which is
again contradicting Hohfield’s model which expounds proving of only one concept by
negation.

He also doesn’t go much in the nature of right .

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 SQUARE OF OPPOSITION
Now, critics of Hohfield model used this method to pinpoint the flaws inherent in Hohfield’s
model. The earliest occurrence of the square of opposition is found in the work of Apuleius of
Madaura in 2nd century A.D. It depends on the analysis of how a predicate may stand in
relation to its subject.

It is created using four propositions by applying subject to predicate such as:

 All S are P
 Some S are P

 No S are P
 Some S are not P

FIGURE 3

Now, explaining the fig 3, the diagonal lines indicate the contradictories which means that
one must be true and other needs to be false.

The top horizontal lines indicate the contrary which means that for one to be true other needs
to be false but neither need to be true.

The vertical lines indicate the subalterns which we mean to entail it but no entailment in
other direction.

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Now, problem with this approach are two of the following:

 If All is already proved then there is no need to prove some . It will be redundant as
well as misleading as we have to go back and search for a futile answer.
 If some is joined with some not then we cannot speak of some alone.

Thus, the fallacy in the Hohfield is put very clear from the square of opposition which make
us to give a more analysed, descriptive and clear model that can make us understand the
fundamental concepts better and thoroughly.

TRIANGLE OF POSSIBILITIES

Now, here comes the need to have a concrete model to study fundamental concepts. Triangle
of possibility offers more advanced stage analytically than square of Hohfield. Not even this ,
it also accurately represents the negation effect by three propositions in a way more complete
than square model.

Although the triangle of possibilities is not much recognised as square of opposition but still
it holds good substance to study properly. The triangle of possibility method combines the
two possibility some and some not. Now if we negate the presence of something we will get
two possibilities which now answers the question as to voter card example by which we can
now go and answer further questions regarding deep understanding. The diagram is as below:

Figure 4

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Here if we negate All we get two possibilities some and some not and similarly with No .
Therefore, it offers more clarity in respect to our understanding of fundamental concepts.

Further explaining the triangle of possibility and to check its application predicates are
replaced by deontic.

Deontic as a term refers to duty or moral obligation in ethical sense. These can aso be
explained with the help of square model but triangle concept offers more clarity in analysis.

Taking conduct as a deontic operator which is required or not required by law. We are giving
both the diagrams simultaneously of square model and triangle of possibility model.

Figure 5

Figure 6

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Both these models are depicting the same propositions conduct which can be shown to
express deontic concept in the more analysed way whether we have to do a conduct or not to
do a conduct or we are under a privilege to choose over things.

Now, comes the concept of duty as deontic concept which can also be depicted as both the
models but triangle offers more clarity in regard to understand the concept. Therefore, we
will depict the relationship in this way.

Figure 7

But still at point C there is confusion as to how A is contradicted as a duty not to do or as full
liberty. Here, both O’reilly and Hart fail as they talk about only one aspect of negation. But
Bentham was right as he said that any one aspect of will is negation of two aspects which is
quite correct and satisfies the model as well. 3

SIGNIFICANCE OF DEONTIC OPERATORS

Significance of deontic operator is such that without them law would be impossible to
imagine.

3
Andrew Halpin, Fundamental Concepts Reconsidered, 41 (2013).

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The reason being that law doesn’t confer conduct to person in isolation whereas it places the
person in a social setup that other person’s position stand in advance of his conduct thus,
creating legal obligations in mutual way.

Now, from the perspective of other person , entitlement plays a great role. Entitlement means
to have a right on something. It can be depicted through the triangle of possibility as follows:

Figure 8

Thus, this brings us to end of Hohfield scheme, criticism and advancements regarding the
study of fundamental concepts in jurisprudence. This offers a great, deeper and through
understanding of legal methods and also more about application of laws.

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 CONCLUSION

After doing a great deal of research on Hohfield scheme we came to the conclusion that
Hohfield was in a way more successful than other proponents. He has some fallacy in his
argument but he went on to explain the basic jural relation between these fundamental
concepts which provided a base to further make progress in these areas like he provided help
in understanding the difference between legal and non-legal concepts, distinguishing between
right and privilege, liberty and privilege and understand about the deontic operators.

He also tried to rebut the contentions made by other proponents like Andrew Halpin . For
example – Article 19 example , he told that we can break that right into two parts and then
they have different set of premise governing them as such. But still this idea cannot be
applied in all situations as it totally depends on the construction of premises. He also missed
on the point of no mandate part.

Therefore, triangle of possibility dominates over square of opposition as it provides the for
the negation of two aspects instead of one aspect which in turn is provided by Hohfield
scheme which goes on a long way to contradict his theory as such.

Through Hohfield scheme we can understand only two relationships : claim/right – duty;
privilege/liberty – no right. Whereas through the triangle of possibility we can have a broad
and clear view as we get to understand three relationships; conduct to be done; conduct not to
be done and absence of any requirement i.e., no madate.

Thus, Hohfield provides the basic base or premise which is further modified by other
proponents through triangle of possibility .

But still there are some questions unanswered by both the square of opposition and triangle
of possibility as both are not clear on the stand as to how does a contradiction of right is done
that is either through exercise of full liberty or through no duty to do. It leaves us with a void
which has to be filled by some other theory which can provide a substance to it and make it
more clear and articulate.

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Furthermore, there are two confusions created in the mind of proponents as well as people is
that:

First, people are misguided as they regard something non-fundamental as fundamental which
goes on to create hurdles in the path of understanding the concepts as we are not able to
separate fundamental from non- fundamental which kills the time. For example- People
regard liberty as fundamental whereas it is just a synonym for negation of two duties which
makes the process redundant. So, we should try more than to falsely proclaim the absence of
duty as liberty can be granted only by enforcing certain duties on others.

Second, people often give prioritize fundamental concepts and give preference to one concept
over another which is not a good practice as a concept can only be established on the basis of
some support from other concepts or by negating the other concepts. For example- many a
time people give preference to rights over duty as they regard it inferior but they forget that
rights of a person can only be exercised only if there is a creation of duty on other persons in
society. Thus, we should prevent prioritizing the fundamental concepts as they would create
legal absurdity.

Therefore, we agree with Hohfield scheme to some extent but the triangle of possibility to
certain extent removes all its fallacy but we don’t completely reject Hohfield scheme. So, we
take Hohfield scheme as base proposition and triangle of possibility as a further modification
to help us understand the nuances of fundamental concepts.

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 BIBLIOGRAPHY

After successful completion of this project , we would like to pay regards to each and every
person who helped us in making this project. We are grateful.

We took assistance from the following resources:

 Yale Law Journal, Some fundamental concepts as applied in jurisprudence.

 Andrew Halpin, Fundamental legal conceptions reconsidered.
 www.heinonline.com
 www.jstor.org

We again pay our humble regards to everyone who guided us in the project.

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