11 December 2015


'How To Do Things With Hohfeld' by Pierre Schlag in (2015) 78(1/2) Law and Contemporary Problems 185-233 comments 
Wesley Newcomb Hohfeld’s 1913 'Fundamental Legal Conceptions as Applied in Judicial Reasoning' is a brilliant article.  A thrilling read it is not — more like chewing on sawdust. The arguments are dense, the examples unwieldy, and the prose turgid. As for Hohfeld’s project—the identification of fundamental legal conceptions — it seems to promise all the aesthetic charm of standard nineteenth-century juristic science.  Taxonomic activity will be happening. There will be classification. And jurisprudence by subdivision.
Oh, joy.
Yes. It’s that article. And yet, conceding all this (in fact, insisting on it), I hold to my claim: The full significance of Hohfeld’s article is hardly evident upon a first (or even second) read. And yet, as I try to show here, it can fundamentally alter the way one thinks about law. The taxonomic ambitions of Hohfeld’s style render his work suspect—at least to those who consider themselves postrealist or postmodern or post- whatever. I get it. I too am generally put off by this sort of thing. In my case, the aversion is a result of getting burned once too often: a legal philosopher proposes to offer a new classification scheme; he assures that great things will follow (the achievement of conceptual clarity is almost always involved); then after much arduous reading and repeated encounters with ethereal abstractions, nothing happens. Well, Hohfeld is not like that. Hohfeld redeems his conceptual taxonomy at great, though admittedly not always reader-friendly, length. He repeatedly shows the practi cal usefulness and theoretical power of his analyses even if he does not fully recognize or exploit all of their ramifications.
One of the most striking aspects of Hohfeld’s work is how much its architecture and arguments remain relevant—even bitingly so—today. Here I want to celebrate Hohfeld’s work and show how his thinking remains a powerful corrective to common errors in contemporary legal thought. More than that, I want to show how his work continues to serve as an extremely useful platform for intellectual, economic, and political insight into contemporary law. Where the full usefulness and power of Hohfeld’s analyses are not explicit, I will be pushing hard to show what can be done with his platform—specifically as regards its economic and political implications for law.
Strikingly, even the most objectionable aspects of Hohfeld’s work, for instance, his atomism, nonetheless yield extremely useful insights. Like any truly great work of legal scholarship, Hohfeld’s work not only helps us understand what it sets out to explore, but also serves to map out the problems it leaves unresolved. The upshot is that we learn not just from its successes but from its limitations. Hence it is that, more than a hundred years after its publication, there are many implications to Hohfeld’s work yet to be fully elaborated. 
To put it trenchantly, without Hohfeld, one simply misses a lot. In my view (and no, this is not the occasion in which I come out as a pragmatist), the great virtue of Hohfeld’s approach is not so much that Hohfeld’s analyses are right, but rather that they are useful and thought-provoking.