23 Critical Understanding of Power-Liability Relation in Hohfeld’s Analysis

Introduction

Since the initial publication in 1913, Hohfeld’s analysis of jural relations has triggered a variety of debates and a great volume of literature. A lot of effort has been directed at dissecting his analysis. Even after a century of its publication and despite several doubts raised regarding the accuracy of his analysis, Hohfeld’ propositions are as relevant today as they ever have been. His perceptive analysis of the material of law equips both the students and practioners of law to understand and apply the law with greater clarity and more meaningful context. This module will focus on Hohfeld’s analysis of power relations in a legal system in terms of its meaning and nuances. It will also address some of the criticisms directed at Hohfeld’s theory and clarify the same.

Purpose of Law

Law is an instrument created out of deliberate human action and not an incidental consequence of accidental happenings. It does not appear on its own and is not enforced automatically. Once it is established that positive law as we know it is conscious and deliberate product of human will, whether operating individually or collectively, there are two questions which confront us. The first one is as to the purpose of the law being created. What is the objective of the law? The second is concerning the modality by which the law will achieve its purpose. How is the law going to achieve its objective?

The purposes/objectives of law may be varied and at times also contradictory.1 The purpose of the law is inevitably connected with the subjectivities associated with the society in which law is supposed to be enforced. There is no uniform or ideal purpose towards which the content of different legal systems is oriented. The essence of a legal system lies in its capacity to be peculiar to the needs, requirements or wishes of the particular community which is to be governed by it or to the wisdom, whims and knowledge of those who are enacting the laws. However, there is always an underlying purpose behind the enactment of a law where it operates as an instrument for the attainment of the said purpose.

Mechanism of Legal Relations

The modality with which law seeks to secure its objectives is mostly common across the variety of social and legal systems in which laws operate. Law secures its objectives primarily through the creation, extinction, regulation and enforcement of Jural/Legal relations.2

The simplest way to explain a legal relation would be describe it as a relation between two persons or set of persons determined by a rule of law.3

For example, lets consider an objective and then the legal relation through which law has sought to achieve the said objective;

The preamble to the Constitution of India provides that equality of opportunity as an avowed principle of the constitutional scheme.4 Thus, the Preamble, which serves as the vision statement of the framers of the constitution, establishes equality of opportunity as an objective which must be achieved through the constitution.

1 Thomas Hobbes, Leviathan (Hachetet India 2010), John Locke, Two Treaties of Government ( Twenty-first Printing Cambridge University Press 2010), Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Dover Publications 2007) Roscoe Pound, The Spirit of the Common Law, (Classic Reprint Forgotten Books 2012)

2 There are declaratory provisions in laws which do not necessarily create legal relations. However even such provisions can be analysed in terms of the impact they have on existing or future legal relations.

3 This explanation is based on the definition of jural relation proposed by Savigny; “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” Cited in Albert Kocourek, ‘Various Definitions of Jural Relation’ Columbia Law Review (1920) 20 (4) 394

4 The Constitution of India 1950, Preamble; “WE THE PEOPLE OF INDIA, having solemnly resolved….. to secure to all its citizens…. equality of status and opportunity.”

Article 16 (2) of the Indian Constitution provides;

“No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.”

Article 16 (2) creates a legal relation between citizens seeking an employment under the state on one hand and the appointing authority of the state on the other hand. The legal relation is created by vesting the citizens with an immunity against such discrimination and imposing on the appointing authority a disability [lack of power] to discriminate. Here ‘immunity’ and ‘disability’ are two constituents creating a legal relation which achieves the fundamental objective of the law to secure equality of opportunity to all its citizens. Once the legal relation has been created, if the terms of the legal relation are violated, the aggrieved party would have the recourse of the court to ensure that the terms so violated are honoured. Thus, if a citizen is discriminated on the grounds of his religion, such act of discrimination shall be stripped off its legal validity by the order of the courts.

