Power versus Immunity

Picture a sword and a shield, but be careful with the picture. A power is a sword: it lets its holder cut into someone's legal position and change it. An immunity is a shield: it means that a particular sword cannot reach you. The common mistake is to think that my shield is simply the absence of my sword, or that the two are exact opposites. They are not. My shield is the absence of your sword against me. When I am immune, it is you who are disabled. Keep that one sentence in mind and the whole of this note falls into place.

1. Correcting a Common Error

Some study materials state that power and immunity are 'exact opposites and correlatives' of each other. That is wrong on both counts, and it is a favourite examiner's trap. In Hohfeld's scheme each advantage has one correlative (the position of the other party in the same relation) and one opposite (the absence of the advantage in the same person). The four second-order positions line up as follows.

Read the table carefully. The correlative of power is liability, not immunity. The opposite of power is disability, not immunity. Immunity's correlative is disability and its opposite is liability. So power and immunity do not stand in either relation to each other directly. They are linked only through the other party: if A has an immunity against B, then B has a disability, which means B lacks a power over A in that respect. Immunity is the negation of someone else's power, never of one's own; an owner may hold both a power to sell his land and an immunity against strangers selling it.

2. The Immunity

A power, explained in Note 74, is the ability conferred by law to change legal relations by one's own act. An immunity is freedom from the legal power of another to alter one's legal relations in some respect. Its correlative is a disability: the other person has no power to make the change. Hohfeld's parallel: a power bears the same general contrast to an immunity that a right bears to a privilege. A right is an affirmative claim, a privilege freedom from another's claim; a power is affirmative control over a legal relation, an immunity freedom from another's control over it.

Hohfeld's own illustration uses a landowner. X, who owns land, has a power to alienate it to Y or to anyone else. At the same time X has an immunity against Y and all other ordinary persons, because Y is under a disability: Y has no power to shift X's legal interest in the land to himself or to a third party. Whatever deed Y signs, X remains owner. The same owner may still be under a liability to the State's power of compulsory acquisition.

In ordinary language immunities are often called rights or privileges (the privilege against self-incrimination, parliamentary privilege); what matters in them is protection against a change of legal position, not a claim to conduct.

3. Second-Order Positions

Later writers group Hohfeld's eight concepts into two orders. The first-order positions (claim, duty, privilege, no-right) concern conduct: what a person must or may do. The second-order positions (power, liability, immunity, disability) concern the first-order positions themselves: who can change them, and who is protected against change. Power and immunity are the second-order counterparts of claim and liberty. Claim and power are the affirmative advantages of each order; liberty and immunity are freedoms, from a duty and from a power respectively. Constitutions are full of immunities because they are largely about who may change the law and what may not be changed.

4. Immunities and the Will Theory

The will (or choice) theory of rights holds that to have a right is to have a legally protected choice: the right-holder can waive or enforce the correlative duty (see Note 71). Hart, its leading modern defender, conceded (Essays on Bentham, 1982) that it cannot account for constitutional immunities: fundamental rights against the legislature are thought the most important rights of all, yet the citizen typically cannot waive them. Such immunities must be explained by the individual's basic needs or interests, not choice.

5. Power and Immunity Compared

6. The Indian Perspective: A Constitution of Immunities

Legislative disability: Art. 13(2) and the basic structure

Art. 13(2) provides that the State shall not make any law which takes away or abridges the rights conferred by Part III, and that any law made in contravention is void to the extent of the contravention. Art. 13(2) imposes a legislative disability; the citizen holds the correlative immunity; and a law made in breach is a nullity, as one expects when a power is exceeded.

Immunity from self-incrimination: Art. 20(3)

Art. 20(3) provides that no person accused of an offence shall be compelled to be a witness against himself. Although commonly called the privilege against self-incrimination, it is best analysed as an immunity: the State is under a disability to compel an accused person to supply evidence against himself, and testimony so compelled cannot be used.

Legislative immunity: Art. 105(2) and Art. 194(2)

Art. 105(2) provides that no member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament; Art. 194(2) makes the same provision for state legislators. Courts are disabled from subjecting members to proceedings for their speeches and votes. In P.V. Narasimha Rao v State (Supreme Court, 1998) the majority held that members who took bribes to vote in a certain way were protected.

Heads of State, foreign States and sovereign immunity

Under Art. 361, the President and the Governor of a State are not answerable to any court for the exercise of the powers and duties of their office; no criminal proceedings may be instituted or continued against them during their term of office, and no process for their arrest or imprisonment may issue. Under s.86 of the Code of Civil Procedure, a foreign State may not be sued in an Indian court without the written consent of the Central Government. Diplomatic agents enjoy immunities under the Vienna Convention on Diplomatic Relations (1961), given effect by Indian statute. Each disables the courts' ordinary power over the protected person. The State's own immunity in tort turned on a line between sovereign and non-sovereign functions.

7. Evaluation

The pair gives constitutional law its most precise vocabulary: whether a statute is valid is at bottom whether the legislature had the power or the citizen an immunity, and it explains why exceeding a power yields nullity rather than damages. The chief danger is the error this note began with. Always ask whose position is being described.

8. Frequently Asked Questions

Q. Are power and immunity correlatives?
A. No. The correlative of power is liability, and the correlative of immunity is disability. Nor are they opposites: the opposite of power is disability and the opposite of immunity is liability. They are connected only through the other party: A's immunity means B has a disability, that is, B lacks a power over A.

Q. What is Hohfeld's example of an immunity?
A. A landowner X has a power to alienate his land, and also an immunity against Y and other ordinary persons, because Y is under a disability: Y has no power to transfer X's interest in the land to himself or anyone else.

Q. How do fundamental rights operate as immunities?
A. Art. 13(2) disables the State from making laws that take away or abridge Part III rights, and the basic structure doctrine disables even the amending power from destroying the Constitution's essential features. The citizen holds the correlative immunity, and a law made in breach is void.

Q. Is the privilege against self-incrimination a privilege in Hohfeld's sense?
A. Despite its name, Art. 20(3) is best analysed as an immunity: the State is disabled from compelling an accused person to be a witness against himself. Nandini Satpathy (1978) extended it to police interrogation, and Selvi (2010) to involuntary narcoanalysis and similar tests.

See also: Note 28 (Hohfeld's master table), Note 72 (right versus duty), Note 74 (right versus power), Note 71 (will versus interest theory), Note 45 (fundamental rights), Note 46 (constitutional doctrines).