A Fresh Approach to the Analysis of Legal Relations
Anthony Dickey *
The Hohfeldian analysis of law and legal relations, while gener-
ally accepted, has frequently been criticized by legal theorists.’
Both Hohfeld’s thesis and criticisms of it call for a new approach
to legal duties and the basic relationships that can derive therefrom.
The purpose of this article is first to analyse anew the basic types
of legal relations, and then briefly to examine within the context
of a formal scheme both the relationship between these basic types
LL.B., Ph.D., of the Faculty of Law, University of Western Australia.
‘For Hohfeld’s own analysis, see Hohfeld, Some Fundamental Legal Con-
ceptions as Applied in Judicial Reasoning, (1913) 23 Yale L.J. 16. Comments
on, and criticisms of, Hohfeld’s analysis are legion; the following are a
selection: Cook, Hohfeld’s Contributions to the Science of Law, (1919) 28
Yale L.J. 721; Corbin, Legal Analysis and Terminology, (1919) 28 Yale L..
163;
Goble, A Redefinition of Basic Legal Terms, (1935) 35 Col.L.Rev. 535; Pound,
Fifty years of Jurisprudence, (1937) 30 Harv.L.Rev. 557, 571-576; Radin, A
Restatement of Hohfeld, (1938) 51 Harv.L.Rev. 1141; Williams, The Concept of
Legal Liberty, (1956) 56 Col.L.Rev. 1129; Honor6, Rights of Exclusion and Im-
munities Against Divesting, (1960) 34 Tul.L.Rev. 453; Anderson, The Logic of
Hohfeldian Propositions, (1971) 33 U. of Pitts.L.Rev. 29; Finnis, Some Profes.
sorial Fallacies About Rights, (1972) 4 Adelaide L.Rev. 377; Wilson, A Note
17 Jurid.Rev. 162. See also Kocourek, Jural
on the Hohfeld Analysis, (1972)
Relations, 2d ed. (1928); and on the genesis of Hohfeld’s analysis, Dickey,
Hohfeld’s Debt to Salmond, (1971) 10 U. of West. Aust. L.Rev. 59.
The principal conventional terms used in legal analysis (e.g., right, duty,
power, etc.) have been retained in the text in order both to facilitate com-
parison between the present and previous analyses and to avoid a prolifera-
tion of terms signifying the same (or very similar) concepts. These con-
ventional terms will be defined when they are first met in the text. The only
term that need be defined here is “correlative”. As a general term the word
“correlative” (noun) connotes a concept which is complementary to, and
necessarily implied in the statement or definition of, another (reciprocal)
concept; in legal analysis, however, this term usually connotes more specifi-
cally a concept which signifies the position of one party in a particular rela-
tionship to the other party (the two concepts which signify the position of
each party to the same relationship constituting correlative concepts). On
correlative concepts as here defined, see Williams, supra, 1141, and pp.
1144-45; Radin, supra, 1149-50.
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of legal relations and the relationship between legal and non-legal
relations. 2
The examination and analysis to be undertaken in this article
will be based upon the premise that a legal duty (which will also
be referred to simply as a DUTY) is a non-contingent behavioural
requirement which the courts will, if need be, officially recognise
and support. More precisely, it is essentially a non-contingent
requirement which (in respect of content) directs a certain indi-
vidual3 to act in a particular way which (in respect of status) the
courts will officially recognise as warranting compliance should they
ever have officially to consider this matter; and which (in respect
of backing to secure compliance) they are able to support 4 by apply-
ing, or by authorising the application of, a sanction5 against an
2 Although the analysis contained in this article specifically concerns only the
product of a legal authority structure (or system), it applies equally to the
product of any other authority structure within which the application of a
sanction is recognised by the members of the group or society concerned as
constituting an official social control. Of course, an appropriate modification
must be made in respect of the nature of the sanction involved, and one may
not wish to describe the structure’s tribunal as a “court”.
A “legal” authority structure may be defined as one within which the
members of the group or society concerned recognise the (legitimate) use of
(brute) force as constituting an official social control, which use of force
is not substantially controlled by the use of superior force by any external
person or body and cannot be controlled by the legitimate use of superior
force by the agents of any other authority structure to which the person
who can legitimately apply force as a social control in the initial authority
structure belongs. The elements of this definition are further considered in
the context of the definitions of a legal duty and the courts in Part I of this
article.
3 For the purposes of this article, the terms “individual” and “person” will
include bodies of individuals.
4 On the practical effect of this support, see f.n.19, infra.
5 As the definition of the courts which follows in the text will further
indicate, the application of this sanction, by being administered or authorised
by the courts of a society, is thereby regarded by the members of the society
concerned as being legitimate. One should distinguish in this respect an act
which is considered by the members of any authority structure to be legiti-
mate (as here) simply because it is part of, or intimately connected with,
the exercise of the authority with which that structure is concerned, from
an act which is considered by those members to be legitimate because it
is specifically declared to be legitimate by that person or body of persons
(here referred to as the courts) which alone within that authority structure
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THE ANALYSIS OF LEGAL RELATIONS
individual” in the event of their taking official cognisance of non-
compliance either with the requirement itself or with a subsequent
order of a court following non-compliance with that requirement.7
The courts 8 may in turn be defined as that person, body of persons,
or system of bodies of persons that is regarded by the members of a
group or society as having the de facto authority 9 both to determine
the existence and content of those requirements which warrant
compliance so far as that group or society qua authority structured
is concerned, and to support such requirements by applying, or by
causing or permitting to be applied, a sanction (ultimately the
is regarded as being able conclusively to determine whether any act is or
is not legitimate. “Legitimate” in the first sense simply means “official” or
“proper according to the definitive (or constitutive) rules relating to the
exercise of the authority concerned”; “legitimate” in the second sense means
“not in breach of a duty recognised by the courts of the authority structure
concerned”. When the propriety of an act is considered from the point of
view of what is permitted within a given legal authority structure, the terms
“legal” and “lawful” are often used as synonyms for both senses of the term
“legitimate”. (Note, however, that when the term “legal” is used to describe
not acts but concepts, it means simply “concerning the law”.)
6 This individual is usually the person who has failed to comply with the
requirement in question, though this is not necessarily so, as witness the many
instances of vicarious liability.
7 The essential characteristics of a legal duty as here defined thus do not
concern form or origin, though the essential characteristics of those legal
duties which will be recognised by the courts of any particular legal system
may, and usually will, concern such factors. It should also be noted that
a legal duty as here defined does not depend for its existence on an aware-
ness by the person subject to it that he is in fact under a legal duty, though
without such an awareness compliance with the requirement involved under
any legal duty can only be fortuitous. A legal duty is thus, so far as the
analysis contained in this article (and the writer’s understanding of this
matter) is concerned, a purely objective phenomenon.
sThis word is in the plural simply because most societies have not one
court but a system of courts, which system is commonly referred to simply
as “the courts”. It is not theoretically impossible, however, for a society to
have only one court, and that consisting of only one person.