Thus, law operates through such constituents to create legal relations which are enforceable in a court of law and the terms of the legal relations so created reflect the value orientation and policy of the law in terms of its objectives. Though ‘right’ and ‘duty’ are the most popular conceptions used to describe legal relations, it must be understood that they do not constitute the entire gamut of legal relations.5

Hohfeld’s Scheme of Jural (Legal) Relations

The primary constituents through which law manages the multitude of legal relations are universal at a gross level6 though the exact connotation and nomenclature7 of such constituents might be different. The most seminal depiction of these constituents was made by Hohfeld wherein he provided a total of eight constituents8 ordered in a set of co-relation to each other.9 Though, there were other jurists 10 prior to Hohfeld who had dealt with the concepts of one or many of these constituents, Hohfeld presents by far the most categorical deliberation on this issue.

He arranged the entire scheme of legal relations in the following manner;

Jural Opposites- Right-No Right, Privilege-Duty, Power-Disability, Immunity-Liability Jural Correlatives- Right-Duty, Privilege-No Right, Power-Liability, Immunity-Disability 5 Wesley Newcomb Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 (1) The Yale Law Journal 16; “One of the greatest hindrances to the clear understanding, the incisive statement, and the true solution of legal problems frequently arises from the express or tacit assumption that all legal relations may be reduced to “rights” and “duties,” and that these latter categories are therefore adequate for the purpose of analyzing even the most complex legal interests, such as trusts, options, escrows, “future” interests, corporate interests, etc.”

6 ibid; “…the basic conceptions of the law,-the legal elements that enter into all types of jural interests.”

7 For Example, the following set of terms are used interchangeably to convey similar meanings; Claim and Right, Privilege and Liberty, Inability and Disability, Power and Ability.

8 Hohfeld (n 5); “Accordingly, the most promising line of procedure seems to consist in exhibiting all of the various relations in a scheme of “opposites” and “correlatives,” and then proceeding to exemplify their individual scope and application in concrete cases.”

9 ibid; “If a homely metaphor be permitted, these eight conceptions,-rights and duties, privileges and no-rights, powers and liabilities, immunities and disabilities,- seem to be what may be called “the lowest common denominators of the law.”

10R W M Dias, Jurisprudence (First Indian Reprint Aditya Books Pvt. Ltd. 1994) 24

These set of legal relations can also be represented in a tabular depiction in the following manner;11

Jural Correlatives [represented by constituents connected by the vertical arrows] refer to the situation where presence of one constituent in a person X implies the presence of its correlative in another person, Y. For example, a right with person X to collect rent from Y necessarily means a duty on Y to pay such rent. The fundamental proposition of jural correlatives is that they are related to each other in such a manner that the presence of one in person X inevitably means that the other is present in person Y. The presence of a privilege in X to express his thoughts means Y has No-Right to stop X from expressing his thoughts.12

Jural opposites [represented by constituents connected by the diagonal arrows] refer to the situation where the presence of one constituent in a particular factual context in X necessarily means that the jural opposite of such constituent cannot reside in X at the same time in relation to the same factual context.13 For example, if X has the power to make a will, he cannot at the same time have the disability to make a will. It is possible that the element of disability is present in him in relation to another factual context [he has disability to imprison Y].

In the Indian context, an illustration can be borrowed from the Constitution of India. When The Constitution of India empowers14 the Parliament of India to make laws regarding “Duties of customs including export duties”, it cannot at the same time be said that the Parliament does not have the power [has a disability] to make laws regarding “Duties of customs including export duties”. At the same time the Parliament does not have the power15 [has a disability] to make laws regarding taxes on agricultural income [which is a separate factual context].

11 The graphical representation is similar to the one made by Prof. G.L. Williams but retains the original terminology used by Hohfeld and not the altered ones used by Prof. G.L. Williams. For the tabular representation of Prof. G.L. Williams, see Dias (n 10) 24

12 An example can be seen in Article 19 of The Constitution of India, 1950 which provides for the ‘rights’ to every citizen to the freedom of speech and expression. What it in effect means is that if a citizen wishes to exercise his freedom of speech, nobody would have a right to stop him from doing so. In other words, everybody would have a no-right to stop him from doing so.

13A.K.W. Halpin, ‘Hohfeld’s Conceptions: From Eight to Two (1985) 44 (3) The Cambridge Law Journal 435; “Each fundamental legal conception may be contrasted with its opposite. The presence of the one indicates the absence of the other, with regard to a particular act or omission.”

