Hohfeldian Analysis of Legal Rights

Historical Background:
The concept of legal right has undergone change in last century. Thomas Hobbes discussed two
terms right in strict sense and liberty. After several jurist, Bentham, Austin and Salmond further
explained various terms for the word „right‟ i.e. right in strict sense, liberty and power. In 1913,
Professor Hohfeld, an American jurist, rearranged and completed Salmond‟s scheme by adding
a fourth term immunity and worked out a table of jural relations. According to modern jurist,
term right is like a homo name which includes within its sweep.

Legal Right in stricto senso means that there is a corresponding duty and are defined as
Interests which the law protects by imposing corresponding duties on others.
Legal rights in wider sense not necessarily include the corresponding duty. The
„right‟ in wider sense has been identified with powers, privilege and immunities. Salmond says,
In generic sense, a legal right may be defined as any advantage or benefit conferred upon a
person by a rule of law.
DUTY

According to Salmond:‟‟A duty is a obligatory act, that is to say ,It is an act opposite of which
would be a wrong. Duties and wrongs are correlatives. The Commission of a wrong is the
breach of the Duty and the performance of a duty is the avoidance of wrong.‟‟
Duties are of two kinds:-

(1) Legal &

(2) Moral

A Legal Duty is an act the opposite of which is a legal wrong. It is an act recognized as a duty by
law and treated as such for the administration of justice. A moral or natural duty is an act the
opposite of which is a moral or natural wrong. A duty may be moral but not legal, or legal but
not moral, or both at once. In the case of England, there is a legal duty not to sell or have for
sale adulterated milk knowingly. There is no Legal Duty in England to refrain from offensive
curiosity about one‟s neighbors even if it‟s satisfaction does them harm. There is a moral duty
 but not a legal duty. There is both legal & moral duty not to steal.

Duties may be Positive or Negative. When the law obliges us to do an act, the duty is called Positive.
When the law obliges us to forbear from doing an act, the duty is negative. If R has a right to a land,
there is a corresponding duty on a person generally not to interfere with exclusive use of the land.
Such a duty is a negative duty. It is extinguished only if the right itself is extinguished. If S owes a
sum of money to Y, the latter is under a duty to pay the amount to due. This is a positive duty. In the
case of Positive duties, the performance of the duty extinguishes both duty & right but a negative
duty can never be extinguished by fulfillment.

Duties can also be primary & secondary. Primary duties are those which exits per se and
independently of any other duty. An example of a Primary duty is to forbear from causing
Personal Injury to another. A Secondary duty is that which has no independent existence but
exists only for the enforcement of other duties. An example of a secondary duty is the duty to
pay a man damages for the injury already done to his person. It is also called a remedial,
restitutory or sanctioning duty.

According to Salmond, If a law recognizes an act as a duty, It generally enforces its performance
and punishes these who disregard the same.

According to keeton, a duty is an act or forbearance compelled by the state in respect of a right
vested in another and the breach of which is wrong.

According to Hibbert, Duties are imposed on persons and require acts and forbearances which
are their object. Hibbert refers to absolute and relative duties. Absolute duties are owed only to
the state. The breach of an absolute duty is generally a crime and remedy is the punishment of
the offender and not the payment of any compensation to the injured party. Relative duties are
owed to a person other than the one imposing them. The breach of a relative duty is called a
civil injury and its remedy is compensation or restitution to the injured party.
According to Austin, some duties are absolute. Those duties do not have a corresponding right.
Examples of absolute duties are self-regarding duties such as a duty not to commit suicide or
become intoxicated, a duty to intermediate persons or the Public such as a duty not to commit a
nuisance, a duty to one not a human being such as a duty towards God or animals and a duty to
sovereign or state.

If we examine these four classes of duties critically, they are reduced to one category
and that is the duties to the state. A duty not to commit suicide or nuisance is enforced by the
state and can be included in the categories of duties to the state. The result is that the
corresponding right vests in the state. However the view of Austin is that „‟A sovereign
government in its collegiate or sovereign capacity has no legal rights against its own subjects
“and there for the duties towards the state are absolute duties.

The views of Austin is criticized by Gray,Pollock & Salmond. According to salmond :there can be
no duty without a right any more than there can be a husband without a wife or parent without
a child.” The result is that rights and duties are always correlated and there is absolutely no
scope for absolute duties. The views of Pollack is that „‟ there seems to be no valid reason
against ascribing rights to the state in all cases where its officers are enjoined or authorized to
take steps for causing the law to be observd and breakers of the law to be punished”.

