15 July 2014

Hohfeld and property

'How to Do Things with Hohfeld' (University of Colorado Law Legal Studies Research Paper No. 14-4) by Pierre Schlag comments
 Wesley Newcomb Hohfeld’s 1913 article, Fundamental Legal Conceptions as Applied in Judicial Reasoning, is widely viewed as brilliant. A thrilling read, it is not. More like chewing on sawdust. The arguments are dense, the examples unfriendly, and the prose turgid. 
“How to Do Things With Hohfeld” is an effort to provide an accessible and sawdust-free account of Hohfeld’s article, as well as to show how and why his analysis of “legal relations” (e.g., right/duty, etc.) matters. Perhaps the principal reason is that the analysis furnishes a discriminating platform to discern the economic and political import of legal rules and legal regimes.
My project here is to offer a forward-leaning interpretation of Hohfeld — to show how and why his insights remain highly relevant today. The article engages with the jural relations, decomposition and recomposition, the bundle of relations, the critique of reification, and recent discussions in property theory as well as the “New Private Law.” I am keen on protecting Hohfeld’s platform from some (legal realist) over-extensions as well as showing how the views of the “Hohfeld critics” are in many ways consonant with Hohfeld’s own thinking. The article closes with some questions about the limitations of Hofheld’s approach.
'Liberalism and the Private Law of Property' by Hanoch Dagan in (2014) 1(2) Critical Analysis of Law reviews
Alan Brudner’s neo-Hegelian theory of property. It critically analyzes Brudner’s conceptualization of the moral significance of property for private sovereignty, his understanding of the relationship between individual independence and self-determination, and his account of what makes private law private. I argue that Brudner is wrong on all three fronts and, furthermore, criticize his account of the market’s putative legitimation of property and public law’s alleged amelioration of the injustices entailed by a private law libertarian scheme. 
Notwithstanding these failures, I salute Brudner’s ambitious and provocative project not only due to its many insights, but also because it helpfully elucidates the main strands of justification that property law must face. Indeed, a credible theory of property-for-self-determination must begin by remedying Brudner’s errors as per the moral significance of property for private sovereignty, the relationship between independence and self-determination, and the distinctive nature of private law. This Essay provides preliminary suggestions on all three fronts