I. INTRODUCTION
2018 marked the centenary of Wesley Hohfeld's passing. His schema of jural relations,Footnote 1 a jurisprudential account of rights, duties, and related normative positions,Footnote 2 is widely considered to be a permanent contribution to legal scholarship, while his “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” is among the most cited American law review articles of all time.Footnote 3
Given his untimely demise from illness at age 39, it was up to Hohfeld's admirers to continue to champion his work to academics and legal practitioners. Whether they presented and utilized the schema in ways he envisaged, however, is disputable. For many early Hohfeldians were Legal Realists.Footnote 4 Further, quite a few prominent legal historians and philosophers have since identified Hohfeld as a Realist too.Footnote 5
This article nevertheless argues that Hohfeld was not a Legal Realist, that the schema need not be understood in such lights either, and that he made a much smaller contribution to jurisprudence than is generally believed. Distinguishing him from the Legal Realists, many of whom nonetheless self-identified as Hohfeldians, will help to correct several key misunderstandings about the schema and point to its utility in more contexts than a Realist reading of it allows.
Of course, establishing that Hohfeld was or was not X requires a credible account of X. Though its heyday was in the 1920 and 1930s, what Legal Realism really stood for remains contested. Scholars even dispute what counts as its main idea, method, or focus—if any. For decades, they have offered competing explanations of Realism. Two rivalrous accounts can be gleaned from the literature. The first is that Realism is a theory of official decision-making, one that challenges the causal and explanatory importance of legal rules in decisions. The second is that Realism is simply the continuation of a “Progressive” political reform project, but with the (additional or unique) aim of demystifying the nature and use of law, legal doctrines, and legal concepts.
Fortunately, definitively resolving which of these two rivals, or both, best explains Legal Realism is unnecessary for the task at hand.Footnote 6 For disassociating Hohfeld can be accomplished by assessing his relationship to both the Realism-as-a-theory-of-decision and the Realism-as-politics types of accounts. Hohfeld has nothing to do with either. Further, some of the bases by which scholars try to establish Hohfeld's Realist bona fides, whether by pointing to certain features of the schema, or to its application in legal analyses, are either erroneous, or not his innovations in the first place.
The article proceeds as follows. Section II elucidates Hohfeld's schema. It also showcases certain interpretive difficulties with his work. Section III outlines three older jurisprudential theories, ones that can help to show how Hohfeld and the Realists differ. Section IV briefly explains the two types of accounts of the Realist movement. It then presents some Realists’ interpretations of the schema and their understandings of rights and duties more generally. Section V then explains why some scholars deem Hohfeld to have been a Realist, while Section VI demonstrates why that identification is erroneous.
II. HOHFELD'S WORK
A. The Schema of Jural Relations
Hohfeld's fame comes from noting different senses of the term “a right” in legal discourse, which in turn point to four different basic kinds of positions (and distinct “fundamental” concepts of A RIGHT).Footnote 7 He styled the four kinds as a claim, privilege (or liberty), power, and immunity.Footnote 8 Each of these four correlates with one—always and only the same one—kind of position borne by a second party: a duty, no-right, liability, and disability. For want of a better term, let us call these latter four “ligations.”Footnote 9 Hohfeld boldly asserts that, being fundamental, the eight normative positions are insusceptible to “formal” definition. Instead, each must be understood via its relation to its correlative and opposite, and by presenting examples.Footnote 10
A correlative pair of a right and a ligation in turn constitutes a “jural relation.”Footnote 11 Further, each of the eight fundamental positions bears what Hohfeld calls a jural “opposite.” (This has subsequently been more accurately characterized as a logical contradictory.)Footnote 12 Take duties and privileges for example. To have a privilege to do φ means that you have no duty not to do φ. Having a duty not to φ is thus the “opposite” of having a privilege to φ.Footnote 13 Hohfeld presents the eight positions in two tables of correlatives and opposites: the schema of jural relations. (“Jural” here refers to both law and equity.)Footnote 14
He also suggests that many legal rights are actually aggregations of these more basic normative positions. The agglomerate can be styled a right “complex,”Footnote 15 which may also be understood as a fifth sense of “a right.” Take the right against self-incrimination as an example. It is a complex that can include: a claim that legal officials not compel you to testify under oath; privileges to testify or not if you so choose; and an immunity from a legal official changing your legal status.
B. Claims and Duties: Contested Concepts
Unfortunately, Hohfeld left us with contested conceptions of A CLAIM and A DUTY—a problem in no small part exacerbated by his posthumous Realist adherents, as we shall see in Section IV.B. The reasons for this interpretive dispute are several. First, despite boldly asserting that a claim is “a right” stricto sensu, Hohfeld fails to analyze A CLAIM or A DUTY in the 1913 “Fundamental Legal Conceptions” article.Footnote 16 Indeed, the only ground he offers for deeming a claim to be the strict sense is the assertion that it invariably correlates with a duty, for which he proceeds to cite to three legal cases as evidence…Footnote 17
Second, all of Hohfeld's articles leave it ambiguous as to whether he advances an “active” or “passive” understanding of A CLAIM. The philosophy of rights has long employed an active/passive distinction to divide the basic kinds of normative positions into two categories: those authorizing their holders to act, and those that simply mark their bearers as the entitled beneficiaries of another party's action (or forbearance, or incompetency to act) in regards to them.Footnote 18 However, jurists do not always agree about whether a given kind of position is an active or passive one.
Hohfeldians particularly dispute whether claims are active or passive. On the active interpretation, a Hohfeldian claim not only entitles you to another party's duty-based action or forbearance, it also enables you to make a claim of right—where “claiming” often means being able to initiate a legal proceeding.Footnote 19 (Those who interpret a claim thus sometimes deem it to be a species of normative power.)Footnote 20 To clarify, the idea here is not that A RIGHT is a complex composed of two or more positions, i.e., a claim + some number of enforcement powers. It is instead that such power inheres in, is a feature of, A CLAIM itself.Footnote 21 On the passive interpretation, by contrast, a claim simply marks its holder as the intended recipient of a correlative duty-bearer's action or forbearance.Footnote 22 On this view, you do not make claims with Hohfeldian claims.
There is textual evidence for both interpretations. Let us start with that for the active one. Despite his earlier assertion about the fundamental positions’ indefinability,Footnote 23 Hohfeld nevertheless proceeds—in the very same article—to define the four kinds of rights:
Perhaps it will also be plain, from the preliminary outline and from the discussion down to this point, that a power bears the same general contrast to an immunity that a right does to a privilege. A right is one's affirmative claim against another, and a privilege is one's freedom from the right or claim of another. Similarly, a power is one's affirmative ‘control’ over a given legal relation as against another; whereas an immunity is one's freedom from the legal power or ‘control’ of another as regards some legal relation.Footnote 24
Some of Hohfeld's quotes from judges and scholars also lend themselves to the active interpretation.Footnote 25 In one case at least, however, the reader is warned to be wary of the quoted person's view—though not, unfortunately, the way in which one ought to be cautious. For example, in FLC #2 he says:
In this connection, the language of Mr. Justice Stayton, though not recommended for precision, may well be compared:
“A right has been well defined to be a well-founded claim, and a well-founded claim means nothing more nor less than a claim recognized or secured by law. [sic]”
“Rights which pertain to persons, other than such as are termed natural rights, are essentially the creatures of municipal law, written or unwritten, and it must necessarily be held that a right, in a legal sense, exists, when in consequence of given facts the law declares that one person is entitled to enforce against another a claim… .”Footnote 26
Hohfeld also provides considerable grounds for the passive interpretation of A CLAIM. For one thing, he states that the jural opposites are the negations of one another.Footnote 27 A privilege is for this reason sometimes styled a “no-duty,” and a disability a “no-power.”Footnote 28 On the passive view, then, a no-right merely notes the absence of a claim, while a liability is the absence of an immunity.Footnote 29 If so, it is erroneous to think that Hohfeldian rights outweigh or trump their correlatives. For example, an immunity correlates with a “no-power,” and not someone's trumped or outweighed power.
The best reason to endorse the passive interpretation is this: adding the capacity to claim as a feature of A CLAIM, as the active interpretation does, renders the conception subject to decomposition into more basic components. A CLAIM becomes a composite of: (i) the entitlement to another's required action or forbearance and (ii) the capacity (or set of capacities) to claim.Footnote 30 Not only does this mean that A CLAIM fails to be “fundamental”—a meta-theoretical desideratum Hohfeld thought his eight conceptions should meetFootnote 31—but the capacity to claim is also better explained in terms of his other normative positions, i.e., liberties and powers.Footnote 32
C. Primary, Secondary, and Tertiary Rights and Duties
Hohfeld also adopts a primary/secondary/tertiary distinction for legal positions,Footnote 33 additionally styling them as “antecedent,” “remedial,” and “adjective” relations. However, his “Equity” article seems to carve the distinction differently from the way most jurists do. This is because his (version of a) remedial/adjective distinction does not track the usual secondary/tertiary one. Nor does he simply invert the usual secondary/tertiary distinction, because his “adjective” covers pre- and post-judgment proceedings.Footnote 34 He employs “adjective” to cover jural positions: used to institute actions; within litigation, e.g., filing motions, having witnesses testify, etc.; and post-judgment, e.g., levying execution, bearing equitable privileges not to fulfill a legal duty to pay per a court order.Footnote 35 (Nonetheless, he seems to have changed his mind by 1917, treating in FLC #2 secondary as adjective and tertiary as remedial per the usual distinction.)Footnote 36
Hohfeld's brief analyses of secondary and tertiary rights’ structures are also inconsistent across his work. Sometimes they are presented as complexes, composed of claims plus powers to commence and prosecute actions, privileges to use those powers, etc.Footnote 37 Other times, they are identified with individual Hohfeldian claims.Footnote 38 While adamant about their being conceptually distinct,Footnote 39 Hohfeld nevertheless denies that there is a difference between primary, secondary, and tertiary relations “as to their essential character.”Footnote 40
He also leaves us with doubts about the connections between primary, secondary, and tertiary rights. This is important because it affects his relationship to Predictive and Sanction theories (which will be explained in Section III). Does the violation of primary rights necessarily generate secondary ones, and, in turn, do secondary rights invariably give rise to tertiary ones?