RELATION BETWEEN RIGHTS & DUTIES:-

It is debatable question whether rights & Duties are necessarily correlative. According to one
view, every right has a corresponding duly. Therefor, there can be no duty unless there is
someone to whom it is due. There can be no right without a corresponding right, just as there
cannot be a husband without a wife, or a father without child . Every Duty is a duty towards
some person or persons in whom a corresponding right is vested. Likewise, every right is a right
against some person or persons upon who a correlative duty is imposed. Every right or duty
involves a vinculum juris or a bond of legal obligation by which two or more persons are bound
together. There can be no duty unless there is someone to whom it is due. Likewise, there can
be no right unless there is someone from whom it is claimed.
According to Holland, Every Right implies the active or passive forbearance by others of the
wishes of the party having the right. The forbearance on the parts of others is called a duty. A
moral duty is that which is demanded by the public opinion of society and legal duty is that
which is enforced by the power of the state
.
According to keeton:, A duty is an act of forbearance which is enforced by the state in respect
of a right vested in another and the breach of which is wrong. Every right implies a co-relative
and vice versa.
The views of salmond is that rights and duties are co-relative . If there are duties towards the
public, there are rights as well. There can be no duty unless there is some person to whom that
duty is due. Every right or duty involves a bond of obligation.

In Minerva Mills Ltd. V. Union of India, the Supreme Court observed: There may be a rule which
imposes an obligation on an individual or authority, and yet it may not be enforceable in a court
of law, and therefore not give rise to a corresponding enforceable right in another person. But,
it would still be a legal rule because it prescribes a norm of conduct to be followed by such
individual or such authority. The law may provide a mechanism for enforcement of this
obligation, but the existence of obligation does not depend upon the creation of such
mechanism. The obligation exists prior to and independent of, the mechanism of enforcement.
A rule imposing an obligation would not there for cease to be a rule of law because there is no
regular Judicial or Quasi-Judicial machinery to enforce its command. Such a rule would exist
despite any problem relating to its enforcement.”
The other school is represented by Austin. According to him, Duties are of two kinds :- (1)
Absolute Duties &
Relative duties.
Relative duty corresponds to a right. It is a duty to be fulfilled towards a determinate superior.
All absolute duties are enforced criminally. They don‟t correspond with rights in the sovereign.
There is an absolute duty in certain cases. Those are duties not regarding persons e.g. Those
owed to god and lower animals, duties owed to persons indefinitely e.g. towards the
community, self-regarding duties and duties owed to the sovereign. In case of an absolute duty,
it is commanded that an act shall be done or forbidden towards or in respect of the party to
whom the command is directed.
Duties towards the public at large or towards intermediate portions of the public have no co-
relative rights. The duty to refrain from committing a public nuisance has no co-relative rights.
Where trustees held property on trust for religious purposes, even though there is no
ascertained beneficiary, the trustees are under a
duty not to use the property for a purpose pother then religious purpose. The question is to
whom the duty is due.
JURAL RELATIONS
Legal right in a strict sense constitutes the correlatives of legal duties. From a wider sense the
term legal rights include concept of (strict sense), liberty, power and immunity. Hohfeld
arranged the four incidents in tables of „correlatives‟ and
„opposites‟ to display the logical structure of his system. Further it was Professor
G.L. Williams, who presented the four incidents in two tables with the help of which, another
jurist were able to find out other relations- Jural Contradictions.

JURAL CORRELATIVES
Jural correlatives signify something which is mutual, complementary reciprocal or
corresponding.
Jural correlatives signify two things that occur together.

CLAIM LIBERTY POWER IMMUNITY

DUTY NO-CLAIM LIABLITY DISABILITY

The jural correlatives are showed by vertical arrows. There are types of rights and co relatives:
(i) Claim and Duty.

(ii) Liberty and No-claim.

(iii) Power and Liberty.

(iv) Immunity and Disability.

(I) (Right) Claim and Duty relationship (You ought):-

CLAIM

DUTY

If X has a claim against Y and Y has a duty towards X than X will use the term- You ought/ you
shall/ you must.

Example- A contract between employer (X) and employee (Y) confers on the employee (X) a
right to be paid his wages. This right is a claim. The employee has a claim. The employee has a
claim that the employer pays him his wages and the employer is under the strict duty to pay
him the wages.

