exact form in which they have been presented; since it may be possible, contrary to expectation, that an absolute term may be, if not relative (which involves a contradiction), at least correlative, in jurisprudence. The question, therefore, may be formulated as follows: Is ‘no-right’ the correlative of a liberty (‘privilege’), and is a ‘no-power’ (disability) the correlative of ‘immunity’? In other words, are liberty (‘privilege’) and ‘immunity’ relative terms or are they absolute terms?
The term liberty (‘privilege’) is clearly an absolute term, in any practical sense. The term ‘no-right’ has no greater connection with liberty by way of correlation than have ‘no-power’ (disability), or ‘no-duty’ or ‘no-liability,’ or ‘power,’ or ‘duty,’ or ‘liability.’ Professor Corbin’s explanation of ‘privilege’ as another name for ‘no-duty’[1] makes this still more evident. Here it is clear that ‘no-duty’ and ‘no-right’ are both mere negations and that as such they can not be in relation in any logical sense.
Likewise, the term ‘immunity,’ as used by Professor Hohfeld, is also absolute. It can not claim for its correlative ‘no-power’ (disability) to the exclusion of ‘no-liability’ or ‘no right.’ If A is the owner of land without outstanding rights or powers in others, he is not in his situation as owner, which gives him certain claims and powers against others, under any duty or liability to such others. There is no right against him (e.g., to make a conveyance as holder of the legal estate in trust); nor has any person the power to divest his title. Clearly A’s situation is, as respects others, an absolute legal situation. As to his title, no act can be claimed from him nor any act projected against him. If B, a stranger to the title, should go through the form of making a conveyance of a fee simple right in A’s land, the act would be a legal nullity. Moreover, B is under no legal duty not to make such a paper conveyance. Any act of B attempting to convey A’s title would be wholly lacking in legal consequences. Accordingly, A’s situation, as owner, as to such an act on the part of B, is absolute; it has no connections or correlatives, and is lacking in juristic importance.
- ↑ “Legal Analysis,” Yale L. Jour., XXIX, 167-8. It is interesting to note that when ‘no-duty’ is substituted for privilege, not only is there a change of position (see note 11 ante), but the logical symmetry of the Hohfeld tables is adversly affected in this that a negative term is ranged alongside other terms intended in the Hohfeld System to be positive terms. Thus, it is necessary to speak of ‘rights,’ ‘no-duties,’ ‘powers,’ and ‘immunities.’ All this, it seems to us, is further evidence of the fatal error of attempting to include ‘liberty’ in a table of jural concepts.