Here is the textual evidence. For one thing, Hohfeld argues that there are no “necessary” connections between any of the eight fundamental positions.Footnote 41 However, his set of examples is rather limited: he generally sticks with either the relationship between privileges and claims, or that between privileges and powers.Footnote 42 Even so, it would have proven helpful had he more fully clarified the relations of (i) primary, secondary, and tertiary claims to enforcement powers, and thus (ii) between primary, secondary, and tertiary rights.Footnote 43
Further, secondary rights only entitle you to attempt to get officially granted remedies for, or vindications of, your primary rights, while tertiary rights entitle you try to enforce favorable judgments thereafter, e.g., to compel a sheriff to get a judgment debtor to pay. In other words, neither secondary nor tertiary rights are any guarantee that you will get what you want. Further, courts can recognize legal rights without affording their holders remedies, and without even siding in the right-holder's favor.
Hohfeld either shares these views, or something akin to them. For he suggests that primary legal rights do not necessarily give rise to secondary or tertiary legal (as opposed to equitable) rights. Indeed, he labels “defective” both (i) primary legal rights for which the law grants no remedy and (ii) secondary and tertiary legal rights for which the law grants only “inadequate” legal remedies, if at all.Footnote 44 Whether he believes that secondary or tertiary equitable rights are invariably available, and, thus, whether some sort of remedy is always obtainable for any given jural right, is less clear.Footnote 45
In FLC #2, he claims it is an “erroneous assumption” to posit “some rigid interdependence between the nature of a right in rem as such and the character of the proceeding available for its vindication.”Footnote 46 Further, primary claims, he argues, should neither be confused with, nor thought dependent upon, either the “secondary” right arising from the former right's violation or the general proceedings in which the primary right may be vindicated.Footnote 47 People also sometimes suppose that to have a right in rem means that the holder may undertake self-help or action.Footnote 48 However, this is deemed to be “a blending or confusing of substantive relations and adjective relations.”Footnote 49 “It is clear, moreover, that such rights would exist [for party A], as multital rights, or rights in rem, even though no possessory remedy were open to A.”Footnote 50
Hohfeld also suggests that primary rights bear conceptual and legal importance. For example, in the cases of a pro tanto conflict between an legal and equitable rule, he insists that the equitable one is always paramount and determinative.Footnote 51 However, he warns the reader that all he means by this is that conflicts between equity and law arise exclusively at, and are resolved at, the level of jural relations, i.e., the logically contradictory legal and equitable positions generated by the rules, not at the level of the equitable and legal rules themselves.Footnote 52 For example, a legal privilege to φ contradicts, and is negated by, an equitable duty not to φ. Paramountcy does not mean or entail nullification, though. Hohfeld notes that, back when there were separate courts of equity and law, law courts would sometimes recognize “invalid” primary legal rights and duties (ones “annulled,” on his view, by their equitable opposites), which could in turn give rise to valid secondary and tertiary legal rights.Footnote 53 Therefore, defective or not, valid or invalid, he hereby suggests the juridical reality of primary rights and the utility of the very concept of A PRIMARY RIGHT.
Even so, all scholarship to date has missed the fact that it is a live issue whether Hohfeld believes that primary jural relations really obtain. For buried in the 13th page of the supplemental notes to his “Relations Between Equity and Law” article, Hohfeld proclaims that, generally, the existence of primary normative positions can only be determined through court proceedings.
As regards both law and equity, all primary, or antecedent, relations and all secondary, or remedial, relations can, in general, be ascertained only by inference from the purely adjective juridical processes, that is, by inference from either affirmative or negative action regularly to be had from the particular courts from which a judgment or decree may be sought. As said by Maitland, in relation, more particularly, to the early law: ‘De Natural Brevium, Of the Nature of Writs,—such is the title of more than one well known text-book of our mediaeval law. Legal Remedies, Legal Procedure, these are the all-important topics for the student. These being mastered, a knowledge of substantive law will come of itself. Not the nature of rights, but the nature of writs must be his theme.Footnote 54
Although this may be an obtuse reading, technically, Hohfeld is not necessarily claiming that primary rights can only be determined post hoc via a court's decision. This, as he seems to allow for their discernibility simply by virtue of legal processes (regularly) having been initiated—especially given his sense of “adjective” in that article. If so, then he does not necessarily believe that you only have a real legal right if you have successfully “enforced” it.Footnote 55
Regardless, these remarks about the grounds for ascertaining the reality of parties’ primary jural positions have large implications for: (i) the very features of A CLAIM and A DUTY, i.e., whether or not the former necessarily includes enforcement powers and the latter liabilities to being subjected to institutional dispute resolution processes; (ii) whether only secondary and tertiary rights are real (making the active interpretation of A CLAIM the superior or only option).
Holding that primary legal rights and duties are not truly determinable or real till recognized within some official proceeding, or an official decision therein, also puts into question whether Hohfeld's account constitutes a form of Sanction theory. As shall be explained in Section III, Sanction theories posit a necessarily conceptual connection between (i) the very existence of the normative entitlements and obligations and (ii) capacities to initiate, and being legally susceptible to, judicial action.
The question is how to weigh this evidence. For one thing, whether “active” or “passive” interpreters of claims, most Hohfeldians would probably agree that the “Equity” article's passage about the exclusive means for ascertaining primary positions is out of step with the rest of Hohfeld's corpus. Second, emphasis might be laid upon the very title of Hohfeld's two famous articles: fundamental legal conceptions as applied in judicial reasoning.Footnote 56 Hohfeld himself calls attention to this in FLC #2, suggesting that litigation contexts (and judges qua concept users) are not the only way to understand the basic positions or his schema.Footnote 57 Moreover, Section VI will disabuse the reader of the notions that Hohfeld either (i) constructed most of these conceptions himself or (ii) “conceptually clarified” them in a way that uniquely captures the way legal officials understand them. Indeed, as most of his work is unoriginal, one might be inclined to discount the “Equity” passage in question in terms of how to understand the schema and its components, but nonetheless treat it as evidence for the purpose of ascertaining Hohfeld's view of things. Furthermore, Hohfeld's metric leaves us with the question of lawyers’ and citizens’ perspectives of rights and duties. If he thinks parties’ primary positions are not fully determinable until there is an adjective process, this could in turn open the door to his account containing a predictival component. (Section VI will also assess Hohfeld's relationship to Predictive theories.)
D. Grandiose Claims and Aims
Hohfeld provides us with an apparatus for analyzing certain—not all—kinds of normative concepts, i.e., decomposing them into their more basic conceptual components. However, he also makes a few astonishing claims about what the schema and its resultant form of analysis can accomplish. For one thing, it is said to enable scholars to discover (i) the existence of common principles underlying all jural relations and problems and (ii) the law's underlying systematicity.
By such a process it becomes possible not only to discover essential similarities and illuminating analogies in the midst of what appears superficially to be infinite and hopeless variety, but also to discern common principles of justice and policy underlying the various jural problems involved. An indirect, yet very practical, consequence is that it frequently becomes feasible, by virtue of such analysis, to use as persuasive authorities judicial precedents that might otherwise seem altogether irrelevant. If this point be valid with respect to powers, it would seem to be equally so as regards all of the other basic conceptions of the law. In short, the deeper the analysis, the great become one's perception of fundamental unity and harmony in the law.Footnote 58
This shall be styled the Unity & Harmony proposition—but note that it includes a “(i) common (ii) principles of justice and policy” prong. Second, Hohfeld implies that, by eradicating certain forms of erroneous thinking (i.e., rather than reducing all talk of legal relations to “rights” and “duties,” using his eight terms instead), we will be capable of generating “true solution[s] to legal problems.”Footnote 59 This shall be dubbed the True Solutions proposition.
Hohfeld provides zero evidence for these propositions,Footnote 60 and was rightly upbraided (posthumously) for making such wild exaggerations. In 1920, for example, William Herbert Page lampooned Hohfeld for adopting conceptions produced generations earlier (as will be evidenced in Section VI) and presenting them as “the” fundamental legal conceptions, “the lowest common denominators of the law”Footnote 61 to which all legal problems could be reduced.Footnote 62 One ought to add that Hohfeld never even tried to show whether legal standards and principles could be explained in terms of fundamental positions.
Furthermore, even if a Hohfeldian analysis were capable of doing everything Hohfeld proclaimed it could, which it decidedly is not, that alone could still not tell its users what, if anything, they ought to do about the existing legal principles and rules they have analyzed: how to (morally or politically) evaluate them, how—if at all—to alter them, etc. The task, in other words, of assessing and evaluating the common principles, rules, concepts, etc., is outside the scope of, is downstream from, a Hohfeldian analysis per se.
Of course, a Hohfeldian analysis need not be completely normatively inert. For example, if a purported “conceptual error” has been located—and by no means must a Hohfeldian inquiry result in finding one—this probably implies that the analyst believes legal officials ought to remedy it. However, the analysis itself cannot and does not necessarily tell you how, or in which way, it ought to be repaired.
Take Hohfeld's famous take on Quinn v. Leathem as an example. In that case, the UK's House of Lords held that Leathem, a meat producer, had a right against a union's undertaking a secondary strike at his customer's place of business. (The union was trying to motivate Leathem himself to adopt a closed shop.) In deciding for Leathem, the Lords asserted that liberties to contract (which are rights) correlate with duties against interference.Footnote 63 Hohfeld insists that the Law Lords made a conceptual error here. As the owner had a privilege/liberty, not a claim, the union only bore a correlative no-right, not a duty.Footnote 64 He asserts that:
Whether there should be such concomitant rights (or claims) is ultimately a question of justice and policy; and it should be considered, as such, on its merits. The only correlative logically implied by the privileges or liberties in question are the “no-rights” of “third parties.” It would therefore be a non sequitur to conclude from the mere existence of such liberties that “third parties.” [sic] are under a duty not to interfere, etc.Footnote 65
As it was Leathem's right to undertake (legally permissible) action that was in question, Hohfeld identifies his position as a liberty. Hohfeld professes to be explaining a liberty qua fundamental legal position. Now, he may have hoped that his analysis would lead officials in the UK and elsewhere to change the law to recognize only legal liberties in these situations (and no duties on unions’ part), but that does not actually follow from his analysis. Governments may very well just affirm that, for the economic right in question, the party's liberty must be protected by claims and powers. They could even expand the scope of the union's correlative duty, etc. Regardless, even if Hohfeld targeted the case for political reasons, any normative import is downstream from the analysis. (Section V will discuss scholars who interpret both the very form of Hohfeldian analysis and Hohfeld's motivations behind schema otherwise.)
