where ‘privilege’ means ‘liberty,’ unless ‘power’ and ‘privilege’ overlap, in which case it will become necessary to register another quite obvious objection.
Professor Cook also speaks of the ‘privilege’ against selfcrimination,[1] and he seems also to say[2] that this ‘privilege’ is a ‘right’ stricto sensu and also an ‘immunity.’ The same observation above made may be here repeated so far as the capacity against self-crimination is regarded as a ‘privilege.’ It may be further objected, if Professor Cook has not been misunderstood, that it is a curious situation that the same jural situation can be at once a ‘privilege,’ a ‘right,’ and an ‘immunity.’ If so much diversity of jural aspect is possible in the Hohfeld System, it is patent that the System needs reduction to Professor Hohfeld’s ideal, the “lowest common denominators.”[3]
These few illustrations may suffice to show either inconsistency in the use of the terms ‘privilege’ and ‘power,’ or, in the alternative, an apparent overlapping which needs explanation. We now pass to a brief consideration of the validity of the two groups of correlatives denominated ‘privilege’—‘no-right’ and ‘immunity’—‘disability.’
‘Privilege,’ in the sense of liberty, does not seem to be a relative term at all, but, on the contrary, an absolute term. There is no more of ‘relation’ in ‘privilege’ than may be found in a windmill or a table. True enough, the term ‘correlative’ is indefinite at best, but it is clear that the correlation, if any, of liberty in one person and the non-existence of rights as to the content of it, in another, is juristically quite a different sort than that of ‘right’ and ‘duty.’
(a) Without attempting here a refinement of distinction which more properly falls to the expert logician, it is enough to point out that ‘no-right’ is not any more entitled to be considered the correlative of ‘privilege’ than is ‘no-power.’ (b) Again, the correlatives ‘immunity’—‘disability,’ for the same reason and for an additional reason, are objectionable. The additional reason is that the correlation is not complete. The person under disability may lack legal power (which is the sense in which the term disability is used in the Hohfeld System, [4]) but may there not be a disability, also, because of the existence of duty?
- ↑ Ibid. See also Yale L. Jour., XXVIII, 387 (391).
- ↑ Id., p. 7 n. 3.
- ↑ Id., p. 64.
- ↑ Id., pp. 96-97; Corbin, “Legal Analysis,” Yale L. Jour., XXIX, 170.
The difficulty of this table proceeds from the erroneous view expressed by Prof. Cook that “each concept must therefore as a matter of logic have a correlative”: “Fund. Concepts,” p. 10. This is not true in logic, nor is it true in jurisprudence.