9 1.e., authority which results solely from the attitudes of the members of
a group or society towards a particular person or body of persons. Cf. de jure
authority, which is essentially a “liberty” or “power” (as those two terms
are defined in the next section of this article) conferred on an individual by
a person exercising existing de facto authority. On the distinction between
de facto and de jure authority, see Peters, “Authority”, in Proceedings of the
Aristotelian Society, Supp. Vol. 32 (1958), 207. Authority, it should be noted,
implies ability.
‘O.e., qua body of individuals subject to the authority of a particular
person, body of persons, or system of bodies of persons.
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unfettered ” use of brute force) 12 against an individual in the event
of non-compliance either with a requirement which it officially
recognises as warranting compliance or with a subsequent order
issued by itself or one of its constitutive elements following non-
compliance with such a requirement. 3
From the foregoing, four points in particular should be noted.
First, every legal duty concerns a particular act or a particular
course of action; moreover, every legal duty concerns only one
particular act or course of action. 4 Second, for a legal duty actually
(i.e., presently) to exist in relation to any particular act or course
of action there must be a requirement, compliance with which is not
sought only upon the occurrence of either an act of another person
or an event which is outside the control of the person subject to the
requirement; if compliance with any requirement is sought only
upon the occurrence of such an act or event there can presently exist
at most only a possibility (albeit that that possibility may fairly be
regarded as an inevitability) that a legal duty will come into being
at some time in the future. Third, a legal duty does not depend for
its existence on actual recognition or actual support by the courts; 15
all that is necessary for a legal duty to exist is that there be a
requirement which the courts will in fact officially recognise as
warranting compliance should they ever have to consider its status0
“Le., unfettered either by the actual use of superior (brute) force by any
external person or body of persons, or by the possible (legitimate) use of
superior force by the agents of any other authority structure to which the
person who can legitimately apply force as a sanction in the group or society
referred to in the text belongs. Cf. f.n.12. Internal restrictions may nonetheless
always be placed upon the legitimate use of force as a sanction in any group
or society by means of rules recognised by that body as relating to the
legitimate use of force as a sanction.
12 It is this de facto authority to apply, or to cause or to permit to be
applied, the unfettered use of force as a sanction which distinguishes a court
as a strictly legal institution from any other person or body of persons that
can authorise the application of a sanction. See the definition of a legal
authority structure in f.n.2, supra. On the legitimate use of force as the neces-
sary and ultimate sanction of any legal system, see Hoebel, The Law of
Primitive Man (1967), ch. 2 (and also ch. 11).
13 Duties and courts are thus interrelated concepts, and de facto authority
and a sanction are phenomena essential to both.
14 And see also Finnis, supra, f.n.1, 379 where a similar point is made
with reference to Hohfeld’s legal relations in general.
15 See also f.n.48, infra.
10 A legal realist might argue that one can never be absolutely certain that
the courts will officially recognise any particular requirement as warranting
compliance (and thus as being eligible for their official support) before they
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THE ANALYSIS OF LEGAL RELATIONS
and which they are able to support in the way specified. And fourth,
if a person is not under a legal duty in relation to a particular act
or course of action the courts are unconcerned 7 whether he performs
that act or course of action.
II
In order to examine the basic types of legal relations that can
exist, two situations will be analysed. These situations concern the
basic means by which an individual (X) can achieve a particular
end or goal in a group or society which constitutes a legal authority
structure. In each situation it will be assumed that X is neither under
a DUTY to achieve his end nor under a DUTY to refrain from
performing any act that is necessary to achieve that end. It will
further be assumed that all acts are performed as a result of the
exercise of free will,'” that all ends are capable of.being achieved
by the person or persons specified, that all persons who are subject
to any DUTY are aware of this, that all DUTIES will be obeyed 19
actually decide upon its status. One therefore can never be sure that a legal
duty exists until after the courts have made an official decision to this effect;
it may accordingly be argued that references to legal duties which have not
been specifically recognised by the courts must strictly concern only require-
ments which one can predict may, or at most probably will, be officially
recognised by the courts as warranting compliance. Valid though this argu-
ment is, it omits to take into account the fact that the common concept of
a legal duty as defined in the text (a species of guide for present and future
conduct) always has reference to present requirements which it is presumed
the courts will recognise. It is with this concept of a duty, and not with the
actual existence of a duty, that this present article is concerned.
171.e., unconcerned (either directly or indirectly) in the exercise of their
essential functions of determining the existence of and supporting actual legal
duties.
is I.e., as a result of choice and not solely as a result of purely physical
duress, an automatic physical reflex action, automatism, or inadvertance. An
act which is performed in order to gain a reward or to avoid punishment
(including further punishment) is nonetheless considered for the purposes
of this article to be aresult of the exercise of free will, the choice here being
to gain the reward or to avoid the punishment in question.
19 Note that the mere imposition of a DUTY on a person wil never auto-
matically ensure that that person will act in accordance with the DUTY. At
most the imposition of a DUTY on a person will simply prompt or encourage
that person to act as required either by virtue of the sanction that can be
applied against him, or against another person, should he not comply with
that DUTY; or because he feels morally obliged to obey either that particular
DUTY or DUTIES in general. Note, too, that since the sanction that the courts
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and that the only sanction which is known and can thus be threatened
or applied against an individual is one authorised by the courts. 0
Situation A
In this, the simplest of all situations, X can achieve his end
(goal) by his own unaided efforts. The co-operation of any other
person is thus unnecessary for the achievement of that end. So far
as the courts are concerned, since X is neither under a DUTY to
achieve the end in question nor under a DUTY to refrain from
performing any act that is necessary for the achievement of that
end, X is quite free2′ to achieve or to refrain from achieving that
end as he chooses 2 2 Because of this lack of concern by the courts
about whether X does or does not achieve his end, X is said to have
a LIBERTY23 in respect of the achievement of that end; more
particularly, he has a LIBERTY to perform any act or course of
action that is necessary for the achievement of that end.2
here legal –
can impose to support a DUTY, including even the use of brute force, will
never except in very rare circumstances physically and directly force a person
to act in the particular way required by a DUTY, even the so-called “enforce-
ment” of a DUTY by the courts will in general never ensure that a person
under a DUTY will comply with it.
20This limitation is necessary in order both to restrict the analysis to a
single –
authority structure (see f.n.2, supra), and to exclude
from the two basic situations to be analysed illegitimate acts, i.e., acts which
are in breach of a DUTY (n.b. text referred to by f.n.19, supra).
2 1 I.e., free from the possibility of breaching any DUTY by performing or
not performing any act necessary for the achievement of the end in question.