Further, Hohfeld's analysis of Quinn may be erroneous. For one could very well have instead said that, by “liberty,” the House of Lords really meant that the producer has a right complex composed of liberties to act, powers to make contracts, and claims against interference with either the exercise of those liberties or powers. If so, then the union bore a duty against interference after all.
One might also accuse Hohfeld of being confused about the very nature of the jurisprudential undertaking here. The schema is meant to help analyze legal concepts. If the right in Quinn is not best understood as a complex, then why not say that the Lords had posited a legal liberty (understood as singular, “fundamental” normative position) that correlates directly with a duty? Why is the case itself not a counterexample to Hohfeld's schematization, rather than an instance of a conceptual error on Law Lords’ part? Is the explanandum to be dismissed as a mistake merely based upon: (a) a stipulation; (b) a rational reconstruction of a legal or ordinary concept; (c) the elegant logic of a philosophical scheme; etc.?Footnote 66 (We will return to Quinn and the question of Hohfeld's true motivations behind the analysis of this case in Section VI.)
It is also important to address Hohfeld's view of the law qua system. Despite lacking a philosophical (or other sort of) account of law or LAW, he nonetheless thought that the Common Law, as it already stands, is a “coordinated system”Footnote 67 and that it is possible to discover a “net residuum” derived from the “fusion” of law and equity.Footnote 68 He also seems to hold that, appearances to the contrary, the system is without conflicting rules—or, at least none lacking a determinable means of resolution at any rate (e.g., equitable positions being paramount over legal ones); for such conflicts that do arise only concern individual parties’ jural relations.Footnote 69 Once a conflict between a legal and an equitable rule is recognized in their application to a given case, and the equitable position's triumph over its legal “opposite” is noted, we can then determine a person's “true” jural position.Footnote 70 Indeed, Hohfeld may be faulted here for assuming that a system's rules must be consistent,Footnote 71 which may be why he thinks equitable positions “must” triumph over legal ones.Footnote 72
Hohfeld also calls for the reform of the American legal system.Footnote 73 Sometimes, though, he suggests that what is problematic is not the system's categories per se, but rather the categories as used in legal education and textbooks.Footnote 74 The latter are deemed arbitrary and warranting revision. His solution? Scholars ought to use Analytic Jurisprudence to reorganize those categories on “logical” lines.
The ordinary professional courses and the contents of the various case books now in use have been determined by mere convenience or accident rather than by jurisprudence or logic. So that the professional curriculum, even when considered as an entirety, conspicuously fails to give the student a large perspective or a comprehensive understanding of the common law as a coordinated system. To accomplish this very important purpose, a special study of analytical jurisprudence seems to be the only expedient.Footnote 75
Hohfeld thus appears to have found virtue in Analytic Jurisprudence on its own terms. Indeed, his 1914 address to the Association of American Law Schools calls for the subject to be taught in all future law schools for the sake of: clarifying basic legal concepts; developing a clear juristic terminology; and drawing boundaries among legal categories and areas of law.Footnote 76
III. SOME OLDER THEORIES OF LAW, RIGHTS, AND DUTIES
To help perceive some of the differences between Hohfeld and the Legal Realists, it will help to keep in mind three kinds of jurisprudential theories—ones that predate them both. The first is a Sanction theory. It holds that all (unexcused) breaches of legal duties will be met with system-imposed liabilities or punishments.Footnote 77 However, what counts as the relevant sorts of “liabilities” may have evolved over time. On certain versions of the theory, it seems, a duty-breaching party need not suffer a penalty per se;Footnote 78 mere susceptibility to litigation and comparable legal processes (independently of their results) also count as a relevant sort of sanction.
Sanction theories present at least three ways to understand A RIGHT and A DUTY. (Option A:) some versions analytically reduce A RIGHT to powers by which to enforce duty compliance or to pursue remedies for breach. They also reduce A DUTY to liability (susceptibility) to such enforcement efforts. (Option B:) other versions present enforcement capacities and correlative liabilities as essential, but nonexclusive, features of A RIGHT and A DUTY respectively. (Option C:) primary legal rights and duties are only rendered real through a legal official's say-so in a decision (e.g., in a court).
Let us call this third version the “Recognition view.” This is a Sanction theory because it posits that enforcement mechanisms are necessary for rights, i.e., to trigger and help drive the proceedings in which to obtain an official's say-so about what one's right, or some aspect thereof, really means and entails.
The ideas of a right as being either necessarily enforceable, or as a kind of an enforcement power, are ancient, traceable back to the fourteenth century, if not earlier.Footnote 79 Whether (1) the relationship among primary, secondary, and tertiary rights is merely a conceptually contingent one, and (2), primary rights are only discernible via the (successful) use of secondary or tertiary ones, has long been debated. Although the Recognition view may be of lesser provenance, it still predates Hohfeld and Legal Realism.Footnote 80 Furthermore, a Sanction theory's implications may be greater than just how best to understand rights and duties: it may entail the collapse of the substantive/procedural law distinction.
To appreciate why these are all “Sanction” theories, contrast them with a conception of A RIGHT as an entitlement to another's required action or forbearance, and of A DUTY as a normative requirement (one meant to guide its bearer's reasoning) to undertake a certain action or to forbear from doing so. On these non–Sanction theory understandings, enforcement capacities and their correlative liabilities must be analyzed in terms of distinct positions, i.e., “secondary” and “tertiary” rights and duties.
An Imperative theory holds that all laws are, or are predicated upon, commands issued by legal officials that are backed by sanctions.Footnote 81 Versions of this second theory nevertheless differ over whether all laws are commands directed to subjects/citizens, or whether they are all commands directed to officials ordering them to deal with subjects in specified ways.Footnote 82 Imperative theories have long been discredited. For it is widely recognized that the law includes power-creating and granting rules, legal permissions, etc., which are neither commands nor derivations therefrom.Footnote 83 (To clarify, Sanction theories need not be Imperatival ones. A Sanction theory's scope may simply concern legal rights and duties, not all of the law, types of laws, etc. Hence, Sanction theorists may deny that all laws are commands or are derivations therefrom.)Footnote 84
Very loosely put, a Predictive theory posits that the law cannot be understood, in some sense, save as a prediction about what legal officials will do or decide it to be.Footnote 85 However, the theory's meaning and import is disputed. Does it really concern: (Version A) all of the law; (Version B) only some (types of) laws; or (Version C) the application of laws in certain contexts, e.g., in the kind of disputes that make it all the way to dispute resolution processes such as (appellate) litigation?
Version A reflects skepticism about the very possibility of legal rules ever guiding people's decisions or actions. While this view is thought to have been thoroughly discredited by HLA Hart's critique of Legal Realism,Footnote 86 it is doubtful whether anyone really adhered to it in the first place.Footnote 87 (Version B has no basis in the jurisprudential or legal literature, as far as I can gather.)
Version C is the most plausible interpretation of what Predictive theorists are on about. On this view, legal rules alone cannot provide definitive determinations or grounds for ascertaining what parties’ legal positions are in certain contexts, e.g., ones where people's disputes over their respective rights and duties give rise to litigation.Footnote 88 The parties’ legal positions are disputed because they are, to some extent, uncertain—that is, until such time as an authority provides a binding say-so about their respective meanings, e.g., in a court judgment.Footnote 89 Hence, the most that can be said, at such junctures, is just a prediction of what an official will decide vis-à-vis the parties’ legal rights and duties.
Keep in mind a distinction between (a) merely noting that lawyers and others may make predictions about how officials will decide cases and (b) a Predictive theory of law. The difference is this. The former is compatible with the idea of legal rules being generally settled and authoritative, but no guarantee of a party's success or failure in potential litigation contexts, e.g., because the court can err, because of disagreements about what the facts of a given case happen to be, etc. By contrast, a Predictive theory posits that, from (i) certain vantage points and (ii) in certain regards, disputants’ legal positions can only be understood in terms of a prediction about what legal officials will decide them to be. Especially if the existing law is under- or indeterminate for some reason (e.g., as on the Legal Realist view outlined below), until legal officials actually settle disputes, the parties’ respective positions are somewhat unsettled. Indeed, the most one can say ex ante (i.e., before a decision is actually levied) about disputants’ rights and duties in certain respects is just a prediction of how the officials will decide what they are.
IV. THE LEGAL REALISTS
Hohfeld's schema caused something of a sensation in the United States when originally published.Footnote 90 Its (mixed) influence in the academy and early American Restatements of law, particularly that of property, are well documented.Footnote 91 Unfortunately, Hohfeld died before a monograph on the topic could be completed, and before a flurry of criticism was unleashed upon him.Footnote 92
Hohfeld's Yale Law School colleagues, and others, nevertheless took up the mantle, championing his work throughout the 1920s and 1930s.Footnote 93 Today, most of those scholars are identified as Legal Realists. This section samples their understandings of rights, duties, and the schema. Presented are four legal scholars that no one disputes were Realists: Karl Llewellyn, Max Radin, Walter Cook, and Felix Cohen. Before that, though, it is first necessary to say something about Realism more generally.
A. Two Kinds of Accounts of the Movement
Discussions of Legal Realism usually come with the following caveat: for the most part, it was a movement rather than a legal theory. The Realists did not construct a general theory of law (or of the ordinary concept of LAW), understood as a unified set of mutually supporting propositions to which all adherents swore allegiance.Footnote 94 Further, a number of interpretations and rational reconstructions of Realism abound.Footnote 95
Even so, two rivalrous accounts can be gleaned from the scholarly literature. (Each type admits of variations, though.) On the first, Realism is a novel theory of official decision, one positing that legal rules are not the most important factor in an explanation of how legal officials decide cases.Footnote 96 The real/dominant/equally important drivers of decision are not (just) the legal rules, but (also): (i) “extra-legal” factors and (ii) “real” rules held exclusively by officials.