14The Constitution of India 1950, Schedule 7 (List I) (Entry 83)

15 The Constitution of India 1950, Schedule 7 (List I) (Entry 82)

Power-Liability Dimensions

In this module, we are concerned primarily with the Power-Liability matrix of relations. Of the scheme of jural relations proposed by Hohfeld, the relational context of power is perhaps the most important one.16

The power in relation to a thing in X means the liability in relation to the same thing in Y. Hohfeld explains the meaning of ‘power’ in terms of its impact on legal relations.17 Here, the term ‘power’ has to be understood beyond the regular context of physical force.18 According to Hohfeld, legal relations are prone to change because of external influences which are either beyond the control of human volition19 or within the control of human volition. When the legal relations of X are prone to change because of external influences under the control of Y, Y is said to have a power in relation to X. X, in this state, is imposed with a liability in relation to Y. Dias explains the concept of ‘power’ in similar terms.20 Salmond also adopts a similar meaning when he asserts that “A power may be defined as ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons.”21 Consequently, liability refers to the position of an individual whose legal relations is prone to such alteration.22

The most obvious example of legal power used by Hohfeld is that of the owner of any object. Such a person has the power to extinguish his ownership or some rights, privileges and immunities associated with his ownership and consequently create ownership or such associated rights, privileges and immunities in relation to the said object in third persons.23 The concept of legal power is also manifested in the field of contracts wherein a person has the power to create rights, duties etc. in himself and others which hitherto did not exist.24 In

16 Dias (n 10) 43; “Of the eight concepts in the scheme, two stand out as the key concepts, one in each square. They are duty and power. The others in their respective squares are being only derivatives. Duties regulate behaviour while powers create, repeal or modify duties and other relations.”

17Hohfeld (n 5); “A change in a given legal relation may result (1) From some superadded fact or group of facts not under the volitional control of a human being (or human beings); or (2) From some superadded fact or group of facts which are under the volitional control of one or more human beings. As regards the second class of cases, the person (or persons) whose volitional control is paramount may be said to have the (legal) power to effect the particular change of legal relations that is involved in the problem….. The nearest synonym for any ordinary case seems to be (legal) “ability,”the latter being obviously the opposite of “inability,” or “disability.” The term “capacity” is equally unfortunate; for, as we have already seen, when used with discrimination, this word denotes a particular group of operative facts, and not a legal relation of any kind.”

18 ibid; “As indicated in the preliminary scheme of jural relations, a legal power (as distinguished, of course, from a mental or physical power) is the opposite of legal disability, and the correlative of legal liability.” Also Dias (n 10) 87; “Power has two connotations. One is physical force………. Power has the other connotation of legal capacity to alter jural relations…”

19 Dias (n 10) 33; Dias refers to this as “subjection” i.e. the position of a person which is liable to be altered by events beyond human control.

20ibid; “Power denotes ability in a person to alter the existing legal condition, whether of oneself or of another, for better or for worse.”

21 P.J. Fitzgerald (eds), Salmond on Jurisprudence (Indian Economy Reprint Universal Law Publishing Co. 2008) 229

22ibid 230

23 Hohfeld (n 5); “Thus, X, the owner of ordinary personal property “in a tangible object” has the power to extinguish his own legal interest (rights, powers, immunities, etc.) through that totality of operative facts known as abandonment; and-simultaneously and correlatively–to create in other persons privileges and powers relating to the abandoned object e.g., the power to acquire title to the later by appropriating it.”

24 ibid; “Passing now to the field of contracts, suppose A mails a letter to B offering to sell the former’s land, Whiteacre, to the latter for ten thousand dollars, such letter being duly received. The operative facts thus far mentioned have created a power as regards B and a correlative liability as regards A. B, by dropping a letter of acceptance in the box, has the power to impose potential or inchoate obligation ex contractu on A and himself;…”

all such cases liability does not carry any negative meaning but is merely reflective of the fact that one’s legal relations can be altered by another, whether to the benefit or detriment of the person whose legal relations are so affected.25 The most obvious example of the same is when Y stands in the position of a donee of a gift being made by X.26

Distinguishing Power-Liability from Right-Duty

Power is fundamentally different from a right as there is no corresponding duty which is created in another person as a consequence of one person being vested with power.27 Power only corresponds to a liability, which among other things might involve the possibility of a duty being created, but is not the same as having a duty. No such duty is created unless the power is exercised. Before the power is exercised, a duty is liable to be created,28 a possibility which will never mature if the power-holder refrains from the exercise of power.29 Hohfeld explains this distinction by referring to the case of Booth v. Commonwealth.30 In this case the court had to consider a Virginia statue which provided the following;

“that all free white male persons who are twenty-one years of age and not over sixty, shall be liable to serve as jurors, except as hereinafter provided.”

