Viewing the Chinese politico-legal system as a corporation
When describing the Chinese politico-legal system, Western commentators naturally compare and contrast it with Western legal systems. The Chinese politico-legal system, however, has enough differences that the Western observer is often unable to understand how the Chinese system actually works. Furthermore, many Western observers are left with the impression that because the Chinese system is so different from Western law that the entire Chinese system must be unfair and incapable of producing economic prosperity. One commonly held belief in the West, for example, is that investment will be limited if law does not provide strong property rights. Empirical evidence, however, suggests that the Chinese system produces economic growth and is generally fair.
Most Western observers are unable to understand the Chinese politico-legal system by comparing it to Western politico-legal systems; therefore, this blog suggests that a different conceptual model may improve understanding of China's politico-legal system. Specifically, this blog hypothesizes that Western observers would be benefit by thinking of the Chinese politico-legal system as similar to a large, Western-style corporation.
Viewing the Chinese system as a corporation is advantageous to the Western observer for at least two reasons. First, it makes it easier to understand the dynamics and values of the Chinese system. Since the differences between how a corporation operates and how the Chinese system operates are so small, this model should help Western thinkers to analogically anchor their analysis of Chinese law.
Second, many Westerners believe that the Chinese system lacks any normative value. They argue that current economic gains are illusory and any appearance of fairness is farcical--they believe the system is inherently unfair and will certainly lead to an economic crisis. When one views the Chinese system through the lens of Western political and legal theories, it is logical to conclude that they are right. The Chinese system lacks so many features that Western jurisprudence considers essential (such as an independent judiciary), that it is natural for the Western thinker to conclude that the Chinese system is defective and normatively undesirable.
Corporations, however, generally enjoy a positive reputation in the West. Furthermore, Western commentators are familiar with the organization, values, and dynamics of corporations. Analogically anchoring the Chinese politico-legal system will make it easier for Western observers to understand what aspects of the Chinese system might be fair and which aspects might contribute to economic growth.
This blog merely sketches the hypothesis that the Chinese politico-legal system is similar to a large, Western-style corporation. To present the hypothesis, it reexamines two prior observations of the Chinese system and compares the observations to corporations. It also examines some general aspects of the political structure to show how it is similar to corporations.
Conceptualizing Chinese statutes and rules as corporate directives
Peter Corne states that Chinese "legal drafting is characterized by the following:
principle-like pronouncements
vagueness and ambiguity
undefined terms
broadly worded discretions
omissions
general catch-all clauses"
Peter Howard Corne, Foreign Investment in China: The Administrative Legal System 95 (1997).
The six characteristics of drafting above lead to two aspects of Chinese law: 1) the laws are progressively refined as they descend through the levels of government, and 2) authorities implementing the vague laws have broad discretion.
National laws are generally the most broad and vague in China, and the legal rules are refined as other authorities implement them. When the National People's Congress makes a law, it is typically implemented by other, inferior, government entities--provincial governments, administrative agencies, the procurate, and other entities. Those entities sometimes delegate their rule-making power to yet other sub-ordinate entities. As each level of government delegates implementing and rule making authority to lower levels, the rules are typically refined and made less vague. Nevertheless, the final rules tend to be much more general and vague than laws in Western legal systems. See Li Yuwen & Jan-Michael Otto, Central and Local Law Making: Studying China's Experience 22, in China's Legal Reforms and Their Potential Limits (Edward B Vermeer & Ingrid d'Hooghe eds., 2002).
Because the final rules are still vague and general, the implementing authority, and often the actual officials implementing the rule, has broad discretion. The discretion of the implementing authority is so broad that the implementing authority can often break its own rules when making decisions: Corne states, "Even fairly detailed rules are . . . often subject to overriding ministerial or departmental discretion." The power of a regulatory body to change regulations ad hoc and ex post facto is virtually unheard of in Western legal systems, and most Western legal thinkers likely consider it incompatible with a functioning legal system.
These two aspects of Chinese law, refinement of legal rules and broad discretion for officials, are similar to two major aspects of corporations: refinement of corporate directives and broad discretion for corporate managers.
First, corporate directives are quite similar to Chinese legal rules. Executives announce "strategic" goals in vague and broad terms; middle managers refine those strategic goals into general "operational" plans; and front-line managers use those operational plans to make "tactical" decisions. At all levels of the corporation, rules and directives are vague and general; nevertheless, the corporate bureaucracy functions and implements the strategic goals announced by the company's leadership. (Also see this explanation by Venkat.)
Second, the corporate departments and employees that actually implement corporate directives have broad discretion about how to implement those rules. The corporate world refers to the broad discretion given to employees as "empowerment" and it is universally touted as progressive and effective.
When compared to Western legal systems, Chinese laws are unacceptably vague and grant too much discretion to government officials. Viewed as corporate directives, however, one might conclude that Chinese laws are efficient and logical because the central leaders can set broad policy goals and the implementing government officials are empowered to find the most effective means for meeting the policy goals.
Seven features of the Chinese legal system that are analogous to corporations
The major intellectual tradition of China is Confucianism, and the International Commission of Jurists concluded that legal systems grounded in Confucian thought share certain characteristics. Their observations well describe the Chinese politico-legal system today. Again, if compared to Western legal systems, many observers would find the following characteristics undesirable. All of these features however aptly describe a corporation, and that may help people to view some of them as positive.
[The introductory paragraph includes one characteristic and six more characteristics follow in the lettered paragraphs.]
This line of reasoning [Chinese political philosophy such as that of Hsun Tsu], while it did not deny the need for some law to order society, assumed that the emphasis ought to be placed on creating a special class of virtuous rulers who should be allowed to direct society as they felt best without being hamstrung by an extensive body of rules passed down from ages past. It was very much a philosophy of the rule of men and not of law; its ideals were rendered incarnate in an intellectual elite of benevolent philosophers. The states which attempted to realize these Confucian principles were characterized by:
(A) Relatively few statutes or similar materials; such as there were, were couched in broad general language, which tended to be an injunction to comply with certain ethical principles. . . .
(B) Non-publication of administrative materials circulated internally within the government between officials.
(C) A bureaucracy, assumed to be drawn from the intellectual elite, which occupied one of the highest if not the highest prestige positions within the society.
(D) Unification of the judicial and legislative functions in the hands of the executive.
(E) A general dislike for litigation felt by the people and a corresponding lack of "rights consciousness" fostered by active policies of the government. Use of unofficial means of resolving disputes, such as mediation, was encouraged in place of recourse to courts.
(F) Non-existence of a legal profession. Those who sought to argue principles of law while representing the interests of parties were looked upon as pettifoggers and parasites and as making no useful contribution to society.
Barry Hager, The Rule of Law: A Lexicon for Policy Makers 18-19 (2002) (quoting International Commission of Jurists, The Dynamic Aspects of the Rule of Law in the Modern Age 31 (report on the Proceedings of the South-East Asian and Pacific Conference of Jurists, Bangkok, Thailand, 15-19 February 1965)).
The introductory paragraph states that "virtuous rulers [] should be allowed to direct society as they [feel] best without being hamstrung by an extreme body of rules passed down from ages past." As shown above, officials in modern China are often free to break the rules that they create. Similarly, courts are not restricted by prior cases because case law is not binding. This is exactly like large corporations. Businesses assume that the executives of a company make decisions in the best interest of the company and that they should have wide latitude to make decisions rather than be constrained by rules made by past executives.
Paragraph (A) echoes Peter Corne's findings, above, and fits well with the China-as-a-corporation hypothesis.
In modern China, Paragraph (B) refers to "internal documents" (neibu guiding) and they are still common--though their use is widely considered to be declining. See Randall Peerenboom, China's Long March Toward the Rule of Law 7 (2002). The major criticism of these documents is that they have an effect on people outside the government, but the government will not let everyone see the documents. This is similar to how corporations protect their internal documents: most corporate knowledge is provided on a need-to-know basis. Businesses justify this practice as simply protecting company secrets, but the result is the same: many rules are unknown to those that are affected by the rules.
Like the Chinese politico-legal system, corporations also unify legislative powers (rule-making power) and judicial powers in the hands of the executive--Paragraph (D). It would be bizarre to think that companies would naturally create "independent" judiciaries to enforce their rules. Collective bargaining agreements that require independent arbitrators prove the rule: it is only through negotiation that the workers are able to remove some of the judicial power from the executive.
Paragraph (E): compared with Western legal systems, people still generally avoid litigation in Chinese courts and favor alternative ways to resolve disputes. One commentator argued that China suffers from the "three nots" (san bu): people
[d]are not sue (bu gangao) because of their fear of retaliation by the government, Are unwilling to sue (bu yuangao) because of their concerns over, among other things, the cost of litigation, and Do not know how to sue (bu dongao) because of their inadequate legal knowledge and weak sense of seeking professional legal advice.
Veron Mei-Ying Hung, Judicial Reform in China: Lessons from Shanghai, 19 Colum. J. Asian L. 97, (2005) Similarly, even in companies with established grievance processes, there is typically a strong dislike of workers who rock the boat. It is common sense that whistleblowers and agitators are likely to be fired or treated poorly by their employer. Hence, most workers "go along to get along" rather than enforce their rights by complaining to others, through arbitration, or by the use of lawsuits.
Finally, Paragraph (F) is still largely true: the legal profession is growing in China, but it is still much smaller and less experienced than the West. The corporate analogs to parasitic lawyers are union organizers and activist NGOs that pressure corporations to make changes that benefit employees and citizens but damage the profits of the corporation.
The description of the Chinese legal system put forth by the International Commission of Jurists could easily be used to describe modern corporations. This suggests that Western observers may better understand the Chinese politico-legal system by analogize it with corporations rather than Western legal systems.
The organizational structure of the Chinese government is similar to a corporation
The Chinese government's organizational structure is not precisely like a corporation, but it has some strong parallels.
As partially described above, China centralizes all legislative, executive, and judicial power into a hierarchy, and the National People's Congress (NPC) is at the top of the hierarchy. The NPC, however, has over 3000 members and only meets for two weeks out of the year. The Standing Committee of the NPC has far fewer members and performs the majority of the functions that the NPC has the power to perform. Still, at over 170 members, the Standing Committee must delegate most power to administrative agencies.
This is similar to the corporate interaction between shareholders, the board of directors, and company executives. Technically, the shareholders have all of the power in a corporation, but they always delegate their authority to the board of directors. The board, in turn, delegates nearly all power to the executives of the company.
At many corporations, one person holds three key positions: Chair of the Board, CEO, and President. One person holding all three positions is able to exercise more control over the company than if they only occupied one office. This same phenomenon occurs in Chinese politics also. The Presidential office is relatively weak, however, the President is usually the General Secretary of the Central Committee of Communist Party of China, and the Chairperson of the Central Military Commission (the state organ that controls the military). By combining the power from the three roles, the individual has significantly more power than if she were only the President of China.
The Chinese politico-legal system is similar to corporations in: legal drafting, the legal process, distribution of power, and political organization. This suggests that Western commentators can better understand the Chinese politico-legal system by making comparisons to Western corporations rather than making comparisons to Western politico-legal systems.
What is Law? It is a deceptively simple question. Every lawyer, and most non-lawyers, think they know what Law is, but most would be hard pressed to define it precisely. A statute against murder is clearly Law. A plate-full of spaghetti is clearly not Law. It is easy to create a definition of Law that covers these two examples, but it is not so easy to deal with the harder examples: unenforced statutes; customs, practices, and principles that are enforced by the courts; administrative and other non-legislative rules; pronouncements and acts of the despot; and the actions of private individuals.
Defining "Law" is further complicated by the natural tendency to inject normative concepts into the description. The statute of a modern, liberal democracy are probably preferable to the pronouncement of a despotic prince, but both are rightly described as Law. A precise definition is free of normative arguments and accurately describes all types of Law.
Similarly, it is easy to fall prey to cultural bias when creating a definition. Common law, civil law, Islamic law, and Chinese law have some similarities and some differences, but they are all Law. A precise definition of Law will avoid any cultural bias and present a universally descriptive picture. This blog post attempts to present a universal and descriptive definition of Law.
This blog argues that Law is anything that reinforces objectively-reasonable expectations about the behavior of others.
An uncontroversial starting point: Law includes the "rules" enforced by courts
Whatever the definition of Law is, it must include those rules (or "laws" with a lower-case L) that courts actively enforce. It is uncontroversial to assert that a validly-enacted rule, properly enforced by an impartial court, is Law. A validly-enacted rule that is not enforced by the courts, however, is not Law. In Poe v. Ullman, 367 U.S. 497 (1961), for example, the U.S. Supreme Court refused to decide if a Connecticut statute barring the use of contraception was unconstitutional because the statute had never been seriously enforced in the 82 years since it had been enacted by the legislature. The Court held that "Deeply embedded traditional ways of carrying out state policy--or not carrying it out--are often tougher and truer law than the dead words of the written text." (Internal quotes removed).
Simply asserting that a rule is Law, as the Connecticut legislature did with this statute, does not make it Law. The rule must have some sort of impact before it can be called Law: it must reinforce expectations. In the Connecticut case, since the statute had not been enforced, the objectively-reasonable expectation was that one could use contraception in Connecticut. Indeed, the Court noted that local drug stores sold contraception "commonly and notoriously." In effect, the Law in Connecticut allowed the use of contraception. The statute's lack of enforcement reinforced the expectations in Connecticut that it was acceptable to use contraception, hence this was the Law.
Dworkin proved that Law also includes "principles"
Courts do not decide all cases only by applying rules; courts also apply principles, and these principles are part of Law. Ronald M. Dworkin convincingly argued that courts are just as bound by abstract principles as they are by concrete rules. Ronald M. Dworkin, Is Law a System of Rules?, in The Philosophy of Law (Ronald M. Dworkin ed., 1977). He used Riggs v. Palmer, 115 N.Y. 506 (1889), to explain the difference between a rule and a principle and to show how courts are bound by both. In Riggs, a grandson killed his grandfather because he wanted to inherit from his grandfather's will. The rule of the case (the little-L law) dictated that the grandson should inherit because there were no laws that explicitly allowed the court to abrogate the will in these circumstances. The N.Y. Supreme Court, however, held that "No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime," and blocked the grandson from inheriting anything. The rules of the case (concrete laws) dictated one result, but the court looked to principles (abstract principles of varying weight that "do not set out legal consequences that follow automatically when the conditions provided are met") to decide the case. Dworkin showed that if the court had not applied this principle in this case (and allowed the grandson to inherit from his crime), then we would have considered the case wrongly decided, therefore, the court was just as bound by principles as it was by rules.
The Riggs case and Dworkin's theory fall neatly within the idea that Law is anything that reinforces objectively-reasonable expectations. In legal systems, such as the common law system, in which courts routinely apply rules and principles, it is objectively-reasonable to expect that some cases will be decided contrary to the rules but in line with commonly-held principles (whatever those principles may be).
Taking all of the above together, Law at least includes the equitable application of rules and principles by the courts.
Law is enforced by actors other than courts
There is a wide gap, however, between "Law is the equitable application of rules and principles by the courts" and "Law is anything that reinforces objectively-reasonable expectations." The next step in bridging this gap is to recognize that many institutions and individuals enforce Law. In the U.S., Congress enforces Law, for example, when it impeaches the President. The President creates, and enforces, Law when she grants a pardon. Neither of these legal acts are reviewable by the courts but they are just as powerful as the courts' application of rules and principles to decide cases. In China, the full power to make rules is originally granted to one institution by the constitution: the National People's Congress. Indeed, any sovereign is fully empowered to declare Law within its domain--the despot is Law.
Law, therefore, includes the application of rules and principles by the sovereign (or the delegate of the sovereign). This definition is similar to John Austin's formulation of Law: rules created by the sovereign and backed by punishment. Many have criticized Austin's definition, especially because it fails to take into account non-governmental institutions that enforce Law. Some civil institutions, such as the American Bar Association, wield power that is virtually indistinguishable from the power of the state. ABA accreditation of law schools, for example, differs only in name from a state licensure system.
Internet regulation and membership in civil organizations provide two more examples of non-governmental organizations exercising power that has the effect of Law. Many aspects of the Internet are governed by private organizations. See, e.g., Henry H. Perritt, Towards a Hybrid Regulatory Scheme for the Internet, 2001 U. Chi. L. Forum 215 (2001). Domain names, a type of property, are regulated by ICANN--a non-profit corporation. Civil organizations regulate access to the benefits of membership by controlling who is admitted to the organization and under what conditions. No where is this more apparent than with religious organizations: membership, benefits, and sanctions can often have a more significant effect than actions by the state.
Finally, a significant amount of Law is enforced by individuals. No state has a comprehensive set of rules (or even principles) to govern all situations. Most family relations and trivial transactions (trivial to the state), for example, are left to the parties to manage. In those situations, Law is enforced by the parties. Relational Contract Theory reflects this idea by suggesting that many contract laws are enforced by the parties rather than by the courts. In a contract situation in which the parties have an ongoing relationship (e.g., a franchise), a breach of contract is rarely disputed in court. Rather, the parties resolve the dispute in the context of their ongoing relationship. When the potential future benefits of an ongoing relationship outweigh the short-term gain of resolving the dispute in court, the parties will enforce the law themselves in a way that allows the relationship to survive.
The courts are not the only actors that enforce laws: executives, legislators, civil organizations, and individuals all enforce Law in varying forms. At the very least, Law is the application of rules and principles (by anyone).
Law is not based only on rules and principles
Dworkin used the terms "rules" and "principles" to refer to standards that are binding on the courts. It is an oxymoron, though, to talk about a despot (a ruler with absolute power) who is bound by anything other than physics, chemistry, and biology. To say that when the despot pronounces Law that she is somehow constrained by a rule or a principle is to say that she is not a despot at all. Since the despot's actions and pronouncements are Law, then Law must be wider than Dworkin's rules and principles. As further evidence, when Law is enforced by individual parties (e.g., family relations), they are partially bound by the rules of their sovereign (the little-L laws) but they are largely free to act as they wish. Again, it is odd to say that they are bound by rules and principles the way courts and legislatures are bound by rules and principles.
In fact, individuals often enforce Law that is contrary to the rules of the state. Robert C. Ellickson famously illustrated that ranchers and farmers in Shasta County, California enforced a set of social norms that sometimes contradicted state statutes. When a rancher violated the social norms of the area by allowing his cattle to damage the property of a neighbor, the neighbor would rarely sue. Instead, the two parties would generally resolve the problem by working together to fix the damage and prevent future incidents from happening. The parties would do this even if the cattle-owner was not legally liable according to the state statutes. If the offending party failed to follow the social norms, then the victim would gossip about the incident, which would lead to reputation costs for the offending rancher. If that failed to work, then the neighbor might resort to a type of self-help: transporting the loose cattle to a remote area. Still, this private enforcement could be for actions that did not violate the laws, rules, or principles of the state. Instead, individuals would enforce the social expectations of their community. This example illustrates that individuals are not bound by rules and principles--instead they are "bound" by expectations.
The definition of Law must include the actions of individuals, organizations, and despots that are acting without the constraints of rules and principles. Defining law as "anything that reinforces objectively-reasonable expectations about the behavior of others" includes all of these situations.
Observing how customary international law is used reinforces this definition
Customary international law is the set of rules that courts enforce based only on the fact that most nations have a custom of following said rules. Customary international law does not include the rules that nations agree to follow by enacting a treaty--it is only those rules that nations follow because they choose to follow them. There is a lively debate about the nature of customary international law especially whether the source of the law is natural law. Some commentators deny the existence of natural law, and the existence of customary international law because it is a derivative of natural law. Using the definition of Law from this blog sidesteps the debate and helps to explain why customary international law is part of Law. No matter what the source of customary international law, many nations apply the rules and principles, therefore it is objectively reasonable for people to expect that customary international law will be enforced by courts, followed by executives, and adhered to by individuals.
Conclusion
Law is not limited to the pronouncements and interpretations of the courts. Law includes all types of actors and institutions: despots and sovereigns, their delegates, civil institutions not associated with the state, and individuals. While some actors are bound by rules and principles, the full body of Law includes decisions and acts that are only bounded by the will and ability of the parties involved. Therefore, Law is anything that reinforces objectively-reasonable expectations about the behavior of others.
In 1913, Wesley Newcomb Hohfeld published a seminal article about fundamental legal terminology. He argued that the description of legal relationships was unnecessarily complicated by a lack of precise use of legal terms. The Hohfeldian system is atomistic in that all legal relationships can be described with only eight terms: right, duty, power, liability, immunity, disability, privilege, and "no-right." These terms form a semiotic system: a set of interrelated terms whose individual meanings are not clear unless viewed in the context of the entire set of terms. There are four fundamental rules that apply to the system: 1) all legal relationships are between exactly two persons, 2) the state's monopoly on violence is necessary to implement the system, 3) each term has one correlative term and one opposite term; and 4) a relationship can be described using either term from a correlative pair.