All versions of this theory posit that legal rules are causally under-determinate for official decision-making: the rules (alone) cannot explain officials’ decisions.Footnote 97 (Most versions also hold that legal rules are rationally under-determinate: they cannot justify a unique outcome in a case either.)Footnote 98
Under-determinacy arises because of the ways officials understand, use, and read (among other things): (1) the legitimate sources of law, e.g., statutes, cases, etc.; (2) the legal methods for interpreting those sources (e.g., broad or narrow readings of precedent, canons of interpretation, etc.); (3) the licit ways by which to characterize the facts of a case; and (4) the acceptable modes of legal reasoning (deductive, analogical, etc.).Footnote 99 Another reason is because of the very selection process for determining which rules are even applicable in a given case.Footnote 100
The Realists therefore hypothesize about the real drivers of decision. One hypothesis is that officials are really/mostly/equally driven by “extra-legal” factors.Footnote 101 (Despite the long-standing label, these are probably better understood as non-rule or extra-doctrinal factors.) The most widely discussed example is (an official's response to) the facts of a case. While there are others, the Realists never settled on a definitive list of extra-legal factors.Footnote 102
A second hypothesis involves a paper/real rule distinction.Footnote 103 The idea is that there can be divergences between the rules on the books (i.e., what may be read in statutes, ordinances, casebooks, etc.) and those actually used in the system.Footnote 104 A “paper” rule does not really guide decisions because officials are following a somewhat different crypto rule instead.
However, the Realists seem to disagree about the nature of this latter, “real” rule. Is it: (a) a mere description of a regularity of official behavior; (b) a prescriptive crypto-norm held exclusively by legal officials for use in decisions instead of the “paper” one; or (c) a generalization based on past decisions for use in future decisions, which is constantly subject to revision?Footnote 105 Whatever your view about Realist “real” rules (and their relationship to “working” ones, if any), the important point is this: (at least certain) legal rules and doctrines are causally impotent because something other than “paper” rules or extra-legal factors is also driving official decision.
While there are different versions of this Realist theory of decision, Leiter's rational reconstruction thereof is exemplary. On his view, it is an account of appellate court reasoning.
[T]he majority of Realists advance a descriptive theory of adjudication according to which (1) legal reasoning is under-determinate in the appellate review stage; (2) in deciding cases, appellate judges are responsive to “situation types”—recurring factual patterns. . .—that elicit predictable normative responses from most jurists, responses that are not, however, foreseeable based on the “paper” rules and doctrine; and (3) in commercial law contexts (a primary focus of the Realists), judges look to the “normal” practices of business culture to help decide the right outcome (that is, judges treat normal economic practice as the normative benchmark for decision).Footnote 106
This culminates in what Leiter identifies as Realism's “core claim” (i.e., one ostensibly endorsed by all members): “in deciding cases, judges respond primarily to the stimulus of the facts of the case [an “extra-legal” factor], rather than to the legal rules and reasons.”Footnote 107 Hence, the kind of reasons that determine judicial decision are primarily “non-legal reasons,” rather than legal ones.Footnote 108
Other interpretations of the Realist theory of decision differ from Leiter's in several ways. First, some scholars believe that it covers all levels of litigation, not just the appellate stage.Footnote 109 Others deny that its focus is even restricted to judges, and instead explains many sorts of legal officials’ decisions.Footnote 110 Third, some insist that legal rules are indeterminate, not merely under-determinate.Footnote 111 A fourth point of dispute, although perhaps merely implicit in the scholarly literature, is whether the alternative explanatory factors (e.g., the facts of the case) are the dominant ones, or just of equal weight to legal rules. Fifth, Leiter's account appears to privilege (officials’ responses to) the facts of a case over other types of “extra-legal” factors. Sixth, certain scholars claim that this view of official decision-making and legal rules existed long before the Realists came along.Footnote 112 It is both beyond this article's purview and unnecessary for its purposes to resolve these interpretive disputes.
On the second type of account, Legal Realism was essentially a political movement, one concerned with all areas of the law. While the Realists mostly just picked up the mantle of the previous generation's “progressive” agenda, they additionally engaged in a sort of a demystification program by exposing the contingent, political nature of (the content of) legal doctrine and legal concepts. (See Section V below for examples, e.g., PROPERTY.)
To clarify, Realism-as-politics does not wholly reject its rival, Realism-as-a-theory-of-decision: the former actually incorporates the latter. (It thus equally holds that legal rules are under- or indeterminate and that extra-legal factors may be the true drivers of decision.) Realism-as-politics simply denies that: (a) this theory of decision was novel with the Realists; (b) the theory exhausts Realism's scope; and (c) Realism is apolitical (as the rival type of account holds).
B. Realists on Rights and Duties
1. Karl Llewellyn
Karl Llewellyn studied under Hohfeld at Yale. He greatly admired his teacher too.Footnote 113 Llewellyn was the keenest of his fellow Realists to identify the movement's aims and members.Footnote 114 He also championed the schema,Footnote 115 his most prominent exposition probably being that found in The Bramble Bush.Footnote 116 The account nevertheless comes with two caveats. First, Llewellyn tells us that the schema will be presented as Arthur Corbin and Walter Wheeler Cook had developed it.Footnote 117 Second, it is presented from the “standpoint of the cynic,” a vantage he doubts Hohfeld would have approved of, but one Llewellyn nonetheless believes constitutes an improvement over the original.Footnote 118
Following earlier expositors, Llewellyn explains the claim-duty pairing (and indeed, RIGHTS CORRELATIVITY) as a relationship of identity. “The right is indeed the duty, a duty seen other end to. The relation is identical; the only difference is the point of observation.”Footnote 119 However, instead of being fundamental, the conceptions seem to possess multiple features.
Vital for use here are three of Hohfeld's major groupings: right or claim, in the narrow sense he chose; privilege or liberty; power. Very briefly, as Corbin puts it, a duty (the other end of a right) is what I must do; a privilege is what I may do; a power [sic] is what I can do. A right, then is what some other person must do for me. Now in this set up the must and the may and the can all have reference only to what the courts are likely to do in the situation. Must do, or have the court on your neck; may do, and not be bothered by the court; can do, and so affect what the court will do.Footnote 120
Llewellyn goes on to hold that:
[A] right is best measured by effects in life. Absence of remedy is absence of right. Defect of remedy is defect of right. A right is as big, precisely, as what the courts will do. The differentiation between substantive law and adjective law is an illusion, although the prevalence of this illusion (as of any other) has results in human behavior, and must be taken account of. What the idealist calls substantive rights are not things, not even shadowy things; they are purposes the legal officials have set themselves: to get you to perform your agreement, to keep you off my land. But the law can be seen only in its effects. Surely it is useful to measure the effects by the purpose, to see the effects, to line them up for seeing, in terms of purposes; but once more, let us not mistake words for results. Words—rules of substantive law—concepts of rights derived from them—these may be a good first step; they may be necessary to the goal. They are both. But they do not get us there alone.Footnote 121
Llewellyn then adds what he takes to be an amendment to his teacher's views (leaving aside whether he has not already made some):
Now observe what this means to the cynic. “Performance” of the so-called duty (be it to paint a house, as I agreed; or to refrain from calling you a thief; or to fence my cattle from your garden) is to the cynic but a certain line of action or abstention which will keep the court off the duty-bearer's neck. There is, to the cynic, no content to the duty as such at all, nor any moral force. To him it is a matter of pure prediction about the court. Unless I paint the house, the court may climb my frame. The measure of the duty, on the other hand, is very clear. It is twofold: how hard will the court climb, if it climbs at all? how [sic] likely is the climbing? With decrease in either vigor or probability of climbing, the duty dwindles. Which is to say also, the right dwindles. For practical purposes it may sometimes be convenient to talk as if the probability were a certainty; and as if the frame climbing were precisely as uncomfortable as the conduct necessary to prevent it. But it never pays to lose track of the fact that for any individual duty bearer the degree of probability, and the extent of the climbing, are the essence of the situation. Just one last thing. There is one, and only one, certain test of whether a duty existed, on the facts assumed. That is: a judgment by the court in favor of the claimant and against the defendant on the claim in question. This, you observe, by definition.Footnote 122
Instead of being a normatively required act or forbearance, on Llewellyn's view a legal duty lacks normative force—in the sense of being reason-giving or action-guiding. A legal duty-bearer deliberates about whether to conform only for instrumental reasons, i.e., to avoid a court's wrath. (Llewellyn is obviously invoking Holmes’ Bad Man–Predictive approach here.)Footnote 123 The “must” of a duty morphs into the probability of a sanction for non-conformity. Duty becomes “so-called duty.”Footnote 124
Further, the only way to affirm a right and its correlative duty's existence appears to be by being granted a court-ordered remedy, not just getting into court. This lends itself to the idea that rights and duties are, to some extent, indeterminate till a legal authority's declaration (hence why the substantive/adjectival law distinction is rendered illusory). As the law can really only be perceived through its effects—which, apparently, are delimited to official procedures (as opposed to, say, the observable acts of private parties, e.g., making contracts, buying and selling property, etc.)—“primary” rights and duties are, in a sense, relatively unimportant for explanatory purposes, if not just unreal.Footnote 125
Despite some obvious references to Sanction and Predictive theories, Llewellyn's understanding of A RIGHT and A DUTY remains ambiguous here. Does he mean: (a) entitlements and obligations; (b) entitlements combined with “remedial” powers and obligations combined with liabilities thereto; (c) mere remedial powers and liabilities thereto; or (d) rights and duties merely being a legal official's post hoc verbiage, which is used to help show why he or she sides with one of the disputants? In an article written at the same time as The Bramble Bush, Llewellyn clarifies his views somewhat.
