'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.