All legal relationships, no matter how complex, can be described using one or more of the eight terms. Some basic examples include: Person X has a right to exclude from her land Person Y; during war, Person X has the privilege to kill the enemy soldier Person Y. Person X has the power to nullify her contract with Corporation C; and Person X, a foreign diplomat in State S, is immune from prosecution for acts related to her diplomatic role in State S by the court of State S. As these examples show, all relationships are between exactly two legal persons (a natural person, a corporation, or a state).
More complex relationships are constructed by describing multiple relationships. "Ownership" of land in the Hohfeldian system, for example, is a collection of legal relationships: X has the right to exclude Y from the land, X has immunity from Y expropriating the land, X has the power to grant a privilege to Y to enter the land, and X has the duty to not to use the land to harm Y.
Jural Correlatives
right
duty
privilege
no-right
power
liability
immunity
disability
Each term has one correlative term and a legal relationship can be expressed using the correlative term. If X has the right to exclude Y, then Y has the duty not to enter X's land. The correlative of X having the privilege to kill the enemy soldier Y is that Y has "no-right" to sue X if X uses her privilege. The correlative of power is liability. If X has the power to nullify her contract with C, then C has the liability that X may nullify the contract. Finally, if X has an immunity from prosecution by S, then S is disabled from prosecuting X.
Basic definitions of the terms
As a semiotic system, it is difficult to understand the individual terms without understanding all of the terms. This section defines the terms, and the remaining sections elaborate the system.
Jural Opposites
rights
no-rights
privilege
duty
power
disability
immunity
liability
A right is a claim against another person, and the rightholder may summon the violence of the state to prevent or remedy a violation of that right by the other person.
"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." Hohfeld at 32.
The difference between a right and a privilege is one of the hardest things to understand about this system. On close examination, however, there are clear differences.
Relationships are between only two persons. Legal relationships are between only two persons, but one act may affect multiple legal relationships. For example, Corporation C negligently hires truck driver T who, while in the course of duties for C, negligently collides with person P. The one act, the collision, gives rise to two lawsuits. P may sue T for breaching the duty to drive carefully, and P may sue C for breaching the duty to hire qualified workers. Similarly, Y breaches the duty she owed to X not to kill X when she summarily executes X. The State S may criminally prosecute Y, but not because Y breached the duty she owed to X. All legal relationships are between only two persons, therefore, the duty Y owed to X does not in-and-of-itself have anything to do with the State S. Instead, Y owes a duty to the State S not to kill X. A criminal prosecution would be for violating this duty owed to State S. This aspect of the Hohfeldian system provides analytical support for having separate civil and criminal systems because they deal with completely different legal relationships.
Take Persons X and Y. X has a right to live, as related to Y. Every right must have a correlative duty, therefore Y has a duty not to kill X. Now assume that in a war, X and Y are enemy soldiers. Even during war, the right and duty still exist: if Y captures X, then Y cannot summarily execute X. If Y were to summarily execute X, then it would be a breach of Y's duty not to kill X. A breach of a duty can be remedied by state violence, therefore X's estate could sue Y for breach of the duty not to kill X.
If X and Y were to meet on the battlefield as armed combatants, however, Y would have the privilege to kill X. In this case, because a privilege is the opposite of a duty, Y's privilege (to kill an enemy soldier) negates the duty (not to kill X). If Y successfully uses her privilege and kills X during a war, then X's estate has "no-right" to sue Y for breaching Y's duty not to kill X.
A right has the following characteristics: 1) it describes a legal relationship between exactly two legal persons, 2) it must be possible to describe the exact same relationship between the same two legal persons using the term "duty", and 3) the rightholder must be able to summon the state's monopoly on violence to prevent or remedy a breach of the correlative duty.
In contrast to a right, one may not summon the violence of the state to prevent or remedy a "violation" of a privilege. In the above example, Y has the privilege to kill X because they are enemy soldiers. To contrast right and privilege, recast the privilege to kill enemy soldiers as a "right." All rights have a correlative duty, so the correlative of Y's "right" to kill the enemy soldier X, is X's "duty" to let Y kill her. Furthermore, if X breached her duty to let Y kill her, Y would be able to sue X. In the Hohfeldian system, this relationship is clearly not a "right" to kill X.
The proper correlative of Y's privilege to kill X is X's "no-right" to sue Y if Y attempts to use her privilege. While X may not sue Y if Y uses her privilege, X may still actively interfere with Y's use of her privilege. If Y has a privilege to kill X, X can try to prevent Y from killing her. Again, if this were a duty, X could not interfere with Y's actions, but since Y merely has a privilege, X can interfere and the law will not prevent the interference.
A privilege has the following characteristics: 1) it describes a legal relationship between exactly two legal persons; 2) the privilege of Y, in relation to X, negates a duty owed by Y to X; 3) Y may not summon state violence if X "violates" Y's use of her privilege, even if X actively interferes with the privilege; and 4) X may not summon state violence to prevent Y from using her privilege, even though in the absence of the privilege, Y would owe a duty to X to not perform the same act.
A word on jural opposites
Jural Opposites
rights
no-rights
privilege
duty
power
disability
immunity
liability
Two terms are jural opposites if one negates the other. As shown above, a privilege negates a duty. It is sometimes useful to speak about a lack of privilege or a lack of duty. In the above example, it is acceptable to say that Y does not have the privilege to summarily execute the enemy soldier X. Y is under a duty not to kill X, and it is logically equivalent to say that Y has "no-privilege" to kill X.
Concomitant rights blur the distinction between a right and a privilege
Identifying a legal relationship as a privilege or a right may be complicated by a concomitant right: a right granted by the state to a privilege-holder with the effect that the privilege appears to be protected by the violence of the state. For example, Y may have an easement to cross X's land. In the Hohfeldian system, this is clearly a privilege. Absent the easement, X has the right to exclude Y, and Y has the correlative duty not to enter the land. The easement/privilege, however, negates that duty and Y may enter without fear of X suing for trespass. The Hohfeldian analysis of this relationship, however, is blurred by the observed fact that Y could sue X if X unreasonably interfered with the easement.
As explained above, one may actively interfere with a privilege without fear of a lawsuit. Yet, the privilege-holder (Y has an easement) may sue X if X unreasonably interferes with the privilege (the easement). The Hohfeldian system explains this situation with concomitant rights. When Y acquired her privilege (the easement), the law automatically granted her a right to use that easement free from unreasonable interference by X. The correlative of that right is X's duty to not unreasonably interfere with Y's easement. If the duty is breached, then the lawsuit is for the violation of the concomitant right, and not for a "violation" of the privilege.
Power and liability
Power is the ability to change legal relationships. Take Person X and State S. X normally has the right to free movement, as related to S. S has the duty not to curtail X's free movement. If X is accused of a crime and meets all of the state's jurisdiction requirements, then S has the power to change X's right to free movement. If S indicts, convicts, and sentences X to jail, then S is exercising its power and removing X's right to free movement. Note that removing the right simultaneously removes the duty. Liability is the correlative of power. If S has the power to remove X's right of freedom, then X has the liability that S will remove that right.
As another example, Person X and Corporation C have a contract. X is a minor, and the law allows X to rescind the contract within a reasonable time of reaching the age of majority. The ability to rescind the contract is X's power to change the legal relationship; the correlative is that C has the liability that X may rescind the contract.
Liability is not necessarily a negative term. X owns $1,000 and is feeling charitable. X has the power to transfer ownership of the money to Y. Correlatively, Y has the liability that X will give him the money.
Immunity and disability
As the opposite of liability, immunity is the negation of liability. Take Person X, a foreign diplomat in State S. If X commits a crime, S would normally have the power to prosecute X for the crime. As a diplomat, however, X has immunity from S's courts. The correlative is that S is disabled from prosecuting X.
For a second example, take Corporation C, Corporation D, and Person X. Person X signs a contract with C for the sale of widgets. By signing the contract, X is using her power to create contracts. One provision in the contract, however, states that X shall not sell any widgets to Corporation D. Normally, X has the power to sign a contract with D, but she is under a disability to sign a contract for the sale of widgets with D because of her contract with C.
Under the American legal system, to be guilty of intentional homicide, one must 1) purposely or knowingly 2) commit an act that 3) causes the 4) death of another human being. An omission may be an act if there is a duty to perform the omitted act. People are not generally under a duty to rescue other people who are in peril, but if there is a special relationship between the two people, then the law may impose a duty to rescue.
Three Chinese cases of intentional homicide
Professor Clarke based his hypothesis on three Chinese cases. In all three cases, the court convicted the defendants of intentional homicide. Under the American system, these three cases would have been handled differently than under the Chinese system. Two of them would almost certainly not have resulted in convictions for intentional homicide, and the third might have resulted in intentional homicide convictions but under a different legal theory than that used by the Chinese court.
Husband convicted of intentional homicide for his wife's suicide
As reported in the Chinese news, a court convicted a man of intentional homicide because his wife committed suicide. (Read Google's automatic translation. Alternatively, cut and paste the Chinese article into Dictionary.com's translator to view a more thorough translation and to view the Chinese and English side-by-side.) During an intense argument between the wife and husband, the wife attempted to commit suicide by jumping into a sewage canal. The husband jumped in after her and tried to persuade her to get out. Failing to persuade her, he went to a relative's house, explained the situation, and called the police. From the time he left the canal to the time the police arrived was over an hour, and the wife was dead. The court held that the husband had a special duty to the wife because they were married and that he breached that duty through his "desertion" (mo)--by leaving her in the canal and not preventing her death. (Interestingly, "mo" translates to either the verb "to desert" or to the adjectives "indifferent" or "aloof." This linguistically connects the act of desertion with the reason for the desertion: the husband deserted his wife because he was indifferent to her plight.)
In the American system, the husband would not be guilty of intentional homicide. The husband was not the but-for cause of her death because she was intentionally trying to kill herself; the wife's act of throwing herself in the canal and her act of staying in the water were the but-for cause. The worst crime the husband could be guilty of is criminally negligent homicide for his failure to provide enough assistance to his wife. Of course, this is only possible if he had a duty to prevent his wife from killing herself. Under American law, a special relationship can create a duty to rescue another person from peril, but it does not create a duty to prevent suicide. Therefore, it is unlikely that the husband would be convicted of any crime under American law.
Three men convicted of intentional homicide because they "saw death, but did nothing to assist"
The second case revolves around the drowning death of a thief trying to escape three men who caught the thief trying to steal a bicycle. (Cutting and pasting the following articles into Dictionary.com's translator yields a better translation than Google's translation. First article: in Chinese and Google's translation. Second article: in Chinese and Google's translation.) Three men discovered a 17-year-old thief trying to steal a bicycle belonging to one of the men, and they beat the thief with a wrench and rocks until he escaped. The men chased the boy, so he tried to evade them by swimming across a river. He was too tired, too hurt, or both to make it across, and he started to drown. Not only did the men not help him, but they stood and watched him to make sure that he actually drowned. The three men were convicted of intentional homicide. The prosecutor argued that in "normal" circumstances, people do not have a duty to help others that are in distress. These circumstances, however, required the three men to help. Specifically, the three men "cannot see death and do nothing," buneng jian si bu jiu. In the second article about the case, the author states that all people's lives have equal value, even a thief's life, and when someone is in mortal danger, others have a duty (zeren) to help. (See alsoOtto Malmgren's email in the ChinaLaw archives analyzing these cases, registration required, click "responsibility for death in Chinese criminal law" and then Mr. Malmgren's email.)
In American law, it is possible that these three men would be convicted of intentional homicide, but the reasoning would be slightly different. An American court would likely hold that the three men had a duty to rescue the drowning thief because the three men created the dangerous situation. They intentionally omitted to help him and their omission was the but-for cause of his death. The difference between the Chinese legal rule and the American rule lies in the description of the duty. In the American system, the men have the duty to rescue because they created the dangerous situation. In the Chinese system, anyone who "sees death" has a duty to help. This blog elaborates below on the duty to help those in mortal danger.
A police officer convicted of intentional homicide for "causing" a deadly auto accident
In the third case, a police officer, Wang, was convicted of intentional homicide for "causing" a deadly motorcycle crash. This case is summarized in English in Frank K. Upham, Who Will Find the Defendant if He Stays with His Sheep? Justice in Rural China, 114 Yale L.J. 1675, 1683-84 (2005) (reviewing Zhu Suli, Song fa xiaxiang: Zhongguo jiceng sifazhidu yanjiu [Sending Law to the Countryside: Research on China's Basic-Level Judicial System] (2000)):
The decedent and two other young men had been drinking and were joyriding around midnight. They had run two consecutive police checkpoints, and when they approached the third, Wang fired two warning shots. After the motorcycle failed to stop, Wang fired again and hit one of the passengers (not the decedent) in the leg. The motorcycle continued for more than a kilometer until it collided with another vehicle and the decedent was killed. . . . The decedent had been the younger of two sons. The elder had drowned not a year earlier. The younger son's death left their mother distraught, and she demanded Wang's arrest. When the Public Security Bureau [the local police] refused to arrest him, she committed suicide in protest. That inflamed the local population, who were already distrustful of the police because of earlier instances of police misconduct and who, according to Zhu, demanded that someone in authority answer for such a death. The remaining family members then organized a sit-in by more than 200 people, which paralyzed local government operations.
The book review asserts that Wang was prosecuted because "social and moral norms were also involved" and that a "wrong had been done by the government" but does not specifically state what norms those were or precisely what action the public perceived as "wrong."
In the American legal system, the police officer would not be guilty of intentional homicide for a number of reasons. First, the police officer was not the but-for cause. The driver should not have driven drunk and even if drunk, the driver should have stopped at the police check points. Having driven drunk and failed to stop at the police check points, the officer fired at the motorcycle. Even if the court found that the officer used excessive force, the shooting did not cause the motorcycle to crash. After the officer fired, and before the crash, the driver had plenty of time to stop driving the motorcycle while drunk. Second, if the court found that the police officer was the but-for cause, it is likely that the officer had the privilege to shoot at the motorcycle to protect public safety. Third, it is possible that the police officer had immunity from prosecution because he was performing his duties when the death occurred.
To explain these cases, there must be a duty of mutual assistance, and rules for causation must allow for more attenuated but-for causes.
The Chinese idiom "jian si bu jiu"
Professor Clarke's hypothesis is that Chinese society believes that someone is always responsible for premature deaths. The existence of the Chinese idiom, "seeing death but not assisting," (jian si bu jiu), is evidence that many people in China agree with him.
Jian si bu jiu is an idiom that means "seeing someone in mortal danger, but not assisting them." It is idiomatic in that it is not simply a descriptive phrase, it also implies a normative ideal--a moral obligation to help the person in mortal danger. Using this idiom implies that the person who fails to assist is morally wrong. (See Mr. Olmgren's analysis on ChinaLaw--link and instructions supra.) It is idiomatic in a second way in that it is often used to mean "seeing trouble, but not assisting." This sense of the idiom is used in all sorts of situations to express the belief that everyone has a moral obligation to help each other.
Certainly, some segments of Chinese society consider jian si bu jiu to be a serious moral issue. This video purports to show a riot in Huzhou, Zhejiang Province because one or more police officers jian si bu jiu. It is not clear from the video if the police officer(s) saw someone in mortal danger or just someone in trouble, but the protestors were so angry with the police for not providing assistance that they tried to flip over a police van while the police were inside!
WARNING: the following video has some graphic violence and might be disturbing to some people. In this video, CCTV, the state owned television station lectures the public about the moral obligation to help others when they are in danger. It shows surveillance video from a bank where a thief viciously stabbed a woman. The bank employees did not help her and they were slow to call the police. During the seven to eight minutes she laid on the floor bleeding, no one helped her. In fact, she fell on a woman's bag, and the other woman retrieved the bag and left the bank without helping the woman at all. The government was appalled and used CCTV to lecture people about the moral obligation to help others.
Jian si bu jiu, as a moral value, is a specific version of the "mutual assistance" communitarian value
While it is certain some people in China believe that jian si bu jiu is a moral wrong, it does not prove that it is consistent with modern Chinese values. This section argues that a moral rule against jian si bu jiu is analytically consistent with the Chinese communitarian value system because it is a specific application of the "mutual assistance" value.
The Chinese Constitution does not have much legal effect, but it is an articulate and clear expression of Chinese communitarian values. The philosophy of Chinese Communism and Marxism focuses on economic issues such as the means of production and the misdeeds of the exploiting class, but there is an important corollary: socialism requires "mutual assistance." Article 6 of the Constitution states that a socialist system is based on the principle of "from each according to his ability, to each according to his work." Under the socialist system, if a person gives 100% of her ability, then the state is obligated to provide her with enough materials to survive. This is only possible if the underlying philosophy of society is based on mutual assistance--each person individually, and society collectively, has a duty to every other person and to the community.
The Constitution expresses the mutual assistance value in many places. The Preamble states, "Socialist relations of equality, unity and mutual assistance have been established among the [ethnic groups] and will continue to be strengthened." Article 51 says that individual rights and freedoms "may not infringe upon the interests of the state, of society or of the collective." Finally, article 54 dictates that all citizens have a duty to safeguard the "interests of the motherland." All of these statements are analytically necessary to support the principle of "from each according to his ability, to each according to his work" and the mutual assistance value.
Everyone in China has the moral right to receive mutual assistance and the moral duty of to provide mutual assistance. If one person of extraordinary ability grows more rice than she needs, then she has the moral duty to share it with those that worked to the best of their ability but were unable to grow enough rice to survive. Said differently, mutual assistance dictates that the failing of one member of society burdens all members of society.
The mutual assistance value in the context of these cases says that when a premature death has occurred, all members of society had the moral duty to prevent the death. This suggests that Professor Clarke's hypothesis is correct: when a premature death occurs, someone must be held responsible.
In fact, the idea that when a premature death occurs, someone must be held responsible, might not be isolated to communitarian value systems. If it is present in a wide variety of value systems, then it would be more likely to be found in the Chinese value system. The Paris riots in 2005 started when two teenagers died while trying to escape the police; and the Paris riots of 2007 started when two teenagers died after colliding with a police car. In both cases, the teenagers probably contributed more to their own deaths than the police officers contributed, but the rioters placed a significant amount of blame on the government for the deaths. Similarly, riots erupted in Australia in 2004 after a teenager died in a bizarre bicycle accident while being chased by police. Again, the teenager likely contributed the most to his death, but the community blamed the police. In Britain, when two babies in the same family die of SIDS (also called crib death or cot death), the parents are often convicted of a crime. People are convinced that two premature deaths in one family are so unlikely that someone must have caused the death. Recent research, however, suggests that this is not true. Even in societies that claim to be founded on liberalism, it seems that some people believe "that deaths don't just happen; someone needs to be held responsible." The evidence that many cultures may believe that deaths do not just happen, someone must be responsible, suggests that this belief probably exists in Chinese culture also.
The first two cases can be explained by applying mutual assistance as a legal duty
While it may be true that mutual assistance is a Chinese moral value, it does not prove that it if it was converted to a legal rule that it would be consistent with Chinese law. This section argues that mutual assistance, as a legal duty, is consistent with Chinese jurisprudence. "Consistent" means that applying mutual assistance as a legal duty would not require courts to alter radically other legal rules in the Chinese legal system.
The tentative definition of a moral assistance duty is "when a premature death might occur, all members of society have a legal duty to prevent that death." It is impossible to prosecute all of society for a premature death, so applying mutual assistance as a legal duty would require courts to figure out who should be criminally responsible for the death. The following sections suggest that the mechanisms for determining who is criminal responsible for the death already exist in general jurisprudence.
The suicidal wife case is explained by a mutual assistance duty and the least-cost-avoider rule
There are two ways to explain why the husband was punished in the first case. The first explanation was relied on by the court: as her spouse, the husband had a special duty to save her. This explanation is problematic because the duty the court identifies is extraordinary. Many legal systems assign a special duty to spouses to rescue the other spouse when the spouse is in peril and needs help to escape the peril. That is not what happened in this case: the wife was in peril because she put herself in peril and she was not trying to escape that peril. The special duty to rescue does not include the duty to prevent suicide. If the husband was guilty of intentional homicide because he breached a special duty, then that special duty must include a duty to thwart suicide. Marriage in Chinese law is not so different from other legal systems to support the idea that the marriage duty is significantly greater than that of other legal systems.
A second, and alternative, explanation is to apply mutual assistance as a legal duty: everyone has a legal duty to prevent the death, but the husband's responsibility is greater than all other person's responsibility, so he should be held criminally responsible. Everyone has a duty to prevent the death, but some of the more likely candidates for criminal responsibility are: the husband for leaving her in the sewage canal; her parents for not teaching her that suicide is wrong; the designer of the sewage canal for not making it sufficiently suicide-resistant; the government official in charge of the canal for not providing sufficient rescue equipment; the husband's swimming instructor for not training him to be a strong enough swimmer to rescue his wife against her will; and the wife's friends for not helping her deal with her marital strife. The tentative definition of the mutual assistance duty above does not make it clear who, if anyone, should be criminally responsible for the death.
