07 January 2017


 'Hohfeldian Analysis and the Separation of Rights and Powers' by John Goldberg and Benjamin Zipursky in Shyam Balganesh, Ted Sichelman and Henry Smith (eds), The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries (Cambridge University Press, forthcoming 2018) comments
At the time he wrote, Wesley Hohfeld seemed to be of the view that longstanding conceptual confusions that had blocked progress in legal thought — particularly confusions about legal rights — would soon be put to rest. If so, rights have proved a tougher nut to crack than he expected. Indeed, the difficulty of providing an adequate account of rights has led many scholars, including scholars who share Hohfeld’s aptitude and aspirations for analytic philosophy, to lose sight of a distinction central to Hohfeld’s project, namely, the distinction between a right (or claim right) and a power. Or so we argue in Part I. Worse, confusions over rights and powers, when combined with a particular understanding of what constitutes clear-eyed analysis of legal issues, has contributed to the now-widely shared but mistaken supposition that common law reasoning must (or should) take the form of instrumental reasoning. We outline this claim in Parts II and III. 
Ultimately, we suggest that Hohfeld’s juristic legacy contains two profound ironies. His entirely sound insistence on the analytic separation of legal rights and legal powers has helped to obscure their deep substantive connection in certain bodies of law, especially tort and contract law. And his implicit acceptance of the idea that a commitment to conceptual clarity goes hand in hand with instrumentalism in legal analysis has indirectly led prominent courts — including most famously the California Supreme Court in landmark decisions such as Rowland v Christian — to mangle how rights, duties, and powers are linked within private law. ... 
Legal Realists and Critical Legal Studies scholars have rightly praised Hohfeld for untangling confused concepts and thereby allowing lawyers, judges, and jurists to spot substantive normative commitments concealed as definitions. As progressive scholars have learned the hard way, however, one should not suppose that the identification of a normative commitment within a legal concept or construct will suffice to undermine it. At least since the 1980s, an increasing number of commentators and courts have embraced concepts and constructs associated with libertarianism with their eyes wide open. Exposing false claims of definitional connection can only serve as a prelude to evaluating the substantive principles that, for better or worse, are doing the normative work. 
As we see it, the connection between claim rights and legal powers in a body of law such as tort law is a happier illustration of the same point. Claim rights and legal powers, even though conceptually distinct, are substantively connected in tort law and in other branches of private law. It is a laudable and basic moral commitment of our system that a person whose legal rights against being wrongfully injured have been violated is entitled to demand redress from the violator for the violation. As tort law’s longstanding linkage of rights and powers attests, the right-remedy principle is and has long been a core substantive commitment of our legal system. We would go badly astray if a proper Hohfeldian insistence on the analytic separation of claim rights and powers caused us to lose sight of this commitment.
The same volume features 'Wesley Newcomb Hohfeld: On the Difficulty of Becoming a Law Professor' by John Henry Schlegel.

Schlegel  comments 
Wesley Hohfeld (1879 - 1918) is well known to legal philosophers and to property teachers for his table of fundamental conceptions, a terminological framework for understanding legal doctrine and reasoning. This work was also substantively important for some members of the American Legal Realist movement and Critical Legal Studies. More personally he was part of the generation of law teachers who had to figure out how to become a professional academic in the years after completion of the job of reordering of the corpus juris in the wake of the demise of the writ system. A Harvard Law School educated westerner who ambivalently wanted to move east from his post at the then decidedly non-elite Stanford Law School, Hohfeld eventually made it to the then decidedly non-elite Yale Law School. His relatively brief career sheds light on both how in the years before World War I legal academics built a professional identity and how they navigated the nascent law school network. It also raises a question of how an analytical legal scholar might have responded to later developments in jurisprudence. ...
Anyone who spends a large amount of time with newly appointed, untenured colleagues, presumably because one’s older colleagues are just not all that interesting any more, will recognize that acquiring a professional identity, in the sense of being comfortable putting pants on, tying a tie and keeping shoes shined, is both a matter of imitating the behavior of others and of fitting that behavior into an existing self. Part of that job is social and part is intellectual. However, for someone starting out in law teaching in the earliest years of the Twentieth Century, as did Wesley Newcomb Hohfeld, acquiring an identity was more difficult than it is today. Academic lawyers then were still busy creating such an identity out of the social and intellectual positions in which they found themselves and from which they, as existing selves, could only limitedly escape. Understanding Hohfeld’s academic life requires that one understand the complexities of this world as it, and he too, was forming an academic identity.
Schlegel concludes
It is always sad when a good scholar, finally at the point of being able to put it all together, fades and dies, the project unfinished. This seems to be especially true of Hohfeld, however much that his project misunderstands the practice of law, an activity that thrives, indeed depends, on the ambiguity of its concepts and relations, not in the clarity he sought to bring to it. Still, one wonders whether Hohfeld just might have died happier than he would have had he lived longer. He was not a person naturally comfortable in the world. Indeed, given Corbin’s description of Hohfeld’s behavior and his expressed grounds for resisting a move to Yale, he might well be understood to be at the very high functioning end of Asperger’s Spectrum Disorder. And the fun he made of the work of Bingham’s scholarship suggests that Hohfeld would have been mighty unhappy if such a hypothetical future had unfolded pretty much as it did.
After all, analytic jurisprudence assumed that judicial decision-making was mostly founded in doctrine and that what both judges and lawyers needed to know was how to regularize the judicial action of applying doctrine, how to avoid the misuse of the fundamental legal conceptions. This is precisely the task that Cook undertook in the years around the time of Hohfeld’s death, and a large portion of what he did for the rest of his life when writing on the conflict of laws. But the Realist project that conventionally is taken to have started with Holmes’ “Path of the Law” did not assume that judicial decision-making was mostly founded in doctrine and so spoke less to judges and more toward lawyers trying to understand all of the various factors that played a part in judicial, as well as their own, decision-making. For Realist scholars such as Cook, Corbin and Llewellyn, Hohfeld’s categories identified some of the ways that the doctrinal system worked, but mostly they isolated occasions for puzzling out why judges made the decisions that they did.  Hohfeld probably understood the need for such work -- after all he made a place for it in his “Vital School of Law and Jurisprudence” as “functional or dynamic jurisprudence” -- but he surely would have been unhappy when a co-equal branch of jurisprudence began to take over the law school world to the detriment of his analytical enterprise, especially when the results of that takeover combined a weak version of analytics that goes by the name of critique, a weak version of Realism’s emphasis on social context, and a weak version of normative argument and called the mess legal scholarship.