It would likewise be a heresy to argue the vital real evidence of this supposed [substantive/primary] “right” lies in an action for damages, and that the right could rather more accurately be phrased as follows: if the other party does not perform as agreed, you can sue, and if you have a fair lawyer, and nothing goes wrong with your witnesses or the jury, and you give up for five days of time and some ten to thirty percent of the proceeds, and wait two to twenty months, you will probably get a judgment for a sum considerably less than what the performance would have been worth—which, if the other party is solvent and has not secreted his assets, you can in further due course collect with six percent interest for delay.Footnote 126
I should like to begin by distinguishing real “rules” and rights from paper rules and rights. The former are conceived in terms of behavior; they are but other names, convenient shorthand symbols, for the remedies, the actions of the courts. They are descriptive, not prescriptive, except in so far as there may commonly be implied that courts ought to continue in their practices. “Real rules,” then, if I had my way with words, would by legal scientists be called the practices of the courts, and not “rules” at all. And for such scientists statements of “rights” would be statements of likelihood that in a given situation a certain type of court action loomed in the offing. Factual terms. No more. This use of “rights,” at least, has already considerable standing among the followers of Hohfeld. This concept of “real rule” has been gaining fair since it was first put into clarity by Holmes. “Paper rules” are what have been treated, traditionally, as rules of law: the accepted doctrine of the time and place—what the books there say “the law” is. The “real rules” and rights—“what the courts will do in a given case, and nothing more pretentious”—are then predictions. . . And one can adapt for them Max Weber's magnificent formulation in terms of probability: a right (or practice, or “real rule”) exists to the extent that a likelihood exists that A can induce a court to squeeze, out of B, A’s damages; more: to the extent that the likely collections will cover A’s damage. In this aspect substantive [primary] rights and “rules,” as distinct from adjective, simply disappear—on the descriptive level. The measure of a “rule,” the measure of a right, becomes what can be done about the situation.Footnote 127, Footnote 128
2. Max Radin
A self-styled Legal Realist,Footnote 129 Max Radin provides a comparable understanding of the schema, laying out his “restatement” of Hohfeld in a number of articles.Footnote 130 For one thing, Radin rejects Hohfeld's notion of CORRELATIVITY. Instead of two normative positions being embedded within a jural relation, Radin thinks these are just two names for the same thing. The two correlatives, in other words, form an identity.Footnote 131 For another, he renames a claim as a “demand-right”—“a right in the form of a demand,”Footnote 132 but leaves its meaning ambiguous and the reason for the name change unexplained.Footnote 133
Further, while Radin distinguishes, at least conceptually, between “primary” and “remedial” (i.e., secondary and/or tertiary) rights, he too posits that the former's existence can only be ascertained from an official decision or decree.
If the former duty of B to avoid injuring A is shown not to exist, there can be no present duty of B to pay money to A. We know of the existence of his duty avoidance in past time only because the court now imposes a duty of payment on B.Footnote 134
The test of the past duty is the creation of a present different duty [a remedial one]… And in every case we shall not be certain of the presence of the past duty unless a new duty predicated upon the breach or threatened breach of the past one is created.Footnote 135
The court finds that some preceding demand or privilege has been transmuted into the form which it declares for the future. A certain amount of discretionary action is almost essential in this act of finding the indispensable and inseparable antecedent right.Footnote 136
Radin's account also appears to eliminate a role for secondary rights and duties: he identifies two kinds of rights, not three.Footnote 137 He also treats a primary right and duty's violation as generating a “new duty to pay a sum of money” to the right-holder.Footnote 138 How, though, does the breaching party know how much to pay, if anything? How has a specific quantum been determined, and by whom? It is one thing to say that Roberta the right-holder obtains a court's declaration that Daniella the duty-bearer breached her duty. It is another to say that, whatever Roberta may claim in court, ex ante Daniella specifically owes $1,000 in compensation.Footnote 139 This suggests that Radin too believes that rights and duties are unreal till specific remedies have been issued, i.e., only “tertiary” positions are genuine.
3. Walter Wheeler Cook and Felix Cohen
Other Realists basically say the same thing about rights and duties. Walter Wheeler Cook edited the first edition of Hohfeld's posthumous book Fundamental Legal Conceptions (which just collected his published articles) in 1919. He also served as the executor of Hohfeld's literary estate after his friend and Yale colleague died in 1918.Footnote 140 Cook is not only a strong advocate for adopting social scientific approaches for the study of law, he is also generally taken to be a Realist.Footnote 141 Here is an example of his understanding of rights and duties:
“Right,” “duty,” and other names for legal relations are therefore not names of objects or entities which have an existence apart from the behavior of the officials in question, but merely terms by means of which we describe to each other what prophecies we make as to the probable occurrence of a certain sequence of events—the behavior of officials. We must, therefore, constantly resist the tendency to which we are all subject to reify, “thingify,” or hypostasize “rights” and other “legal relations.”Footnote 142
It may be impossible to reconcile the Sanction and Predictive aspects of Cook's idiosyncratic formulation here. Interestingly, Cook's account of the schema in 1919 was not particularly laden with Sanction or Predictive theories.Footnote 143 This suggests an evolution in his views during the interim period.
Like the other three Realists, Felix Cohen also advances a Predictive-Sanction account of rights, duties, and other legal positions.Footnote 144 To his mind, A RIGHT and A DUTY must be “defined” in terms of “judicial decisions or other acts of state-force.”Footnote 145 “The consequence of defining law as a function of judicial decisions is that we may proceed to define such concepts as ‘contract,’ ‘property,’ ‘title,’ ‘corporate personality,’ ‘right,’ and ‘duty’ similarly as functions of judicial decisions.”Footnote 146 Like Llewellyn and Radin, however, he suggests that that perspective cannot be the entire story, because there is still the matter of trying to understand the parties’ legal positions prior to any such judgment being given. This, Cohen thinks, “must be in the nature of a prophecy, based, like other prophecies, upon past and present facts.”Footnote 147
V. HISTORIANS AND PHILOSOPHERS ON HOHFELD
Quite a few legal historians and philosophers identify Hohfeld as a Legal Realist. They not only understand the schema in the same light as its Realist champions, but also interpret Hohfeld's other work similarly. For example, William Twining thinks Hohfeld was among the Realist movement's “leading pioneers.”Footnote 148 To his mind, several of Hohfeld's methods and views warrant the identification. Among these is a skepticism about abstract legal concepts, e.g., OWNERSHIP, POSSESSION, etc. Hohfeld, he claims, called for larger legal concepts to be decomposed into more manageable ones.Footnote 149 Narrower concepts would in turn allow for “narrow issue thinking” on legal matters.Footnote 150 Hohfeld is said to have influenced Llewellyn directly in this regard.Footnote 151
Why undertake this sort of replacement project, though? Twining understands Llewellyn to have believed that, while the law is rarely designed to be intentionally ambiguous, lawmakers generally deem vagueness quite useful—particularly when constructing general concepts.Footnote 152 Narrowing the legal categories, Llewellyn assumed, would improve the law, render it more predictable,Footnote 153 and perhaps help to avoid judicial shenanigans or chicanery.
What does Hohfeld have to do with that agenda, or with Legal Realism more generally? Twining knows the schema is a work of Analytic Jurisprudence,Footnote 154 one that draws on earlier scholarship.Footnote 155 Even so, he posits that (1) Hohfeld employs it with an ulterior, Realist agenda in mind and (2), more generally, Analytic Jurisprudence (along with its techniques, such as conceptual analysis) is wholly compatible with the methods and goals of Realism.Footnote 156 “The weapons of analytic jurisprudence [can be] used as part of the armoury of legal realism.”Footnote 157 As an example, Twining thinks Hohfeldian analyses can help demonstrate the falsity of the “Formalist” deductive modelFootnote 158 of judicial reasoning.Footnote 159
Twining also believes that Hohfeld's construction of the schema and use of Analytic Jurisprudence were only the beginnings of a planned Realist attack on contemporary American law schools’ “narrow approach to law and to legal education.”Footnote 160 Hohfeld is claimed to have influenced Cook and Corbin in this regard: “Cook and Corbin used analytic techniques to challenge a picture of American law as an integrated system of abstract, relatively static, legal principles, which were applied by the courts to decide cases.”Footnote 161
Legal historian Natalie Hull also thinks Hohfeld was a Realist. Hohfeld presented a “nascent pragmatic, realistic approach to legal analysis.”Footnote 162 However, his work evidences some “clear divergences” from the movement, e.g., the True Solutions proposition in FLC #1.Footnote 163 This, Hull believes, “harkens back to classical-formalist legal thinking, which argued that the law was a closed analytical system in which logic would yield the correct answer to every legal problem.”Footnote 164
Curiously, instead of Hohfeld's Unity & Harmony proposition marking another point of departure from Realism, Hull says that it constitutes an “endorsement of policy and social justice as the engine behind jurisprudential reform,” and that by it, “Hohfeld was admitting the progressive motivation behind all his analytical schematization. This progressive strain to Hohfeld's jurisprudence has always been overlooked, even by his closest allies.”Footnote 165
Morton Horwitz, another legal historian, also thinks Hohfeld was a Realist.Footnote 166 He denies, however, that there is much of a difference between the Realists and their “Progressive” forebears. To his mind, not only did Realism lack a distinctive set of doctrines or methods, it should not even be called a “coherent intellectual movement.”Footnote 167 “It expressed more an intellectual mood than a clear body of tenets, more a set of sometimes contradictory tendencies than a rigorous set of methodologies or propositions about legal theory.”Footnote 168 Like many historians of that time period, Horwitz also believes that the Progressives orchestrated an “assault” on the old legal order and its “formalism.”Footnote 169
Horwitz sees Hohfeld falling squarely within that project. There was a “critical and deconstructive strategy behind Hohfeld's work.”Footnote 170 Indeed, the very schema and its fundamental legal relations were constructed in furtherance of that program.Footnote 171 Even Hohfeld's reasons for positing right/duty and privilege/no-right correlativity are adjudged to have been politically motivated.Footnote 172
By calling rights and duties ‘correlatives,’ Hohfeld sought to subvert the privileged position rights had occupied as the starting point for orthodox legal analysis. He thus wished to relativize rights discourse by emphasizing that one might just as logically begin such an analysis with the concept of a duty created by law. A right therefore became simply the legal enforcement of a socially created duty.Footnote 173
Further, pace the formalists and the politics of the “old order,” the schema was intentionally designed, at least in part, to help subvert absolutist notions of natural property rights.Footnote 174 Showing that property consists “merely” of a bundle of legal relations, Horwitz claims, is perhaps the most radical and far-reaching implication of Hohfeld's work.Footnote 175
Note a subtle difference in opinion among these scholars about Hohfeld's motivations and accomplishments. They differ over (and, perhaps, are at times inconsistent about) whether Hohfeld: (A) repurposed Analytic Jurisprudence and the philosophy of rights for Progressive/Realist ends; and/or (B) designed both (i) the schema and (ii) the very form of his analysis with Realist goals in mind.