The term “free” here does not necessarily imply any philosophical freedom
or any physical freedom or ability, though note that it is assumed for the
purpose of the analysis in this article that all acts are the result of the
exercise of free will (see f.n.18 and text, supra) and that all ends can be
achieved. See also f.n.24, infra.
22 Note that a LIBERTY does not concern the legal freedom to choose (pace
Hart’s statement in Definition and Theory in Jurisprudence, (1954) 70 L.Q.R.
37, 49, f.n.15, but concerns instead the legal freedom to act according to one’s
choice. On the factor of choice, see f.n.18 and text, supra.
23 .e., to be at liberty (so far as the courts are concerned). In legal analysis
states are often expressed as things for the sake of convenience.
The term “liberty” was first used specifically to connote the concept referred
to in the text by Salmond in his Jurisprudence 1st ed. (1902), ch. 10, para. 75
(pp. 231-2). Hohfeld subsequently used the term “privilege” to connote the
same concept; see his explanation for this, supra, f.n.1, 3843. The present
writer accepts Williams’ reasons for preferring the term employed in the
text; cf. supra, f.n.1, 1131-32.
24 In the light of the foregoing it is clear first, that a LIBERTY concerns
a freedom (as defined by f.n21, supra) to act or not to act in a particular way
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THE ANALYSIS OF LEGAL RELATIONS
The concept of a LIBERTY thus implies the absence of any DUTY
(either positive or negative) in respect of a particular act or course
of action.2 5 A LIBERTY and DUTY are consequently class-comple-
ments; 26 the one concept denies the existence of the other and they
therefore mutually embrace the whole of the specific class of
entities involved (here concepts connoting the official interest of the
courts in the performance of any act or course of action). Under any
given legal system every person is thus either under a DUTY (either
positive or negative) in respect of any particular act or course of
action, or he has a LIBERTY in respect of that act or course of
action.2
according to one’s choice; and second, that (as will be further emphasised
in the following paragraph in the text) a LIBERTY connotes the absence of
any DUTY (either positive or negative)
in respect of a particular act or
course of action. It must therefore follow, pace Williams (supra, f.n.1, 1139-42),
that a LIBERTY must always in theory involve choice, and that there cannot
logically be a LIBERTY to perform a DUTY.
25Cf. Williams (supra, f.n.1, 1135-39), who makes the point that the class-
complement of a DUTY is strictly a “LIBERTY not”, and that a “LIBERTY”
is strictly the class-complement of a “DUTY not”. This is, of course, true but
only in respect of the formal class-complement of a specified DUTY or
LIBERTY. The point being made in the text is that the class-complement of
a DUTY, whether of positive or negative content, is a LIBERTY which is
neither of a positive or negative content. To put this matter in another way:
if there is any DUTY (either positive or negative) in respect of a particular
act there can be no LIBERTY at all in respect of that act; conversely, if there
is a LIBERTY in respect of any particular act there can be neither a positive
nor a negative DUTY in respect of that act.
26 The term “class-complement” used in the text follows Stone, Legal System
and Lawyers’ Reasonings (1968), 139. Salmond used the term “absences (in
oneself)” (cf. supra, f.n.23, 231, 236), and Hohfeld used the term “opposites”
(cf. supra, f.n.1, 30, 32-33) to signify this relationship.
27 It should be evident from Situation A that, contrary to popular juristic
opinion, the concept of a LIBERTY does not necessarily imply a relationship
between two people (though particular LIBERTIES may involve such a
relationship). Thus this concept does not necessarily imply a correlative con-
cept which connotes the position of another person in respect of the exercise
of any LIBERTY. For example, if the particular end or goal in Situation A
were to read a book, X’s LIBERTY to read a book would not necessarily
involve another person, and thus could not involve a correlative concept to
connote the position of another person in respect of the exercise of that
particular LIBERTY. This highlights one of the principal deficiencies of
Hohfeld’s article, namely that, notwithstanding his stated aim of analysing
the basic elements of the law, his analysis is concerned only with legal rela-
tions (i.e., with the legal position of two people who are related together in
respect of a particular activity or legal ability, and not with the legal position
of only one person in respect of a particular activity or legal ability). Because
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Situation B
In this situation, X can achieve his end only with the assistance
(co-operation) of another person, Y. If Y is under a DUTY not to
assist X in achieving the end in question, X will clearly not achieve
that end. However, presuming that Y is under no such DUTY, and
presuming also that he is presently under no DUTY to assist X, Y’s
legal position concerning giving assistance to X must accordingly be
that he has a LIBERTY to assist or not to assist X as he (Y)
chooses.28 If, however, a requirement (more precisely, an expression
of a requirement) by X that Y assist him to achieve his end will be
recognised by the courts as imposing a DUTY on Y to assist X, Y’s
present LIBERTY in respect of rendering assistance to X is liable
of this, each of Hohfeld’s concepts which connotes the legal position of one
person to a relationship of necessity involves a correlative concept which
connotes the position of the other party to the same relationship. Thus for
Hohfeld the concept of a DUTY always involves a correlative concept of a
RIGHT, and the class-complement of the concept of a DUTY (i.e., a LIBERTY)
similarly always involves a correlative concept, which he termed a “no-right”.
However, as will be discussed in more detail later in this article, a DUTY
need not involve a correlative RIGHT; and as has already been indicated in
this footnote, the concept of a LIBERTY need not involve any correlative
concept to connote the position of any other person in respect of the exercise
of that LIBERTY. The only LIBERTIES which must involve a correlative
concept of the kind just mentioned are those which concern actions which
relate to another person (e.g., a LIBERTY to kill in self-defence, a LIBERTY
to chastise a child, or a LIBERTY to look at passers-by in the street). As
will become apparent later in this article, the only concepts which always
connote both the legal position of an individual in respect of a particular
activity or ability and a relationship between that same individual and another
person in respect of the same activity or ability are the concepts of a RIGHT,
a POWER, a LIABILITY, and the class-complements of the latter two concepts,
which are traditionally termed a “disability” and an “immunity” respectively.
Did Hohfeld in fact believe that the law was concerned only with relation-
ships between two people in respect of a particular activity or legal ability?
His article is unclear on this matter (see, e.g., supra, f.n.1, 19-20), though
it is quite possible that he was so mistaken. If he was, the cause was probably
the fact that he started his analysis with the concept of a RIGHT, which
always involves a correlative DUTY, rather than with what is here regarded
as the fundamental legal conception upon which all other legal conceptions
depend, namely a DUTY, which need not involve a correlative RIGHT. The
present analysis, by being founded on the concept of a DUTY, seeks. to avoid
this and other deficiencies of Hohfeld’s analysis.