If under article 14 of the constitution, state is under the duty to maintain equality, it means
citizens have a claim not to be discriminated.

(ii) Liberty and No-Right/No- claim (I May)-

LIBERTY

NO-CLAIM

Example:- Y is running a bookstore for many years and later X opens another bookstore across
the strict then definitely due to the cut throat competition the
profits of Y may drop. Y cannot prevent X from continuing his business because Y has no-claim to
prevent X doing business, which is X‟s liberty (right).

Freedom of speech and expression. „X‟ has freedom of speech and expression. „X‟ may/mayn‟t
speak.

(iii) Power and liability (I Can):-

POWER

LIABLITY

Power denotes ability in a person to alter the existing legal condition of the other person for
the better or worse. When the legal status is altered by volition act, it is power. When legal
condition is altered by non-volition act, it is subjection. Power is ability on the part of a person
to produce a change in a given relation by doing or not doing a given act. The correlative of a
power is liability. These Hohfeldian incidents define what Hart called “Secondary rules”. The
Hohfeldian power is the incident that explains how agents can alter primary rules.

If X has a power to alter the legal condition of „Y‟ than „X‟ will expressed it as- „ I Can‟.

Example: Police power to arrest. If X, a policeman has power to arrest and Y commits an
offence. „X‟ can arrest „Y‟ and „Y‟ is under the liability to be arrested.

Power is also of two types:-

Private Power- Private Power is those which are vested in a person and are to be exercised by
him for his own purpose. Private power is called capacity.

Example: Power to make a will or power to make a gift.

Public Power- Pubic power which are vested in a person as an agent of the state. Public power is
also called authority.

Example: Police Power to arrest, judicial authority to remind power of legislature to make laws.

(iv.) Immunity and Disability (You Cannot):-

 IMMUNITY

DISABILITY

Immunity connotes exemption from the legal power of some other person. It is an exemption
enjoyed from having a given relation changed by another.

For Example:- If „X‟ is immuned w.r.t to Y than „X‟ will say- You cannot.

Under the constitution, The President of India can‟t be sued for certain civil or criminal wrongs.
This is immunity from prosecution. It means prosecuting authorities are disable to prosecute
the President.11

JURAL OPPOSITES

Jural opposite signify that which is diametrically different in character and tendency. In other
words, no pair of opposite can co-exist in the same person.

CLAIM (X) LIBERTY(Y)

DUTY(Y) NO-CLAIM(X)

POWER (X) IMMUNITY(Y)

LIABLITY(Y) DISABILITY(X)
 (Jural opposites are presented by diagonal arrows and read both ways.) Jural
opposites are:-
(i.) Claim and no-claim.
(ii.) Liberty and duty, Cannot exist in the
same person.

(iii.) Power and disability. (iv.)

Immunity and liability.
(i.) Claim and no-claim:
Presence of claim in X means absence of No-claim in X.
(ii.) Liberty and duty:
Presence of liberty in Y means absence of duty in Y.
(iii.) Power and disability:
Presence of power in X means absence of disability in X.
(iv.) Immunity and disability:
Presence of immunity in Y means absence of liability in Y.

JURAL CONTRADICTORY
It was Professor G.L. William who presented the four terms in two tables with the help of which
another jurist were able to find out another relation- „Jural Contradictory‟.

CLAIM (X) LIBERTY(Y)

DUTY(Y) NO-CLAIM(X)

POWER (X) IMMUNITY(Y)

LIABLITY(Y) DISABILITY(X)
 Jural contradictions are presented by horizontal arrows and read both ways. (i.)
Claim and Liberty.
(ii.) Duty and No-claim.
(iii.) Power and Immunity.
(iv.) Liability and Disability.
(i) Claim and Liberty
Presence of claim in X means Presence of duty in Y. Presence of
claim duty in Y means absence of liberty in Y.
Presence of duty in Y means absence of liberty in Y.

(ii) Duty and No-claim

Presence of duty in Y means absence of liberty in Y. Absence of
liberty in Y means absence of No-claim in X. Presence of duty in Y
means absence of No-claim in X.

(iii) Power and Immunity

Presence of power in X means presence of liability in Y. Presence of
liability in Y means absence of immunity in Y. Presence of power in X
means absence of immunity in Y.