Hohfeld asserts that the provision only creates a liability to have a duty created which would arise only if the parties litigant and court officers in exercise of their powers have done the needful so that a specific duty upon a person to act as a juror has been created.

For example, the Parliament of India has the power to make laws regarding Duties of excise on tobacco and other goods manufactured or produced in India.31 As long as the Parliament in exercise of its power has not made a law by which excise duty is imposed on tobacco manufacturers, there is no duty on anybody to pay any excise duty. However all tobacco manufacturers have a liability to have a duty created wherein they will have to pay an excise duty.

25A.W.K. Halpin, ‘Rights, Duties, Liabilities, and Hohfeld’ (2007) 13 Legal Theory 23; “Moreover, for Hohfeld it is clear that liability could refer to being subject to change in one’s legal relations irrespective of whether that change was for the better or the worse.”

26Fitzgerald (n 21) 231; “In this technical use of the term, a ‘liability’ may be an advantageous position. Thus a person has a power to make a gift of his property (for by exercising the power he alters the legal position both of himself and of the donee; hence other persons, who may be given the property, have a liability to have it given to them. This liability is beneficial, not detrimental.” Also Dias (n 10) 33

27 Dias explains the distinction in the following words; “… a claim is always a sign that some other person is required to conform to a pattern of conduct, a power is the ability to produce a certain result……. The power itself has no duty correlative to it.” Dias (n 10) 34

28Dias (n 10) 34; “If X deposits or lends a thing to Y, there is no duty in Y to restore it until X makes a demand.

Before such demand is made, Y is under a liability to be placed under a duty. The demand itself is the exercise of a power.”

29Halpin (n 25); “Hohfeld uses power to capture a potential in one party to change the legal relations of another party, and in treating liability as capturing the correlative position of that other party, Hohfeld is clearly using liability to express a potential position rather than an existing obligation to provide a remedy.”

30(1861) 16 Grat., 519, 525.

31 The Constitution of India 1950, Schedule 7 (List I) (Entry 84)

B necessarily has a corresponding duty when A is vested with a Right.

When A has power, there is no corresponding duty vested in B. Power in A corresponds to a liability in B, which among other things like right and privilege, may also carry the possibility of a duty being created.

Concurrent Interplay of Power with Privilege and Duty

One must appreciate that the jural relations identified by Hohfeld are not necessarily isolated from each in terms of strict compartmentalisation. Instead, the basic conceptions put forth by Hohfeld can be seen in interplay of conjunctions and consequences. When a person is entitled to do an act which will affect legal relations of either himself or that of others, he is said to have power, in the legal sense of the term.32 This power refers to a capacity in the person to impact the variety of legal relations covered by the power. However, whether the said person is free to exercise that power or is obligated to exercise in a particular manner is another question.33 Thus in relation to a power vested in a person, the person may have additional contexts of privileges and duties qualifying the exercise of the said power. Hohfeld explains this in the following words:34

If, for example, we consider the ordinary property owner’s power of alienation, it is necessary to distinguish carefully between the legal power, the physical power to do the things necessary for the “exercise” of the legal power, and, finally, the privilege of doing these things-that is, if such privilege does really exist. It may or may not. Thus, if X, a landowner, has contracted with Y that the former will not alienate to Z, the acts of X necessary to exercise the power of alienating to Z are privileged as between X and every party other than Y; but, obviously, as between X and Y, the former has no privilege of doing the necessary acts; or conversely, he is under a duty to Y not to do what is necessary to exercise the power.

