Legal Theory

Legal Conceptions - Rights in General

Fundamental Legal Conceptions as Applied in Judicial Reasoning

Thesis Statement: The assumption that all legal relations may be reduced to "rights" and "duties" is one
of the greatest hindrances to the clear understanding, the incisive statement, and the true solution of legal
problems. There is a serious inadequacy and ambiguity of terminology

Fundamental jural relations contrasted with one another

● Express or tacit assumption that all legal relations may be reduced to "rights" and "duties" is one
of the greatest hindrances to the clear understanding, the incisive statement, and the true solution
of legal problems
○ that these latter categories are adequate for the purpose of analyzing the most complex
legal interests such as trusts, options, escrows, future interests, corporate interests, etc.
○ Even if the difficulty related merely to inadequacy and ambiguity of terminology, the
problem is serious and requires improvement.
○ inadequacy and ambiguity of terms unfortunately reflect confusion as regards actual legal
conceptions.
● Most promising line of procedure consist in exhibiting all of the various relations in a scheme of
"opposites" and "correlatives"
○ proceeding to exemplify their individual scope and application in concrete case

Example: Jural Opposites

Rights —> no rights

Example: Jural Correlatives

● Rights and Duties. The term "rights" tends to be used indiscriminately to cover a privilege, a
power, or an immunity, rather than a right in the strictest sense
- this looseness of usage is occasionally recognized by the authorities

● the word and the conception of “right" has “duty" as the invariable correlative —> indicates the
need toward limiting the word “right” to a definite and appropriate meaning
○ Lake Shore & M. S. R. Co. v. Kurtz : ”A duty or a legal obligation is that which one ought
or ought not to do. 'Duty' and 'right' are correlative terms. When a right is invaded, a duty
is violated.”
○ If X has a right against Y that he shall stay off the former's land, the correlative (and
equivalent) is that Y is under a duty toward X to stay off the place.
○ We should seek a synonym for the term "right" in this limited and proper meaning. The
word "claim" would prove the best.

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May 5, 2019
Legal Theory
Legal Conceptions - Rights in General

● Privilege and “No Rights.” We must be cautious in saying that a given privilege is the mere
negation of a duty. What is meant is that a duty having a content precisely opposite to that of the
privilege in question.
○ Using the example of X and Y above, X has a right or claim that Y should stay off the
land, X has the privilege of entering on the land; or X does not have a duty to stay off.
The privilege of entering is the negation of a duty to stay off.
○ If for some special reason, X has contracted with Y to go on the former's own land, it is
obvious that X has, as regards Y, both the privilege of entering and the duty of entering.
X's privilege of entering is the precise negation of a duty to stay off with regards to Y.
○ The duty contrasted is of a content or tenor exactly opposite to that of the privilege.
● A duty is the invariable correlative of that legal relation called a right or claim
○ the correlative of privilege is a "no-right"
○ the correlative of X's right that Y shall not enter on the land is Y's duty not to enter; but
the correlative of X's privilege of entering himself is manifestly Y's "no-right" that X shall
not enter
○ there is an importance of keeping the conception of a right (or claim) and the conception
of a privilege distinct from each other
○ it is equally clear that there should be a separate term to represent right or claim

● A "liberty" considered as a legal relation (essentially carries the same meaning as right) means
precisely the same thing as privilege. The closest synonym of legal "privilege" seems to be legal
"liberty.”

○ Quinn v. Leathemn: “This liberty is a right recognized by law; its correlative is the general
duty of every one not to prevent the free exercise of this liberty except so far as his own
liberty of action may justify him in so doing. But a person's liberty or right to deal with
others is nugatory unless they are at liberty to deal with him if they choose to do so. Any
interference with their liberty to deal with him affects him.”

● The term "privilege" is the most appropriate and satisfactory to designate the mere negation of
legal duty.
○ Examples: "privleged communications" in the law of libel and to "privileges against self-
crimination" in the law of evidence
○ the term "liberty," both in judicial opinions and in conveyancing documents s by no means
as common or definite as "privilege"
○ liberty is more commonly used to denote a sense of physical or personal freedom (the
absence of physical restraint)
○ the term "privilege" has the advantage of giving the adjective "privileged". It is frequently
convenient to speak of a privileged act, a privileged transaction, a privileged conveyance,
etc.
● The term "license", sometimes used as if it were synonymous with "privilege," is not strictly
appropriate.
○ Accurately used, "license" is a generic term to indicate a group of operative facts required
to create a particular privilege.
○ Clifford v. O'Neill: "A license is merely a permissionto do an act which, with- out such
permission,would amount to a trespass * * * nor will the continuous enjoyment of the
privilege conferred, for any period of time cause it to ripen into a tangible interest in the
land affected.

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Legal Theory
Legal Conceptions - Rights in General

● Powers and Liabilities. A legal power is the opposite of legal disability, and the correlative of legal
liability.
○ The nearest synonym seems to be legal “ability,"-- the being obviously the opposite of
"inability," or "disability."
○ The term "right" is an unfortunate term for the purpose — a result of confusion of thought
as well as ambiguity of expression.
○ The term "capacity" is equally unfortunate for when used with discrimination, this word
denotes a particular group of operative facts, and not a legal relation of any kind.
○ The term "liability" is often loosely used as a synonym for "duty," or "obligation.” The
nearest synonym of "liability" is "subjection" or "responsibility.
○ McElfresh v. Kirkendall: "The words 'debt' and 'liability' are.not synonymous, and they are
not commonly so understood. As applied to the pecuniary relations of the parties, liability
is a term of broader significance than debt. * * * Liability is responsibility."
● Immunities and Disabilities. Immunity is the correlative of disability ("no-power"), and the
opposite, or negation, of liability. A power is one's affirmative "control" 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.
○ There is a great deal of important litigation involving immunities from powers of taxation.
Phoenix Ins. Co. v. Tennessee: “The word 'immunity' expresses more clearly and
definitely an intention to include therein an exemption from taxation than does either of
the other words. Exemption from taxation is more accurately described as an 'immunity'
than as a privilege, although it is not to be denied that the latter word may sometimes and
under some circumstances include such exemptions.”
○ There are problems of interpretation and problems of alienability. In many other cases,
difficult constitutional questions have arisen as the result of statutes impairing or
extending various kinds of immunities.
○ The word "right" is over- worked in the field of immunities as elsewhere. The best
synonym is the term "exemption.” The word "impunity" has a very similar connotation.

Ventilacion | A2022
May 5, 2019