(iv) Liability and disability

Presence of liability in Y means absence of immunity in Y. Absence of
immunity in Y means absence of disability in X. Presence of liability in
Y means absence of disability in X.
 (I) CLAIM-DUTY RELATION (You Shall)-
Hohfeld suggested the term „claim‟ for the „rights‟ in strict sense. Claim signifies same as
„rights in strict sense signifies‟. Right in strict sense simply means having a corresponding duty.
Thus, A claim also means that same person ought to behave in a certain way due to claim lies in
a duty. Duty is the prescriptive pattern of behavior. Duty is the prescriptive pattern of behavior.
Thus, where there is a claim there is a duty.
Does the converse always true? Does it always true where there is a duty, there is a
claim? It is a debatable question whether rights and duties are necessarily correlative.
According to Austin rights and duties are not correlative. He distinguished duties into two
categories- Absolute and Relative. Absolute duties are owned only to the state.
For example: Duty not to commit suicide, duty not to commit murder.

The breach of an absolute duty is generally a crime. Austin argues such duty does not have a
corresponding claim. It is true, state seems to have the claim but it is not true. State is the
enforcing agency of such duty. If police officer arrest any person who has committed murder.
What is the claim of police officer in such circumstances? Answer is nothing. They arrest
because they have been given the authority to arrest such offenders. In such absolute duty,
there is no corresponding claim. Interestingly we find that, such absolute duties are discharged
without having any corresponding claim. In public laws- irrespective of the claim, all persons are
under a duty for an act or forbearance.
Austin agrees that relative duties have corresponding right. Relative duties are owned
to a person other than the one imposing them. The breach of a relative duty is called civil
injury.
For example:- In case of debt, the debtor owes a duty towards the creditor has the right to take
back the money from the debtor. In private laws, the person who is going to be benefited
brings an action. In case of debt, if creditor brings an action after the limitation period than
creditor has no legal claim. After limitation period, claim lies only in equity. The person may
bring the action or may not. So on the content of „bringing action‟ he has the liberty. On the
content of „money or debt he has the claim.
But, According to Salmond there can be no right without a corresponding
duty, or duty without a corresponding right, any more than there can be a husband without a
wife and a father without a child. According to this view, every duty must be a duty towards
some person or persons, in whom, therefore a correlative right is vested. And conversely every
right must be a right against some persons, upon whom, therefore, a correlative duty is
imposed.

(II) LIBERTY AND NO-RIGHT/NO- CLAIM (I MAY) –

Hohfeld distinguished the freedom which a person has to do or not to do something from claim
(right) and called it privilege; but the term liberty is preferred. For example: A‟s so called „right‟
to wear a hat consist, on Hohfeld‟s analysis, of a liberty to wear the hat and another liberty not
to wear it. Duty and liberty are jurally opposite. According to Hohfeld privilege, thus, means the
freedom which a person has i.e. to do or not to something law cannot interfere in case of
privilege.
Liberty is a legal freedom on the part of one person to do a given act or a legal freedom not to
do a given act. Another person has no no-claim with respect to first person. Liberty cancels out
duty when content is altogether different opposite. Content of duty and content of liberty
cannot reconcile.
For example: If X has a liberty to speak it means he is not under a duty not to speak.(vice-
versa).
Claim-Liberty Relationship:
A claim necessarily implies a corresponding duty but liberty doesn‟t imply duty. Austin view is
that “liberty and claim are synonymous”. According to him, the liberty of acting according to
one‟s will would be illusory if it were not protected from obstruction. But, this view of him is
not accepted. The reason is in liberty, the prominent idea is the absence of restraint. Protection
for the enjoyment of that liberty is secondary idea. Claim denotes the protection and the
absence of restraint. After removing the restraint, if person wants to do, may do or may not.
This is liberty. Claim remove restraint but liberty gives freedom, further to do or not.
Example: Under article 19, state protects the intervention of anyone in the freedom of speech
and expression. It is the claim of a citizen to get protection from the state it anyoneinterferes in
his liberty. But, the citizen has a right to freedom of speech and expression or not – it is liberty.

Salmond says, “just as my legal rights (in the strict sense) are benefits which I derive
from legal duties imposed upon other persons, so my liberties (also called licenses or privilege)
are the benefits which I derive from the absence of legal duties imposed upon myself.
According to this correlative – If X has a freedom to certain thing w.r.t. Y, it will be expressed by
X as- I may/ may not.