2SNote that Y’s position is here exactly the same as X’s position in
Situation A, for so far as he (Y) is concerned he can achieve his end, namely
assisting or not assisting X, by his own unaided efforts. (The achievement
of the end referred to in the text is, of course, X’s end only.)
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THE ANALYSIS OF LEGAL RELATIONS
to be displaced by the imposition on him of a DUTY. Y will then be
in the position that if he does not comply with X’s requirement and
help him to achieve his end he (Y), or another person, will be liable
to suffer a sanction authorised by the courts.
Three observations may be made regarding situation B:
If, so far as the courts are concerned, Y has a LIBERTY to
(a)
help X achieve his end, then clearly that end will be achieved only if
Y voluntarily 29 chooses to assist X.3 If Y does subsequently assist X,
their relationship may be said to be one of VOLUNTARY CO-OPERA-
TION1 This will here be described as a NON-LEGAL relationship
because the courts are unconcerned whether it does or does not
exist.
If, so far as the courts are concerned, Y will be under a DUTY
(b)
to assist X if (but only if) X expressly requires his assistance, X is
then said to have a POWER, i.e., an ability recognised by the courts
to change Y’s legal position from one where he has no immediate
DUTY towards X to one where he has such a DUTY; 32 X can
291.e., Without any (actual or threatened) pressure or influence from the
courts, (and n.b. the presumption referred to by f.n.20, supra).
30As the act with which Y’s LIBERTY is concerned (assisting X) relates
to another person (X), this particular LIBERTY must of necessity have a
correlative concept to connote the position of the other person (X) in respect
of the exercise of this LIBERTY. Because the LIBERTY in question connotes
a legal freedom on the part of Y to assist X, or, which is the same thing,
the absence of a DUTY on the part of Y that he should assist X, and thus
implies that X has no RIGHT that Y should assist him, the correlative concept
to connote X’s position in relation to Y must be equivalent to the absence of
a RIGHT by X that Y should assist him. This correlative concept Hohfeld
termed a “no-right” (cf. supra, f.n.1, 32-33). It should be stressed, however,
that not all LIBERTIES have a correlative “no-right” concept (cf. supra,
f.n.27).
31 Further to the observations made in the previous footnote concerning
Hohfeld’s analysis, it should be noted that a Hohfeldian LIBERTY-“no-right”
(or, as he would have it, a privilege-no-right”) relationship is simply a
relationship through the official interest of the courts in its existence. The
relationship is, moreover, nothing more than a denial of that (class-comple-
ment) relationship which the courts will officially recognise and support,
namely a RIGHT-DUTY relationship. Thus it is essentially negative in charac-
ter. The relationship of VOLUNTARY CO-OPERATION referred to in the
text, on the other hand, is a relationship which can legitinately exist (it is
in fact the only relationship which can so exist) despite the fact that the
courts will not officially recognise and support it. It is essentially positive
in character.
32 Although a POWER is presented-here as an ability to impose a DUTY
upon a person, a POWER can also involve the contrary “ability to annul a
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accordingly secure Y’s assistance in order to achieve his (i.e., X’s)
end by exercising his POWER.3
In this situation Y is said to be
under a (correlative) LIABILITY because he is liable to have a
DUTY imposed upon him by X at some time in the future.3 4
This relationship between X and Y –
a POWER-LIABILITY
relationship – will here be described as an ANTE-LEGAL relation-
ship because it is antecedent 35 to the creation of a DUTY and thus
also to the creation of what is regarded in this article as the only
LEGAL relationship, namely a RIGHT-DUTY relationship. A LEGAL
relationship may be defined for present purposes as a relationship
with which the courts are directly concerned in the execution of
DUTY to which a person is presently subject. A POWER, in sum, may be
defined as an ability of a person intentionally to impose a DUTY on another
person, or to annul a DUTY to which a person is presently subject, by per-
forming an act which will be regarded by the courts as having the effect
of imposing or annulling the DUTY in question. Note that for Hohfeld the
concept of a legal power concerned an ability recognised by the courts to
change legal relations in general: cf. supra, f.n.1, 44ff. Under the analysis in
this article, however, the concept of a POWER concerns simply an ability
to impose or annul a DUTY, whether or not there is any relationship involved
(i.e., whether or not the DUTY in question involves a correlative RIGHT).
Moreover, the concept of a POWER does not concern an ability to impose
or annul a POWER. Under the analysis in this article, the latter ability -is
essentially quite different from the former ability. (On an ability, or “power”,
to impose a POWER, see f.n.49, infra.)
33 It is important to note that since the exercise of a POWER involves a
specific act or course of action, any person who can exercise a POWER must
be either under a DUTY, or at LIBERTY, so to act. A POWER without more,
it should be observed, concerns an ability only. Hart’s statement that a
POWER concerns a choice (cf. supra, f.n.22) should thus be accepted only
with reservations.
34Just as a POWER can involve an ability either to impose or to annul a
DUTY (see f.n.32, supra), so a LIABILITY can indicate either the position
of a person who is liable to have a DUTY imposed upon him or the position
of a person who is liable to have a DUTY to which he is presently subject
annulled. A LIABILITY, in sum, may be defined as the position of a person
who is liable to have either a DUTY imposed upon him, or a DUTY to
which he is presently subject annulled, by an act of another person which
is intended to have this result and which will be regarded by the courts as
having the effect of imposing or annulling the DUTY in question.
35 Although, as will be noted in Part III of this article, a POWER-LIABILITY
relationship is antecedent only to those DUTIES (and thus RIGHT-DUTY
relationships) which can be deliberately created; in such cases a POWER-
LIABILITY relationship is, moreover, necessarily antecedent to the creation
of the DUTY (and thus the RIGHT-DUTY relationship) involved.
30 A RIGHT-DUTY relationship and the concept of a RIGHT are discussed
in detail later in the text.
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THE ANALYSIS OF LEGAL RELATIONS
their essential functions of determining the existence of and support-
ing actual DUTIES. 7 Although the courts are never directly con-
cerned with the existence of a POWER-LIABILITY relationship in the
execution of their essential functions, they are nonetheless often
indirectly concerned with this relationship in such situations, for
whenever the courts recognise a DUTY which owes its existence to
an act that was deliberately intended to create that DUTY, s they
must also recognize (in theory at least) both the prior existence of
the appropriate POWER-LIABILITY relationship between the person
who created (imposed) the DUTY and the person on whom that
DUTY was imposed, and the exercise of that POWER. 9
If X exercises his POWER by expressly requiring the assistance
(c)
of Y, Y is then, so far as the courts are concerned, under a DUTY to
assist X. The exercise of a POWER is thus a means of achieving
co-operation; more particularly, it is a means by which one person
(viz. the person with the POWER) can impose a DUTY on another
person (viz. the person under the correlative LIABILITY) and thus
require that other person to act in a particular way or render either
himself or another individual liable to the imposition of a sanction
authorised by the courts. The precise way in which a person under
a DUTY is required to act is formally determined by the content of
the requirement that each DUTY involves, and this content is
(ultimately) determined by the courts, who by definition alone
have the (de facto) authority to make determinations of this kind.
