This week, we are revisiting Wesley Hohfeld’s fourfold taxonomy of legal rights (the great Professor Hohfeld is pictured below), and we already examined “immunities from authority” in our previous post. Here, we will explore another type of right or entitlement: the power to create a new entitlement, transfer an entitlement, or change an existing entitlement. Simply put, a person with a power has the ability to create a new entitlement, the ability to transfer an existing entitlement held by oneself, and the ability to alter or modify entitlements held by oneself or by another person. A classic example of a Hohfeldian power is the law of contracts. If A makes an offer to B, then B has the power to accept the offer, and A’s acceptance of the offer changes the legal obligations of A, since B’s acceptance creates a legally-enforceable contract that is binding on both A and B–assuming, of course, their agreement otherwise satisfies all the elements of a contract, such as capacity, bargained-for consideration, and lawful purpose.

Another example of powers are property rights. If you own property, you enjoy a specified set of legal powers over that property. Among other things, the owner has the power to exclude others from entering or using his property without the owner’s consent. Go back to our tattoo example from our previous post. You have a property right in your body, so you have the power to put a tattoo on your body. Of course, the law may place limits on your powers. If the police are engaged in a hot pursuit, they may enter your private property to apprehend a fleeing felon. (Stated in Hohfeldian terms, the police have the power to pursue fleeing felons, even on private property. Likewise, the government has the power of eminent domain, i.e. the power to take your property in certain situations.) Even your exclusive property rights to your body are limited. The National Organ Transplant Act of 1984, for example, outlaws the sale of human organs, so you are not allowed to sell one of your kidneys even though you own them.

Thus far, we have examined Hohfeldian powers and immunities. We will continue our review of the remaining Hohfeldian entitlements (claim rights and liberties) in our next two posts …