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"Privilege" and "Immunity" As Used in the Property Restatement Albert Kocourek

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Louisiana Law Review Volume 1 | Number 2 January 1939 "Privilege" and "Immunity" as Used in the Property Restatement Albert Kocourek Repository Citation Albert Kocourek, "Privilege" and "Immunity" as Used in the Property Restatement, 1 La. L. Rev. (1939) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol1/iss2/2 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. "Privilege" and "Immunity" as Used in the Property Restatement ALBERT KoCOUREK* I No modern code of law can avoid the stating of definitions, or at least the stating of rules definitional in their nature. Thus, the German Civil Code states: "The legal capacity of a human being begins with the completion of birth. '2 Again, the same code states: "Majority begins with the completion of the twenty-first year of age."' But even definitions such as these are not numerous in the German Civil Code. The Property Restatement, regarded as a code, goes far beyond what any other code of law, ancient or modern, has ever attempted in the matter of legal definitions, il- lustrations, and explanations of the principal text.' It is not the purpose of this discussion to consider these features of the Re- statement. As a code, the Property Restatement is unique in setting out definitions of certain terms regarded as fundamental for any branch of the law whatsoever. In a word, it is the first code of law to contain a schedule of juristic terms.5 The Property Re- statement in another feature is strikingly unique in that these juristic terms are employed in stating the content and range of legal rules. While this use of a thorough-going terminology is an his- torical novelty in codification, yet the juristic ideas will be quick- ly recognized as an adoption in purest form of the "fundamental legal conceptions as applied in judicial reasoning" expounded by the late Professor HohfeldY The Hohfeld system, soon after its * Professor of Law, Northwestern University. 1. Restatement of the Law of Property, as Adopted and Promulgated by the American Law Institute at Washington, D. C., May 9, 1936. The present examination is limited to the terms "Privilege" and "Immunity." See chap. 1 Definition of Certain General Terms, vol. 1, pp. 3-35. 2. Art. 1, German Civil Code (Translation by Chung Hui Wang, 1907). 3. Art. 2, German Civil Code. 4. The principal text in all the Restatements is printed in black-letter type. 5. In lesser degree, other Restatements also employ definitions and fun- damental terms. There is some inconsistency among the Restatements as to these matters. 6. First published as Hohfeld, Some Fundamental Legal Conceptions as [ 255 J LOUISIANA LAW REVIEW [Vol. I exposition by its author but lamentably after his untimely death, became the subject of considerable debate.7 The debate had the demerit of presenting the issues involved in abstract form and it is fortunate that the Hohfeld system can now be appraised in such a concrete and important application as the Property Restate- ment. Before attempting to consider the terminology used in the Restatement, it will be desirable to state some of the elementary ideas which bear on the discussion to follow. First of all, any rule involves some form of constraint; thus, violation of any rule of morals, custom, fashion or deportment will produce unfavorable reactions. This is true of all rules. It is strikingly true in the case of legal rules where the reaction, uniquely, in the last resort, either directly or indirectly, is that of state controlled physical force. We need not here go into the details of the nature of rules. It will, we believe, suffice simply to recall this obvious idea." It should equally be obvious that where, as to given conduct, there is no rule to govern it, there is no constraint. Such conduct for the area of law is called Liberty or Freedom. For the area of law, Freedom has no legal signifi- cance.9 Another elementary fact is that legal relations are relations which bring two legal persons into a nexus which involves a con- straint of one of them in favor of the other. Thus, if X and Y are two legal persons, there are only two ways in which one of these persons can exert a constraint on the other. Either Y must"° act for X, or X can act against Y. There are, therefore, two constraint possibilities, and only two. There can not in any way be a third form of constraint operating in law as between X and Y.11 applied in Judicial Reasoning (1913) 23 Yale L. J. 16, and (1917) 26 id. 710; reprinted in pamphlet form under the same title (Yale University Press, 1919) and with other essays (Yale University Press, 1923). 7. The first article seems to be that of Cook, Hohfeld's Contribution to the Science of Law (1919) 28 Yale L. J. 721; the latest that of Radin, A Restate- ment of Hohfeld (1938) 51 Harv. L. Rev. 1141. 8. It may not be amiss to state that the laws of nature (so-called) are not rules except in a metaphorical sense. 9. For jurisprudence, one of the most dismal facts to be noted is that many otherwise competent writers seem to be unable to distinguish between the content of Freedom and the external protection of that content. 10. The term "must" is to be understood in the sense of what the law requires. 11. This logical fact may be demonstrated mechanically. As between X and Y, motion can be projected in only two directions: either to or from X, or to or from Y, respectively, as against the other. 1939] "PRIVILEGE" AND "IMMUNITY" From the standpoint of logic, it is immaterial what symbols are used to denote the legal quality of X and Y, respectively, in these two constraint situations. The following word symbols have gained some currency. Where the legal relation is of the must kind, the relation may be called a Claim-Duty relation. Where the legal relation is of the can type, the relation may be called a Power-Liability relation. 12 When Hohfeld constructed his tables of jural relations, the above two types, Claim-Duty and Power- Liability, had already been recognized by jurists in America and in Europe.-8 Before we state the formulation of terms proposed by Hoh- feld, it will be helpful if we consider a similar problem in the classification of one of the material sciences. An observer of the phenomena of life, long ago classified living beings into Plants and Animals. At that time the difficulty for classification of mi- cro-organisms had not yet been presented. This ancient and simple classification has survived and it is the subject-matter of biology. But suppose in one of the many periods of material and intellectual unrest and upheaval which have supervened, an ex- pert in biology, in order to make his science more useful, had in- vented two new species to be called, respectively, No Plants and No Animals. And, then in another period of unrest and upheaval, let us suppose another scientist, observing how frequently the botanist encounters No Plants, and how frequently the zo6logist encounters No Animals, had proposed that for the new species, No Plants, we use the term Gostoks and for the other new species, No Animals, we use the term Wousins. We should now have, as is evident, four species: Plants, Gostoks, Animals, Wousins.1" It would hardly have been supposed that anything of this sort could have entered into the construction of the eight correla- tives proposed by Hohfeld. Let us see. We started with Claim- Duty and Power-Liability. Now if we place the word "no" be- 12. Of these four terms only two may be said to be thoroughly accepted- Duty and Power. The term Claim is often used as a procedural claim or de- mand. The term Liability is often used in the sense of Duty. We shall for convenience in what follows continue to use the terms as above set out. 13. But not in these terms. See, for example, Windscheid, Lehrbuch des Pandektenrechts (9th ed. 1906) I, § 37. In general, the correlative terms were neglected and there was a tendency to include the idea of Freedom under that of Power. 14. If the botanist and the zoblogist met they might together find a crys- tal. The botanist would insist that while the crystal shows a form of life, it is In fact a Gostok. The zoblogist would, of course, insist that the crystal in any event is a Wousin. LOUISIANA LAW REVIEW [Vol. I fore each of these four terms, we get the original Hohfeld table of correlatives which will read as follows:'6 (1) (2) (3) (4) I. Claim No Claim Power No Power Duty No Duty Liability No Liability We now get the Gostoks and Wousins in this table:'" (1) (2) (3) (4) II. Claim No Claim Power Disability Duty Privilege Liability Immunity It thus clearly appears that four of the eight terms employed in the above tables are purely negative. Their only function is operational; that is to say, to exclude any given relation from the table of jural relations. The fact that No Duty is replaced by the term Privilege does not add anything of further meaning. It will be noticed in the first table above, that No Claim and No Duty are put down as correlatives.
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