A variation of the least-cost-avoider rule from the law and economics view of negligence explains why the husband should be prosecuted instead of someone else. The least-cost-avoider rule is used when multiple parties could potentially avoid a type of accident. According to Law and Economics proponents, negligence laws have been largely based on the least-cost-avoider rule even before a nascent form of the rule was employed by Judge Learned Hand in U.S. v. Carroll Towing, 159 F.2d 169 (2d Cir. 1947). In Carroll Towing, Judge Hand held that a defendant is negligent only if her cost to avoid an accident is less than the expect loss from an accident; expected loss is the chance that the accident might happen multiplied by the damage that would result from the accident. Judge Posner and other researchers have asserted that courts had been defining due care using the Hand Formula for centuries even though the courts never expressed the negligence rules using Judge Hand's economic terms. See Richard A. Posner, Economic Analysis of Law 27, 179-233 (5th ed. 1998). But see Richard W. Wright, Hand, Posner, and the Myth of the "Hand Formula", 4 Theoretical Inquiries in Law 145 (2003).
When more than one person could have avoided an accident, it is not clear how the Hand Formula should be applied. For example, if an accident with an expected loss of $100 could have been avoided if X had spent $20 or if Y had spent $30, then applying only the Hand Formula would suggest that both parties are under a duty to prevent the accident. However, only one of the parties needs to exercise due care for the accident to be avoided, and it is inefficient for both parties to have a duty of due care. In this type of situation--where more than one party can avoid the accident--the least-cost-avoider rule suggests that X should bear the liability because X can avoid the accident for the least cost.
The wife's suicide could have been prevented by many people, so it is not clear where to assign the liability. Applying the least-cost-avoider rule suggests that the greatest duty should be assigned to the party that can avoid the death for the least cost. The husband, who was present at the canal when the wife threw herself in, has the highest burden to save her because he could help save her for the least cost because he was closest to her at the time of the death. A mutual assistance duty explains this case without having to alter radically the remainder of the Chinese legal system; therefore, a mutual assistance duty, in this case, is jurisprudentially consistent with Chinese law.
The drowned bicycle thief case is also explained by a mutual assistance duty and the least-cost-avoider rule
The second case also has two explanations. As described above, an American court could find the defendants guilty because they created a dangerous situation. By creating the dangerous situation, they had a legal duty to rescue the thief when he was drowning. By intentionally omitting to help, they caused his death, therefore it was intentional homicide.
This explanation does not comport with the explanation of the case, however. The court described the breach of the legal duty as "seeing death but not assisting," jian si bu jiu. The court seemed to be holding that any person who saw the thief drowning would have a legal duty to assist. The court did not seem to hold that only those that created the dangerous situation would have a duty to rescue. The explanation of the case is much closer to the definition of the mutual assistance duty than to the special duty to rescue that arises when one creates a dangerous situation.
Again, if the court applied the mutual assistance duty to this case, all people had a duty to prevent the death. The least-cost-avoider rule again explains why the three men should be held criminally responsible instead of other people. The three men could have prevented the death in a number of ways: not chase the boy, save him when he was drowning, or get help when he was drowning. Besides the thief, no one else could have prevented the death for a lower cost than the three men could; therefore, the defendants have the highest burden to prevent his drowning. Like the first case, a mutual assistance duty explains this case without having to alter radically the remainder of the Chinese legal system; therefore, it also supports the assertion that a mutual assistance duty is jurisprudentially consistent with Chinese law.
The mutual assistance duty affects the but-for cause rule
The mutual assistance legal duty states that all people have a duty to prevent a premature death. A necessary corollary of this duty is that, when there is a premature death, all people caused the death in some way. When a premature death occurs, most people's acts that "caused" the death will be highly attenuated. As stated above, under American law, the defendant's act (or omission) must be the "but-for" cause of the death. If the mutual assistance duty exists, however, everyone's acts are the but-for cause for every premature death. The case of the suicidal wife provides a good example. The wife's death could have been prevented if any one of the following acts had not occurred: had the husband successfully saved her; had her parents successfully taught her that suicide was wrong; had the designer of the sewage canal made it impossible for her commit suicide (e.g., by making it too shallow to drown); or had the government provided adequate rescue equipment. Under a mutual assistance duty, all of these acts were a but-for cause of the premature death. As mentioned above, this means that anyone could potentially be prosecuted for intentional homicide when there is a premature death.
The police officer case is explained by a mutual assistance duty and by the rule that intentional acts are more culpable than negligent acts
The police officer case also supports the suggestion that a mutual assistance duty exists in Chinese law and that it is unnecessary to modify substantially other legal rules to apply the duty and explain the outcome of the case.
Again, there are two possible explanations for this case. Mr. Malmgren suggests that this case is best explained by "the often perceived need to placate the 'wrath of the people' (min fen)." He suggests that the police officer was convicted to prevent civil unrest rather than to punish him for an actual misdeed. The "wrath of the people" of the people refers to another Chinese idiom, "bu sha bu zu ping min fen", which means something like "not even death is enough to satisfy the wrath of the people (but we should kill her anyway because it might work)." Some commentators believe, for example, that Zheng Xiaoyu's execution (for corruption while the head of the Chinese food and drug administration) was "a killing necessary to placate the people [bu sha bu zu ping min fen]." Mr. Malmgren's explanation for this case has appeal and may be largely true. As reported by Upham and Zhu, the legal system only prosecuted the police officer after the local population become so angry that they "paralyzed local government operations." A fair interpretation of the events is that the wrath of the people was the only reason for the legal outcome.
On the other hand, it is possible to interpret the events a different way. It could be that the people were upset when the police officer was not prosecuted because they genuinely believed that he was responsible for the death of the motorcycle driver. And the legal result can be explained by applying a mutual assistance duty. Applying the mutual assistance duty requires the court to determine whom, if anyone, should be held criminally responsible for the premature death.
In the prior two cases, the least-cost-avoider rule explained why the particular defendants were punished, but the least-cost-avoider rule does not explain this case very well. A short list of potential defendants from the police officer case includes: whoever sold or served the driver alcohol (similar to a dram shop law); either of the two passengers on the motorcycle because they could have told the driver to stop, not drink and drive, or to drive more carefully; the driver of the other vehicle because maybe she could have been more careful; and the police offer that shot at the deceased because his intentional use of deadly force likely caused the driver to panic and drive more recklessly. Unlike the first two cases, it is not immediately clear which of these parties is the least-cost-avoider. In fact, the driver of the automobile might be the best candidate because they were present at the actual accident.
The police officer's criminal responsibility is still greater than the other parties, however, because his intentional use of deadly force is more culpable than the merely negligent acts of the other parties. In American law, it is a common occurrence that the intentional acts of one actor mitigates the negligent acts of another actor. Three examples readily illustrate this. First, contributory negligence is not a valid defense to an intentional tort. Second, supervening intentional acts relieve liability for negligent acts. Finally, people are generally more culpable for intentional acts than for negligent acts. In the police officer case, the police officer's intentional act (to use deadly force no less) is clearly more culpable than the apparently negligent acts of the other parties.
Again, applying a mutual assistance duty to this case, does not require a substantial modification of other legal rules to explain the outcome; therefore, it is more evidence that a mutual assistance duty is jurisprudentially consistent with Chinese law.
These cases suggest that Professor Clarke's hypothesis is correct. In each case, a premature death occurred, and the defendants were convicted of intentional homicide. The convictions are difficult to explain using the legal rules for intentional homicide found in American law, but the results are explained well if Chinese law includes a mutual assistance legal duty.
In August 2006, in the small town of Jena, a freshman African-American student asked the principal of the high school if African-American students were allowed to sit under the shade tree that the white students typically sat under. The principal told him students could sit wherever they wanted, and the student sat under the tree. The night after he did so, however, three white students hung nooses from the tree. Upset by the nooses, the African-American students held a protest under the tree. The principle of the school called a school assembly and had the police and the local district attorney, Reed Walters, speak to the entire school. Mr. Walters told the school that if they misbehaved that "With one stroke of my pen, I can make your life disappear."
His statement did not ease the tension, and no charges were filed against the three boys that hung the nooses. After multiple fights between blacks and whites on campus, someone burned down the school on November 30. The next night, a black student was attacked at a predominately white party, but no one was charged with a crime. The day after the student, Robert Bailey, was attacked, a white student argued with him at a local corner store. The white student pulled a gun from his truck, but Bailey managed to take the gun away from him. Because Bailey took the gun home with him, he was charged with theft of a firearm. The white student was not charged with anything.
At school the following Monday, a white student, Justin Barker, taunted Bailey by saying that he was beaten by a white guy. In retaliation, some black students later attacked Barker. During the attack, Barker was knocked out, punched, and kicked multiple times. He went to the hospital for a few hours, but was released the same day and went to a school social event later that evening. Reed Walters charged six black students with attacking Barker. The charge was attempted second-degree murder, and even though they were all under 18, he charged them as adults.
The first student to be tried, Mychal Bell, was convicted of aggravated battery, but his conviction was overturned by a Louisiana appellate court because he could not be charged with aggravated battery as an adult because he was only 16-years-old at the time of the crime.
Many people believe that the district attorney, Mr. Walters, is overlooking crimes committed by whites and pursuing black students too aggressively. In response to this intense criticism, Mr. Walters wrote a New York Times opinion expressing his views of the situation. He claimed, inter alia, that
I cannot overemphasize how abhorrent and stupid I find the placing of the nooses on the schoolyard tree in late August 2006. If those who committed that act considered it a prank, their sense of humor is seriously distorted. It was mean-spirited and deserves the condemnation of all decent people. But it broke no law. I searched the Louisiana criminal code for a crime that I could prosecute. There is none.
I thought it was odd that Louisiana would not have a statute prohibiting such a blatant threat of violence, so I also searched the criminal code. Unlike Mr. Walters, however, I found a significant number of statutes that he could use to prosecute the three boys that hung the nooses from the school yard tree that set this horrible set of events into motion.
Inciting to riot
Louisiana Revised Statutes (LA-R.S.) 14:329.2
Inciting to riot is the endeavor by any person to incite or procure any other person to create or participate in a riot.
In September 2007, protestors went to Jena to voice their discontent over the disparate treatment of the different students. Two white boys hung nooses from their truck and repeatedly drove by the protestors. The district attorney in Alexandria, not Jena, charged them with Inciting to riot. The facts between these two situations are remarkably similar, so it seems that the three boys in the original noose incident could also be charged with inciting to riot.
Disturbing the peace
LA-R.S. 14:103
Disturbing the peace is the doing of any of the following in such manner as would foreseeably disturb or alarm the public: . . . (4) Engaging in any act in a violent and tumultuous manner by any three or more persons; or . . . (6) Interruption of any lawful assembly of people.
In State v. Murphy, 40 La.Ann. 855 (1888), the defendant's threat to burn the house of another was disturbing the peace because the act "tends to provoke acts of violence and a disturbance of the public order." It is reasonable to think that a threatened lynching would provoke acts of violence or disturb the public order, therefore, hanging the nooses violated this statute. In fact, the hanging of the nooses did prompt a demonstration that the principal thought was so unnecessary and disruptive that he called an assembly to calm things down. The three boys clearly disturbed the peace by hanging the nooses.
Terrorizing
LA-R.S. 14:40.1
Terrorizing is the intentional communication of information . . . that a circumstance dangerous to human life . . . is about to exist, with the intent of causing members of the general public to be in sustained fear for their safety; . . . or causing other serious disruption to the general public.
In State ex rel. J.S., 808 So.2d 459 (La.App. 1 Cir. 2001), a Louisiana appellate court overturned a delinquency finding because the communicated threat did not cause sustained fear or serious disruption. The student, J.S., was accused of writing “Everyone will die May 28, 1999. Be Ready.” in large letters on a school bathroom wall. The court found that the record lacked evidence that the threat caused any fear or disruption and reversed the lower court.
At Jena High School, however, there is ample evidence that the noose threat caused fear and disruption. The African-American students held a protest immediately after the nooses were found that was disruptive enough that the principal called an assembly to address the issues. Fights broke out between students both on and off campus. The school was set on fire and the tree was eventually chopped down. The facts clearly demonstrate that hanging the nooses caused many disruptions.
Criminal mischief
LA-R.S. 14:59
Tampering with any property of another . . . with the intent to deprive anyone entitled thereto of the full use of the property.
A Louisiana appellate court held that a man who masturbated in his own backyard while looking through a six-foot-high wooden fence at his neighbor while she was in her backyard had tampered with her property within the meaning of this statute. State v. Krueutzer, 583 So.2d 1160 (La. App. 5th Cir. 1991). Hanging the nooses tampered with the property of another and was certainly intended to deprive the African-American students of their right to sit under the tree.
Simple criminal damage to property
LA-R.S. 14:56
Simple criminal damage to property is the intentional damaging of any property of another, without the consent of the owner, and except as provided in R.S. 14:55 [Aggravated criminal damage to property], by any means other than fire or explosion.
Hanging the nooses at least caused nominal damage: the trespass is a type of damage, and some school employee had to be paid to remove the nooses--having to pay to clean up the nooses is at least a nominal damage. It is an open question in Louisiana law whether nominal damages satisfy the requirements of this statute.
Criminal trespass
LA-R.S. 14:63
No person shall enter upon immovable property owned by another without express, legal, or implied authorization.
Prior versions of this law required that the land be enclosed and that signs be posted, but this version does not require either. Even if the perpetrators of the noose threat were students, there were not given consent to enter the school property to hang nooses or make threats. Since their actions exceeded the scope of their privilege, they were trespassing when they hung the nooses.
Extortion
LA-R.S. 14:66
Extortion is the communication of threats to another with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity of any description.
"The purport of the statute is to prohibit the use of threats to cause the victim . . . to do an act, or refrain from doing an act." State v. Felton, 339 So.2d 797, 800 (La. Sup. Ct. 1976). In this case, the three boys that hung the nooses wanted the African-American students to refrain from sitting under the tree.
The Reporters' Comment for this statutes states, "The advantage or property the offender is attempting to gain is of little import. By the use of the phrase 'anything of value,' anything susceptible of ownership is included." It does not matter if the value of sitting under the tree is minimal--the goal of the statute is to prevent people from using threats, not to prevent people from gaining "anything of value."
The Reporters' Comment also noted that "The harm or injury threatened need not be physical, but may be harm or injury to the character of the recipient or some third party." Under this statute, it is not necessary that the three boys intended to harm physically any African-Americans. By hanging the nooses, the boys attacked the character and dignity of African-American students, and that violates this statute.
Obstructing public passages
LA-R.S. 14:100.1
"No person shall wilfully obstruct the free, convenient and normal use of any . . . entrance, corridor or passage of any public building . . . by impeding, hindering, stifling, retarding or restraining traffic or passage thereon or therein."
The image of the tree in this CNN article shows a path (a type of passage) ran around the tree. Furthermore, there is an entrance to the building behind the tree. It is plausible to apply this law to the facts of this case.
Institutional vandalism
LA-R.S. 14:225
A person commits the crime of institutional vandalism by knowingly vandalizing, defacing, or otherwise damaging the following: . . . (3) Any school, educational facility, or community center.
It is not clear what the legal meaning of "defacing" is under this rarely-used statute, but hanging the nooses could plausibly be considered defacing school property. Pennsylvania has a similar law: "A person is guilty of criminal mischief if he: intentionally defaces or otherwise damages tangible public property or tangible property of another with an aerosol spray-paint can, broad-tipped indelible marker or similar marking device." Commonwealth v. Vida, 715 A.2d 1180, 1181 (Penn. Sup. Ct. 1998) (emphasis added). The Superior Court of Pennsylvania held that "[d]efacing or damaging does not by definition mean permanent damage." To meet the definition of "defacing," Pennsylvania does not require lasting damaging and neither does Montana. In State v. Nye, 283 Mont. 505 (Mont. Sup. Ct. 1997), the defendant was charged with "Malicious intimidation or harassment relating to civil or human rights," and one of the elements of this crime is an action that "damages, destroys, or defaces any property of another or any public property." (Emphasis added.) The Court held that the defendant violated the defacement part of the statute when he "affixed bumper stickers that read 'NO I do not belong to CUT' [Church Universal and Triumphant] on state and county road signs." The court held that affixing the bumper stickers was defacement even if the damage to the property was only "nominal."
Hanging the nooses probably only caused nominal damage to the tree, but it certainly defaced school property with its threatening message. The defacement was at least as severe as the bumper stickers from Nye. This Louisiana statute clearly applies to the three boys that hung the nooses.
Wrongful use of public property
LA-R.S. 14:329.4
Wrongful use of public property is (1) The intentional entering of or onto any public property without the permission of the lawful custodian thereof, or his designated representative, at any time when the public property is not open to the public.
Public accounts of the incident indicate that the three boys hung the nooses at night, when the school was presumably closed.
Prohibition of interference with educational process
LA-R.S. 14:329.5
No person shall, on the campus or lands of any . . . secondary school . . . willfully deny to students . . . [l]awful use of the property.
The perpetrators of the noose threat clearly intended to deny African-American students use of the shade tree on school property.
Various kinds of assault
LA-R.S. 14:36 Assault defined
Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.
Louisiana courts hold that "The elements of assault are (1) the intent-to-scare mental element (general intent); (2) conduct by the defendant of the sort to arouse a reasonable apprehension of bodily harm; and (3) the resulting apprehension on the part of the victim." See, e.g., State v. Blaise, 504 So.2d 1092, 1094 (La. App. 5th Cir. 1987). This is in contrast to the definition of tortious assault: "An assault is the imminent threat of a battery." See, e.g., Bulot v. Intracoastal Tubular Services, Inc., 730 So.2d 1012, 1018 (La. App. 4th Cir. 1999), remanded on other grounds, 749 So.2d 659 (La. 1999), (emphasis added). The current statutory definition of criminal assault is also in contrast to the Louisiana's older common-law definition of criminal assault: "any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of an immediate physical injury." State v. Aleck, 5 So. 639, 639-640 (La. Sup. Ct. 1889) (emphasis added). There is a reasonable argument that criminal assault only requires apprehension of harm and not imminent apprehension. It is certain that hanging the nooses is not a tortious assault because any apprehension of an assault was not imminent. It is possible, however, that hanging the nooses constituted some kind of criminal assault. Louisiana divides assault into multiple grades and types, and three of them may apply to the facts of this case.
Simple assault
LA-R.S. 14:38
Simple assault is an assault committed without a dangerous weapon.
After seeing or hearing about the noose threats, it seems likely and reasonable that some students felt that they would receive a battery. The facts presented in the media make it unclear whether students had the necessary level of apprehension.
Aggravated assault, LA-R.S. 14:37
Aggravated assault is an assault committed with a dangerous weapon.
If students had the necessary level of apprehension (see above), this statute would apply if the nooses are a "deadly weapon" under Louisiana law. In the trial of Mychal Bell, Mr. Walters successfully argued to the jury that a shoe is a deadly weapon, therefore it seems plausible that he would argue that a noose is a deadly weapon.
Assault on a school teacher, LA-R.S. 14:38.2
Assault on a school teacher is an assault committed when the offender has reasonable grounds to believe the victim is a school teacher acting in the performance of his duties. . . . (b) For the purposes of this Section, "assault" means an attempt to commit on a school teacher a battery or the intentional placing of a school teacher in reasonable apprehension of receiving a battery or making statements threatening physical harm to a school teacher.
If the threat was even partially directed at the school teachers, then this statute applies. The definition of "assault" in this subsection also supports the idea that the threat of violence need not be imminent. Besides excluding the word imminent, the statute specifically uses the word "threat," which is much broader than an imminent battery. Threats include statements that indicate that the battery will take place in the future or that the battery is possibly contingent on some future situation.
Conclusion
Whatever one feels or thinks about the entire Jena Six controversy, it is clear that the three boys that hung the nooses that set off this chain of events should be charged with a crime. As the above list of crimes shows, Mr. Walters claim that no statute covers their acts is patently absurd.
The trouble at the invitation-only private party started when a group of univited teenagers,including Robert Bailey, tried to crash the party and refused to leave when one of the host ask them to go. A 22-year-old white male confronted the party crashers and hit Bailey. Police arrested the white male and charged him with battery. He pleaded guilty to the charge and was placed on parole because it was his first offense. The white male was not a student.
The shotgun incident at the convenience store involved a 21-year-old white male, who was not a student, and three black teenagers, including Robert Bailey. Wittnesses, including store employees, supported the white male's version of the incident. He says the three teens confronted him as he was about to enter the store and chased him to his truck in the parking lot. He says he pulled an unloaded shotgun from the back seat to defend himself. The black teenagers wrestled the unloaded shotgun away from him, beat him up, and left with the shotgun. The police later recovered the shotgun and arrested the three teenagers. They are charged with aggravated robbery and theft of a firearm.
The three white teens who hung the nooses were not charged with a hate crime because two separate investigation, one by the school district and one by the Justice Department, determine they did not hang the nooses as an act of racial intimidation. Hanging stuff beneath the tree was a tradition, especially during football season. The three say they hung the nooses to poke fun at friends who were members of the school rodeo team, an idea they say they got from watching the lynching scene in the movie Lonessome Dove.