Thus a power may be either attached with a privilege or a duty in terms of its exercise or non-exercise.35

Article 15 (3)36 which enables the state to make special provisions for women and children presents a clear example of a power coupled with the privilege to exercise it. In this provision, the state has been given the power to affect legal relations by making special provisions. It is an enabling provision where the state has the privilege to exercise the said power and cannot be prevented to exercise if it chooses to do so. Similarly in Article

32(n 17)- (n 22)

33 Dias (n 10) 36; “Acts that have certain effects are called powers, those that do not are not called powers. That is distinct from the liberty to perform or not to perform such an act.

34Hohfeld (n 5)

35 Dias (n 10) 36; “The significance of the distinction between the nature of the act and the liberty to do it may be demonstrated in this way. Sometimes a power may be coupled with a liberty to exercise it and a liberty not to exercise it, while at other times it may be coupled with a duty to exercise it.”

36 Constitution of India 1950, Article 15 (3); “Nothing in this article shall prevent the State from making any special provision for women and children.”

118(1),37 each House of the Parliament has been given the power to frame rules regarding the conduct of its business where the exercise of the power is upto the discretion of the concerned House. If any House of the Parliament deems it fit not to exercise the power and consequently not make any rules, it cannot be questioned for its omission.

At the other spectrum, when power has been vested along with a duty to exercise it, the person vested with power does not have a discretion in terms of its exercise.38

For example, Article 21A39 enables the state to provide free and compulsory education to children between the ages of 6 to 14 years. State’s capacity to provide such education creates in the children potential right to avail of such education. The noteworthy point is that unlike many other provisions of the Constitution40 the state does not enjoy discretion in terms of exercising this power. Although the state does enjoy a privilege in terms deciding upon the manner in which such education is to be provided, it is duty-bound under the Constitution to provide such education.

Understanding Immunity-Disability

As the jural opposite of power, disability refers to the absence in a person of the ability to affect legal relations. Consequently, as a correlative of disability, immunity refers to the freedom from one’s legal relations being affected by the power of another.41 Power is the control one has over a particular legal relation and immunity is the state where one’s legal relation is not under such control.42

For example, Article 15 (1)43 of the Constitution of India bars the state from discriminating against any citizen on the grounds only of religion, race, sex or place of birth. This provision divests the state of any power to discriminate on the ground of the prohibited markers. This means, a citizen is immune from being discriminated on such prohibited markers. Though it appears similar to a right-duty relation, it is different in one important aspect. Immunity in one person(X) does not create a duty in another person(Y) so as to prevent Y from attempting to exercise power on X. Such attempt will not be valid and shall produce no legally sustainable result but Y is not placed under any kind of duty to refrain from exercising his power.44 If it

37Constitution of India 1950, Article 118 (1); Each House of Parliament may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business.”

38Dias (n 10) 37; “Where a power is coupled with a duty to exercise it, ie no liberty not to exercise it, there is no question of any ‘right’ to do the act; the party ‘must’ do it. A simple example is the power and duty of a judge to give a decision.”

39 The Constitution of India 1950, Article 21A; “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”

40The Constitution of India 1950, Articles 124(5), 15(3), 15(4), 16(4)

41Halpin (n 13); “An immunity describes the position of a person who is free to enjoy a legal relation without it being changed by another person.”

42 Hohfeld (n 5); “As already brought out, immunity is the correlative of disability (“no-power”), and the opposite, or negation, of liability. Perhaps it -will also be plain, from the preliminary outline and from the discussion down to this point, that a power bears the same general contrast to an immunity that a right does to a privilege. A right is one’s affirmative claim against another, and a privilege is one’s freedom from the right or claim of another. Similarly, a power is one’s affirmative “con-trol” over a given legal relation as against another; whereas an immunity is one’s freedom from the legal power or “control” of another as regards some legal relation.”

43The Constitution of India 1950, Article 15(1); “The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

44 Dias (n 10) 39; “An immunity is not necessarily protected by a duty in another person not to attempt an invasion of it. If X is immune from taxation, the revenue authorities do not have the 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. If immunity is same as the claim, there should be a correlative duty not to make a demand.” were a right in the sense of a correlative duty, then Y would have been under a duty not to try and affect the legal relations of X.

A similar legal result can be seen in Article 105 (2)45 wherein immunity has been created in favour of members of the Parliament against the power of the court. There is no duty, in the sense in which Hohfeld uses the word on the court not to initiate proceedings but such proceedings shall not affect the legal position of the member of the Parliament.

