'Private Law, Analytical Philosophy and the Modern Value of Wesley Newcomb Hohfeld: A Centennial Appraisal' by
Kit Barker in (2018)
Oxford Journal of Legal Studies comments
Hohfeld is one of the best-known analytical philosophers to have written in the area of private law in western, common law legal systems in the twentieth century, but it is sometimes suggested that his scheme has had little impact on the law. One hundred years after his death, this article assesses the man and the impact of his work, noting a resurgence of interest in him amongst both commentators and courts. It suggests that there are two good reasons why his analytical philosophy is more relevant and useful today than ever – its potential to discipline and rationalise an increasingly insistent and ubiquitous rhetoric of rights; and the assistance it can provide in unpicking the complexity of the relationship between private law and the modern administrative state.
Barker argues
Wesley Newcomb Hohfeld died prematurely one hundred years ago of endocarditis, at the age of only 39. Although he is one of the best-known Western analytical philosophers to have written about private law, it is sometimes suggested that his work has had little real impact.1 My claim here is that his influence, whilst patchy, has nonetheless been profound and, more importantly, that, far from oxidising beneath the patina of time, or being buried by less ‘formal’ approaches toward law that developed through the legal realist and critical legal studies movements in the United States in the twentieth century, his approach is currently undergoing something of a renaissance amongst commentators and courts. I shall explore some possible explanations for this and identify the features of his thinking that continue to commend it. I shall also suggest some reasons why his approach is especially well-suited to the challenges faced by private law in the current age.
Looking ahead, I shall propose three reasons why Hohfeld remains useful to us today. First – and this was genius in itself – he told us not what to think about legal rights, but ‘how’ to think about them. Because his approach does not predicate any particular set of values, or the use of the law to any particular end, it is more readily transmissible from one time to another and one jurisdiction to the next. He gave us a language to use in respect of rights, not a defined text to read. That is the beauty and the freedom of analytical philosophy.
A second reason is that the world of law is now increasingly saturated with both the fact and ever-more-insistent rhetoric of rights. Often, the aim of this new rights-speak is strongly socially progressive, being directed at enhancing welfare and respect for fundamental human interests and realms of choice (human rights); sometimes, by contrast, it is associated with a more conservative political agenda that mandates judges not to use private law in welfarist ways. Either way, however, the exponential increase in rights discourse in recent years invites new controversy, as well as importing new concepts and, sometimes, a certain looseness of language. In such conditions, a stable method for understanding the way in which legal relationships are being reconfigured and what the reconfigurations might mean proves especially valuable.
Thirdly, the rise of the administrative state throughout the twentieth century has made the modern relationship between private and public law extremely complicated. Unpicking this relationship – between the state and private interests; and between the state and private law systems of civil justice – requires a keen analytical intelligence. Hohfeld has much to offer in this process and his framework is useful, I shall argue, in understanding the modern dynamics between private and public law.
Hohfeld’s modern relevance is hence in part, I shall suggest, a facet of the durable, scientific objectivity of his analytical technique and, in part, of its disciplining nature and utility at a point in time in which rights have become highly politically charged and the set of legal relationships existing between the state and its citizens is more intricate than ever. This is not to suggest that would be impossible to understand modern private law without Hohfeld, but his techniques are very well adapted to this end.