The "power theory" of jurisdiction suggests that a state has jurisdiction over persons found within the territorial limits of that state. This idea is intuitive, but like all legal concepts, there are some hard cases that call for a more nuanced definition. If a person merely flies over a state in an airplane (therefore, the person is within the territorial limits), for example, is that person subject to the jurisdiction of that state? Interestingly, there are situations where that person should not be subject to the jurisdiction of the state even when she is found within the state's territorial limits.
Grace v. MacArthur
In Grace v. MacArthur, 170 F.Supp. 442 (E.D. Ark. 1959), a man was flying on a non-stop flight from Tennessee to Texas. While the plane was over Arkansas, he was served with a summons from, and complaint filed in, the federal court of Arkansas. He filed a motion to dismiss the complaint for lack of jurisdiction over his person, but the court held that because he was served while in a plane over Arkansas that he was within the "territorial limits" of the court; therefore, he was subject to the jurisdiction of the court in Arkansas. (It appears that the ruling was not appealed.) All parties in the case accepted that the territorial limits of the state extend so high as to include airplanes flying over the state.
Blind application of the power theory would lead the court to conclude that a person within the territorial limits of a state is subject to the jurisdiction of that state, however, there are plenty of exceptions to this rule. In this case, the court erred by not examining the reasons why the defendant was within the territorial limits of the state. This blog argues that if the court had examined whether the defendant had purposely availed himself of a privilege granted by Arkansas, then the court would have recognized that he had not done so, and therefore should not be subject to the jurisdiction of the Arkansas courts.
Territorial limits is the first analytical step; purposefully availing oneself is the second step
Generally speaking, a state has jurisdiction over persons and property found within its territorial limits. Pennoyer v. Neff, 95 U.S. 714 (1877). This is a simple concept based on the "power theory" of sovereignty and jurisdiction: a state has power over the people and property found within the state, and a state does not have power over people and property found in other states. A state does not have power over all people found within its territorial limits, however. The fraudulent inducement doctrine and diplomatic immunity are two examples under which a state does not have jurisdiction over persons found within its territorial limits.
These exceptions can be explained with the purposeful availment doctrine: "it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235 (1958). In other words, if a person purposely avails herself of the state's grant of privilege to enter the state, then she is subject to the jurisdiction of the state. The purposeful availment doctrine is normally applied to cases that involve jurisdiction over a corporation or a person that was not personally served within the state. Justice Brennan applied this concept to transient jurisdiction in Burnham v. Superior Court of California, 495 U.S. 604, 637 (1990) (Brennan, J., concurring) when he stated that "By visiting the forum State, a transient defendant actually avails himself of significant benefits provided by the State." (Internal quotes and citation removed.) Conversely, if she does not 1) purposely avail 2) herself of the 3) privilege to enter granted by the state, then she is not subject to the state's jurisdiction over her person.
In addition to explaining the fraudulent inducement and diplomatic exceptions to jurisdiction, the purposeful availment doctrine explains why the Arkansas court should not have exercised jurisdiction over the defendant in Grace v. MacArthur even though the he was within the territorial limits of the state.
The purposeful availment doctrine explains the fraudulent inducement cases
A state normally has jurisdiction over a person found within its territorial limits, but the state does not have jurisdiction over a person that was fraudulently induced into the territorial limits. In Wyman v. Newhouse, 93 F.2d 313 (2d Cir. 1937), for example, the defendant was fraudulently induced to fly to Florida by his former lover for the sole purpose of meeting her. The former lover wanted the defendant to travel to Florida simply so she could serve him with a lawsuit in Florida, and the court held that jurisdiction over a person that is gained by fraud "is null and void." The fraudulent inducement doctrine fits well with the purposeful availment doctrine. When the defendant's sole purpose for being in the state is fraudulently obtained, then the fraud negates the purpose in purposely availing oneself of the privilege of entering the state. Since the sole purpose for entering the state is negated, the defendant is not logically purposely availing herself.
This is easier to see when one compares Wyman to a case in which the court refused to apply the fraudulent inducement doctrine. In Schwarz v. Artcraft Silk Hosiery Mills, 110 F.2d 465 (2d Cir. 1940), the serving party arranged a meeting with the defendant in New York simply so the defendant could be served with a lawsuit in New York. The defendant was already in New York state, however, at a summer house, and the court held that because he was within the territorial limits for a purpose other than the meeting, he was not fraudulently induced into the territorial limits of the state. Again, the purposeful availment doctrine can explain this holding. While the fraud of the plaintiff did negate one of the purposes why the defendant was within the territorial limits of the state, it did not negate all of the purposes. Since the defendant was still purposely availing himself of the privilege of entering the state, he was subject to the court's jurisdiction over his person.
In E/M Lubricants, Inc. v. Microfral, 91 F.R.D. 235 (N.D. Ill. 1981), the court applied the fraudulent inducement doctrine even though there was no obvious fraud. In this case, the serving party agreed to negotiations in good faith, but changed its mind and decided to sue after the plans were made, but before the defendant arrived in the state. The court held that the serving party had a duty to tell the defendant about its changed intentions and not doing so was a fraud upon the defendant. "In circumstances such as these, where plaintiff contributes to defendant's decision to enter the jurisdiction to negotiate a settlement and defendant enters the jurisdiction for that purpose only, the fraudulent enticement doctrine should apply." Calling the plaintiff's actions "fraud" is tenuous, but the purposeful availment doctrine explains the case very well. The defendant's sole purpose for being in the state was to negotiate a settlement. When the plaintiff changed its mind and decided against settlement negotiations, the defendant's sole purpose for being in the state was negated. With his purpose negated, he was not logically purposely availing himself of the privilege of entering the state, therefore the court could not exercise jurisdiction over his person.
The fraudulent inducement cases illustrate that courts must examine the reasons why the defendant was found within the territorial limits of the state before finding jurisdiction over the defendant's person. If the purpose is negated, or otherwise not due to the state's grant of the privilege to enter the state, then the defendant has not purposely availed herself, and therefore is not subject to jurisdiction over her person. Furthermore, synthesizing purposeful availment with fraudulent inducement is perfectly consistent with Justice Scalia's plurality opinion in Burnham v. Superior Court of California, 495 U.S. 604, 613 (1990). In Burnham, the plurality held that the power theory was still the law of the land, but noted that there were some cases where a state could not exercise jurisdiction over persons who were otherwise validly served with a summons while within the territory of the state (citations removed):
Most States, moreover, had statutes or common-law rules that exempted from service of process individuals who were brought into the forum by force or fraud or who were there as a party or witness in unrelated judicial proceedings. These exceptions obviously rested upon the premise that service of process conferred jurisdiction.
A state does not have jurisdiction over the person of a diplomat even when the diplomat is within the territory of the state
A state normally has jurisdiction over persons found within its territorial limits, but it usually does not have jurisdiction over diplomats found within its territorial limits. Article 31 of the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7502, says that diplomats are exempt from the jurisdiction of the receiving state. The purposeful availment doctrine explains why: a diplomat is found within the territorial limits of the receiving state for the benefit of her home state, not to purposely avail herself of the privilege of entering the state. In reality, because she is the agent of her home state, it is the sending state that is purposely availing itself of the privilege of entering the receiving state.
One could view the diplomatic immunities of the Vienna Convention as arising solely from the power theory: the sovereigns originally had jurisdiction over the diplomatic persons but ceded that jurisdiction through the positive law of the treaty. The Convention, however, was merely a codification of existing customary international law. See, e.g., In re Biaz, 135 U.S. 403, 411 (1890). Jurisdiction over diplomats is not a power that sovereigns relinquished through treaty; it is a power that they did not have under customary international law and the purposeful availment doctrine can explain why they did not have the power.
Further supporting the synthesis of the purposeful availment doctrine with diplomatic immunity is the fact that the Convention allows the receiving state to exercise jurisdiction over the diplomat in a few situations. A diplomat can be subject to the jurisdiction of the receiving state, for example, if the diplomat is involved in a commercial transaction "outside his official functions." When the diplomat executes a commercial transaction for her own benefit, then she is purposely availing herself of the privileges of being within the state and "invoking the benefits and protections of its laws." (Hanson v. Denckla, supra.) For that commercial transaction, the diplomat is subject to jurisdiction over her person.
Again, the purposeful availment doctrine explains when a court can exercise jurisdiction over persons found within the territorial limits of the state.
An involuntary act is not enough to satisfy purposeful availment
A potential defect with this theory is that if the airplane from Grace crashed in Arkansas, or if the plane made a forced landing in Arkansas, then the defendant would be able to use Arkansas law (and courts) to enforce any of his rights that may have been infringed. This defect does not exist, however, because the defendant would not have been purposefully availing himself of Arkansas law because a crash or forced landing is an involuntary act.
The classic example illustrating how an involuntary act is not a purposeful act involves a sleeping passenger in a car. Without the passenger's knowledge or consent, the driver of the car purposely drove into a cemetery without the consent of the owner, thus committing trespass. Trespass is an intent-based crime (or tort) and requires that the accused purposely committed the act. The driver of the car purposely committed an act that resulted in trespass, but the sleeping passenger did not purposely commit any such act. The passenger was present in the cemetery, without the consent of the owner, but the passenger did not purposely enter the cemetery, therefore the passenger did not commit trespass. The involuntary act negated the purpose element of the crime.
If the plane crashed or landed in Arkansas, it would not have been through the purposeful act of the defendant. The involuntary act (being on the ground in Arkansas) would negate the purposeful element of purposeful availment.
If this were not true, then both the fraudulent inducement doctrine and diplomatic immunity would be invalid. With the fraudulent inducement doctrine, the defendant still enjoys the protection of the laws in the host state. In Wyman v. Newhouse, supra, if the defendant had been hit by a car, he could have still sued for negligence. Similarly, even though diplomats may not be sued, they may sue others in their host country.
If a person is found within the territorial limits of a state through an involuntary act, then the lack of a purposeful act negates the purpose element in purposeful availment, therefore the courts of the host state may not exercise jurisdiction over her person.
No jurisdiction over the defendant because he did not purposely avail himself of Arkansas law
The Arkansas court in Grace v. MacArthur should have only subjected the defendant to jurisdiction over his person if the court had found that he was within the territorial limits of Arkansas because he was purposely availing himself of Arkansas's grant of the privilege to be in Arkansas. He was clearly within the territorial limits of Arkansas because all of the airspace above Arkansas is within the state's territorial limits, but he was not in the state due to Arkansas having granted him the privilege--he was in Arkansas due to the federal government having granted him the privilege through its sovereignty over the navigable airspace. In fact, Arkansas was without the power to deny him entry into the state.
The defendant was on an airplane that was passing over Arkansas by use of the navigable airways of the United States. The navigable airways are under the exclusive jurisdiction of the federal government, therefore, he was purposely availing himself of a privilege granted by the federal government, not the state of Arkansas. Under 49 U.S.C. sec. 40103(a)(1), the "United States Government has exclusive sovereignty of airspace of the United States." Paragraph (a)(2) grants the privilege to travel through the navigable airspace: "A citizen of the United States has a public right of transit through the navigable airspace." The defendant in Grace was only within the territorial limits of Arkansas because the federal government granted him the privilege to enter the state. He was not purposely availing himself of Arkansas's grant of the privilege to enter Arkansas, therefore Arkansas has no jurisdiction over his person.
As a final note, this theory is not inconsistent with any of the opinions in Burnham, including Justice Brennan's concurrence. See 495 U.S. at 637 n.11 ("As the Restatement suggests, there may be cases in which a defendant's involuntary or unknowing presence in a State does not support the exercise of personal jurisdiction over him. The facts of the instant case do not require us to determine the outer limits of the transient jurisdiction rule.")
This is a rare situation
This result makes intuitive sense: it would be odd to say that a person flying non-stop from Maine to Southern California would be subject to the jurisdiction of so many interposed state courts. On the other hand, it does make sense that the defendant would be subject to the jurisdiction of Maine, California, and the federal government.
Some Fundamental Legal Conceptions as Applied in Judicial Reasoning
*16 From very early days down to the present time the essential nature of trusts and other equitable interests has formed a favorite subject for analysis and disputation. The classical discussions of Bacon1 and Coke are familiar to all students of equity, and the famous definition of the great chief justice (however inadequate it may really be) is quoted even in the latest textbooks on trusts.2 That the subject has had a peculiar fascination for modern legal thinkers is abundantly evidenced by the well known articles of Langdell3 and Ames,4 by the oft-repeated observations *17 of Maitland in his Lectures on Equity,5 by the very divergent treatment of Austin in his Lectures on Jurisprudence,6 by the still bolder thesis of Salmond in his volume on Jurisprudence,7 and by the discordant utterances of Mr. Hart8 and Mr.Whitlock9*18 in their very recent contributions to our periodical literature.
1. Bacon on Uses (Circa 1602; Rowe's ed. 1806), pp. 5-6: "The nature of an use is best discerned by considering what it is not, and then what it is. * * * First, an use is no right, title, or interest in law; and therefore master attorney, who read upon this statute, said well, that there are but two rights: Jus in re: Jus ad rem. "The one is an estate, which is jus in re; the other a demand, which is jus ad rems but an use is reither. * * * So as now we are come by negatives to the affirmative, what an use is. * * * Usus est dominium fiduciarium: Use is an ownership in trust. "So that usus & status, sive possessio, potius differunt secundum rationem fori, quam secundum raturam rei, for that one of them is in court of law, the other in court of conscience. * * *"
2. Co. Lit. (1628) 272 b: "Nota, an use is a trust or confidence reposed in some other, which is not issuing out of the land but as a thing collaterall, annexed in privitie to the estate of the land, and to the person touch ing the land, scilicet, that cesty que use shall take the profit, and that the terre-tenant shall make an estate according to his direction. So as cesty que use had neither jus in re, nor jus ad rem, but only a confidence and trust for which he had no remedie by the common law, but for the breach of trust, his remedie was only by subpoena in chancerie. * * *" This definition is quoted and discussed approvingly in Lewin, Trusts (12th ed., 1911), p. 11. It is also noticed in Maitland, Lectures on Equity (1909), pp. 43, 116.
3. See Langdell, Classification of Rights and Wrongs (1900), 13 Harv. L. Rev., 659, 673: "Can equity then create such rights as it finds to be necessary for the purposes of justice? As equity wields only physical power, it sems to be impossible that it should actual'y create anything. * * * It seems, therefore, that equitable rights exist only in contempation of equity, i. e., that they are a fiction invented by equity for the promotion of justice. * * * "Shutting our eyes, then, to the fact that equitable rights are a fiction, and assuming them to have an actual existence, what is their nature, what their extent, and what is the field which they occupy? * * * They must not violate the law * * * Legal and equitable rights must, therefore, exist side by side, and the latter cannot interfere with, or in any manner affect, the former." See also (1887) 1 Harv. L. Rev., E5, 60: "Upon the whole, it may be said that equity could not create rights in rem if it would, and that it would not if it could." Compare Ibid. 58; and Summary of Eq. Plead. (2nd ed., 1883) secs. 45, 182-184.
4. See Ames, "Purchase for Value Without Notice" (1887), 1 Harv. L Rev., 1, 9: "The trustee is the owner of the land, and, of course, two persons with adverse interests cannot be owners of the same thing. What the cestui que trust really owns is the obligation of the trustee; for an obligation is as truly the subject matter of property as any physical res. The most striking difference between property in a thing and property in an obligation is in the mode of enjoyment. The owner of a house or a horse enjoys the fruits of ownership without the aid of any other person. The only way in which the owner of an obligation can realize his ownership is by compelling its performance by the obliger. Hence, in the one case, the owner is said to have a right in rem, and in the other, a right in personam. In other respects the common rules of property apply' equally to ownership of things and ownership of obligations. For example, what may be called the passive rights of ownership are the same in both cases. The general duty resting on all mankind not to destroy the property of another, is as cogent in favor of an obligee as it is in favor of the owner of a horse. And the violation of this duty is as pure a tort in the one case as in the other."
5. Lect. on Eq. (1909), 17, 18, 112: "The thesis that I have to maintain is this, that equitable estates and interests are not jura in rem. For reasons that we shall perceive by and by, they have come to look very like jura in rem; but just for this very reason it is the more necessary for us to observe that they are essentially jura in personam, not rights against the world at large but rights against certain persons " See also Maitland, Trust and Corporation (1904), reprinted in 3 Collected Papers, 321, 325.
6. (5th ed.) Vol. I, p. 378: "By the provisions of that part of the English law which is called equity, a contract to sell at once vests jus in rem or ownership in buyer, and the seller has only jus in re aliena. * * * To complete the transaction the legal interest of the seller must be passed to the buyer, in legal form. To this purpose the buyer has only jus in personam: a right to compel the seller to pass his legal interest; but speak ing generally, he has dominium or jus in rem, and the instrument is a conveyance."
7. (2nd ed., 1907) p. 230: "If we have regard to the essence of the matter rather than to the form of it, a trustee is not an owner at all but a mere agent, upon whom the law has conferred the power and imposed he duty of administering the property of another person. In legal theory, however, he is not a mere agent, but an owner. He is a person to whom the property of someone else is fictitiously attributed by the law, to the intent that the rights and powers thus rested in a nominal owner shall be used by him on behalf of the real owner."
8. See Walter G. Hart (author of "Digest of Law of Trusts"), The Place of Trust in Jurisprudence (1912), 28 Law Quart. Rev., 290, 296. His position is substantially that of Ames and Maitland. At the end of this article Sir Frederick Pollock, the editor, puts the query: "Why is Trust not entitled to rank as a head sui generis?"
9. See A. N. Whitlock, Classification of the Law of Trusts (1913), 1 Calif. Law Rev., 215, 218: "It is submitted," says the writer, "that the cestui has in fact something more than a right in personam, that such a right might be more properly described as a right in personam ad rem, or, possibly, a right in rem per personam." Surely such nebulous and cumbrous expressions as these could hardly fail to make "confusion worse confounded."
It is believed that all of the discussions and analyses referred to are inadequate. Perhaps, however, it would have to be admitted that even the great intrinsic interest of the subject itself and the noteworthy divergence of opinion existing among thoughtful lawyers of all times would fail to afford more than a comparatively slight excuse for any further discussion considered as a mere end in itself. But, quite apart from the presumably practical consideration of endeavoring to "think straight" in relation to all legal problems, it is apparent that the true analysis of trusts and other equitable interests is a matter that should appeal to even the most extreme pragmatists of the law. It may well be that one's view as to the correct analysis of such interests would control the decision of a number of specific questions. This is obviously true as regards the solution of many difficult and delicate problems in constitutional law and in the conflict of laws.10 So, too, in certain questions in the law of perpetuities, the intrinsic nature of equitable interests is of great significance, as attested by *19 the well-known Gomm case11 and others more or less similar. The same thing is apt to be true of a number of special questions relating to the subject of bona fide purchase for value. So on indefinitely.12
10. See Beale, Equitable Interests in Foreign Property, 20 Harv. L. Rev. (1907), 382; and compare the important cases, Fall v. Eastin (1905), 75 Neb., 104; S. C. (1909), 215 U. S., 1, 14-15 (especially concurring opinion of Holmes, J.); Selover, Bates & Co. v. Walsh (1912), 226 U. S., 112;Bank of Africa Limited v. Cohen (1909), 2 Ch. 129, 143.
11. (1882) 20 Ch. D. 562, 580, per Sir George Jessel, M. R.: "If then the rule as to remoteness applies to a covenant of this nature, this covenant clearly is bad. as extending beyond the period allowed by the rule. Whether the rule applies or not depends upon this, as it appears to me, does or does not the covenant give an interest in the land? * * * If it is a mere personal contract it cannot be enforced against the assignee. Therefore the company must admit that somehow it binds the land. But if it binds the land, it creates an equitable interest in the land."
12. Compare Ball v. Milliken (1910), 31 R. I. 36;76 Atl., 789, 793, involving a point other than perpetuities, but quoting in support of the decision reached Sir George Jessel's language as to "equitable interests in land." See preceding note.
But all this may seem like misplaced emphasis; for the suggestions last made are not peculiarly applicable to equitable interests: the same points and the same examples seem valid in relation to all possible kinds of jural interests, legal as well as equitable,-and that too, whether we are concerned with "property," "contracts," "torts," or any other title of the law. Special reference has therefore been made to the subject of trusts and other equitable interests only for the reason that the striking divergence of opinion relating thereto conspicuously exemplifies the need for dealing somewhat more intensively and systematically than is usual with the nature and analysis of all types of jural interests. Indeed, it would be virtually impossible to consider the subject of trusts at all adequately without, at the very threshold analyzing and discriminating the various fundamental conceptions that are involved in practically every legal problem. In this connection the suggestion may be ventured that the usual discussions of trusts and other jural interests seem inadequate (and at times misleading) for the very reason that they are not founded on a sufficiently comprehensive and discriminating analysis of jural relations in general. Putting the matter in another way, the tendency-and the fallacy-has been to treat the specific problem as if it were far less complex than it really is; and this commendable effort to treat as simple that which is really complex has, it is believed, furnished a serious obstacle to the clear understanding, the orderly statement, and the correct solution of legal problems. In short, it is submitted that the right *20 kind of simplicity can result only from more searching and more discriminating analysis.