An individual may be required by a DUTY to act in. relation to
a particular person, who may be the person who exercised the
antecedent POWER (if any) as in Situation B, or a third person.
If an individual under a DUTY is required to act in this way, the
person in relation to whom he is required to act is said to have a
(correlative) RIGHT. 0 The relationship between an individual who
37The fact that the courts can officially and directly concern themselves
with determining the existence of POWERS and LIABILITIES (e.g.; by making
declaratory judgements on these matters) does not detract from the fact
that a POWER-LIABILITY relationship is not a LEGAL relationship, for in
concerning themselves with these matters the courts do not without more
exercise their essential functions according to the definition of the courts
contained in Part I of this article.
38 Other ways in which DUTIES can come into existence are discussed
in Part III of this article.
39 The relationship between a POWER-LIABILITY relationship and a DUTY
(and thus also a RIGHT-DUTY relationship) is further discussed in Part III
of this article.
4Whether a DUTY involves a correlative RIGHT is thus always apparent
from a comprehensive statement (or definition) of the DUTY concerned. Such
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is under a DUTY to act in relation to a particular person and the
person in relation to whom he is required by the DUTY to act –
a
RIGHT-DUTY relationship –
is here described as a LEGAL relation-
ship; indeed, as indicated above, it is for the purposes of this article
the only LEGAL relationship since it is the only relationship with
which the courts are directly concerned in the exercise of their
essential functions of determining the existence of and supporting
actual DUTIES (and thereby determining the existence of and
protecting any correlative RIGHTS).
From the above reference to a RIGHT it is apparent that since
a RIGHT is by definition the position of an individual in relation
to whom another person is required by a DUTY to act, a RIGHT is
always passive in character.4′ Thus a person with a RIGHT always
a statement will indicate both whether the individual under the DUTY is
thereby required to act in relation to another person, and, if he is, in relation
to which particular person he is required to act. On the intimate relationship
between a RIGHT and a DUTY, see Radin, supra, f.n.1, 1149-50.
A RIGHT is often referred to as being a state of advantage: see, e.g., Sal-
mond, supra, f.n.23, 231; Hohfeld, Fundamental Legal Conceptions as Applied
in Judicial Reasoning (II), (1917) 26 Yale LI. 710, 717. It is true that in many
cases, and probably even the majority of cases, particular RIGHTS (e.g., a
RIGHT not to be assaulted, a RIGHT not to be defamed and a RIGHT to
be paid rents) are advantageous, in the sense of being beneficial, to those
whose relationship to a person under a DUTY they indicate. However, some
RIGHTS may not be advantageous in the sense specified. For example, if
a policeman is under a DUTY to arrest a person, the person whom he is
under a DUTY to arrest has a technical RIGHT (viz. a RIGHT to be arrested
by the policeman) though that RIGHT is unlikely to be regarded as consti-
tuting a state of advantage to the person concerned. That said, however, all
RIGHTS may at least be regarded as advantageous in the sense that not
the person with a RIGHT but rather the person with the correlative DUTY
is required to act in relation to the person with the RIGHT.
41 See also on this point Williams, supra, f.n.1, 1145; Finnis, supra, f.n.1, 380.
Consider a LIABILITY, which is also always passive in character. Because
a RIGHT is essentially a passive phenomenon, Hart cannot without more
be correct in stating (supra, f.n.22) that a RIGHT involves a choice on the
part of the individual who has a RIGHT. Note, in this connection, Hohfeld’s
suggestion that the term “claim” is a suitable synonym for the term “RIGHT”
(which he would not capitalize: supra, f.n.1, 32); see also at p. 55 where he
uses the expression “affirmative claim”. This suggestion may be objected
to on the ground that the term “claim” implies positive action, if only the
act of claiming. Radin’s use of the expression “demand-right” to signify a
RIGHT (supra, f.n.1, 1149) is objectionable for the same reason.
One reason why a RIGHT is sometimes mistakenly thought to have positive
features is the fact that under the rules of most, if not all, legal systems a
person with a RIGHT is usually able to protect any advantage that might
thereby accrue to him by taking or instigating positive action against an
1974]
THE ANALYSIS OF LEGAL RELATIONS
has a RIGHT that another person,(viz. the person under the correl-
ative DUTY) act in relation to him in a particular way. One should
not say that a person with a RIGHT has a RIGHT to act (or not
to act) in any way. Colloquial reference to a right to do something
cannot thus be a reference to a RIGHT (i.e., the correlative of a
DUTY). As such a use of the term “right” signifies that the person
with the “right” can perform the act in question (i.e., can act
positively) without breaching a DUTY, the “right” concerned must
logically be the class-complement of a DUTY, which is a LIBERTY.4 2
individual (usually the person under the correlative DUTY) if the person
under the correlative DUTY does not comply either with the requirement
that that DUTY involves or a subsequent order of a court following non-
compliance with that requirement. Note, however, that to take action against
an individual as a result of non-compliance with a DUTY or an order of the
court constitutes an end in itself, with specific DUTIES or LIBERTIES
relating to that particular end, and that this end is quite separate from any
RIGHT with which it might be associated. See also on this point Finnis,
supra, f.n.1, 380-82, and note the allied point made in Part I of this article
at p. 264. Cf. Goble’s definition of a RIGHT as “the [legal] power of a person
to initiate that sequential combination of [legal] powers and acts involved
in obtaining a judgement against another person” (supra, f.n.1, 540).
42As both Salmond and Hohfeld observed, the word “right” can be used
not only strictu sensu to connote the correlative of a DUTY, but also in a
wide sense to comprehend generally RIGHTS, LIBERTIES, POWERS, and
also the class-complement of LIABILITIES, which both Salmond and Hohfeld
referred to as “immunities” (Salmond, supra f.n23, 231; Hohfeld, supra, f.n.1,
30; and see also the more primitive observations of earlier legal theorists on
this matter which are outlined in Dickey, supra, f.n.1, 59-60). The common
feature of all these species of “rights” (in the wide sense) is usually said to
be the advantage that appertains to the legal positions that these terms con-
note (see Salmond, supra, f.n.23; and Hohfeld, supra, f.n.40). However, as has
been seen, certain RIGHTS may not be advantageous, in the sense of bene-
ficial (see f.n.40, supra); and whether any POWER is advantageous in the
same sense will depend both on the ability that the POWER concerns and
whether the person who can exercise the POWER is under a DUTY or at
LIBERTY so to act. The reason why the four concepts in question are
commonly referred to as “rights” would appear to be not that they always
constitute, but rather that they usually constitute, advantages in the sense of
benefits. Thus when a strict RIGHT or POWER does not constitute an ad-
vantage it is not popularly referred to as a “right”. For example, although
a person whom a policeman is under a DUTY to arrest has a strict RIGHT
to be arrested, that RIGHT is not likely to be referred to in common parlance
as a “right” as the State concerned is not likely to be considered to be advan-
tageous to the’person in question. Cf. Hart’s assessment of the common fea-
ture of the four species of “rights” in the general sense (supra, f.n.22; but
note the criticisms of Hart’s thesis in f.n.22, 33 and 41, supra, and f.n.49,
infra).