Criticism and Clarifications

Hohfeld’s analysis, like that of any other jurist, is not without criticism and dispute. There have been many issues raised and considerable literature devoted to locating flaws and inconsistencies in the theory of Hohfeld. As a general overview of the criticism on the overall theory of Hohfeld is not relevant here, our focus is primarily on the questions raised on the power-liability spectrum of Hohfeld. The most categorical remarks in this respect have been made by Halpin.46

In order to appreciate his remarks on Hohfeld in relation to power-liability relations, it is essential to attend to two points Halpin makes to provide a platform for his remarks. First of all he attacks the concept of jural-opposites by emphasising that the idea of opposite is not a singular one.47 He contends that the same concept can have more than one opposite [opposite of negation, opposite of extreme and opposite of alternative] at the same time48 and thus the scheme of Hohfeld is inadequate in dealing with this complexity.

Then he dissects the conception of privilege as used by Hohfeld and contends two things;

The use of the term privilege by Hohfeld is not consistent wherein at times it has been used as an opposite of negation and on other occasions as an opposite of extreme.49
Privilege is not a fundamental conception as it can be further broken down to other elements appearing in Hohfeld’s scheme.50

45The Constitution of India 1950, Article 105 (2); “No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.”

46Halpin (n 13)

47 Halpin (n 13); “Opposite is itself an ambiguous term. At the dining table, we make a distinction between the person sitting directly opposite another and the person sitting diagonally opposite him. If we turn from the diners to the food, the different uses of opposite can be further illustrated. The vegetables may be assessed as ‘;fresh or stale.” Or, with regard to a gourmet concern for eating vegetables picked on the same day, the option may be simply, “fresh or not fresh.” Yet another possibility is to query whether the vegetables are “fresh or frozen.”

48ibid; And if a limited classification of opposites can help to make this clear, we should return to the vegetables paradigm, and note that in relation to “fresh” “stale” is an opposite of extreme; “not fresh” is an opposite of negation and ‘frozen” is an opposite of alternative.”

49 ibid; “I argued that HohfeId is inconsistent in his definition of the concept of a privilege as the opposite of a duty in his table of conceptions, and suggested that this inconsistency is facilitated by the ambiguity of opposite. The inconsistency essentially concerns using two distinct conceptions of a privilege. The first, which appears in the general definition of a privilege, equates this concept with a no-duty-this is an opposite of negation. The second, which is derived from the practical illustrations given of a privilege, amounts to a positive protection given by the law to do a permitted act-this is an opposite of extreme.”

50ibid; “We may conclude that Hohfeld’s concept of a privilege, if it is to have any legal significance, represents the protection afforded by the law to permit A to do, or refrain from doing, some act. As such, a privilege may be further broken down into a set of protecting rights. And, on this ground, it can no longer be accepted as a fundamental conception.”

His argument against the conception of power lies in his contention that power can be explained in terms of a privilege and it is thus not proper for it to be accorded the status of a fundamental conception.

He relies on the following example:51

For example if B has already made an offer in contract to A, then A is said to have the power to impose a contractual obligation upon X, by posting a letter of acceptance. The action of A (posting the letter of acceptance) brings about the legal relation of B (being under a contractual obligation).

He contends that the power of A involves as a first constituent, a permission by law to do an act. In this case it is posting of the letter of acceptance. His contention is that such a permission amounts to a privilege.52 The second constituent, according to Halpin is the potential legal relation dependent upon the doing of the act.53

He bases his conclusion that power is not an independent and fundamental concept primarily on this deduction.

However, the criticism is unfair as it is premised upon a misplaced understanding of the dynamics contemplated by Hohfeld. The question of whether a person has the permission to do an act or a compulsion to do an act is separate from the considerations involved in judging the nature of the act.54 Hohfeld never included the initial consideration of permission/compulsion in his conception of power. His conception of power is entirely based on the legal consequences inherent in the act.55 What Halpin refers to as the first constituent is never taken into consideration in deciding whether a person has power or not. It may be a concurrent constituent along with power but never a part of the connotation of power. This can be best understood by the fact that there are privileges to do an act which do not affect anybody’s legal relations at all.56 The understanding of power does not involve any discussion on whether the person has the permission to do the act. The only concern is the nature of the act in question.