If, therefore, the title of this article suggests a merely philosophical inquiry as to the nature of law and legal relations,-a discussion regarded more or less as an end in itself,-the writer may be pardoned for repudiating such a connotation in advance. On the contrary, in response to the invitation of the editor of this journal, the main purpose of the writer is to emphasize certain oft-neglected matters that may aid in the understanding and in the solution of practical, every-day problems of the law. With this end in view, the present article and another soon to follow will discuss, as of chief concern, the basic conceptions of the law,-the legal elements that enter into all types of jural interests. A later article will deal specially with the analysis of certain typical and important interests of a complex character,-more particularly trusts and other equitable interests. In passing, it seems necessary to state that both of these articles are intended more for law school students than for any other class of readers. For that reason, it is hoped that the more learned reader may pardon certain parts of the discussion that might otherwise seem unnecessarily elementary and detailed. On the other hand, the limits of space inherent in a periodical article must furnish the excuse for as great a brevity of treatment as is consistent with clearness, and for a comparatively meager discussion-or even a total neglect-of certain matters the intrinsic importance of which might otherwise merit greater attention. In short, the emphasis is to be placed on those points believed to have the greatest practical value.
LEGAL CONCEPTIONS CONTRASTED WITH NON-LEGAL CONCEPTIONS.
At the very outset it seems necessary to emphasize the importance of differentiating purely legal relations from the physical and mental facts that call such relations into being. Obvious as this initial suggestion may seem to be, the arguments that one may hear in court almost any day and likewise a considerable number of judicial opinions afford ample evidence of the inveterate and unfortunate tendency to confuse and blend the legal and the non-legal quantities in a given problem. There are at least two-special reasons for this.
*21 For one thing, the association of ideas involved in the two sets of relations-the physical and the mental on the one hand, and the purely legal on the other-is in the very nature of the case, extremely close. This fact has necessarily had a marked influence upon the general doctrines and the specific rules of early systems of law. Thus, we are told by Pollock and Maitland: "Ancient German law, like ancient Roman law, sees great difficulties in the way of an assignment of a debt or other benefit of a contract * * * men do not see how there can be a transfer of a right unless that right is embodied in some corporeal thing. The history of the incorporeal things has shown us this; they are not completely transferred until the transferee has obtained seisin, has turned his beasts onto the pasture, presented a clerk to the church or hanged a thief upon the gallows. A covenant or a warranty of the title may be so bound up with land that the assignee of the land will be able to sue the covenantor or warrantor."13
13. 2 Hist. Eng. Law (2nd ed., 1905), 226.
In another connection, the same learned authors observe: "The realm of mediaeval law is rich with incorporeal things. Any permanent right which is of a transferable nature, at all events if it has what we may call a territorial ambit, is thought of as a thing that is very like a piece of land. Just because it is a thing it is transferable. This is no fiction invented by the speculative jurists. For the popular mind these things are things. The lawyer's business is not to make them things but to point out that they are incorporeal. The layman who wishes to convey the advowson of a church will say that he conveys the church; it is for Bracton to explain to him that what he means to transfer is not that structure of wood and stone which belongs to God and the saints but a thing incorporeal, as incorporeal as his own soul or the anima mundi."14
14. Ibid., 124.
A second reason for the tendency to confuse or blend non-legal and legal conceptions consists in the ambiguity and looseness of our legal terminology. The word "property" furnishes a striking example. Both with lawyers and with laymen this term has no definite or stable connotation. Sometimes it is employed to indicate the physical object to which various legal rights, privileges, etc., relate; then again-with far greater discrimination and accuracy-the word is used to denote the legal interest (or aggregate of legal relations) appertaining to such physical object. Frequently there is a rapid and fallacious shift from the one meaning *22 to the other. At times, also, the term is used in such a "blended" sense as to convey no definite meaning whatever.
For the purpose of exemplifying the looser usage just referred to, we may quote from Wilson v. Ward Lumber Co.:15 "The term 'property', as commonly used denotes any external object over which the right of property is exercised. In this sense it is a very wide term, and includes every class of acquisitions which a man can own or have an interest in."
15. (1895) 67 Fed. Rep., 674, 677. For a somewhat similar, and even more confusing, form of statement, see In re Fixen (1900), 102 Fed. Rep., 295, 296.
Perhaps the ablest statement to exemplify the opposite and more accurate usage is that of Professor Jeremiah Smith (then Mr. Justice Smith) in the leading case of Eaton v. B. C. & M. R.R. Co.:16 "In a strict legal sense, land is not 'property', but the subject of property. The term 'property', although in common parlance frequently applied to a tract of land or a chattel, in its legal signification 'means only the rights of the owner in relation to it'. 'It denotes a right over a determinate thing'. 'Property is the right of any person to possess, use, enjoy, and dispose of a thing'. Selden, J., in Wynehamer v. People, 13 N. Y., 378, p. 433; 1 Blackstone's com., 138; 2 Austin's Jurisprudence, 3rd ed., 817, 818. * * * The right of indefinite user (or of using indefinitely) is an essential quality of absolute property, without which absolute property can have no existence. * * * This right of user necessarily includes the right and power of excluding others from using the land. See 2 Austin on Jurisprudence, 3rd ed. 836; Wells, J., in Walker v. 0. C. W. R. R., 103 Mass., 10, p. 14."
16. 51 N. H., 504, 511. Se also the excellent similar statements of Cornstock, J., in Wynehamer v. People (1856), 13 N. Y., 378, 396; Selden J., S. C, 13 N. Y., 378, 433-434; Ryan, C, in Law v. Rees Printing Co. (1894), 41 Neb., 127, 146; Magruder, J., in Dixon v. People (1897), 168 111., 179, 190.
Another useful passage is to be found in the opinion of Sherwood, J., in St. Louis v. Hall:17 "Sometimes the term is applied to the thing itself, as a horse, or a tract of land; these things, however, though the subjects of property, *23 are, when coupled with possession, but the indicia, the visible manifestation of invisible rights, 'the evidence of things not seen.' "Property, then, in a determinate object, is composed of certain constituent elements, to wit: The unrestricted right of use, enjoyment, and disposal, of that object."
17. (1893) 116 Mo., 527, 533-534. That the last sentence quoted is not altogether adequate as an analysis of property will appear, it is hoped, from the latter part of the present discussion. See also, as regards the term, "property," the opinion of Doe, C. J., in Smith v. Fairloh (1894), 68 N. H., 123, 144-145. ("By considering the property dissolved into the legal rights of which it consists" etc.)
In connection with the ambiguities latent in the term "property" , it seems well to observe that similar looseness of thought and expression lurks in the supposed (but false) contrast between "corporeal" and "incorporeal" property. The second passage above quoted from Pollock and Maitland exhibits one phase of this matter. For further striking illustration, reference may be made to Blackstone's well-known discussion of corporeal and incorporeal hereditaments. Thus, the great commentator tells us: "But an hereditament, says Sir Edward Coke, is by much the largest and most comprehensive expression; for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal, or mixed."18
18. 2 Black. Com. (1765), 16-43.
It is clear that only legal interests as such can be inherited; yet in the foregoing quotation there is inextricable confusion between the physical or "corporeal" objects and the corresponding legal interests, all of which latter must necessarily be "incorporeal," or "invisible," to use the expression of Mr. Justice Sherwood. This ambiguity of thought and language continues throughout Blackstone's discussion; for a little later he says: "Hereditaments, then, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses, such as may be seen and handled by the body; incorporeal are not the objects of sensation, can neither be seen nor handled; are creatures of the mind, and exist only in contemplation."
Still further on he says: "An incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal), or concerning, or annexed to, or exercisable within, the same. * * * "Incorporeal hereditaments are principally of ten sorts: advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents."
*24 Since all legal interests are "incorporeal"-consisting, as they do, of more or less limited aggregates of abstract legal relations-such a supposed contrast as that sought to be drawn by Blackstone can but serve to mislead the unwary. The legal interest of the fee simple owner of land and the comparatively limited interest of the owner of a "right of way" over such land are alike so far as "incorporeality" is concerned; the true contrast consists, of course, primarily in the fact that the fee simple owner's aggregate of legal relations is far more extensive than the aggregate of the easement owner.
Much of the difficulty, as regards legal terminology, arises from the fact that many of our words were originally applicable only to physical things;19 so that their use in connection with legal relations is, strictly speaking, figurative or fictional. The term, "transfer," is a good example. If X says that he has transferred his watch to Y, he may conceivably mean, quite literally, that he has physically handed over the watch to Y; or, more likely, that he has "transferred" his legal interest, without any delivery of possession,-the latter, of course, being a relatively figurative use of the term. This point will be reached again, when we come to treat of the "transfer" of legal interests. As another instance of this essentially metaphorical use of a term borrowed from the physical world, the word "power" may be mentioned. In legal discourse, as in daily life, it may frequently be used in the sense of physical or mental capacity to do a thing; but, more usually and aptly, it is used to indicate a "legal power" , the connotation of which latter term is fundamentally different. The same observations apply, mutatis mutandis, to the term "liberty."
19. Compare Poll. & Maitl. Hist. Eng. Law (2nd ed., 1905), Vol. II, p. 31: "Few, if any, of the terms in our legal vocabulary have always been technical terms. The license that the man of science can allow himself of coining new words is one which by the nature of the case is denied to lawyers. They have to take their terms out of the popular speech; gradually the words so taken are defined; sometimes a word continues to have both a technical meaning for lawyers and a different and vaguer meaning for laymen; sometimes the word that lawyers have adopted is abandoned by the laity." Compare also Ibid., p. 33.
Passing to the field of contracts, we soon discover a similar inveterate tendency to confuse and blur legal discussions by failing to discriminate between the mental and physical facts involved in the so-called "agreement" of the parties, and the legal "contractual obligation" to which those facts give rise. Such ambiguity *25 and confusion are peculiarly incident to the use of the term "contract." One moment the word may mean the agreement of the parties; and then, with a rapid and unexpected shift, the writer or speaker may use the term to indicate the contractual obligation created by law as a result of the agreement. Further instances of this sort of ambiguity will be noticed as the discussion proceeds.
OPERATIVE FACTS CONTRASTED WITH EVIDENTIAL FACTS.
For the purpose of subsequent convenient reference, it seems necessary at this point to lay emphasis upon another important distinction inherent in the very nature of things. The facts important in relation to a given jural transaction may be either operative facts or evidential facts. Operative, constitutive, causal, or "dispositive" facts are those which, under the general legal rules that are applicable, suffice to change legal relations, that is, either to create a new relation, or to extinguish an old one, or to perform both of these functions simultaneously.20 For example, *26 in the creation of a contractual obligation between A and B, the affirmative operative facts are, inter alia, that each of the parties is a human being, that each of them has lived for not less than a certain period of time, (is not "under age" ), that A has made an "offer," that B has "accepted" it, etc. It is sometimes necessary to consider, also, what may, from the particular point of view, be regarded as negative operative facts. Thus, e. g., the fact that A did not wilfully misrepresent an important matter to B, and the fact that A had not "revoked" his offer, must really be included as parts of the totality of operative facts in the case already put.
20. Compare Waldo, C. J., in White v. Multonomah Co. (1886), 13 Ore., 317, 323: "A 'right' has been defined by Mr. Justice Holmes to. be the legal consequence which attaches to certain facts. (The Common Law, 214). Every fact which forms one of the group of facts of which the right is the legal consequence appertains to the substance of the right." The present writer's choice of the term "operative" has been suggested by the following passage from Thayer, Prelim. Treat. Evid. (1893), p. 393: "Another discrimination to be observed is that between documents which constitute a contract, fact, or transaction, and those which merely certify and evidence something outside of themselves,-a something valid and operative, independent of the writing." Compare also Holland, Jurisp. (10th ed, 1906), 151: "A fact giving rise to a right has long been described as a 'title'; but no such well-worn equivalent can be found for a fact through which a right is transferred. or for one by which a right is extinguished. A new nomenclature was accordingly invented by Bentham, which is convenient for scientific use, although it has not found its way into ordinary language. He describes this whole class of facts as 'Dispositive'; distinguishing as Investitive those by means of which a right comes into existence, as 'Divesitive' those through which it terminates, and as 'Translative' those through which it passes from one person to another." The word "ultimate," sometimes used in this connection, does not seem to be so pointed and useful a term as either "operative" or "constitutive."
Taking another example,-this time from the general field of torts-if X commits an assault on Y by putting the latter in fear of bodily harm, this particular group of facts immediately create in Y the privilege of self-defense,-that is, the privilege of using sufficient force to repel X's attack; or, correlatively, the otherwise existing duty of Y to refrain from the application of force to the person of X is, by virtue of the special operative facts, immediately terminated or extinguished.
In passing, it may not be amiss to notice that the term, "facts in issue," is sometimes used in the present connection. If, as is usual, the term means "facts put in issue by the pleadings" the expression is an unfortunate one. The operative facts alleged by the pleadings are more or less generic in character; and if the pleadings be sufficient, only such generic operative facts are "put in issue." The operative facts of real life are, on the other hand, very specific. That being so, it is clear that the real and specific facts finally relied on are comparatively seldom put in issue by the pleadings. Thus, if, in an action of tort, the declaration of A alleges that he was, through the carelessness, etc., of B, bitten by the latter's dog, the fact alleged is generic in character, and it matters not whether it was dog Jim or dog Dick that did the biting. Even assuming, therefore, that the biting was done by Jim, (rather than by Dick), it could not be said that this specific fact was put in issue by the pleadings. Similarly, and more obviously, the pleading in an ordinary action involving so-called negligence, is usually very generic in character,21 so that *27 any one of various possible groups of specific operative facts would suffice, so far as the defendant's obligation ex delicto is concerned. It therefore could not be said that any one of such groups had been put in issue by the pleadings. A common fallacy in this connection is to regard the specific operative facts established in a given case as being but "evidence" of the generic (or "ultimate") operative facts alleged in the pleadings.22
21. Compare, however, Illinois Steel Co. v. Ostrowski (1902), 194 111., 376, 384, correctly sustaining a declaration alleging the operative facts specifically instead of generically, as required by the more approved forms of pleading. The rules of pleading determining whether allegations must be generic or specific-and if the latter, to what degree-are,.like other rules of law, based on considerations of policy and convenience. Thus the facts constituting fraud are frequently required to be alleged in comparatively specific form; and similarly as regards cruelty in an action for divorce based on that ground. The reasons of policy are obvious in each case.
22. Compare McCaughey v. Schuette (1897), 117 Cal., 223. While the decision in this case can be supported, the statement that the specific facts pleaded were "evidentiary" seems inaccurate and misleading. There are, of course, genuine instances of the fatally erroneous pleading of strictly evidential facts instead of either generic or specific operative facts. • See Rogers v. Milwaukee, 13 Wis., 610; and contrast Illinois Steel Co. v. Ostrowski, supra, note 21.
An evidential fact is one which, on being ascertained, affords some logical basis-not conclusive-for inferring some other fact. The latter may be either a constitutive fact or an intermediate evidential fact. Of all the facts to be ascertained by the tribunal, the operative are, of course, of primary importance; the evidential are subsidiary in their functions.23 As a rule there is little danger of confusing evidential facts with operative facts. But there is one type of case that not infrequently gives rise to this sort of error. Suppose that in January last a contractual obligation was created by written agreement passing between A and B. In an action now pending between these parties, the physical instrument is offered for inspection by the tribunal. If one were thoughtless, he would be apt to say that this is a case where part of the operative facts creating the original obligation are directly presented to the senses of the tribunal. Yet a moment's reflection will show that such is not the case. The document, in its then *28 existing shape, had, as regards its operative effect, spent its force as soon as it was delivered in January last. If, therefore, the unaltered document is produced for inspection, the facts thus ascertained must, as regards the alleged contractual agreement, be purely evidential in character. That is to say, the present existence of the piece of paper, its specific tenor, etc., may, along with other evidential facts (relating to absence of change) tend to prove the various operative facts of last January,-to wit, that such paper existed at that time; that its tenor was then the same as it now is; that it was delivered by A to B, and so forth.
23. Both operative and evidential facts must, under the law, be ascertained in some one or more of four possible modes: 1. By judicial admissions (what is not disputed); 2. By judicial notice, or knowledge (what is known or easily knowable); 3. By judicial perception (what is ascertained directly through the senses; cf. "real evidence" ); 4. By judicial inference (what is ascertained by reasoning from facts already ascertained by one or more of the four methods here outlined).
It now remains to observe that in many situations a single convenient term is employed to designate (generically) certain miscellaneous groups of operative facts which, though differing widely as to their individual "ingredients," have, as regards a given matter, the same net force and effect. When employed with discrimination, the term "possession" is a word of this character; so also the term "capacity," the term "domicile," etc. But the general tendency to confuse legal and non-legal quantities is manifest here as elsewhere; so that only too frequently these words are used rather nebulously to indicate legal relations as such.24
24. As an example of this, compare Lord Westbury, in Bell v. Kennedy (1868), L. R. 1 H. L. (Sc), 307: "Domicile, therefore, is an idea of the law. It is the relation which the law creates between an individual and a particular locality or country." Contrast the far more accurate language of Chief Justice Shaw. in Abington v. Bridgewater (1840), 23 Pick., 170: "The fact of domicile is often one of the highest importance to a person; it determines his civil and political rights and privileges, duties and obligations. * * *"
FUNDAMENTAL JURAL RELATIONS CONTRASTED WITH ONE ANOTHER.
One of the greatest hindrances to the clear understanding, the incisive statement, and the true solution of legal problems frequently arises from the express or tacit assumption that all legal relations may be reduced to "rights" and "duties," and that these latter categories are therefore adequate for the purpose of analyzing even 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, *29 its seriousness would nevertheless be worthy of definite recognition and persistent effort toward improvement; for in any closely reasoned problem, whether legal or non-legal, chameleon-hued words are a peril both to clear thought and to lucid expression.25 As a matter of fact, however, the above mentioned inadequacy and ambiguity of terms unfortunately reflect, all too often, corresponding paucity and confusion as regards actual legal conceptions. That this is so may appear in some measure from the discussion to follow.
25. In this connection, the words of one of the great masters of the common law are significant. In his notable Preliminary Treatise on Evidence (1898), p. 190, Professor James Bradley Thayer said: "As our law develops it becomes more and more important to give definiteness to its phraseology; discriminations multiply, new situations and complications of fact arise, and the old outfit of ideas, discriminations, and phrases has to be carefully revised. Law is not so unlike all other subjects of human contemplation that clearness of thought will not help us powerfully in grasping it. If terms in common legal use are used exactly, it is well to know it; if they are used inexactly, it is well to know that, and to remark just how they are used." Perhaps the most characteristic feature of this author's great constructive contribution to the law of evidence is his constant insistence on the need for clarifying our legal terminology, and making careful "discriminations" between conceptions and terms that are constantly being treated as if they were one and the same. See, e. g., Ibid., pp. vii, 183, 189-190, 278, 306, 351, 355, 390-393. How great the influence of those discriminations has been is well known to all students of the law of evidence. The comparatively recent remarks of Professor John Chipman Gray, in his Nature and Sources of the Law (1909), Pref. p. viii, are also to the point: "The student of Jurisprudence is at times troubled by the thought that he is dealing not with things, but with words, that he is busy with the shape and size of counters in a game of logomachy, but when he fully realizes how these words have been passed and are still being passed as money, not only by fools and on fools, but by and on some of the acutest minds, he feels that there is work worthy of being done, if only it can be done worthily." No less significant and suggestive is the recent and charactistic utterance of one of the greatest jurists of our time, Mr. Justice Holmes. In Hyde v. United States (1911), 225 U. S., 347, 391, the learned judge very aptly remarked: "It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis." See also, Field, J., in Morgan v. Louisiana (1876), 93 U. S., 217, 223, and Peckham. J. in Phoenix Ins. Co. v. Tennessee (1895), 161 U. S., 174, 177, 178.
*30 The strictly fundamental legal relations are, after all, sui generis; and thus it is that attempts at formal definition are always unsatisfactory, if not altogether useless. Accordingly, the most promising line of procedure seems to consist in exhibiting all of the various relations in a scheme of "opposites" and "correlatives," and then proceeding to exemplify their individual scope and application in concrete cases. An effort will be made to pursue this method:
Jural Correlatives
right
duty
privilege
no-right
power
liability
Immunity
disability
Jural Opposites
rights
no-rights
privilege
duty
power
disability
immunity
liability
Rights and Duties. As already intimated, the term "rights" tends to be used indiscriminately to cover what in a given case may be a privilege, a power, or an immunity, rather than a right in the strictest sense; and this looseness of usage is occasionally recognized by the authorities. As said by Mr. Justice Strong in People v. Dikeman:26 "The word 'right' is defined by lexicographers to denote, among other things, property, interest, power, prerogative, immunity, privilege (Walker's Dict, word 'Right'). In law it is most frequently applied to property in its restricted sense, but it is often used to designate power, prerogative, and privilege, * * *."
26. (1852) 7 How. Pr., 124, 130.