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III
The three relationships outlined in the previous section may be
set out diagrammatically as follows:
NON-LEGAL
(VOLUNTARY CO-OPERATION)
LEGAL
(RIGHT-DUTY)
ANTE-LEGAL
(POWER-LIABILITY)
In this figure the vertical axis represents the opposite poles of
interest that the courts have in the three relationships indicated.
The courts have no interest at all in relationships of VOLUNTARY
CO-OPERATION since it is a matter of no concern to them whether
such relationships exist or not. The courts are, however, interested
in ANTE-LEGAL and LEGAL relationships, and the horizontal axis
of the above figure represents the opposite poles of interest that the
courts have in these relationships, namely a direct interest in the
case of LEGAL (RIGHT-DUTY) relationships and an indirect interest
in ANTE-LEGAL (POWER-LIABILITY) relationships.
The above figure may be represented in the following revised
form to indicate the order of progression from one relationship to
another:
1974]
THE ANALYSIS OF LEGAL RELATIONS
NON-LEGAL
(VOLUNTARY CO-OPERATION)
LEGAL
(RIGHT-DUTY)
ANTE-LEGAL
(POWER-LIABILITY)
The unbroken, horizontal line indicates that every RIGHT-DUTY
relationship which is deliberately created 43 by an individual must
in theory44 be immediately preceded by a POWER-LIABILITY
relationship.45 One can, indeed, go further and state that every
DUTY which is deliberately created by an individual must also in
theory be immediately preceded by a POWER-LIABILITY relation-
ship regardless of whether it involves a correlative RIGHT. This
latter point may be approached from a more general consideration of
the creation of DUTIES and of RIGHT-DUTY relationships. Thus no
DUTY is self-creating 0 but exists only because it has been brought
into existence. This may happen either as a result of the immediately
43 Or annulled. References in the text to the creation of DUTIES may also
be taken as references to the annulment of DUTIES. N.b. in this respect the
definition of a POWER in f.n.32, supra.
441.e., according to the definitions of the legal concepts which have been
introduced in Parts I and II of this article. The deliberate creation of DUTIES
with retrospective effect is no exception to the statement in the’text; the
creation of such DUTIES must still in theory be immediately preceded by a
POWER-LIABILITY relationship even though the operation of those DUTIES
will be deemed to have commenced at a time prior to their creation.
45 Note that what is being referred to here is the creation of an actual
RIGHT-DUTY relationship, and not the creation of a situation whereby a
RIGHT-DUTY relationship can, or will, come into being at some time in the
future. On the creation of the situations just referred to, see f.n. 49, infra.
46 This point may be better appreciated by remembering that a DUTY is a
species of requirement (see the definition in Part I of this article) and that no
requirement is a natural phenomenon but is always ultimately the result of
a deliberate human act, even in situations in which a requirement may be
said to apply to a person as a result of an accidental act of an individual or
as a result of a natural or physical event. See also f.n.47, 48 and 49, infra.
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preceding act of an individual, which act may or may not have
been intended by that individual to create a DUTY,47 or by an
immediately preceding natural or physical event.48 When a DUTY
has been intentionally created by an immediately preceding human
act, the relationship between the person who created the DUTY
and the person on whom that DUTY has been imposed must by
definition have been a POWER-LIABILITY relationship at least
at that point of time immediately prior to the imposition of the
DUTY. 49
47 The matter of intention is important since only those DUTIES which are
intentionally brought into existence by an act of an individual can be said
to result from the exercise of a POWER (see the -definition of a POWER
in f.n.32, supra); DUTIES which are unintentionally brought into existence
by an act of an individual (e.g., those which require parents to take all reason-
able action to rescue any young child of theirs that has placed himself or
herself in a dangerous situation) may be regarded for present purposes as in
the same category as those which are brought into existence by a natural
or physical event. Hohfeld may perhaps have implied this latter point in
his statements to the effect that those changes in legal relations which
are caused by “facts not under the volitional control of a human being”
are not the result of a technical power (cf. supra, f.n.1, 44). On the creation
of situations whereby an act of an individual will impose a DUTY accidentally,
see f.n.49, infra.
. 48 For example, the appearance of a particular pest or disease on property
(a natural event) may impose a DUTY on the occupier to inform the
appropriate public authority or to take certain remedial action, while traffic
lights turning red (a physical event) usually imposes a DUTY on motorists
not to proceed beyond the lights until they turn green. On the creation of
situations whereby a natural or physical event will impose a DUTY, see
f.n.49, infra.
In the light of the fact that a DUTY can be created by a natural or
physical event, Goble’s thesis (supra, f.n.1) that the basic legal concept is
“power”, which he defined as “the capacity of a person to alter the legal status
of another”, and that all other legal concepts are derivatives of a “power”, is
clearly deficient.
4 0 As the term “POWER” is used in this article solely to connote an ability
of a person intentionally to impose (or annul) a DUTY (see f.n.32, supra),
it cannot properly be used to indicate either the ability of a non-rational
phenomenon or thing, or the ability of a person unintentionally, to impose
(or annul) a DUTY. One can, however, identify a second kind of power-
liability relationship that is akin to a POWER-LIABILITY relationship as
defined in that both parties to the relationship are persons, and the person
who exercises the power always does so deliberately. This relationship
is
antecedent to and necessarily connected with those situations in which a
person is liable to be made subject to (or to be freed from) a DUTY either
as a result of a purely natural or physical event or as a result of an act which
is not intended to impose (or annul) a DUTY. This second kind of power-
liability relationship results from the fact that situations of the kind just
19741
THE ANALYSIS OF LEGAL RELATIONS
A POWER-LIABILITY relationship and a resulting RIGHT-DUTY
relationship may involve the same two individuals, as would be the
case if X exercised his POWER in Situation B above, or they may
noted can exist, and DUTIES can thereby be imposed (or annulled), only if
particular acts or natural or physical events are specified as involving the
imposition (or annulment) of certain DUTIES on particular persons. The
specification of such matters, it should be appreciated, must be the product
of, or must at least involve, an act which is intended by the actor to create a
situation of the kind under consideration and cannot be the product solely of
another casual act or natural or physical event. The second kind of power-
liability relationship thus concerns a relationship whereby a person (i.e.,
the person with the power) is able to specify that a particular act or natural
or physical event will impose (or annul) a certain DUTY on a particular
individual (i.e., the person who is under the correlative liability). It should
be noted that because DUTIES are by definition requirements which the
courts will, if necessary, officially recognise and support, the second kind of
power can be exercised only by the courts or by a person whom the courts
will, if necessary, officially recognise as having the ability to make effective
specifications of the kind referred to. All powers of the second kind other than
those possessed by the courts themselves thus depend for their existence on
(actual or presumed) recognition by the courts.
