Legal Analysis and Terminology

Abstract

Every student of the law must be equipped with certain fundamental concepts and with certain terms in which to express them. Let him read the federal Constitution or the opinion of any court or any legal treatise, or let him listen to the lecture of any law professor, and every sentence will be likely to bristle with rights and duties, powers, privileges, liabilities, and immunities. He will gradually realize also that these terms are frequently used loosely, each term often being used to express several distinct concepts, and he will find that our dictionaries merely record this wide and variable usage and aid little toward the clear expression essential to exact reasoning. No doubt the beginner cannot be made to realize at once the disadvantages attendant upon variableness of terms and uncertainty of concept. But it is quite possible at the very outset to master a number of fundamental legal concepts and to acquire a single definite meaning for each of the terms used to express them. With such simple concepts and definite phraseology the student can more easily analyze a complex problem, arrive at a correct solution, and explain it clearly to others., He can thus be led to avoid much unnecessary obscurity and difficulty. As his experience increases he must test for himself the accuracy and usefulness of the analysis and terminology. The following definitions are offered, chiefly for the benefit of beginning students of the law, in order to-assist in establishing an exact terminology and a definiteness and accuracy of mental concept. These definitions are in large part based upon the articles of Professor Wesley N. Hohfeld, referred to below. I. FACT: This is a world of facts. Physical existence and physical relations are facts. Our mental processes are facts. The existence of any legal relation is a fact. All changes and variations are facts. Facts include acts and events. II. AcT: An act-is one of that class of facts manifest to the senses that consists of voluntary physical movements (muscular contractions that are willed) of human beings. A forbearance is a consciously willed absence of physical movement. Animals other than men can act or forbear, but they do not become parties to a legal relation. III. EVENT: Any change in the existing totality of facts, including the acts of human beings. Prepared with the critical assistance of other members of the Yale Law Faculty.

The Indonesia Public Information Disclosure Act (UU-KIP): Its Challenges and Responses

“…When a rule of law has been reduced to words, it is a statement of the legal effect of operative facts. Corbin [20] explained the legal relation with verified and falsified that a law is a rule concerning human conduct established by those agents of an organized society who have legislative power. Therefore, Hsieh [21] mentioned that cases play a vital role in interpreting statutes, building arguments, organizing analyses and conveying points of view in the common law system.…”

From W. N. Hohfeld to J. R. Commons, and Beyond? A “Law and Economics” Enquiry on Jural Relations

“…Similarly, right and duty, privilege and no‐right, and immunity and disability are correlatives as shown in Figure 1. Note that “[e]ach pair of correlatives must always exist together” (Corbin 1919: 166).…”

“…In other words, they represent the opposite direction of the content of the jural relation. For instance, when B has a right, B cannot have a no‐right with respect to the same subject matter (Corbin 1919: 166). Therefore right and no‐right as well as privilege and duty, power and disability, and immunity and liability are jural opposites as shown in Figure 2.…”

“…Correlatively, duty is the legal relation of S, who is commanded by society to act for the benefit of B, and who will be penalized by society for disobedience (Corbin 1919: 167).…”

“…Power is the legal ability to do certain acts that alter legal relations, like transferring the ownership of property from one person to another (Radin 1938): “in Hohfeld's terminology any human being who can by his acts produce changes in legal relations has a legal power or powers” (Cook 1919: 725). Consistently, Corbin (1919: 168) defines B's power as the legal relation between B and S when B's own voluntary act will cause new legal relations either between S and B or between S and a third person; that is, “to have power is to have the ability to force another individual into a new legal situation against his or her will” (Bromley 2006: 205). Coherently, the word “power” derives from the Latin posse that means possibility or ability ( potis ) of being ( esse ), namely, power is a sort of possible claim (Terry 1884).…”