(a) It is inconsistent. But what is an opposite? It is said “that when dealing with jural opposites we are looking at two different situations from the point of view of the same person.”[1] So far, so good. But there is still a difficulty. In logic, opposites as distinguished from contradictories are the extreme terms of quantity. Thus is the opposite of . In the case of legal relations to have a claim to payment of $100 would be the opposite of a duty in the same person to pay $100. Yet we find in Professor Hohfeld’s table that the ‘opposite’ of ‘right’ is not ‘duty,’ but ‘no-right.’ Now it is clear that ‘right’ and ‘no-right’ are not ‘opposites’—at least not in the sense of logic—but are rather ‘contradictories’ (negatives).
The next enumeration of ‘opposites’ in Professor Hohfeld’s table is ‘privilege’ and ‘duty.’ Here is a clear change of position, since on the basis of contradictories or negatives (i.e., the presence or absence of a quality) the negative of ‘privilege’ must be ‘no-privilege’ and not ‘duty.’ Professor Hohfeld’s illustration at this point will be useful—
“... whereas X has a right or claim that Y, the other man should stay off the land [of X], he himself [X] has the privilege of entering on the land; or, in equivalent words, X does not have a duty to stay off. The privilege of entering is the negation of a duty to stay off.”[2]
The term ‘privilege’ is used here apparently in the sense of ‘liberty,’ a non-jural concept, as we think; but the true negative of ‘liberty’ is ‘no-liberty,’ just as the negative of ‘right’ is ‘no-right.’
(a) The field of ‘liberty,’ so far as it is connectible with anything of jural consequence, is limited to the enjoyment of the things for which rights and powers exist. Liberty cannot be predicated of rights and powers themselves since they denote another group of ideas. What ‘liberty’ can the holder have in a chose-in action? Yet there is a duty. It is clear that not every duty is the ‘opposite’ of a liberty, as any right in personam suffices to demonstrate. It may be possible to speak of a possessio iuris of rights in personam
- ↑ “Fund. Concepts,” p. 10, n. 13.
- ↑ Id., p. 39. Note the term ‘negation’ (not emphasized in the original). Cf. note 29, post, where Prof. Corbin has substituted for ‘privilege’—‘duty,’ the terms ‘no-duty’—‘duty.’ As to this substitution, while it has the effect of making the table of ‘opposites’ consistent on the basis of contradiction, it may be objected, that ‘privilege’ in the sense of ‘liberty’ is not the same idea as ‘no-duty’ (cf. note 28, post).