Recognition of this ambiguity is also found in the language of Mr. Justice Jackson, in United States v. Patrick:27 "The words 'right' or 'privilege' have, of course, a variety of meanings, according to the connection or context in which they are used. Their definition, as given by standard lexicographers, include 'that which one has a legal claim to do,' 'legal power' 'authority,' 'immunity granted by authority,' 'the investiture with special or peculiar rights.'"
27. (1893) 54 Fed. Rep, 338, 348.
And, similarly, in the language of Mr. Justice Sneed, in Lonas v. State:28 "The state, then, is forbidden from making and enforcing any law which shall abridge the privileges and immunities of citizens of the United States. It is said that the words rights, privileges and immunities, are abusively used, as if they were synonymous. The *31 word rights is generic, common, embracing whatever may be lawfully claimed."29
28. (1871) 3 Heisk. (Tenn.), 287, 306-307.
29. See also, for similar judicial observations, Atchison & Neb. R. Co. v. Baty (1877), 6 Neb., 37, 40. (The term right in civil society is defined to mean that which a man is entitled to have, or to do, or to receive from others within the limits prescribed by law." ); San Francisco v. S. V. Water Co. ( ), 48 Cal., 531 ("We are to ascertain the rights, privileges, powers, duties and obligations of the Spring Valley Water Co., by reference to the general law." ). Compare also Gilbert, Evid. (4th ed., 1777), 126: "The men of one county, city, hundred, town, corporation, or parish are evidence in relation to the rights privileges, immunities and affairs of such town, city, etc."
It is interesting to observe, also, that a tendency toward discrimination may be found in a number of important constitutional and statutory provisions. Just how accurate the distinctions in the mind of the draftsman may have been it is, of course, impossible to say.30
30. See Kearns v. Cordwainers' Co. (1859), 6 C. B. N. S., 388, 409 (construing The Thames Conservancy Act, 1857, 20 and 21 Vict. c. cxlvii., s. 179: "None of the powers by this act conferred * * * shall extend to, take away, alter or abridge any right, claim, privilege, franchise, exemption, or immunity to which any owners * * * of any lands * * * are now by law entitled." ); Fearon v. Mitchell (1872), L. R. 7 Q. B., 690, 695 ("The other question remains to be disposed of, as to whether the case comes within the proviso of s. 50 of 21 and 22 Vict. c. 98, that 'no market shall be established in pursuance of this section so as to interfere with any rights, powers, or privileges enjoyed within the district by any person without his consent.' "); Cal. Civ. Code, sec. 648a: "Building and loan associations may be formed under this title with or without guarantee or other capital stock, with all the rights, powers, and privileges, and subject to all the restrictions and liabilities set forth in this title." ); Tenn. Const. of 1834, Art. 9, sec. 7: "The legislature shall have no power to pass any law granting to any individual or individuals, rights, privileges and immunities or exemptions, other than * * *" ).
Recognizing, as we must, the very broad and indiscriminate use of the term, "right," what clue do we find, in ordinary legal discourse, toward limiting the word in question to a definite and appropriate meaning. That clue lies in the correlative "duty," for it is certain that even those who use the word and the conception "right" in the broadest possible way are accustomed to thinking of "duty" as the invariable correlative. As said in Lake Shore & M. S. R. Co. v. Kurtz:31 *32 "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."32
31. (1894) 10 Ind. App., 60;37 N. E., 303, 304.
32. See also Howley Park Coal, etc., Co. v. L. & N. W. Ry. (1913), A. C. 11, 25, 27 (per Viscount Haldane, L. C.: "There is an obligation (of lateral support) on the neighbor, and in that sense there is a correlative right on the part of the owner of the first piece of land;" per Lord Shaw: "There is a reciprocal right to lateral support for their respective lands and a reciprocal obligation upon the part of each owner. * * * No diminution of the right on the one hand or of the obligation on the other can be •effected except as the result of a plain contract. * * *" ). Compare, to similar effect, Galveston, etc. Ry. Co. v. Harrigan (1903), 76 S. W., 452, 453 (Tex. Civ. App.).
In other words, 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. If, as seems desirable, we should seek a synonym for the term "right" in this limited and proper meaning, perhaps the word "claim" would prove the best. The latter has the advantage of being a monosyllable. In this connection, the language of Lord Watson in Studd v. Cook33 is instructive: "Any words which in a settlement of moveables would be recognized by the law of Scotland as sufficient to create a right or claim in favor of an executor * * * must receive effect if used with reference to lands in Scotland."
33. (1883) 8 App. Cas., at p. 597.
Privileges and "No-Rights." As indicated in the above scheme of jural relations, a privilege is the opposite of a duty, and the correlative of a "no-right." In the example last put, whereas X has a right or claim that Y, the other man, should stay off the land, he himself 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. As indicated by this case, some caution is necessary at this point, for, always, when it is said that a given privilege is the mere negation-of a duty, what is meant, of course, is a duty having a content or tenor precisely opposite to that of the privilege in question. Thus, 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. The privilege is perfectly consistent with this sort of duty,- *33 for the latter is of the same content or tenor as the privilege;-but it still holds good that, as regards Y, X's privilege of entering is the precise negation of a duty to stay off. Similarly, if A has not contracted with B to perform certain work for the latter, A's privilege of not doing so is the very negation of a duty of doing so. Here again the duty contrasted is of a content or tenor exactly opposite to that of the privilege.
Passing now to the question of "correlatives," it will be remembered, of course, that a duty is the invariable correlative of that legal relation which is most properly called a right or claim. That being so, if further evidence be needed as to the fundamental and important difference between a right (or claim) and a privilege, surely it is found in the fact that the correlative of the latter relation is a "no-right," there being no single term available to express the latter conception. Thus, 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.
In view of the considerations thus far emphasized, the importance of keeping the conception of a right (or claim) and the conception of a privilege quite distinct from each other seems evident; and more than that, it is equally clear that there should be a separate term to represent the latter relation. No doubt, as already indicated, it is very common to use the term "right" indiscriminately, even when the relation designated is really that of privilege;34 and only too often this identity of terms has involved for the particular speaker or writer a confusion or blurring of ideas. Good instances of this may be found even in unexpected places. Thus Professor Holland, in his work on Jurisprudence, referring to a different and well known sort of ambiguity inherent in the Latin "Ius," the German "Recht," the Italian "Diritto," and the French "Droit,"-terms used to express "not only 'a right,' but also 'Law' in the abstract,"-very aptly observes: "If the expression of widely different ideas by one and the same term resulted only in the necessity for * * * clumsy paraphrases, *34 or obviously inaccurate paraphrases, no great harm would be done: but unfortunately the identity of terms seems irresistibly to suggest an identity between the ideas expressed by them."35
34. For merely a few out of numberless judicial instances of this loose usage, see Pearce v. Scotcher (1882), L. R. 9 Q. B., 162, 167; Quinn v. Leathern (1901), A. C. 495 (passim); Allen v. Flood (1898), A. C. 1 (passim); Lindley v. Nat. Carbonic Acid Gas Co. (1910), 220 U. S., 61, 75;Smith v. Cornell Univ. (1894). 45 N. Y. Supp., 640, 643:Farnum v. Kern Valley Bk. (1910), 107 Pac, 568. See also post, n. 38.
35. El. Jurisp. (10th ed.), 83.
Curiously enough, however, in the very chapter where this appears,-the chapter on "Rights,"-the notions of right, privilege and power seem to be blended, and that, too, although the learned author states that "the correlative of * * * legal right is legal duty," and that "these pairs of terms express * * * in each case the same state of facts viewed from opposite sides." While the whole chapter must be read in order to appreciate the seriousness of this lack of discrimination a single passage must suffice by way of example: "If * * * the power of the State will protect him in so carrying out his wishes, and will compel such acts or forbearances on the part of other people as may be necessary in order that his wishes may be so carried out, then he has a 'legal right' so to carry out his wishes."36
36. Ibid., 82.
The first part of this passage suggests privileges, the middle part rights (or claims), and the last part privileges.
Similar difficulties seem to exist in Professor Gray's able and entertaining work on The Nature and Sources of Law. In his chapter on "Legal Rights and Duties" the distinguished author takes the position that a right always has a duty as its correlative;37 and he seems to define the former relation substantially according to the more limited meaning of "claim." Legal privileges, powers, and immunities are prima facie ignored, and the impression conveyed that all legal relations can be comprehended under the conceptions, "right" and "duty.". But, with the greatest hesitation and deference, the suggestion may be ventured that a number of his examples seem to show the inadequacy of such mode of treatment. Thus, e. g., he says: "The eating of shrimp salad is an interest of mine, and, if I can pay for it, the law will protect that interest, and it is therefore a right of mine to eat shrimp salad which I have paid for, although I know that shrimp salad always gives me the colic."38
37. See Nat and Sources of Law (1909), secs. 45, 184.
38. Ibid., sec. 48.
This passage seems to suggest primarily two classes of relations: first, the party's respective privileges, as against A, B, C, D *35 and others in relation to eating the salad, or, correlatively, the respective "no-rights" of A., B, C, D and others that the party should not eat the salad; second, the party's respective rights (or claims) as against A., B, C, D and others that they should not interfere with the physical act of eating the salad, or, correlatively, the respective duties of A, B, C, D and others that they should not interfere.
These two groups of relations seem perfectly distinct; and the privileges could, in a given case exist even though the rights mentioned did not. A., B, C, and D, being the owners of the salad, might say to X: "Eat the salad, if you can; you have our license to do so, but we don't agree not to interfere with you." In such a case the privileges exist, so that if X succeeds in eating the salad, he has violated no rights of any of the parties. But it is equally clear that if A had succeeded in holding so fast to the dish that X couldn't eat the contents, no right of X would have been violated.39
39. Other instances in Professor Gray's work may be noted. In sec. S3, he says: "So again, a householder has the right to eject by force a trespasser from his 'castle.' That is, if sued by the trespasser for an assault, he can call upon the court to refuse the plaintiff its help. In other words, a man's legal rights include not only the power effectually to call for aid from an organized society against another, but also the power to call effectually upon the society to abstain from aiding others." This, it is respectfully submitted, seems to confuse the householder's privilege of ejecting the trespasser (and the "no-right" of the latter) with a complex of potential rights, privileges, powers and immunities relating to the supposed action at law. In sec. 102, the same learned author says: "If there is an ordinance that the town constable may kill all dogs without collars, the constable may have a legal right to kill such dogs, but the dogs are not under a legal duty to wear collars." It would seem, however, that what the ordinance did was to create a privilege-the absence of the duty not to kill which otherwise would have existed in favor of the owner of the dog. Moreover, that appears to be the most natural connotation of the passage. The latter doesn't except very remotely, call up the idea of the constable's accompanying rights against all others that they shouldn't interfere with his actual killing of the dog. See, also, secs. 145. 186.
Perhaps the essential character and importance of the distinction can be shown by a slight variation of the facts. Suppose that X, being already the legal owner of the salad, contracts with Y that he (X) will never eat this particular food. With A, B, C, *36 D and others no such contract has been made. One of the relations now existing between X and Y is, as a consequence, fundamentally different from the relation between X and A. As regards Y, X has no privilege of eating the salad; but as regards either A or any of the others, X has such a privilege. It is to be observed incidentally that X's right that Y should not eat the food persists even though X's own privilege of doing so has been extinguished.40
40. It may be noted incidentally that a statute depriving a party of privileges as such may raise serious constitutional questions under the Fourteenth Amendment. Compare, e. g., Lindley v. Nat. Carbonic Gas Co. (1910), 220 U. S., 61.
On grounds already emphasized, it would seem that the line of reasoning pursued by Lord Lindley in the great case of Quinn v. Leathern41 is deserving of comment: "The plaintiff had the ordinary rights of the British subject. He was at liberty to earn his living in his own way, provided he did not violate some special law prohibiting him from so doing, and provided he did not infringe the rights of other people. This liberty involved the liberty to deal with other persons who were willing to deal with him. 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."
41. (1901) A. C., 495, 534.
A "liberty" considered as a legal relation (or "right" in the loose and generic sense of that term) must mean, if it have any definite content at all, precisely the same thing as privilege,42 and certainly that is the fair connotation of the term as used the first three times in the passage quoted. It is equally clear, as already indicated, that such a privilege or liberty to deal with others at will might very conceivably exist without any peculiar concomitant rights against "third parties" as regards certain kinds of interference.43 Whether there should be such concomitant rights (or claims) is ultimately a question of justice and policy; and it should be considered, as such, on its merits. The only correlative logically implied by the privileges or liberties in question are the "no-rights" of "third parties." It would therefore be a non*37sequitur to conclude from the mere existence of such liberties that "third parties." are under a duty not to interfere, etc. Yet in the middle of the above passage from Lord Lindley's opinion there is a sudden and question-begging shift in the use of terms. First, the "liberty" in question is transmuted into a "right," and then, possibly under the seductive influence of the latter word, it is assumed that the "correlative" must be "the general duty of every one not to prevent," etc.
42. See post, pp. 38-44.
43. Compare Allen v. Flood (1898), A. C, 1.
Another interesting and instructive example may be taken from Lord Bowen's oft-quoted opinion in Mogul Steamship Co. v. McGregor.44 "We are presented in this case with an apparent conflict or antinomy between two rights that are equally regarded by the law-the right of the plaintiffs to be protected in the legitimate exercise of their trade, and the right of the defendants to carry on their business as seems best to them, provided they commit no wrong to others."
44. (1889) 23 Q. B. D., 59.
As the learned judge states, the conflict or antinomy is only apparent; but this fact seems to be obscured by the very indefinite and rapidly shifting meanings with which the term "right" is used in the above quoted language. Construing the passage as a whole, it seems plain enough that by "the right of the plaintiffs" in relation to the defendants a legal right or claim in the strict sense must be meant; whereas by "the right of the defendants" in relation to the plaintiffs a legal privilege must be intended. That being so, the "two rights" mentioned in the beginning of the passage, being respectively claim and privilege, could not be in conflict with each other. To the extent that the defendants have privileges the plaintiffs have no rights; and conversely, to the extent that the plaintiffs have rights the defendants have no privileges ("no-privilege" equals duty of opposite tenor).45
45. Cases almost without number might be cited to exemplify similar blending of fundamental conceptions and rapid shifting in the use of terms;- and that, too, even when the problems involved have been such as to invite close and careful reasoning. For a few important cases of this character, see Allen v. Flood (1898), A. C, 1, (Hawkins. J., p. 16: "I know it may be asked, 'What is the legal right of the plaintiffs which is said to have been invaded?' My answer is, that right which should never be lost sight of, and which I have already stated-the right freely to pursue their lawful calling;" Lord Halsbury, p. 84: "To dig into one's own land under the circumstances stated requires no cause or excuse. He may act from mere caprice, but his right on his own land is absolute, so long as he does not interfere with the rights of others;" Lord Ashbourne, p. 112: "The plaintiff had, in my opinion, a clear right to pursue their lawful calling. * * * It would be, I think, an unsatisfactory state' of the law that allowed the wilful invader of such a right without lawful leave or justification to escape from the consequences of his action." ); Quinn v. Leathern (1901), A. C, 495, 533; Lindsley v. Natural Carbonic Gas Co (1910), 220 U. S., 61, 74;Robertson v. Rochester Folding Box Co. (1902), 171 N. Y., 538 (Parker, C. J., p. 544: "The so-called right of privacy is, as the phrase suggests, founded upon the claim that a man has the right to pass through this world, if he wills, without having his picture published." ); Wabash, St. L. & P. R. Co. v. Shacklet (1883), 105 111., 364, 389. In Purdy v. State (1901), 43 Fla., 538, 540, the anomalous expression "right of privilege" is employed.
*38 Thus far it has been assumed that the term "privilege" is the most appropriate and satisfactory to designate the mere negation of duty. Is there good warrant for this?
In Mackeldey's Roman Law46 it is said: "Positive laws either contain general principles embodied in the rules of law * * * or for especial reasons they establish something that differs from those general principles. In the first case they contain a common law (jus commune), in the second a special law (jus singulare s. exorbitans). The latter is either favorable or unfavorable * * * according as it enlarges or restricts, in opposition to the common rule, the rights of those for whom it is established. The favorable special law (jus singulare) as also the right created by it * * * in the Roman law is termed benefit of the law (beneficium juris) or privilege (privilegium) * * *"47
46. (Dropsie Tr.) secs. 196-197.
47. The same matter is put somewhat less clearly in Sohm's Institutes (Ledlies Tr., 3rd ed.), 28. See also Rector, etc. of Christ Church v. Philadelphia (1860), 24 How., 300, 301, 302.
First a special law, and then by association of ideas, a special advantage conferred by such a law. With such antecedents, it is not surprising that the English word "privilege" is not infrequently used, even at the present time, in the sense of a special or peculiar legal advantage (whether right, privilege, power or immunity) belonging either to some individual or to some particular class of persons.48 There are, indeed, a number of judicial opinions recognizing *39 this as one of the meanings of the term in question.49 That the word has a wider signification even in ordinary nontechnical usage is sufficiently indicated, however, by the fact that the term "special privileges" is so often used to indicate a contrast to ordinary or general privileges. More than this, the dominant specific connotation of the term as used in popular speech seems to be more negation of duty. This is manifest, in the terse and oft-repeated expression, "That is your privilege,"- meaning, of course, "You are under no duty to do otherwise."
48. According to an older usage, the term "privilege" was frequently employed to indicate a "franchise." the latter being really a miscellaneous complex of special rights, privileges, powers, or immunities, etc. Thus, in an early book, Termes de la Ley, there is the following definition: "'Privileges' are liberties and franchises granted to an office, place, towne, or manor by the King's great charter, letters patent, or Act of Parliament, as toll, sake, socke, infangstheefe, outfangstheefe, turne, or delfe, and divers such like." Compare Blades v Higgs (1865), 11 H. L. Cas., 621, 631, per Lord Westbury: "Property ratione privilegii is the right which by a peculiar franchise anciently granted by the Crown, by virtue of prerogative, one may have of taking animals ferae naturae on the land of another; and in like manner the game when taken by virtue of the privilege becomes the absolute property of the owner of the franchise."
49. See Humphrey v. Pegues (1872), 16 Wall., 244, 247, per Hunt, J.: "All the 'privileges' as well as powers and rights of the prior company. were granted to the latter. A more imporant or more comprehensive privilege than a perpetual immunity from taxation can scarcely be imagined. It contains the essential idea of a peculiar benefit or advantage, of a special exemption from a burden falling upon others." See also Smith v. Floyd (1893), 140 N. Y., 337, 342;Lonas v. State (1871). 3 Heisk, 287, 306,307;Territory v Stokes (1881), 2 N. M., 161, 169, 170;Ripley v. Knight (1878), 123 Mass., 515, 519;Dike v. State (1888), 38 Minn., 366;Re Miller (1893), 1 Q. B., 327. Compare Wisener v. Burrell (1911), 28 Okla., 546.
Such being the case, it is not surprising to find, from a wide survey of judicial precedents, that the dominant technical meaning of the term is, similarly, negation of legal duty.50 There are two very common examples of this, relating respectively to "privileged communications" in the law of libel and to "privileges against self-crimination" in the law of evidence. As regards the first case, it is elementary that if a certain group of operative facts are present, a privilege exists, which, without such facts, would not be recognized.51 It is, of course, equally clear that even though *40 all such facts be present as last supposed, the superadded fact of malice will, in cases of so-called "conditional privilege," extinguish the privilege that otherwise would exist. It must be evident also, that whenever the privilege does exist, it is not special in the sense of arising from a special law, or of being conferred as a special favor on a particular individual. The same privilege would exist, by virtue of general rules, for any person whatever under similar circumstances. So, also, in the law of evidence, the privilege against self-crimination signifies the mere negation of a duty, to testify,-a duty which rests upon a witness in relation to all ordinary matters; and, quite obviously, such privilege arises, if at all, only by virtue of general laws.52
50. Compare Louisville & N. R Co. v. Gaines (1880), 3 Fed. Rep., 266, 278, per Baxter, Asso. J.: "Paschal says (the term privilege) is a special right belonging to an individual or class; properly,.an exemption from some duty."
51. For apt use of the terms, "privilege" and "privileged" in relation to libel, see Hawkins, J., in Allen v. Flood (1898), A. C. 1, 20-21.
52. As regards the general duty to testify, specific performance may usually be had under duress of potential or actual contempt proceedings; and, apart from that, failure to testify might subject the wrongdoer either to a statutory liability for a penalty in favor of the injured party litigant or, in case of actual damage, to a common law action on the case. The subject of witnesses is usually thought of as a branch of the so-called adjective law, as distinguished, from the so-called substantive law. But, as the writer has had occasion to emphasize on another occasion (The Relations between Equity and Law, 11 Mich. L. Rev., 537, 554, 556, 569), there seems to be no intrinsic or essential difference between those jural relations that relate to the "substantive" law and those that relate to the "adjective" law. This matter will be considered more fully in a later part of the discussion.