(III) POWER AND LIBERTY (I CAN):

Power denotes ability in a person to alter the existing legal condition of the
other person for the better or worse. When legal status is altered by volition act, it is power.
When legal status is altered by non-volition act, it is subjection. Example: Making of will
(volition act), earthquake (non-volition act). It also alters the legal condition of a person by
destroying the property.

Power is quite important terns in the second table as duty is in the first table. Power can give
rise to claim, liberty, duty and immunity. For example: Right to make a will is the power of a
person. It is power because it can alter the legal condition of persons specified in the will.

This power can be dissected into liberty to make a will. That person may make a will or may
not. That person has a claim also against other people not to be prevented from making the
will. He has immunities against being deprived of will making capacity. Here we find, power to
make a will gives rise to claim, liberty and immunity but content is different.

Sometimes, a power may be coupled with a liberty to exercise it and a liberty not to exercise it.
Example: Power to make will, power of the President to pardon the accused. This is a rightful
exercise of power.

Sometimes, a power is coupled with a duty to exercise it.

Example: Power of judges to give justice, power of the police officer to arrest. This is also a
rightful exercise of the power.

Sometimes, a power is coupled with a duty not to exercise it.

Example: Vicarious liability- when servant has power to do tort but does not have duty to do so.
Such exercise of power would be wrongful exercise.

Power may be divided into- „Public and „Private‟. Private power is that
power which is vested in person for his own interest. Public power is that which vested in a
person for his own interest. Public power is that which is vested in a person as an agent of the
state, as the judicial or executive power of the officers. When a public power is coupled with
a duty to exercise it is termed as „ministerial power‟ and when coupled with liberty termed as
„discretionary power‟.

Liability is the correlative of power. It denotes the position of a person whose legal
condition is altered. It is not the liability in general sense. It is not the liability as in the sense of
criminal liability. The Hofeldian‟s liability talks about the position of a person whose legal
condition can be altered. This liability has a very specific meaning.

Example: X executes will against Y. It alters the legal condition of Y. This position is termed as
liability. Will is operative after the death of X then Y gets the claim against the executor.

Thus, this power and liability is one of the important correlatives which give rise to different
terms of Hofeldian table.

(IV) LIABILITY AND DUTY:

Duty is prescriptive pattern of behavior which a person ought to do. Liability is

something different. It is the position of a person whose legal status can be altered.

Power exercised give rise to new power:

Example: Power to appoint an agent. When agent is appointed, he also gets certain new
powers.

Example: Power to vote. When person is elected. We gets certain power.

Example: Power of the President to call majority to make the government. This gives power to
the government.
Power not accompanied/occupied with duty: Wrongful exercise of power.

Example: Vicarious liability.

Example: If X is a thief steals any movable object. He is under a duty not to sell it but he has a
power to sell a bonafide purchaser (caveat emptor). Because, it is the duty of the purchaser to
see who is the real owner of that property.

(V) IMMUNITY AND DISABILITY (YOU CANNOT)

Immunity is defined as a freedom on the part of one person against having a given legal relation
altered by a given act or omission on the part of another person. In simple words, immunity is
freedom from power of any other person. Disability signifies the inability of a person to alter
the legal condition of another person (who is immune). Disability simply means- absence of
power, i.e. no-power.

Example: President of India is immuned from civil and criminal proceedings. It means persons
having power to continue such proceedings are disable to do so w.r.t President.

Example: A diplomatic envoys are immune from the power of action or other legal process.
Persons involved in legal process are disable to do so w.r.t. such diplomatic envoys.

Example: Once, Bal Thackerey was stopped from casting his vote for the 6 years due to
speech. He was stopped from enjoying such right by the President.

Immunity, Claim, Duty:-

Example: An immunity is not necessarily protected by duty in another person not to

attempt an invasion of it. Or, a person having immunity need not have a claim on that.

For example:- If ambassadors, drive and met with an accident. Police officers come and
arrest him. Though, he is immuned from being arrested but can‟t claim against the
officer. He can‟t sue the police officers. Here, Police officer are disable but under no duty
to pay compensation.17

For example: If X is immuned from taxation, the revenue inspector automatic has no
power to place him under a duty to pay. A demand for payment is ineffectual but X has
no remedy against them for having made the demand because X has no such claim.

Thus, immunity is one of the important types of right which is

included in the widest sense of the term of „right‟.