Although these historians have paid the most attention to the matter (among those who have provided a positive identification, at any rate), they are not alone in deeming Hohfeld to have been a Legal Realist. As mentioned above, Fred Schauer, Brian Bix, Carl Wellman, Morton Horwitz, and Joseph Singer do so too.Footnote 176 On Schauer's understanding, for example, the Realists held that legal rights and duties are only what officials have decided in their authoritative pronouncements and which are backed by force.Footnote 177 He summarizes the view thus:
Harking back to the Legal Realist positions that, first, a right is nothing more than a statement that a particular individual has an enforceable claim against another particular individual (or entity) and, second, that a right is simply the ex post statement of the particular outcome of a particular lawsuit, the idea has spread that rights are particular, individual, and contextual.Footnote 178
On this view it is, in a sense, mistaken—but not necessarily meaningless—to talk of A’s right and B’s correlative duty unless and until: (I) a judge has so decided that the parties bore such legal positions and (II) the state will (or has) enforce(d) A’s right. This again suggests that, although legal officials talk in terms of “primary” rights and duties, only “tertiary” ones are real. While Schauer is himself critical of this Realist stance,Footnote 179 in adjudging Hohfeld to have been a Legal RealistFootnote 180 he implies that this is Hohfeld's view too.
VI. WHY HOHFELD WAS NOT A REALIST
A. Previous Efforts
Gerald Postema and Andrew Halpin deny that Hohfeld advanced certain Realist views. Their efforts, however, cannot dissociate Hohfeld from Realism because they present an under-inclusive account of the movement, miss potential points of contact, and, at times, may be painting a slightly distorted picture of Realism.
Postema notes that, despite obvious incongruities with their own commitments, the Realists “appropriated” the schema for their own (political) ends:Footnote 181 progressive legal reform and supporting efforts to protect workers and communities from “the predatory practices of capitalist enterprises.”Footnote 182 Like Horwitz, Postema believes the Realists saw the schema as a useful tool, particularly for attacking the idea of absolute, natural property rights.Footnote 183 Hohfeld proclaimed that most legal rights are actually complexes.Footnote 184 The Realists then insisted that complexes, like all legal concepts, are merely the socially constructed products of positive law, ones only held together by political or policy reasons, not logical bonds.Footnote 185
Moreover, the claims of formalist judges that certain components of property rights fit together into tight conceptual packages were shown to be entirely unfounded, [the Realists] thought. Arguments that pretended to be logically deductive and closed to considerations of justice or policy where shown, they thought, to be full of gaps which could only be filled by appeals to policy. Hohfeld's analysis of the language of rights in the realists’ hands became a potent weapon of progressive criticism.Footnote 186
Postema nonetheless asserts that “this use of Hohfeld's tools was hardly warranted by his presentation of them.”Footnote 187 For one thing, regardless of the man's own politics, Hohfeld's analysis is “entirely neutral with respect to ideological matters.”Footnote 188 Second, Hohfeldian analyses neither demonstrate the positivity of all rights, nor exclude the schema’s employment for other sorts (moral rights, institutional rights, natural rights, etc.).Footnote 189 Third, nothing follows from analyzing legal concepts into Hohfeldian basic positions about what binds them together. “Hohfeld was silent about combinatorial principles, but from silence it is not possible to infer that there are no such principles or that they are drawn from entirely extra-legal (merely political) considerations of policy.”Footnote 190 Further, even if the components do not express logical connections, it does not follow that other legal doctrinal or structural reasons for their composition fail to obtain.Footnote 191 Fourth, some Realists erred in holding that, on Hohfeld's view, for A to have a claim against B is for the state to hold B to a duty against A; for if a claim or liberty is protected by a legal remedy of some sort, then that is true by virtue of a distinct legal relation combined with the claim or liberty.Footnote 192 Yet, Postema insists, Hohfeld's schema is not committed to the necessity of this sort of combination.Footnote 193
Postema's first three claims are sound, but he fails to justify them with evidence or argument. Further, although I personally agree, he might be mistaken about Hohfeld's view of the connection between rights and remedies (in terms of Sanction theories). Moreover, he does not address what role, if any, Realism-as-a-theory-of-decision or Predictive theories play here.
In turn, Halpin aims to debunk the following claim: The Realists are said—by others—to have thought that Hohfeld showed how the law could be understood wholly in terms of jural relations, and thus without need of legal doctrine. On this “Realist” view, analyzing law into fundamental positions entails that legal doctrine is both explanatorily superfluous and mutatable on a whim. The Realists “welcomed Hohfeld's analysis as being capable of destroying established legal categories by collapsing them into generic legal relations.”Footnote 194 On this view, Hohfeld provided the Realists with useful ammunition against the formalist portrayal of legal doctrine, which proceeded by a process of logical deduction from the established legal categories. Expunge the categories, and not only will formalism be “deprived of its premises,” but the legal field itself will open up toward many more possibilities.Footnote 195
Halpin correctly argues that this Realist view is incompatible with Hohfeld's own stated ambitions. Particularly, the common principles of justice and policy, “which might suggest a Realist concern with extra-legal influences, are rather to be apprehended by means of a systematic exposition of legal doctrine.”Footnote 196 Halpin notes, though, that Hohfeld is only expressing a vision here, not an argument or demonstration of his form of analysis’ potential.Footnote 197 He also argues that, if Postema is correct about the limits of Hohfeldian analysis, then the schema cannot support the notion of Hohfeld's formalism any more than it can support a Realist anti-formalist vision of law. Both are matters of complete indifference for his analytical scheme.Footnote 198 Hence, Hohfeld cannot plausibly be said to have aimed to “flatten” or “collapse” the existing legal categories and/or legal doctrines. Llewellyn and Corbin, Halpin claims, came to realize this years later, and consequently lost interest in Hohfeld.Footnote 199
Being predominantly concerned to defend Hohfeld from a mischaracterization, Halpin neglects to address whether this is actually the Realists’ view—a claim about them Halpin did not himself concoct. For the Realists are also committed, in some sense, to the existence of legal rules, principles, doctrine, etc. Questions therefore remain about: Hohfeld's views about the true bases of judicial decision; the purported politics behind his schema and the Realist project; etc. Hence, much more must be done to distinguish Hohfeld from the Realists.
B. The Schema's Unoriginality
One basis for disassociating Hohfeld is to flag the fact that most of the schema was adapted from earlier scholarship—work no one would characterize as Realist. Indeed, despite his schema being widely considered to be a permanent contribution to legal scholarship, it is debatable whether Hohfeld's fame is actually warranted. Others had already recognized the existence of different senses of the term “a right.”Footnote 200 Indeed, eleven years before Hohfeld's FLC #1 was published, John Salmond posited that each term's cognate concept—A RIGHT, PRIVILEGE, POWER, IMMUNITY—bears a specific correlative and “opposite.”Footnote 201 Here are Salmond's tables.Footnote 202
Hohfeld's unique contributions to the philosophy of rights therefore basically amount to the following.Footnote 203 First, he adds A NO-RIGHT.Footnote 204 Second, he delimits A LIABILITY to a single type, one correlating exclusively with A POWER. Third, he argues that the in rem/in personam distinction ought to be replaced with a multital/paucital one.Footnote 205
Hohfeld was undoubtedly familiar with some, if not all, of the antecedent rights literature. Indeed, he cites to his English predecessors for their understandings of in rem—but not, curiously, for their analyses of the various senses of “a right” in those very same works.Footnote 206 By 1917, however, he was certainly more aware of the corpus; his friend and mentor, Roscoe Pound, made sure of it. In 1915 Pound published an article entitled “Legal Rights.” In it he explained the provenance of many of these jurisprudential ideas. He also took the time therein to criticize Hohfeld's particular contributions.Footnote 207 It is clear from their personal correspondence that Hohfeld read and professed to admire the article.Footnote 208
It is difficult not to read Pound's piece as being, at least in part, an effort to (1) chastise Hohfeld for the latter's lack of proper citations to his predecessors in FLC #1 (published two years earlier); and (2) demonstrate to others that the 1913 article was nowhere near as original as Hohfeld presents it as being, let alone predicated upon difficult research into various usages of the term “a right” by scouring legal cases.
Of course, this history would not dissuade the aforementioned historians from believing in Hohfeld's Realist bona fides. For they think Hohfeld repurposed Analytic Jurisprudence toward Realist goals and/or designed his schema with such ends in mind. Yet even if they utilized Hohfeld for such purposes, as mentioned in Section II.D, any Realist aspect—whatever stance that is actually deemed to be—must come downstream, i.e., after the “Hohfeldian” analysis. Merely stating that a court “erred” in identifying (what Hohfeld calls) some or all of a legal concept's constitutive features is not a Realist (or even political) stance per se. Nor is merely decomposing a larger legal concept into the fundamental positions.
Instead it is what one does with that analysis thereafter that may or may not be Realist. Do you want to argue that the concept in question is merely a historically contingent construct, one bearing wholly fungible components? Do you want to replace one of its constitutive fundamental normative positions with a different one, or instead add more components to it, ones that better suit your political or “Realist” preferences? Those aims are all very well and good, but they are beyond the purview of a Hohfeldian analysis. Even if you use Hohfeld to show how the concept of X (PROPERTY, TITLE, etc.) differed in 1787 from that in 2018, the analysis would still neither tell you the true bases for their composition, nor whether they ought to have been modified. What, moreover, is fundamentally different about a Hohfeldian analysis from Salmond's, such that the former might be called Realist but not the latter?Footnote 209 (We will return once again to this matter when addressing Realism-as-politics.)
C. The Real Bases of Judicial Decision
As discussed in Section IV, two rivalrous types of accounts of Legal Realism can be gleaned from the literature. Type 1 is an apolitical Realism-as-a-theory-of-decision: legal rules are indeterminate/under-determinate and cannot (alone) drive officials’ decisions. The (real/dominant/equally relevant) stimuli for decision are (also) “extra-legal” considerations and “real” rules. Type 2 is of Realism-as-politics, a project with a particular sort of reformist, progressive agenda in mind, and perhaps with the idiosyncratic aim (compared to non-Realist “Progressives”) of demystifying legal doctrines and concepts. Type 2 incorporates the theory of decision, but deems it to be wholly political too.
