Hohfeld Idea of Power: An Analysis

By – Malvika Singhal [1]

Introduction

In modern day world the entire legal system has become concerned about the ‘rights’ of different sections in a society. However, it is not wrong to say that purpose of judiciary and the constitution so made is to provide for delivery of justice and prevent violation of any right of any individual or section of the society. Jurisprudence plays an important role in addressing the basis of these ‘laws’ and how they came into being. Many jurists have interpreted law in its raw form giving us various branches of jurisprudence, theories, and schools of knowledge. In the current era rights of a person are kept at the top of any justice delivery system. However, famous jurist Wesley Newcomb Hohfeld believed otherwise.

He believed that every claim of a person cannot be reduced to two terms “rights” and “duties”. Only those claims which are backed up by a collateral duty can be said as “rights”.

Jural Relations as Explained by Hohfeld

In deciding any conflicts, the solutions to the problem can be given if identification of ‘right’ that has been violated is done and a ‘duty’ that was not performed. Hohfeld said that where a right is infringed a duty is also violated [2].  He explained eight fundamental legal concepts as follows:

  • Right
  • Duty
  • Privilege
  • Immunity
  • Liability
  • Disability
  • Power
  • No rights

They have been divided into two categories in pairs called as “Jural Correlatives” and “Jural Opposites”.

These jural correlatives cannot exist without each other that is to say, where there is one there has to be another. For instance, where there is a right there will be a duty.

On the other hand, these jural opposites will not co-exist. For instance, where there is power there cannot be disability. To understand the same in Indian context, Constitution of India gives power to the Parliament to make laws regarding the matters in Union List but simultaneously, the Constitution cannot state that Legislature lacks the authority (incapacity) to create legislation concerning the issues on the Union List.

Hohfeld’s Concept of Legal Power

Legal Power refers to the ability of an individual or build or alter its legal relationship. For instance, the courts have power to try the cases that are instituted by the plaintiff or prosecution or an individual can make his will and alienate his property.

According to Hohfeld these cannot be called as ‘rights’ they are called as ‘power’ as legal power can be said as change in the legal relationship between tow or parties due to some external force.

Power-Liability

As stated above legal power can be said a way to change the legal relationship by way of external forces. For instance, if X and Y are in contract and terms of the contract are to be dictated by Y then Y has the power over X.

In this case, X has a liability imposed on him by Y. “Salmond” likewise takes on a genuine sense while he claims so “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.” [3]

To explain the concept further Hohfeld has used the ownership rights that an individual has as those rights give a power to the owner of the property to create rights, take away claims and give privileges in respect of the same. Law of contract is also used as the classic example of Power- Liability concept.

Power- Liability relationship distinguished from Right-Duty

The major difference between ‘power’ and ‘rights’ is creation of duty. When there is a right it is implied that there is some duty. However, when power is vested in an individual it does lead to creation of duty for anyone. It is mere power to be exercised by that individual.

But there is creation of liability of that duty to be performed in the future when such power will be exercised. Such duty will never come into existence if the power exercising authority abstains from using that power.

For instance, If Parliament of India has a power to impose taxes on exports of rice but no law has been made in the same regard then there will only be a liability on such exporters to pay taxes once the law is made.

Power, Privilege and duty goes hand-in-hand

The different concepts so defined by Hohfled are not independent of each other. They can go simultaneously in various cases.

The power vested in an individual that forms or alters a legal relationship of himself or others can have additional power that might give rise to privileges and duties therein.

For instance, the Constitution of India gives additional power to the Parliament under Article 15(3) to make special provision for women and children explains the above concept of power with privilege.

Also, under Article 330- Article 334 provides for various reservations in different institutions for Schedule Tribes and Schedule Caste people.

Similarly, Article 21 allows the state to have power to provide education for children from age of 6 years to 14 years. This power is exercised creating duty for the state whereby making it an obligation for the state to fulfill it.

Conclusion

Hohfeldian concept of Jural Relations has helped judges and law makers to understand the problems in the legal field better. These are the basic concepts which can be used to enhance and build stronger foundations for understanding law.

References

  1. 3rd year student, B.B.A. LL.B., Delhi Metropolitan Education, Noida (Uttar Pradesh)
  2. https://www.legalbites.in/hohfelds-theory-of-jural-relations/
  3. P.J. Fitzgerald (eds), Salmond on Jurisprudence (Indian Economy Reprint Universal Law Publishing Co. 2008) 229

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