Table Of ContentFUNDAMENTAL
LEGAL CONCEPTIONS
AS APPLIED IN JUDICIAL REASONING
BY
WESLEY NEWCOMB HOHFELD
EDITED BY
WALTER WHEELER COOK
WITH A NEW FOREWORD BY
ARTHUR L. CORBIN
NEW HAVEN AND LONDON
YALE UNIVERSITY PRESS
Copyright 1919 by Yale University Press
Copyright renewed 1946
Third printing, January 1964
Printed in the United States of America by
The Carl Purington Rollins Printing-Office of
the Yale University Press, New Haven, Connecticut.
All rights reserved. This book may not be
reproduced, in whole or in part, in any form
(except by reviewers for the public press),
without written permission from the publishers.
CONTENTS
Foreword by Arthur L. Corbin vii
Introduction by Walter Wheeler Cook 3
Fundamental Legal Conceptions, I 28
Fundamental Legal Conceptions, II 65
FOREWORD
In 1913, Professor Wesley N. Hohfeld, then at Stanford University,
submitted to the Yale Law Journal an article entitled "Fundamental
Conceptions as Applied in Judicial Reasoning." The editors brought
it to the undersigned and were at once advised to publish it. A short
time thereafter, Hohfeld was offered and accepted a professorship of
law at Yale. The contract which he proposed and Yale accepted pro-
vided that he should have both a "right" and a "privilege," the right
to a permanent professorship, with the privilege of returning to Stan-
ford at the end of one year if he so desired. At the same time, Stanford
agreed that he should have the privilege of absence for one year ("leave
of absence") with the right to his previous position at the end of the
year if he should so desire.
These two agreements, with Yale and Stanford, may seem rather
unusual to the ordinary reader, but the meaning they convey to him
will be identical with the one Hohfeld intended to convey. The "un-
usualness" consists only in the use of the word "privilege" where most
people would have used the word "right" in a secondary sense, scarcely
conscious of the fact that it had a secondary sense. The result was that
both Yale and Stanford were bound by a legally enforceable duty to
Hohfeld, while he was bound by such a duty to neither of them. He
had two "rights" and also two "privileges"; they had two duties but
no rights.
The two "privileges" would be described by most judges, as well as
other people, as "rights," with no clear awareness that the concepts so
expressed are different in every essential respect from those expressed
by the same word in the other two instances. An American professor at
the University of Tokyo, Henry T. Terry, had called them "permissive
rights." This is not to say that judges and ordinary people are mis-
using the English language. It is common enough to use ordinary
words in variable senses. This variable usage is not disapproved by
lexicographers and linguists; they record all the usages, labeling some
of them as local or obsolete or dialect or vulgar or slang. In one great
dictionary, the word "right" is given 20 different definitions; and the
viii FUNDAMENTAL LEGAL CONCEPTIONS
great Oxford Dictionary, defining words "on historical principles," fills
14 long columns of fine print to elucidate the meanings of the word
"mean." No word in any language has a "true" meaning, or an "ob-
jective" meaning, or a "legal" meaning, which everyone is required to
adopt at his peril, in his conversation, his letters, his contracts, his
statutes, or his constitutions.
There is peril, however, in this common multiple usage of important
words; it very frequently, especially when it occurs in a contract, a
court opinion, or a statute, causes misunderstanding, litigation, conflict,
and inconsistent decisions. This is demonstrated in Hohfeld's articles
printed in this volume. It is demonstrated in the continued disputes
and conflicts in the interpretation of our contracts, our statutes, and
our Constitution. That Constitution declares that no state shall de-
prive citizens of the United States of their "privileges and immunities."
Does anyone know what these words mean? The founding fathers did
not. They may have in their own minds identified them with "rights"
and "privileges." And they may have lumped all four of them together,
as other people have always done, under the single, wonderful, all-
inclusive term "rights"-a term with 20 meanings.
Hohfeld identified and distinguished eight concepts (ideas, thoughts)
in common use by lawyers and judges, concepts that are "fundamental"
because they express the vitally important legal relations of men with
each other in any judicial or governmental system. Hohfeld did not
invent new words to express these fundamental concepts. The con-
cepts themselves are found in the minds and writings of every judge
and of every man capable of thought. And the words he chose to
express these concepts are also found in every judicial opinion and in
the language of ordinary men. He took these words out of this com-
mon usage, even though that usage is confused, overlapping, and incon-
sistent. His effort was to remove the overlap and inconsistency, forcing
a judge or other user to have a clear and definite meaning (thought,
concept) and to choose the one word that would convey that exact
meaning to another person. The more important factor in this process
is the clear recognition by the user of the exact concept he intends to
convey to others, but the choice of a word to express that concept is
of almost equal importance. One whose own mind is cloudy and con-
fused is certain to convey only cloudy and confused thoughts to others,
but the identification of a specific word that will convey an exact thought
and no other is an almost necessary process in the clarification of one's
own mind.