As already intimated, while both the conception and the term "privilege" find conspicuous exemplification under the law of libel and the law of evidence, they nevertheless have a much wider significance and utility as a matter of judicial usage. To make this clear, a few miscellaneous judicial precedents will now be noticed. In Dowman's Case,53 decided in the year 1583, and reported by Coke, the court applied the term to the subject of waste: "And as to the objection which was made, that the said privilege to be without impeachment of waste cannot be without deed, etc. To that it was answered and resolved, that if it was admitted that a deed in such case should be requisite, yet without question all the estates limited would be good, although it is admitted, that the clause concerning the said privilege would be void."
53. (1583) 9 Coke, 1.
In the great case of Allen v. Flood54 the opinion of Mr. Justice Hawkins furnishes a useful passage for the purpose now in view: *41 "Every person has a privilege * * * in the interests of public justice to put the criminal law in motion against another whom he bona fide, and upon reasonable and probable cause, believes to have been guilty of a crime. * * * It must not, however, be supposed that hatred and ill-will existing in the mind of a prosecutor must of necessity destroy the privilege, for it is not impossible that such hatred and ill-will may have very natural and pardonable reasons for existing. * * *"
54. (1898) A. C, 1, 19.
Applying the term in relation to the subject of property, Mr. Justice Foster, of the Supreme Court of Maine, said in the case of Pulitzer v. Lumgston:55 "It is contrary to the policy of the law that there should be any outstanding titles, estates, or powers, by the existence, operation or exercise of which, at a period of time beyond lives in being and twenty-one years and a fraction thereafter, the complete and unfettered enjoyment of an estate, with all the rights, privileges and powers incident to ownership, should be qualified or impeded."
55. (1896) 89 Me., 359.
As a final example in the present connection, the language of Baron Alderson in Hilton v. Eckerley56 may be noticed: "Prima facie it is the privilege of a trader in a free country, in all matters not contrary to law, to regulate his own mode of carrying them on according to his discretion and choice."57
56. (1856) 6 E. & B., 47. 74.
57. For other examples of apt use of the term in question, see Borland v Boston (1882), 132 Mass., 89 ("municipal rights, privileges, powers or duties" ); Hamilton v. Graham (1871), L. R. 2 H. L. (Sc), 167, 169, per Hatherley, L. C.; Jones v. Be Moss (1911), 151 la., 112, 117; Kripp v. Curtis (1886), 71 Cal., 62, 63;Lamer v. Booth (1874), 50 Miss., 411, 413; Welter v. Brown (1911), Cal.,; 117 Pac, 517;Mathews v. People (1903), 202 111. 389, 401; Abington v. North Bridgewater (1840), 23 Pick., 170.
The closest synonym of legal "privilege" seems to be legal "liberty." This is sufficiently indicated by an unusually discriminating and instructive passage in Mr. Justice Cave's opinion in Allen v. Flood:58 "The personal rights with which we are most familiar are: 1. Rights of reputation; 2. Rights of bodily safety and freedom; 3. Rights of property; or, in other words, rights relating to mind, body and estate, * * *
58. (1898) A. C, 1, 29.
"In my subsequent remarks the word 'right' will, as far as possible, always be used in the above sense; and it is the more necessary *42 to insist on this as during the argument at your Lordship's bar it was frequently used in a much wider and more indefinite sense. Thus it was said that a man has a perfect right to fire off a gun, when all that was meant, apparently, was that a man has a freedom or liberty to fire off a gun, so long as he does not violate or infringe any one's rights in doing so, which is a very different thing from a right, the violation or disturbance of which can be remedied or prevented by legal process."59
59. For the reference to Mr. Justice Cave's opinion, the present writer is indebted to Salmond's work on Jurisprudence. Citing this case and one other, Starey v. Graham (1899), 1 Q. B., 406, 411, the learned author adopts and uses exclusively the term "liberty" to indicate the opposite of "duty," and apparently overlooks the importance of privilege in the present connection. Curiously enough, moreover, in his separate Treatise on Torts, his discussion of the law of defamation gives no explicit intimation that privilege in relation to that subject represents merely liberty, or "no-duty." Sir Frederick Pollock, in his volume on Jurisprudence (2nd ed., 1904), 62, seems in effect to deny that legal liberty represents any true legal relation as such. Thus, he says, inter alia: "The act may be right in the popular and rudimentary sense of not being forbidden, but freedom has not the character of legal right until we consider the risk of unauthorized interference. It is the duty of all of us not to interfere with our neighbors' lawful freedom. This brings the so-called primitive rights into the sphere of legal rule and protection. Sometimes it is thought that lawful power or liberty is different from the right not to be interfered with; but for the reason just given this opinion, though plausible, does not seem correct." Compare also Pollock, Essays in Jurisp. & Ethics (1882), Ch. I. It is difficult to see, however, why, as between X and Y, the "privilege + no-right" situation is not just as real a jural relation as the precisely opposite "duty + right" relation betwen any two parties. Perhaps the habit of recognizing exclusively the latter as a jural relation springs more or less from the traditional tendency to think of the law as consisting of "commands," or imperative rules. This, however, seems fallacious. A rule of law that permits is just as real as a rule of law that forbids; and, similarlys aying that the law permits a given act to X as between himself and Y predicates just as genuine a legal relation as saying that the law forbids a certain act to X as between himself and Y. That this is so seems, in some measure, to be confirmed by the fact that the first sort of act would ordinarily be pronounced "lawful," and the second "unlawful." Compare Thomas v. Sorrel (1673), Vaughan, 331, 351.
While there are numerous other instances of the apt use of the term "liberty," both in judicial opinions60 and in conveyancing documents, *4361 it is by no means so common or definite a word as "privilege." The former term is far more likely to be used in the sense of physical or personal freedom (i. e., absence of physical restraint), as distinguished from a legal relation; and very frequently there is the connotation of general political liberty, as distinguished from a particular relation between two definite individuals. Besides all this, the term "privilege" has the advantage of giving us, as a variable, the adjective "privileged". Thus, it is frequently convenient to speak of a privileged act, a privileged transaction, a privileged conveyance, etc.
60. Compare Dow v. Newborough (1728), Comyns, 242 ("For the use is only a liberty to take the profits, but two cannot severally take the profits of the same land, therefore there cannot be an use upon a use." It should be observed that in this and the next case to be cited, along with the liberty or privilege there are associated powers and rights, etc.: for instance, the power to acquire a title to the things severed from the realty); Bourne v. Taylor (1808), 10 East., 189 (Ellenborough, C. J.): "The second question is whether the replication ought to have traversed the liberty of working the mines. * * * The word liberty, too, implies the same thing. It imports, ex vi termini, that it is a privilege to be exercised over another man's estates" ); Wickham v. Hawkes (1840), 7 M. & W., 63, 78-79; Quinn v. Leathern (1901), A. C. 49S, 534 (per Lord Lindley: see quotation aent, p. ); Pollock v. Farmers' Loan & Trust Co. (1895), 157 U. S., 429, 652 (per White, J., "rights and liberties" ); Mathews v. People (1903), 202 111., 389, 401 (Magruder, C. J.: "It is now well settled that the privilege of contracting is both a liberty, and a property right." ). For legislative use of the term in question, see the Copyright Act, 8 Anne (1709) c. 19 ("Shall have the sole right and liberty of printing each book and books for the term of * * *" ). Like the word "privilege" (see ante p. 38, n. 48), the term "liberty" is occasionally used, especially in the older books, to indicate a franchise, or complex of special rights, privileges, powers, or immunities. Thus in Noy's Maxims (1641) there is this definition: "Liberty is a royal privilege in the hands of a subject;" and, similarly, Blackstone (2 Com. 37) says: "Franchise and liberty are used as synonymous terms; and their definition is, a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject." This definition is quoted in S. F. Waterworks v. Schottler (1882), 62 Cal. 69, 106, and Central R. & Banking Co. v. State (1875), 54 Ga., 401, 409. Compare also Rex v. Halifax & Co%i. (1891), 2 Q. B., 263.
61. Compare Pond v. Bates, 34 L. J. (N. S.), 406 ("With full power and free liberty to sink for, win and work the same, with all liberties, privileges, etc., necessary and convenient," etc.); Hamilton v. Graham (1871), L. R. 2 H. L. (Sc), 166, 167; Attersoll v. Stevens (1808), 1 Taunt., 183; Wickham v. Hawker (1840), 7 M. & W., 63, 78-79.
The term "license", sometimes used as if it were synonymous with "privilege," is not strictly appropriate. This is simply another of those innumerable cases in which the mental and physical facts are so frequently confused with the legal relation which they *44 create. Accurately used, "license" is a generic term to indicate a group of operative facts required to create a particular privilege,-this being especially evident when the word is used in the common phrase "leave and license." This point is brought out by a passage from Mr. Justice Adams' opinion in Clifford v. O'Neill:62 "A license is merely a permission to do an act which, without 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."63
62. (1896) 12 App. Div., 17;42 N. Y. Sup., 607, 609.
63. See, in accord, the oft-quoted passage from Thomas v. Sorrell (1673), Vaughan, 331, 351 ("A dispensation or license properly passes no interest, nor alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful. As a license to go beyond the seas, to hunt in a man's park, to come into his house, are only actions, which without license, had been unlawful." ). Compare also Taylor v. Waters (1817), 7 Taunt., 374, 384 ("Those cases abundantly prove that a license to enjoy a beneficial privilege in land may be granted, and, notwithstanding the statue of frauds, without writing." In this case the license (operative facts) is more or less confused with privileges (the legal relation created); Heap v. Hartley (1889), 42 Ch. D., 461, 470.
Powers and Liabilities. As indicated in the preliminary scheme of jural relations, a legal power (as distinguished, of course, from a mental or physical power) is the opposite of legal disability, and the correlative of legal liability. But what is the intrinsic nature of a legal power as such? Is it possible to analyze the conception represented by this constantly employed and very important term of legal discourse? Too close an analysis might seem metaphysical rather than useful; so that what is here presented is intended only as an approximate explanation sufficient for all practical purposes.
A change in a given legal relation may result (1) from some superadded fact or group of facts not under the volitional control of a human being (or human beings); or (2) from some superadded fact or group of facts which are under the volitional control of one or more human beings. As regards the second class of cases, the person (or persons) whose volitional control is paramount may be said to have the (legal) power to effect the particular change of legal relations that is involved in the problem.
The second class of cases-powers in the technical sense- *45 must now be further considered. The nearest synonym for any ordinary case seems to be (legal) "ability,"64-the latter being obviously the opposite of "inability," or "disability." The term "right," so frequently and loosely used in the present connection, is an unfortunate term for the purpose,-a not unusual result being confusion of thought as well as ambiguity of expression.65 The term "capacity" is equally unfortunate; for, as we have already seen, when used with discrimination, this word denotes a particular group of operative facts, and not a legal relation of any kind.
64. Compare Remington v. Parkins (1873), 10 R. I., 550, 553, per Durfee, J.: "A power is an ability to do."
65. See People v. Dikeman (1852), 7 Howard Pr., 124, 130; and Lonas v. State (1871). 3 Heisk. (Tenn.), 287 ,306-307, quoted ante, p. See also Mabre v. Whittaker (1906), 10 Wash., 656, 663 (Washington Laws of 1871 provided in relation to community property: "The husband shall have the management of all the common property, but shall not have the right to sell or encumber real estate except he shall be joined in the sale or encumbrance by the wife. * * *" Per Scott, J.: "'Right' in the sense used there means power" ). Compare also St. Joseph Fire & Marine Ins. Co. v. Hanck (1876), 63 Mo., 112. 118. Numberless additional instances might be given of the use of the term "right," where the legal quantity involved is really a power rather than a right in the sense of claim.
Many examples of legal powers may readily be given. Thus, X, the owner of ordinary personal property "in a tangible object" has the power to extinguish his own legal interest (rights, powers, immunities, etc.) through that totality of operative facts known as abandonment; and-simultaneously and correlatively-to create in other persons privileges and powers relating to the abandoned object,-e. g., the power to acquire title to the later by appropriating it.66Similarly, X has the power to transfer his interest to Y,-that is, to extinguish his own interest and concomitantly create in Y a new and corresponding interest.67 So also *46 X has the power to create contractual obligations of various kinds. Agency cases are likewise instructive. By the use of some metaphorical expression such as the Latin, qui facit peralium, facit per se, the true nature of agency relations is only too frequently obscured. The creation of an agency relation involves, inter alia, the grant of legal powers to the so-called agent, and the creation of correlative liabilities in the principal.68 That is to say, one party P has the power to create agency powers in another party A,-for example, the power to convey X's property, the power to impose (so-called) contractual obligations on P, the power to discharge a debt, owing to P, the power to "receive" title to property so that it shall vest in P, and so forth. In passing, it may be well to observe that the term "authority," so frequently used in agency cases, is very ambiguous and slippery in its connotation. Properly employed in the present connection, the word seems to be an abstract or qualitative term corresponding to the concrete "authorization,"-the latter consisting of a particular group of operative facts taking place between the principal and the agent. All too often, however, the term in question is so used as to blend and confuse these operative facts with the powers *47 and privileges thereby created in the agent.69 A careful discrimination in these particulars would, it is submitted, go far. toward clearing up certain problems in the law of agency.70
66. It is to be noted that abandonment would leave X himself with precisely the same sort of privileges and powers as any other person.
67. "Compare Wynehamer v. People (1856), 13 N. Y., 378, 396 (Corn-stock, J.: "I can form no notion of property which does not include the essential characteristics and attributes with which it is clothed by the laws of society * * * among which are, fundamentally the right of the occupant or owner to use and enjoy (the objects) exclusively, and his absolute power to sell and dispose of them" ); Bartemeyer v. Iowa (1873), 18 Wall., 129, 137 (Field, J.: "The right of property in an article involves the power to sell and dispose of such articles as well as to use and enjoy it" ); Low v. Rees Printing Co. (1894), 41 Neb., 127, 146 (Ryan, C.: "Property, in its broad sense, is not the physical thing which may be the subject of ownership, but is the right of dominion, possession, and power of disposition which may be acquired over it." ). Since the power of alienation is frequently one of the fundamental elements of a complex legal interest (or property aggregate), it is obvious that a statute extinguishing such power may, in a given case be unconstitutional as depriving the owner of property without due process of law. See the cases just cited.
68. For a leading case exhibiting the nature of agency powers, especially powers "coupled with an interest," see Hunt v. Rousmanier (1883), 8 Wheat., 173, 201. It is interesting to note that in the German Civil Code the provisions relating to agency are expressed in terms of powers,-e.g., sec. 168: "The expiration of the power is determined by the legal relations upon which the giving of the power is founded. The power is also revocable in the event of the continuance of the legal relation, unless something different results from the latter." Incidentally, it may be noticed also, that as a matter of English usage, the term "power of attorney" has, by association of ideas, come to be used to designate the mere operative instrument creating the powers of an agent.....
69. For examples of the loose and confusing employment of the term "authority" in agency cases-and that too, in problems of the conflict of laws requiring the closest reason,-see Pope v. Nickerson (1844), 3 Story, 465, 473, 476, 481, 483;Lloyd v Guibert (1865), 6 B. & S., 100, 117; King v. Sarria (1877), 69 N. Y., 24, 28, 30-32;Risdon, etc., Works v. Furness (1905), 1 K. B. 304; (1906) 1 K. B. 49. For a criticism of these cases in relation to the present matter, see the writer's article The Individual Liability of Stockholders and the Conflict of Laws (1909). 9 Columb. L. Rev., 492, 512, n. 46, 521, n. 71; 10 Columb. L. Rev., 542-544.
70. The clear understanding and recognition of the agency relation as involving the creation of legal powers may be of crucial importance in many cases,-especially, as already intimated, in regard to problems in the conflict of laws. Besides the cases in the preceding note, two others may be referred to, Milliken v. Pratt (1878), 125 Mass., 374, presenting no analysis of the agency problem; and, on the other hand, Freeman's Appeal (1897), 68 Conn., 533, involving a careful analysis of the agency relation by Baldwin, J. Led by this analysis to reach a decision essentially opposite to that of the Massachusetts case, the learned judge said, inter alia: "Such was, in effect, the act by which Mrs. Mitchell undertook to do what she had no legal capacity to do, by making her husband her agent to deliver the guaranty to the bank. He had no more power to make it operative by delivery in Chicago to one of his creditors in Illinois, than he would have had to make it operative by delivery here, had it been drawn in favor of one of his creditors in Connecticut. It is not the place of delivery that controls, but the power of delivery."
Essentially similar to the powers of agents are powers of appointment in relation to property interests. So, too, the powers of public officers are, intrinsically considered, comparable to those of agents,-for example, the power of a sheriff to sell property under a writ of execution. The power of a donor, in a gift causa mortis, to revoke the gift and divest the title of the donee is another clear example of the legal quantities now being considered;71 also a pledgee's statutory power of sale.72
71. See Emery v. Clough (1885), 63 N. H., 552 ("right or power of defeasance" ).
72. See Hudgens v. Chamberlain (1911), 161 Cal., 710, 713, 715. For another instance of statutory powers, see Capital, etc., Bk. v. Rhodes (1903), 1 Ch. 631, 655 (powers under registry acts.).
There are, on the other hand, cases where the true nature of the relations involved has not, perhaps, been so clearly recognized. Thus, in the case of a conditional sale of personality, assuming the *48 vendee's agreement has been fully performed except as to the payment of the last installment and the time for the latter has arrived, what is the interest of such vendee as regards the property? Has he, as so often assumed, merely a contractual right to have title passed to him by consent of the vendor, on final payment being made; or has he, irrespective of the consent of the vendor the power to divest the title of the latter and to acquire a perfect title for himself? Though the language of the cases is not always so clear as it might be, the vendee seems to have precisely that sort of power.73 Fundamentally considered, the typical escrow transaction in which the performance of conditions is within the volitional control of the grantee, is somewhat similar to the conditional sale of personality; and, when reduced to its lowest terms, the problem seems easily to be solved in terms of legal powers. Once the "escrow" is formed, the grantor still has the legal title; but the grantee has an irrevocable power to divest that title by performance of certain conditions (i. e., the addition of various operative facts), and concomitantly to vest title in himself. While such power is outstanding, the grantor is, of *49 course, subject to a correlative liability to have his title divested.74 Similarly, in the case of a conveyance of land in fee simple subject to condition subsequent, after the condition has been performed, the original grantor is commonly said to have a "right of entry." If, however, the problem is analyzed, it will be seen that, as of primary importance, the grantor has two legal quantities, (1) the privilege of entering, and (2) the power, by means of such entry, to divest the estate of the grantee.75 The latter's estate endures, subject to the correlative liability of being divested, until such power is actually exercised.76
73. Though the nebulous term "rights" is used by the courts, it is evident that powers are the actual quantities involved. Thus, in the instructive case of Carpenter v. Scott (1881), 13 R. I., 477, 479, the court said, by Matteson, J.: "Under it (the conditional sale) the vendee acquires not only the right of possession and use, but the right to become the absolute owner upon complying with the terms of the contract. These are rights of which no act of the vendor can divest him, and which, in the absence of any stipulation in the contract restraining him, he can transfer by sale or mortgage. Upon performance of the conditions of the sale, the title to the property vests in the vendee, or in the event that he has sold, or mortgaged it, in his vendee, or mortgagee, without further bill of sale. * * * These rights constitute an actual, present interest in the property, which, as we have seen above, is capable of transfer by sale or mortgage." It is interesting to notice that in the foregoing passage, the term "right" is first used to indicate privileges of possession and use; next the term is employed primarily in the sense of legal power, though possibly there is a partial blending of this idea with that of legal claim, or right (in the narrowest connotation); then the term (in plural form) is used for the third time so as to lump together the vendee's privileges, powers and claims. For another case indicating in substance the true nature of the vendee's interest, see Christensen v. Nelson (1901), 38 Or. 473. 477, 479, indicating, in effect, that the vendee's powers as well as privileges may be transferred to another, and that a proper tender constitutes "the equivalen of payment."
74. See Davis v. Clark (1897), 58 Kan. 100;48 Pac., 563, 565;Leiter v. Pike (1889), 127 111., 287, 326; Welstur v. Trust Co. (1895), 145 N. Y., 275, 283;Furley v. Palmer (1870), 20 Oh. St., 223. 225. The proposition that the grantee's power is irrevocable is subject to the qualification that it might possibly be extinguished (or modified protanto) as the result of a transaction between the grantor and one having the position of bona fide purchaser, or the equivalent. It is hardly necessary to add that the courts, instead of analyzing the problem of the escrow in terms of powers, as here indicated, are accustomed to stating the question and deciding it in terms of "delivery," "relation back," "performance of conditions," etc.
75. In this connection it is worthy of note that Sugden, in his work on Powers (8th ed., 1861) 4, uses, contrary to general practice, the expression, "power of entry for condition broken."
76. For miscellaneous instances of powers, see the good opinions in Bk. of S. Australia v. Abrahams, L. R. P. C, 265; Barlow v. Ross (1890),. 24 Q. B. D., 381, 384.