One can, indeed, go further and state that with only one exception, namely
(strict) POWERS possessed by the courts (which POWERS, like powers of
the second kind possessed by the courts, are inherent in the very phenomenon
or definition of courts), all POWERS must also be created by the exercise of
a power of the second kind, for with that one exception all POWERS can
exist only by being specifically created, and they must logically be created
either by the courts or by a person whom the courts will, if necessary,
officially recognise as having the ability to create POWERS (i.e., to confer on
others an ability intentionally to impose or annul DUTIES). As has already
been stated, the relationship between a person (including by that term the
courts) who is able to specify that a particular act or course of action will
impose or annul a certain DUTY on a particular individual, and that
particular individual, is a power-liability relationship of the second kind (see
the definition in the preceding paragraph of this footnote). For present
purposes the fact that the act or course of action referred to must be intended
by the actor to impose (or annul) the DUTY in question is irrelevant.
Just as a (strict) POWER can either create or annul a DUTY, so too a
power of the second kind can either create or annul a POWER. When a power
of the second kind annuls a POWER it creates what Hohfeld would call a
“disability”, that is, an inability to impose or annul a DUTY (though note
that for Hohfeld this term connoted an inability to alter legal relations in
general: cf. supra, f.n.1, 55-56). The correlative of a “disability”
is what
Hohfeld would call an “immunity”, which under the present analysis signifies
the position of a person who is not liable to have either a DUTY imposed
upon him or a DUTY to which he is presently subject annulled. (For Hohfeld
this latter term connoted, in his own terms, a “freedom from the legal power
or ‘control’ of another as regards some legal relation”: cf. supra, f.n.1, 55.)
A “disability” and an “immunity” are thus simply the class-complements of a
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involve three individuals, only one of whom is a party to both
relationships. For example, if A imposes a DUTY on B that he should
act in a certain way towards C, thus giving C a RIGHT, the POWER-
LIABILITY relationship involves A and B, but the subsequent
RIGHT-DUTY relationship involves B and C. One person must
always, of course, be common to every related pair of POWER-
LIABILITY and RIGHT-DUTY relationships, and this is the person
who is the subject of the DUTY involved in each pair of relation-
ships (i.e., the subject of the potential DUTY in the first relationship
and the subject of the actual DUTY in the second).
It is clear that if A has a POWER to impose a DUTY on B, and
if that DUTY will confer a correlative RIGHT on C, there must
logically be a relationship not only between A and B but also
between A and C. This relationship is often referred to also as a
POWER-LIABILITY relationship, it being said that in such situations
A has a “POWER” to confer a RIGHT on C, and that C is “LIABLE”
to have a RIGHT conferred on him by A. This use of the same
POWER and LIABILITY respectively and are of no special importance to the
analysis presented in this article. Note that an “immunity”, according to both
the present analysis and Hohfeld’s analysis, is strictly the state of being
immune from having a DUTY imposed upon oneself or a DUTY to which one
is presently subject annulled. Hart’s statement (supra, fn.22), to the effect
that the concept of an immunity concerns choice cannot without more be
accepted as accurate.
For the sake of completion it may be observed that there is in fact a
third species of power, which is an ability to confer (or annul) a power of
the second kind. The “liability” which is correlative to this species of power
is a liability to have a power of the second kind conferred upon one i(or
to have such a power which one presently possesses annulled). This third
species of power is also either inherent in the very phenomenon or definition
of courts or depends for its existence on (actual or presumed) recognition by
the courts.
Quaere, what specific term, if any, should be used to signify the position
of a person who is liable to have a DUTY imposed upon him (or annulled)
as a result of either an act of an individual which is not intended to have
such an effect or a purely natural or physical event? The term “LIABILITY”
is clearly inappropriate (see the definition of this term in f.n.34, supra).
Perhaps, rather than increase the number of technical terms used in legal
analysis, the position in question should be signified by an express use of
ordinary words. Alternatively, the correlative terms “POWER” and “LIABIL-
ITY” may be re-defined in order to comprehend the situation whereby an
individual is liable to have a DUTY imposed upon him by any act or event.
In this case appropriate distinctions would have nonetheless to be made
between those “POWER-LIABILITY” relationships in which an intention to
impose a DUTY is an essential element and those in which it is not. Whichever
solution is adopted, for a precise analysis of DUTIES and the basic relation-
ships that can derive therefrom, the distinction just referred to must be made.
19741
THE ANALYSIS OF LEGAL RELATIONS
terms “POWER” and “LIABILITY” to refer both to the relationship
between A and B and to the relationship between A and C is, how-
ever, objectionable since it does not distinguish between two funda-
mentally different relationships, namely that which concerns the
possible imposition of a DUTY and that which concerns the possible
conferment of a RIGHT. It is thus a potential cause of uncertainty
and confusion and should be avoided. 0
This dual use of the terms “POWER” and “LIABILITY” may also
lead to a misunderstanding concerning the product of the exercise
of any POWER, which is always a DUTY but which is not always
a RIGHT. The exercise of a POWER must, by definition, create a
DUTY. But whereas all RIGHTS have correlative DUTIES, not all
DUTIES have correlative RIGHTS. Thus the creation of a DUTY
does not necessarily also involve the creation of a RIGHT. As has
already been indicated in the previous section of this article, a DUTY
exists without a correlative RIGHT whenever it requires an indi-
vidual to act in a way which does not necessarily involve action in
relation to another person (though the action required may incident-
ally involve or affect another person);51 a DUTY exists with a
correlative RIGHT, on the other hand, whenever it requires an
individual to act in relation to another person (i.e., the person who
thereby has a correlative RIGHT).
5OProbably the best way to avoid the situation in question is to restrict
the simple use of the terms “POWER” and “LIABILITY” (whether capitalised
or not) to signify only those legal states which concern an ability to impose
(or annul) a DUTY, and the possibility of having a DUTY imposed upon oneself
(or annulled), respectively. An ability to confer a RIGHT upon a person, and
the possibility of having a RIGHT conferred upon oneself, should perhaps best
be signified by an express use of ordinary words to this effect rather than by
the introduction of new technical terms to denote these concepts.