Hohfeld did not attempt to attain his purpose by formal definition
of the terms. Instead, he grouped the eight terms into pairs of "cor-
FOREWORD ix
relatives" and "opposites." Since all legal relations, however numerous
and complex, can be reduced to the relations of one man with another-
of one individual with another-every such relation has two ends, each
of these requiring and being actually given a name of its own. Any
legal relation, therefore, is described from the two standpoints of the
two individuals. Thus, if A holds B's note for $100 for money lent
or goods sold, A has a "right" that B shall pay him $100 on the due
date. But what has B? Surely, we should not say that he too has a
"right." Instead, we say that he has a "duty" (obligation) to pay
$100. B "owes"; A is "owed." B is under the compulsion to act; A
has the aid of state compulsion to compel action by B. Therefore, right
and duty are correlatives, being merely the descriptions of the two ends
of a single relation. By this little device, Hohfeld limited the word
"right" to express a single concept, excluding all the other common
usages of the word. "Right" means control over another's conduct;
"duty" means societal compulsion for the benefit of another. "Right"
has no other correlative. Each of the other concepts and terms has a
correlative of its own.
In like manner, the other six terms were grouped into three pairs of
correlatives, with the like result of limiting the use of each one to
express a single and uniform thought. Further, it was possible to
group the eight terms into four pairs of "opposites" (contradictories).
Thus, "right" is the opposite of "no-right" (the hyphen here is Hohfeld's
only invention-he found no English word to express the concept);
"privilege" is the opposite of "duty."
Hohfeld may have hoped that his analysis of legal relations and his
choice of terms would be generally accepted and followed in the course
of time. Forty years of subsequent experience have shown that such a
hope was in large part, but not altogether, vain. In fact, most people
resent being shown that their thoughts are confused and their language
unclear and inconsistent. Ogden and Richards, in their excellent book
on The Meaning of Meaning, did not receive enthusiastic acclaim from
their contemporaries for showing up the inconsistencies of philosophers
and professors, including a demonstration that the late Hugo Mtinster-
berg, the leading psychologist of his day, used the word "mean" with
six different "meanings" in a single paragraph. Hohfeld's articles are
disturbing to mental complacency, and he took no pains to ease the
distress. Even the mild effort made here to introduce Hohfeld to the
reader will seem to be technical and uninteresting. He may find a
brief account of liohfeld's short life as a teacher at Yale more interesting.
I once approached a group of law professors in animated discussion
at a meeting in Chicago and heard one very lively man, who had served
X FUNDAMENTAL LEGAL CONCEPTIONS
on the Stanford faculty with Hohfeld, say: "Those Yale men say rights-
powers-privileges-and-immunities as a single word, the way the rest of
us say son-of-a-bitch." He instantly agreed, in response to my admis-
sion that his statement was true, -that "Any law faculty could stand
having one Hohfeld."
Hohfeld's teaching at Yale began in the autumn of 1914. He was
a severe taskmaster, requiring his students to master his classification
of "fundamental conceptions" and to use accurately the set of terms by
which they were expressed. They found this, in the light of the usage
of the other professors, almost impossible. There is no more difficult
job for any teacher. All people resent the criticism of their usage and
the effort to reform it. Not realizing the benefit to be obtained, they
regard the effort as unnecessary. "We are getting along well enough
with the good old English language as it is." They are much like the
orthodox but untutored "fundamentalists" in theology who resent
tampering with their accustomed King James version of the Bible and
assert that "God's language is good enough for us." The students called
him bad names and complained bitterly. I once saw Dean Henry Wade
Rogers (himself a Prussian taskmaster) put a fatherly hand on Hohfeld's
shoulder and heard him say: "Be kinder to them, Hohfeld."
The seniors in the courses on trusts and conflict of laws became truly
fearful that they could not satisfy Hohfeld's requirements and would
fail in his examinations. Rumors of the terms of his contract with
Yale reached them and led to the belief that he had only a one-year
appointment. Most of them signed a petition addressed to President
Hadley asking that his appointment be not extended. The President,
who had had no personal contact with Hohfeld, received the petition
politely. One member of the class who understood Hohfeld's work
came to me in great distress. "This must not happen. Hohfeld is
the best man on the faculty." I reassured him as to Hohfeld's contract
and promised to see the President. Before I could do so, the President
had called Hohfeld to his office and informed him of the petition.
Hohfeld was severely shocked and grieved. Without making any argu-
ment, on leaving the President's office he went straight to Western
Union and sent a final resignation to Stanford.
The President understood at once when I explained the employment
contract to him, and no more was heard of the petition. Two years
later, President Hadley's son studied at the Yale Law School, mastered
Hohfeld's analysis, and explained it to his father. He reported to me
that the President had shown some excitement and had said: "That
enables us to define Liberty."
Hohfeld's analysis of concepts and his arrangement of terms does in-