Hohfeld has nothing to do with Type 1. He has no account of the real drivers of official decision-making. While he proclaims that legal doctrine is the product of “justice and policy,”Footnote 210 this alone does not and cannot tell you how and why judges really decide cases. Even if Hohfeld believed that disputants’ legal positions are not truly determinable or settled until a court decides what they are, it does not follow that he also holds that officials really decide cases on surreptitious grounds. He also has nothing to say about the order of judicial reasoning, i.e., if judges’ understanding of doctrine drives their decisions, or if they decide a case first (based on the case's facts or other “extra-legal” factors) and then select legal precedents that service their desired outcomes.
Nor is there any evidence that Hohfeld believed in a paper/real rule distinction.Footnote 211 If anything, his discussion about the conflict between legal and equitable rules at the level of disputants’ legal and equitable relations suggests that he would have been at least partially hostile to the notion. Indeed, the Realist under-/indeterminacy thesis is difficult to square with Hohfeld's claims about equitable positions (claims, privileges, etc.) invariably invalidating their legal opposites, save to the extent that certain “invalid” legal primary rights can, in certain circumstances, generate “valid” secondary and tertiary ones.Footnote 212 Even with the stated qualifier, this is a proposition to which the Legal Realists probably could not commit.
If anything, Hohfeld probably leaned more toward the “traditional” view of official decision-making that the Realists attack. More importantly, he boldly pronounces that the schema allows its users to discover common principles across the Common LawFootnote 213 and to generate true solutions to legal problems.Footnote 214 The schema, however, concerns conceptually basic jural positions. It does not, and cannot, address how judges should weigh facts, rules, standards, principles, etc.
The True Solutions or the Unity & Harmony propositions are also antithetical to Legal Realism. Hull suggests that the first proposition would come to “haunt” the Realists in later years.Footnote 215 Rather than both propositions being “divergences” from Realism, as she also suggests,Footnote 216 it is more likely that Hohfeld had no such commitments in the first place. If anything, he would have instead been haunted by the fact that critics (justly) chastised him for making grandiose, groundless proclamations about what his form of analysis could accomplish.
Contrary to Hohfeld's bearing Realist proclivities, Hull's own quote of Llewellyn evidences the contrary. “Now had Hoh lived another twenty years, he and I would have been at war.”Footnote 217 Nothing in Hohfeld's jural schema dictated results. Nothing in it captured the legal interests that lie beneath the surface. Nothing in it recognized the reciprocity, or the reversibility of rights and duties…Footnote 218 Corbin also came to express the existence of a fundamental divergence.
So far as I know, it was Hoh's belief that there is a ‘positive law,’ to be determined by logical analysis. He certainly handled his materials with positiveness and vigor and reached definite results. At the age of 36, he might not have approved of my notion that all legal rules are merely tentative working rules, drawn out of and changing with the customs and mores of men. However, I would expect him, the course of time, either to agree with me or to convince me of error.Footnote 219
1. On Sanction and Predictive Theories
Alone, Hohfeld's exaggerations cannot dissociate him from Realism-as-a-theory-of-decision. Other partial bases for doing so are by assessing his connection to Sanction and Predictive theories.Footnote 220 His stance on the former is complicated by the conflicting evidence (and, again, the matter is not helped by his failure to present an overall theory of law). The best place to commence an assessment of his views about Sanction theories is his account of the relationship between claims and enforcement capacities.
There are two relevant issues here. Issue 1: Is a Hohfeldian claim necessarily claimable by a claim-holder? Are such capacities inherent in, or necessarily associated with, a Hohfeldian claim? Correlatively, is susceptibility (liability) to enforcement efforts inherent to A DUTY? Alternatively, is a claim really just a species of power, and a duty just a kind of liability? Issue 2: regardless of the answer to the first issue, are the only “real” rights secondary or tertiary ones?
Section II.B explained the first issue as being, in part, a debate over active and passive interpretations of Hohfeld's conceptions. I offered reasons for thinking that the passive option is both superior and more likely to be Hohfeld's view. The second issue may nevertheless be dispositive for determining his relationship to Sanction theories. The best evidence of Hohfeld's being a Sanction theorist is buried in the supplemental notes to his “Equity” article, where he baldly asserts that the reality of both “antecedent” and “remedial” rights are only ascertainable via an inference from “adjective juridical processes.”Footnote 221 This notion has clear roots in Holmes and Gray (who are often dubbed “proto-Realists”), two important influences on Hohfeld.Footnote 222 The Realists adopted this view too. Yet even if Hohfeld is a Sanction theorist, and even if the Legal Realists are too, that alone does not suffice to make Hohfeld a Realist. For quite a few Analytic jurists for a century before him, but not all, basically believed the same thing about legal positions. No one thinks they were (proto-)Realists, though.
Sanction theories are nonetheless difficult to square with Hohfeld's “metaphysical” views. Pace Frederick Maitland, Hohfeld argues that conflicts can arise between equitable and common law rules, but only at the level of jural relations.Footnote 223 In such conflicts, he thinks the equitable positions must triumph over the legal ones.Footnote 224 As evidence, Hohfeld argues that, when law and equity (chancery) courts were distinct entities, a law court would sometimes recognize both (1) the existence of a conflict and (2) the equitable rule's paramountcy over the legal ones—in the case at hand.Footnote 225 More importantly for our purposes is Hohfeld's assertion that the law court's recognition evidences “jural realism.”
But that purely collateral result necessarily means that the law court recognized: (I) that there was a ‘conflict’ between the ‘legal rules’ according to which the cestui had no rights or privileges and the equitable rules according to which the cestui had very substantial rights, privileges, etc.; and (2) [sic] that as to such ‘conflict’ the equitable rules were, substantively considered, paramount and valid to the exclusion and ‘repeal’ of the (preexisting) substantive (legal) rules. In other words, the law courts took a view in accordance with jural realism as distinguished from nominalism and fiction.Footnote 226
Hohfeld appears to mean something like metaphysical realism regarding law and legal rules here.Footnote 227 While the Realists believed in legal rules, they would have rejected a metaphysical account as nonsense.Footnote 228 Further, it is difficult to imagine a metaphysically realist account of legal and equitable rules that: delimits the set of rights to the products of officials’ decisions (“tertiary” positions); presents two distinct sets of rules—“real” and “paper”—being of equal ontological status; and possibly treats rules as merely being one-off decrees. (The last portion would count instead as metaphysical nominalism.) Jural realism may also be hard to square with the view of legal rules being indeterminate.
Corbin, again, proclaims a critical difference in views from Hohfeld. “But, so far as I know, his interests were analytical and logical, rather than sociological. He spoke of ‘the positive law.’ [In a faculty meeting, Cook and I once, in exact unison, asked him ‘where is it?] [sic].”Footnote 229 Radin also criticized Hohfeld for treating each element in a jural relation as being conceptually distinct, even if not severable in practice. This, Radin thinks, “…gives a kind of reality to mere words, which they must not be allowed, if we hope to reach realism in law…”Footnote 230 (Perhaps Hohfeld could have utilized the concept of A NORM in response to Corbin and Radin. This would have allowed him to continue to profess the sensibility of talking about legal rules and positions, but without committing to metaphysical realism. He does not seem to have done so, though.)
Further, Hohfeld admired Justice Holmes, calling him one of the greatest jurists of their time.Footnote 231 While he does not always do so positively, in one instance he quotes Holmes approvingly about the need for precise terminology in law. In that passage, however, Holmes makes a passing remark about the need for legal prophesizing.Footnote 232 Especially given the context of calling for precision, it is unclear whether Hohfeld cites Holmes here in order to endorse that part of the passage.Footnote 233 Indeed, if we are to take seriously Hohfeld's qualification of analyzing fundamental positions “as applied in judicial reasoning,” then prediction mostly goes out the window; for, even with Llewellyn's qualification in mind (i.e., that lower court judges do try to predict how upper courts will respond to their decisions),Footnote 234 judges generally do not predict how they themselves will decide cases.
The Holmes quote must nevertheless be reconciled with Hohfeld's assertion that primary rights and duties are only determinable properly via “adjective” processes.Footnote 235 Usually, this requires that a putative right-holder pursue an action. If there is no clear answer as to whether that person had a genuine right until official proceedings obtain, then this creates space to extrapolate from Hohfeld's account the need for a Predictive view of rights and duties, from an ex ante perspective.
Again, though, Hohfeld provides neither an analysis of A DUTY nor an account of a duty-bearer's motivations or deliberations. Other than one quote from Holmes containing a single line about prophesy, there is no evidence showing that Hohfeld believes duty-bearers generally undertake “cynical” deliberations, predicting what will and will not lead them afoul of legal officials, per Holmes’ and Llewellyn's accounts.Footnote 236
Now, devious calculators may incorporate the possibility of being sued into their decision-making, and thus must predict whether they will walk away triumphant from such lawsuits. However, even this Sanction theory–like notion of the relationship of primary rights and duties to enforcement powers and liabilities (secondary rights and duties) does not contradict the Predictive view. Similarly, even if one held that primary rights are credibly discernible outside of legal proceedings and automatically lead to tertiary rights, that would not suffice to undermine the Predictive view. For devious calculators might still bet on whether they need only suffer nominal damages, damages within some acceptable range (e.g., after an “efficient breach” of a duty).Footnote 237 Regardless, none of this sort of thinking is to be found in Hohfeld's work.
To warrant the Legal Realist label per a Realism-as-decision-theory type of account, Hohfeld would need to exhibit: (i) beliefs about legal rules’ indeterminacy or under-determinacy in the context of official dispute resolution processes; (ii) views about the true grounds for official decision-making in light of that under- or indeterminacy; and (iii) an express subscription to a Predictive theory. However, Hohfeld provides a single footnote referencing (iii) and nothing about (i) or (ii).
D. Realism as Politics
Some scholars identify Hohfeld's calls for systematicity and the professionalization of legal education with a particular sort of politics.Footnote 238 Presumably, this would be reflected in a revised legal system composed of (what advocates would deem to be) politically more palatable rules and a rational underpinning of the legal order. Far from being an erroneous conflation, Horwitz and others contend that that constitutes Realism's true motivation.Footnote 239
Regardless of what one thinks of Realism-as-politics as an account of the movement, it has been incorrectly read into Hohfeld's work. Moreover, those who think there is a unique or idiosyncratic quality to the Realists’ advancement of a “Progressive” political agenda fail to establish that Hohfeld expresses it—as opposed to, say, his bearing run-of-the-mill “Progressive” aspirations for reforming the law and legal education.