51 Examples of DUTIES which exist without correlative RIGHTS include the
various DUTIES not to possess certain items (e.g., stolen goods, dangerous
drugs, or offensive weapons). It is sometimes said that there are RIGHTS
which are correlative to such DUTIES and that these are possessed either
by the State, which created them, or by the police, who can prosecute those
responsible for their breach. Such a statement is, however, fallacious; these
DUTIES cannot involve correlative RIGHTS since they do not require an
individual to act in relation either to the State (qua the Government or the
population at large) or to the police, or, indeed, to any other individual. It
is true that a breach of such a DUTY may be regarded as constituting an
“offence against the State”, and may also give the police or some other
individual a POWER to prosecute or otherwise to take action against the
person responsible for the breach, but these facts do not give either the
State or any other person a RIGHT as defined which is correlative to that
DUTY.
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It follows from the last point made that although Situation B
in the previous section of this article represents the only basic
situation in which an individual can (legitimately) coerce 52 the
co-operation of another individual (the situation in question being
that in which an individual can exercise a POWER and thereby
impose a DUTY on the person with whom he seeks co-operation), it
in fact represents only one of the basic situations which concern a
DUTY, namely that in which the individual under the DUTY is
thereby required to act in relation to another person (who thereby
enjoys a RIGHT). In the second, and only other, basic situation
involving a DUTY that can exist, the exercise of a POWER creates
only a DUTY, i.e., it creates a DUTY which does not involve a
correlative RIGHT. The essential difference between these two
situations is that in the first (viz. that outlined in Situation B), the
exercise of the POWER in the POWER-LIABILITY relationship
creates not simply a DUTY but a second relationship (i.e., a RIGHT-
DUTY relationship) in respect of the act with which that DUTY is
concerned; in the second situation, however, the exercise of the
POWER in the POWER-DUTY relationship creates simply a DUTY
and no other relationship in respect of the act with which that DUTY
is concerned.
A further objection to the dual use of the terms “POWER” and
“LIABILITY” to comprehend both the relationship which concerns
the possible imposition of a DUTY and that which concerns the
possible conferment of a RIGHT is that such usage may give the
impression that the courts are equally as concerned with RIGHTS
as they are with DUTIES and it may thus detract attention from the
fundamental5 3 fact that the courts are primarily and essentially
concerned with DUTIES and only secondarily and consequently
with RIGHTS. A RIGHT exists, as has been seen, only because the
courts recognise the existence of, and are prepared to support, a
logically anterior DUTY which requires that a- certain individual
52 “Coerce” in this context means simply require under threat of the legiti-
mate imposition of a sanction on an individual in the event of non-compliance
with the requirement in question. Note, in this respect, the assumption
referred to by f.n.20, supra, that for the purposes of the analysis contained in
this article the only sanction that is known and can thus be threatened or
applied against an individual is that authorised by the courts.
to the basic definitions
53 I.e., “fundamental” at least according
(and
particularly the definition of the “courts”) upon which the analysis contained
in this article is founded (see Part I of this article). Note, however, that these
basic definitions are intended to represent the elements which are in fact
essential to the phenomena concerned according to the common understanding
of these phenomena.
19741
THE ANALYSIS OF LEGAL RELATIONS
(i.e., the person under the DUTY) act in a particular way in relation
to another individual (i.e., the person who thereby has a correlative
RIGHT). The practical consequence of this relationship between a
RIGHT and a DUTY is that the courts can directly protect a RIGHT
only by enforcing the correlative DUTY; more specifically, the courts
can directly protect the interests of a person who has a RIGHT only
by acting against the person who is under the correlative DUTY in
such a way as will lead him to comply with it.
The revised figure set out above also indicates by means of the
dotted line that a particular POWER-LIABILITY relationship may
sometimes exist only if it is created by a (logically antecedent) rela-
tionship of VOLUNTARY CO-OPERATION.5 4 This will be the case
whenever the courts permit individuals to create or annul by mutual
agreement 5 their own LEGAL (i.e., RIGHT-DUTY) relationships in
respect of any particular activity. In such situations individuals must
co-operate together voluntarily in order to agree to, and thus to
effect, the variation of their LEGAL relationships; in more formal
terms, these individuals must enter into a relationship of VOLUN-
TARY CO-OPERATION in order to establish the POWER-LIABILITY
relationships which the courts will recognize as being able to result
in the creation (or abolition) of one or more DUTIES, and thus the
creation (or abolition) of the correlative RIGHTS and the abolition
(or creation) of the LIBERTIES which are the class-complement of
those DUTIES. In probably the majority of- cases, however, the
courts are prepared to hold a POWER-LIABILITY relationship to
exist without the consent of one, or even both, parties that such a
relationship should in fact exist between themselves; in such cases
a relationship of VOLUNTARY CO-OPERATION need not precede a
POWER-LIABILITY relationship.5
54 Note that, as the definition of a POWER in f.n.32, supra, implies, a
POWER, and thus a POWER-LIABILITY relationship, can presently exist only
if the DUTY concerned can be imposed or annulled without the prior occur-
rence of either an act of any other person or an event which is outside the
control of the individual who can otherwise exercise the POWER; if a DUTY
can be imposed or annulled only after the occurrence of such an act or event
there can presently exist only a possibility that the relevant POWER, and
thus the relevant POWER-LIABILITY relationship, will come into being at
some time in the future.
55 E.g., in all cases involving legally enforceable contracts which are entered
into voluntarily.
56 Some power-liability relationships of the second kind (see f.n.49, supra)
may also be created by mutual agreement (e.g., agency powers); others are,
like (strict) POWER-LIABILITY relationships, deemed by the courts to exist
regardless of the consent of one or both parties.
McGILL LAW JOURNAL
[Vol. 20
The above figure may be further revised as follows:
NON-LEGAL
(VOLUNTARY CO-OPERATION)
CpocANTELEGAL
-(POWER-LIABILITY)
LEGAL
(RIGHT-DUTY or DUTY)
In this figure the vertical axis indicates the two means permitted
by the courts of any legal authority structure (i.e., the two legitimate
means within such a structure) by which an individual can get
another person to act in a particular way. He may either secure the
other’s voluntary co-operation; or impose a DUTY on him (if this is
possible in the given situation), thus, in theory at least,57 securing
his involuntary co-operation by the threat of the legitimate applica-
tion of a sanction (i.e., one authorised by the courts) on either
himself or another person in the event of non-compliance with the
requirement that the DUTY concerns. This figure also highlights the
fact that the imposition of DUTIES is a means to an end, i.e., a means
of securing the co-operation of an individual with certain require-
ments in order that a particular end or goal be achieved. It also
highlights the fact that the imposition of DUTIES is the only
legitimate means within any particular authority structure by which
an individual can be coerced into co-operating with the requirements
of another. The remaining features of the above figure are the same
as those outlined in connection with the first revised figure set out
previously.
57 See f.n.19 and text, supra.