Passing now to the field of contracts, suppose A mails a letter to B offering to sell the former's land, Whiteacre, to the latter for ten thousand dollars, such letter being duly received. The operative facts thus far mentioned have created a power as regards B and a correlative liability as regards A. B, by dropping a letter of acceptance in the box, has the power to impose potential or inchoate77 obligation ex contractu on A and himself; and, assuming that the land is worth fifteen thousand dollars, that particular legal quantity-the "power plus liability" relation between A and B-seems to be worth about five thousand dollars to B. The liability of A will continue for a reasonable time unless, in exercise of his power to do so, A previously extinguishes it by that series of operative facts known as "revocation." These last matters are usually described by saying that A's "offer" will "continue" *50 or "remain open" for a reasonable time, or for the definite time actually specified, unless A previously "withdraws" or "revokes" such offer.78 While no doubt, in the great majority of cases no harm results from the use of such expressions, yet these forms of statement seem to represent a blending of non-legal and legal quantities which, in any problem requiring careful reasoning, should preferably be kept distinct. An offer, considered as a series of physical and mental operative facts, has spent its force as soon as such series has been completed by the "offeree's receipt." The real question is therefore as to the legal effect, if any, "at that moment of time. If the latter consist of B's power and A's correlative liability, manifestly it is those legal relations that "continue" or "remain open" until modified by revocation or other operative facts. What has thus far been said concerning contracts completed by mail would seem to apply, mutatis mutandis, to every type of contract. Even where the parties are in the presence of each other, the offer creates a liability against the offerer, together with a correlative power in favor of the offeree. The only distinction for present purposes would be in the fact that such power and such liability would expire within a very short period of time.
77. As to "inchoate" obligations, see Frost v. Knight (187.2) L. R. 7 Ex. 111, per Cockburn, C. J. This matter will receive further attention in a later part of the discussion.
78. Compare Boston R. Co. v. Bartlett (1849), 3 Cush., 225: "Though the writing signed by the defendant was but an offer, and an offer which might be revoked, yet while it remained in force and unrevoked, it was a continuing offer, during the time limited for acceptance, and during the whole of the rest of the time it was an offer every instant; but as soon as it was accepted, it ceased to be an offer merely. Compare also the forms of statement in Ashley, Contr. (1911), 16 et. seq.
Perhaps the practical justification for this method of analysis is somewhat greater in relation to the subject of options. In his able work on Contacts,79 Langdell says: "If the offerer stipulates that his offer shall remain open for a specified time, the first question is whether such stipulation constitutes a binding contract. * * * When such a stipulation is binding,. the further question arises, whether it makes the offer irrevocable. It has been a common opinion that it does, but that is clearly a mistake. * * * An offer is merely one of the elements of a contract; and it is indispensable to the making of a contract that the wills of the contracting parties do, in legal contemplation, concur at the moment of making it. An offer, therefore, which the party making it has no power to revoke, is a legal impossibility. *51 Moreover, if the stipulation should make the offer irrevocable, it would be a contract incapable of being broken; which "is also a legal impossibility. The only effect, therefore, of such a stipulation is to give the offeree a claim for damages if the stipulation be broken by revoking the offer."80
79. Langdell, Sum. Contr. (2nd ed., 1880), sec. 178.
80. LangdeIl's a priori premises, and specific conclusions have been adopted by a number of other writers on the subject. See, for example, Ashley, Contr. (1911), 25 el seq., R. L. McWilliams, Enforcement of Option Agreements (1913), 1 Calif. Law Rev., 122.
The foregoing reasoning ignores the fact that an ordinary offer ipso facto creates a legal relation-a legal power and a legal liability,-and that it is this relation (rather than the physical and mental facts constituting the offer) that "remains open." If these points be conceded, there seems no difficulty in recognizing an unilateral option agreement supported by consideration or embodied in a sealed instrument as creating in the optionee an irrevocable power to create, at any time within the period specified, a bilateral obligation as between himself and the giver of the option. Correlatively to that power, there would, of course, be a liability against the option-giver which he himself would have no power to extinguish. The courts seem to have no difficulty in reaching precisely this result as a matter of substance; though their explanations are always in terms of "withdrawal of offer," and similar expression's savoring of physical and mental quantities.81
81. For a recent judicial expression on the subject, see W. G. Reese Co. v. House (1912). 162 Cal., 740, 745 per Sloss J.: "Where there is a consideration, the option cannot be withdrawn during the time agreed upon for its duration, while, if there be no consideration the party who has given the option may revoke it at any time before acceptance, even though the time limited has not expired * * * such offer, duly accepted, constitutes a contract binding upon both parties and enforceable by either." See, to the same effect, Linn v. McLean (1885), 80 Ala., 360, 364;O'Brien v. Boland (1896), 166 Mass., 481, 483. (sealed offer). Most of the cases recognizing the irrevocable power of the optionee have arisen in equitable suits for specific performance; but there seems to be no reason for doubting that the same doctrine should be applied in a common law action for damages. See, in accord, Baker v. Shaw (1912), 68 Wash., 99 103 (dicta in an action for damages).
In connection with the powers and liabilities created respectively by an ordinary offer and by an option, it is interesting to consider the liabilities of a person engaged in a "public calling;" for, as it seems, such a party's characteristic position is, one might almost say, intermediate between that of an ordinary contractual offerer *52 and that of an option-giver. It has indeed been usual to assert that such a party is (generally speaking) under a present duty to all other parties; but this is believed to be erroneous. Thus, Professor Wyman, in his work on Public Service Companies,82 says: "The duty placed upon every one exercising a public calling is primarily a duty to serve every man who is a member of the pubic. * * * It is somewhat difficult to place this exceptional duty in our legal system. * * * The truth of the matter is that the obligation resting upon one who has undertaken the performance of public duty is sui generis."83
82. Secs. 330-333.
83. Compare, to the same effect, Keener, Quasi-Contr. (1893), p. 18.
It is submitted that the learned writer's difficulties arise primarily from a failure to see that the innkeeper, the common carrier and others similarly "holding out" are under present liabilities rather than present duties. Correlatively to those liabilities are the respective powers of the various members of the public. Thus, for example, a travelling member of the public has the legal power, by making proper application and sufficient tender, to impose a duty on the innkeeper to receive him as a guest. For breach of the duty thus created an action would of course lie. It would therefore seem that the innkeeper is, to some extent, like one who had given an option to every travelling member of the public. He differs, as regards net legal effect, only because he can extinguish his present liabilities and the correlative powers of the travelling members of the public by going out of business. Yet, on the other hand, his liabilities are more onerous than that of an ordinary contractual offerer, for he cannot extinguish his liabilities by any simple performance akin to revocation of offer.
As regards all the "legal powers" thus far considered, possibly some caution is necessary. If, for example, we consider the ordinary property owner's power of alienation, it is necessary to distinguish carefully between the legal power, the physical power to do the things necessary for the "exercise" of the legal power, and, finally, the privilege of doing these things-that is, if such privilege does really exist. It may or may not. Thus, if X, a landowner, has contracted with Y that the former will not alienate to Z, the acts of X necessary to exercise the power of alienating to Z are privileged as between X and every party other than Y; but, obviously, as between X and Y, the former has no privilege *53 of doing the necessary acts; or conversely; he is under a duty to Y not to do what is necessary to exercise the power.
In view of what has already been said, very little may suffice concerning a liability as such. The latter, as we have seen, is the correlative of power, and the opposite of immunity (or exemption). While no doubt the term "liability" is often loosely used as a synonym for "duty," or "obligation," it is believed, from an extensive survey of judicial precedents, that the connotation already adopted as most appropriate to the word in question is fully justified. A few cases tending to indicate this will now be noticed. In McNeer v. McNeer,84 Mr. Justice Magruder balanced the conceptions of power and liability as follows: "So long as she lived, however, his interest in her land lacked those elements of property, such as power of disposition and liability to sale on execution which had formerly given it the character of a vested estate."
84. (1892) 142 111., 388, 397.
In Booth v. Commonwealth,85 the court had to construe a Virginia statute providing "that all free white male persons who are twenty-one years of age and not over sixty, shall be liable to serve as jurors, except as hereinafter provided." It is plain that this enactment imposed only a liability and not a duty. It is a liability to have a duty created. The latter would arise only when, in exercise of their powers, the parties litigant and the court officers, had done what was necessary to impose a specific duty to perform the functions of a juror. The, language of the court, by Moncure, J., is particularly apposite as indicating that liability is the opposite, or negative, of immunity (or exemption): "The word both expressed and implied is 'liable,' which has a very different meaning from qualified * * *. It's meaning is 'bound' or 'obliged' * * *. A person exempt from serving on juries is not liable to serve, and a person not liable to serve is exempt from serving. The terms seem to be convertible."
85. (1861) 16 Grat., 519, 525.
A further good example of judicial usage is to be found in Emery v. Clough.86 Referring to a gift causa mortis and the donee's liability to have his already vested interest divested by the donor's exercise of his power of revocation, Mr. Justice Smith said: "The title to the gift causa mortis passed by the delivery, defeasible only in the lifetime of the donor, and his death perfects the *54 title in the donee by terminating the donor's right or power of defeasance. The property passes from the donor to the donee directly * * * and after his death it is liable to be divested only in favor of the donor's creditors. * * * His right and power ceased with his death."
86. (1885) 63 N. H., 552.
Perhaps the nearest synonym of "liability" is "subjection" or "responsibility." As regards the latter word, a passage from Mr. Justice Day's opinion in McElfresh v. Kirkendall87 is interesting: "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."
87. (1873) 36 la., 224, 226.
While the term in question has the broad generic connotation already indicated, no doubt it very frequently indicates that specific form of liability (or complex of liabilities) that is correlative to a power (or complex of powers)88 vested in a party litigant and the various court officers. Such was held to be the meaning of a certain California statute involved in the case of Lattin v. Gillette.89 Said Mr. Justice Harrison: "The word 'liability' is the condition in which an individual is placed after a breach of his contract, or a violation of any obligation resting upon him. It is defined by Bouvier to be responsibility."90
88. Compare Attorney General v. Sudeley (1896), 1 Q. B., 354, 359 (per Lord Esher: "What is called a 'right of action' is not the power of bring ing an action. Anybody can bring an action though he has no right at all." ); Kroessin v. Keller (1895), 60 Minn., 372 (per Collins, J.: "The power to bring such actions" ).
89. (1892) 95 Cal., 317, 319.
90. we are apt to think of liability as exclusively an onerous relation of one party to another. But, in its broad technical significance, this is not necessarily so. Thus X, the owner of a watch, has the power to abandon his property-that is, to extinguish his existing rights, powers, and immunities relating thereto (not, however, his privileges, for until someone else has acquired title to the abandoned watch, X would have the same privileges as before); and correlatively to X's power of abandon ment there is a liability in every other person. But such a liability instead of being onerous or unwelcome, is quite the opposite. As regards another person M, for example, it is a liability to have created in his favor (though against his will) a privilege and a power relating to the watch,-that is, the privilege of taking possession and the power, by doing so, to vest a title in himself. See Dougherty v. Creary (1866), 30 Cal., 290, 298. Contrast with this agreeable form of liability the liability to have a duty created-for example the liability of one who has made or given an option in a case where the value of the property has greatly risen.
*55Immunities and Disabilities. As already brought out, immunity is the correlative of disability ("no-power"), and the opposite, or negation, of liability. Perhaps it will also be plain, from the preliminary outline and from the discussion down to this point, that a power bears the same general contrast to an immunity that a right does to a privilege. A right is one's affirmative claim against another, and a privilege is one's freedom from the right or claim of another. Similarly, 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.
A few examples may serve to make this clear. X, a landowner, has, as we have seen, power to alienate to Y or to any other ordinary party. On the other hand, X has also various immunities as against Y, and all other ordinary parties. For Y is under a disability (i. e., has no power) so far as shifting the legal interest either to himself or to a third party is concerned; and what is true of Y applies similarly to every one else who has not by virtue of special operative facts acquired a power to alienate X's property. If, indeed, a sheriff has been duly empowered by a writ of execution to sell X's interest, that is a very different matter: correlative to such sheriff's power would be the liability of X,-the very opposite of immunity (or exemption). It is elementary, too, that as against the sheriff, X might be immune or exempt in relation to certain parcels of property, and be liable as to others. Similarly, if an agent has been duly appointed by X to sell a given piece of property, then, as to the latter, X has, in relation to such agent, a liability rather than an immunity.
For over a century there has been, in this country, a great deal of important litigation involving immunities from powers of taxation. If there be any lingering misgivings as to the "practical" importance of accuracy and discrimination in legal conceptions and legal terms, perhaps some of such doubts would be dispelled by considering the numerous cases on valuable taxation exemptions coming before the United States Supreme Court. Thus, in Phoenix Ins. Co. v. Tennessee,91 Mr. Justice Peckham expressed the views of the court as follows: "In granting to the De Sota Company 'all the rights, privileges, and immunities' of the Bluff City Company, all words are used which could be regarded as necessary to carry the exemption from taxation *56 possessed by the Bluff City Company; while in the next following grant, that of the charter of the plaintiff in error, the word 'immunity' is omitted. Is there any meaning to be attached to that omission, and if so, what? We think some meaning is to be attached to it. 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."
91. (1895) 161 U. S., 174, 177.
In Morgan v. Louisiana,92 there is an instructive discussion from the pen of Mr. Justice Field. In holding that on a foreclosure sale of the franchise and property of a railroad corporation an immunity from taxation did not pass to the purchaser, the learned Judge said: "As has been often said by this court, the whole community is interested in retaining the power of taxation undiminished * * *. The exemption of the property of the company from taxation, and the exemption of its officers and servants from jury and military duty, were both intended for the benefit of the company, and its benefit alone. In their personal character they are analogous to exemptions from execution of certain property of debtors, made by laws of several of the states."93
92. (1876) 93 U. S., 217, 222.
93. See, in accord, Picard v. Tennessee, etc., R. Co. (1888), 130 U. S., 637, 642, (Field, J.); Rochester Railway Co. v. Rochester (1906) 205 U. S., 236, 252 (Moody, J., reviewing the many other cases on the subject). In Internal. & G. N. Ry. Co. v. State (1899), 75 Tex., 356, a different view was taken as to the alienability of an immunity from taxation. Speaking by Stayton, C. J., the court said: "Looking at the provisions of the Act of March 10, 1875, we think there can be no doubt the exemption from taxation given by it, instead of being a right vesting only in appellant, is a right which inheres in the property to which it applies, and follows it into the hands of whosover becomes the owner. * * * The existence of this right enhances the value of the property to which it applies. Shareholders and creditors must be presumed to have dealt with the corporation on the faith of the contract which gave the exemption, and it cannot be taken away by legislation, by dissolution of the corporation, or in any other manner not sufficient to pass title to any other property from one person to another. The right to exemption from taxation is secured by the same guaranty which secures titles to those owning lands granted under the act, and though the corporation may be dissolved, will continue to exist in favor of persons owning the property to which the immunity applies. Lawful dissolution of a corporation will destroy all its corporate franchises or privileges vested by the act of incorporation; but if it holds rights, privileges, and franchises in the nature of property, secured by contract based on valuable consideration, these will survive the dissolution of the corporation, for the benefit of those who may have a right to or just claim upon its assets." Compare, as regard homestead exemptions, Sloss, J., in Smith v. Bougham (1909), 156 Cal., 359, 365: "A declaration of homestead * * * attaches certain privileges and immunities to such title as may at the time be held."
*57 So far as immunities are concerned, the two judicial discussions last quoted concern respectively 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. Litigants have, from time to time, had occasion to appeal both to the clause against impairment of the obligation of contracts and to the provision against depriving a person of property without due process of law. This has been especially true as regards exemptions from taxation94 and exemptions from execution.95
94. See Choate v. Trapp (1912), 224 U. S., 665.
95. See Brearly School, Limited v. Ward (1911), 201 N. Y., 358;94 N. E., 1001 (an interesting decision, with three judges dissenting). The other cases on the subject are collected in Ann. Cas., 1912 B, 259.
If a word may now be permitted with respect to mere terms as such, the first thing to note is that the word "right" is overworked in the field of immunities as elsewhere.96 As indicated, however, by the judicial expressions already quoted, the best synonym is, of course, the term "exemption."97 It is instructive legislature not to grant the benefit claimed by the bill." *58 to note, also, that the word "impunity" has a very similar connotation. This is made evident by the interesting discriminations of Lord Chancellor Finch in Skelton v. Skelton,98 a case decided in 1677: "But this I would by no means allow, that equity should enlarge the restraints of the disabilities introduced by act of parliament; and as to the granting of injunctions to stay waste, I took a distinction where the tenant hath only impunitatem, and where he hath jus in arboribus. If the tenant have only a bare indemnify or exemption from an action (at law), if he committed waste, there it is fit he should be restrained by injunction from committing it."99
96. See Brearly School, Limited v. Ward, cited in preceding note; also Inlernat. & G. N. Ry. Co. v. Stale (1899), 75 Tex., 356, quoted from, ante, n. 91.
97. Compare also Wilson v. Gaines (1877), 9 Baxt. (Tenn.), 546, 550-551, Turney. J.: "The use in the statutes of two only of the words of the constitution, i. e., 'rights' and 'privileges,' and the omission to employ either of the other two following in immediate succession, viz. immunities' and 'exemptions,' either of which would have made clear the construction claimed by complainant, evidence a purposed intention on the part of the Only very rarely is a court found seeking to draw a subtle distinction between an immunity and an exemption. Thus, in a recent case, Strahan v. Wayne Co. (June, 1913), 142 N. W., 678, 680 (Neb.), Mr. Justice Barnes said: "It has been held by the great weight of authority that dower is not immune (from the inheritance tax) because it is dower, but because it * * * belonged to her unchoately during (the husband's) life. * * * Strictly speaking, the widow's share should be considered as immune, rather than exempt, from an inheritance tax. It is free, rather than freed, from such tax."
98. (1677) 2 Swanst., 170.
99. In Skelton v. Skelton, it will be observed, the word "impunity" and the word "exemption" are used as the opposite of liability to the powers of a plaintiff in an action at law. For similar recent instances, see Vacher & Sons, Limited v. London Society of Compositors (1913), A. C. 107, 118, 125 (per Lord Macnaghten: "Now there is nothing absurd in the notion of an association or body enjoying immunity from actions at law;" per Lord Atkinson: "Conferring on the trustees immunity as absolute," etc.). Compare also Baylies v. Bishop of London (1913), 1 Ch., 127, 139, 140, per Hamilton, L. J. For instances of the apt use of the term "disability" as equivalent to the negation of legal power, see Poury v. Hordern (1900), 1 Ch., 492, 495; Sheridan v. Elden (1862), 24 N. Y., 281, 384.
In the latter part of the preceding discussion, eight conceptions of the law have been analyzed and compared in some detail, the purpose having been to exhibit not only their intrinsic meaning and scope, but also their relations to one another and the methods by which they are applied, in judicial reasoning, to the solution of concrete problems of litigation. Before concluding this branch of the discussion a general suggestion may be ventured as to the great practical importance of a clear appreciation of the distinctions and discriminations set forth. If a homely metaphor be permitted, these eight conceptions,-rights and duties, privileges and no-rights, powers and liabilities, immunities and disabilities,-seem to be what may be called "the lowest common denominators of the law." Ten fractions (1-3, 2-5, etc.) may, superficially, seem so different from one another as to defy comparison. If, however, they are expressed in terms of their lowest common denominators (5-15, 6-15, etc.), comparison becomes easy, and fundamental similarity may be discovered. The same thing is of *59 course true as regards the lowest generic conceptions to which any and all "legal quantities" may be reduced.
Reverting, for example, to the subject powers, it might be difficult at first glance to discover any essential and fundamental similarity between conditional sales of personalty, escrow transactions, option agreements, agency relations, powers of appointment, etc. But if all these relations are reduced to their lowest generic terms, the conceptions of legal power and legal liability are seen to be dominantly, though not exclusively, applicable throughout the series. By such a process it becomes possible not only to discover essential similarities and illuminating analogies in the midst of what appears superficially to be infinite and hopeless variety, but also to discern common principles of justice and policy underlying the various jural problems involved. An indirect, yet very practical, consequence is that it frequently becomes feasible, by virtue of such analysis, to use as persuasive authorities judicial precedents that might otherwise seem altogether irrelevant. If this point be valid with respect to powers, it would seem to be equally so as regards all of the other basic conceptions of the law. In short, the deeper the analysis, the great become one's perception of fundamental unity and harmony in the law.100
100. The next article in the present series will discuss the distinctions between legal and equitable jural relations; also the contrast between rights, etc., in rem, and rights, etc., in personam. The supposed distinctions betwen substantive and adjective jural relations will also be considered,-chiefly with the purpose of showing that, so far as the intrinsic and essential nature of those relations is concerned, the distinctions commonly assumed to exist are imaginary rather than real. Finally, some attention will be given to the nature and analysis of complex legal interests, or aggregates of jural relations.
Wesley Newcomb Hohfeld. Stanford University, California. Copyright 1913 by the Yale Law Journal Company, Inc.; Wesley Newcomb Hohfeld. Yale Law Journal, November, 1913
The Bluebook (18th ed.) citation: Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913).
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