Another point raised by Halpin points to the supposed inadequacy of the bipartite power-liability relation discussed by Hohfeld.57 He cites the following example to make his point:

Suppose A has the power to vest a legal estate in land in B. This involves a change in Bs legal relation not only with A, but also with X Y, Z, etc., since a legal estate in land gives B rights with correlative duties in these parties, as well as in A. If one were to set aside the relations with X, Y, Z, etc., A’s power would be something less than a power to vest a legal estate in land in B: it would, at the best, be a power to give B a contractual right to the land, enforceable only in person against A himself.

51ibid

52 ibid; “Yet if the first constituent of Hohfeld’s power is the law permitting A to do some act, this will amount o

A having a privilege, which, as we have seen, can be further broken down into a set of protecting rights.”

53ibid; “The second constituent is a potential legal relation, contingent upon the exercise of the privilege. In the example above, the potential legal relation amounts to B having a duty, to fulfil his contractual obligation.”

54(n 33)

55(n 17)

56 Singing in one’s own house is an exercise of the freedom of expression without having any impact on any kind of legal relations.

57Halpin (n 13); “Hohfeld’s attempt to contain the power-liability relation in an analysis involving only the two parties to the relation is an over simplification.”

He says that the act of A does not simply affect B but other persons as well.58 In this regard, his contention is that the liability of B only represents a partial correlative of the power of A as the liability of others has to be considered to capture totality of the correlative spectrum.

This criticism, like the earlier one, misses the point being made by Hohfeld. When A has the power to affect the legal relations of B, it need not necessarily be the relations vis-a-vis A. When A has the power to create a right in B, the corresponding duty may be in any person or any number of persons as suggested in the above example. However, we have to consider that such duties are a consequence of the right being vested in B which, even though simultaneous, are not directly linked with A. They are not liable to the power of A in the same sense as B. For example, A cannot create a duty in X, Y or Z independent of B. A’s influence on X, Y and Z is through his capacity to affect the legal relations of B by an act. Thus, even though, X, Y and Z are impacted by the act of A, the act in question is in relation to B alone. Thus there is no multitude of correlative of which B’s liability is only a part. It is but obvious that when B’s legal relations are impacted, it might include in its fold many persons connected to B by legal relations. That however, does not put all of them into the matrix of power-liability relationship between A and B.

Conclusion

Instead of getting lost in the supposed inaccuracy of terminology used by Hohfeld, as many tend to, it is important to understand the utility of his concept beyond the debates of nomenclature. In the words of Dias;59

“… but what is important is not the words, but the ideas which they represent.”

His analysis presents us with a platform of conceptual clarity from which we can build stronger foundations for understanding of the law.60 His conception of power-liability relation has remained mostly unscathed61 over a century of scrutiny and continues to be relevant in the analysis and comprehension of legal relations involved in any legal proposition.

Summary

Law is a purposive instrument which does not exist without any objective.
Law operates primarily through the mechanism of ‘legal relations’ to achieve its objective.
Hohfed’s scheme of Jural Correlatives and Jural Opposites presents a lucid and categorical understanding of the relational dynamics through which law operates.
The Power-Liability relation is significantly different from Right-Duty relation.
Power as a constituent does not operate in isolation and there is interplay of power with duty and privilege.

58ibid; “It follows from this analysis that the liability of B (consisting of duties, and potential rights and duties) is only a partial correlative to the power of A, since it does not account for the legal relations with X, Y, Z, etc., which are involved in A’s power to change B’s legal position.”

59Dias (n 10) 41

60 ibid 42; “Fifthly, the analysis is of value in understanding the law. Sixthly, it is an aid to distinguishing.

Finally, it is an aid to clear thinking an invaluable as a mental training.

61 ibid 41; “It has been pointed out that it requires some straining of language to bring wrongful powers under the label of ‘rights’, which is not an objection to the Hohfeld’s analysis of power, but rather the association of power with ‘right’.”

Halpins’ criticism of Hohfeld in relation to the concept of power is based on a misplaced understanding of the difference between the nature of an act and the process of taking a decision about doing the act.
Hohfeld’s analysis is a valuable tool for a better understanding of the law.

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