Understood through the lens of Realism-as-politics, a Hohfeldian analysis not only presents the law “as it really is,” warts and all, it also aims to catalyze progressive reform, i.e., to alter the system's principles.Footnote 240 Indeed, it aims to expose the irrationality of the status quo's classificatory scheme.Footnote 241 Further, a certain sort of politics (or opposition thereto) motivates the schema’s very structure and content, including its very positing of right-duty correlativity,Footnote 242 or of privilege and no-right.Footnote 243 Hohfeld himself, on this view, is bent upon deconstructing legal concepts in order to expose their ideological and political underbellies, especially that of PROPERTY.Footnote 244 He aims to offer a “radical critique of the liberal ideal of a legal system based on reasoning from rights.”Footnote 245
None of these assertions stands up to scrutiny. For one thing, Hohfeld did not even come up with: (1) the claim/liberty distinction; (2) the idea that liberties do not correlate with duties; (3) the idea that liberties and claims do not necessarily co-obtain; or (4) the idea of right-duty correlativity.Footnote 246
Hohfeld also says nothing about possible logical, conceptual, or justificatory priorities between the two basic positions within a jural relation; and nor are his readers meant to infer Horwitz's relativizing factor between rights and duties. Indeed, Hohfeld was criticized precisely for lacking of an account of conceptual or justificatory priorities among the eight basic positions.Footnote 247 Others have nonetheless demonstrated that the schema is wholly compatible with logical and justificatory accounts of rights and duties, e.g., of rights grounding duties, or of duties justifying rights.Footnote 248 Hence, on the one hand, mere correlation is inadequate to make the case these scholars want for (superimpose upon) Hohfeld; and on the other hand, the schema remains wholly suitable for those who believe that rights are the justifications for the imposition of duties on other parties, even if the concept of A DUTY is logically prior to A RIGHT.Footnote 249
Furthermore, Hohfeldian analyses are far less normative in their ambitions, and need not service politically partisan goals—ones that come downstream anyway.Footnote 250 Now, it is one thing to say that Hohfeldians might target particular cases for analysis because of their political preferences.Footnote 251 It is another, though, to insist that the very (1) conceptualizations of the fundamental positions and (2) form of analysis are inherently political.
Two basic sets of questions must be asked here. First, is it true that in law and other normative domains the term “a right” is used equivocally, and, if so, points to the existence of distinct concepts? (Less strongly put: Is it reasonable to believe that someone might perceive it to be the case that different senses of the term abound, correctly or otherwise?) Second, if one answers the first question in the affirmative, must the motivation to construct an account of these different concepts, along with the means for building it and the bases for fixing its shape, be inescapably morally or politically motivated and/or tinged? I have argued at length elsewhere that the answer to the first question is “yes,” while the answer to the second question is “no.”Footnote 252 Regardless of where you personally stand on those matters, Hohfeld is clear that those are his views too.Footnote 253
Instead of crafting a form of analysis to service a large-scale political project, Hohfeld just undertakes the same sort of jurisprudential investigations of normative positions that others had been doing for nearly a century before him. Jeremy Bentham, for example, held political views and aims that were radical for his time. Bentham used his analyses as grounds for criticizing the English legal system and to help advocate for its reform. However, neither the form of his analyses nor his conceptions of A RIGHT, A DUTY, and A POWER were necessarily crypto-normative or political. For example, Bentham may have been correct or mistaken to hold that a liberty is the mere absence of a duty (as opposed to, say, an express permission),Footnote 254 but that does not mean his judgment on this matter was an inherently (or ultimately a) moral or political one. Must we nevertheless call him a “Realist,” a proto-Realist, or “Progressive” simply because he undertakes analyses with political targets in mind? Further, Bentham's successor John Austin politics became more “conservative” with age.Footnote 255 Did that ipso facto entail that Austin (who analyzed rights, duties, and liberties) ceased to be an analytic jurist?
What about Hohfeld's analysis of Quinn v. Leathem?Footnote 256 Does that not establish his Realist bona fides? Is he not here engaged in a (subversive) political campaign against the legal establishment of his day, employing his analysis simply to advance unions’ interests? Did he disingenuously omit alternative analyses of the case in order to advance a crypto-normative or overtly political agenda?
Even if Hohfeld targeted Quinn for political reasons, this neither entails that the very form of analysis is inherently political, nor necessarily evidences a repurposing of Analytic Jurisprudence for Realist political ends. Did Hohfeld craftily introduce his view about what unions’ legal positions ought to be by placing it after an example (also used to demonstrate that claims and liberties are conceptually distinct and need not co-obtain) about A’s liberty to eat a plate of shrimp not entailing that A also has a claim to said shrimp (pace John Chipman Gray) and vice versa—one that runs for two pages? Further, are Hohfeld's arguments about the conceptually contingent nature of the relationship between claims and liberties somehow different in kind and motivation from Salmond's argument to the exact same effect?Footnote 257 Ockham's razor suggests the non-conspiratorial, apolitical explanation is superior here.
Additionally, nothing in Hohfeld's articles suggests that he aimed to undermine the existing general categories of the Common Law in order to demonstrate their political biases, let alone to replace them with ones that better suited his politics. While his (professed) goal was systematization,Footnote 258 Postema (mostly) has the better explanation of Hohfeld's goals here as being along “formalist” lines.
Hohfeld saw himself working on a project similar to that of Holmes, Langdell and many others at the turn of the century, namely, systematic, rational ordering of legal material according to certain fundamental principles or concepts in terms of which all other legal positions can be analyzed and legal norms expressed. His was a project in what Holmes called (philosophical or analytic) jurisprudence.Footnote 259
Even so, some scholars may continue to deny that there is a conflict between Hohfeld and the Legal Realists here. Again, Twining and Horwitz believe that Hohfeld inspired the Realists to call for narrower legal categories.Footnote 260 Perhaps the most famous Realist example in this regard is Leon Green. Green structured his Torts casebook around (conceptually narrower) situation-types, rather than the typical doctrinal categories.Footnote 261 Alternatively, one might believe that the very idea of a boundary-redrawing mission is an inherently Realist project, on the grounds that the endeavor is, or must invariably include, a political agenda.
However, as Hohfeld claims to already perceive systematicity within the Common Law, his calls for a recalibration or replacement project could not be to achieve the same goals the Realists have in mind—especially if the latter involve winnowing down the categories of either mere “paper” rules (a futile endeavor, if they are just paper), or those of “real” rules. Further, shaping the replacement categories along the lines of lawyers’, and judges’, or lay groups’ (e.g., people of commerce) conceptions of things would lead to a completely different set of work products than what Analytic jurists would construct.Footnote 262 “Juristic” conceptions aim to be rational reconstructions of practitioners’ looser concepts. (Legal scholars’ refurbishments need not be shaped along analytic jurisprudential lines either.) As with his fundamental conceptions and their cognate terms, Hohfeld would instead exhort practitioners to adopt philosophical correctives to their “loose,” “broad and indiscriminate,” and “ambiguous and slippery” word usage.Footnote 263 Rather than working in the service of either a uniquely Realist project or a Progressive-Realist one, again, the simpler explanation is that Hohfeld just does what Analytic jurists had always considered to be among their primary tasks—certainly during the previous century, at any rate.
Now, even on this “apolitical” understanding of Hohfeld, one is still free to argue about the historically or conceptually contingent nature of a given right complex or legal concept, e.g., its composition being a borne of a series of official judgments (as opposed to common principles) of “justice and policy.”
One might therefore be tempted to claim that this alone demonstrates the schema’s value to Legal Realism, while Hohfeld and his predecessors failed to fully appreciate its implications. For one might believe the schema itself paves the way for “anti-formalist” (1) attacks on the idea of legal concepts and doctrines’ components being bound by strictly logical principles, and (2) views about their being bound by wholly political or ideological ties instead.
That would mostly be a mistake. For one thing, Hohfeld and many of his predecessors were Legal Positivists (or fellow travelers). At least some of them were indeed aware of at least certain legal doctrines and concepts not being tied solely by logical bonds for that reason.Footnote 264 Second, the idea that many rights are actually complexes (bundles of rights/sticks) long predates Hohfeld,Footnote 265 and certain Realists were aware of this fact too.Footnote 266 Third, to restate Postema's point mentioned in Section VI.A, it is erroneous to believe that, by simply using a Hohfeldian analysis, one can glean the true reasons underpinning why a given legal construct bears the features that it does. Fourth, a given legal concept's features might be justifiable on multiple, politically diverse grounds. Fifth, nor does an analysis alone necessarily demonstrate that a given concept's features are either wholly contingent or completely fungible.
VII. CONCLUSION
Despite having been identified as such by several legal historians and philosophers, Wesley Hohfeld was not a Legal Realist, and his work on rights, duties, and other legal positions need not be understood in such lights either. His schema of jural relations has nothing to do with calls for: understanding official decision-making in light of “extra-legal” considerations; “paper” vs. “real” rules; or analyzing law, legal practice, or judicial behavior via social scientific methods. He advances no theses about the law's indeterminacy or under-determinacy, in litigation contexts or elsewhere. Furthermore, he did not specifically design the schema and its very form of analysis in order to advance a particular sort of political agenda. Nor must Hohfeldian analyses be used for political ends either. Those ideas, however, are the stuff of Legal Realism.
Both Hohfeld and the Realists advance certain contradictory views. For example, Hohfeld vacillates between Sanction theory views of rights and duties. However, he is neither an Imperative nor a Predictive theorist. The Realists, by contrast, present Predictive-Sanction hybrid accounts of legal positions (predictive ex ante; sanction ex post). This difference is one basis for disassociating Hohfeld from the Realists, but it also has implications for how we ought to understand Legal Realism itself.
Hohfeld lacked an overall account of law. Had he presented or possessed one, the tensions within the schema would probably have been more apparent to him. Most conspicuous is the tension between Sanction theories of rights and duties and a commitment to “jural realism”; the idea that the law is (already) a coordinated system; and the belief that equitable positions must triumph over their legal opposites. With the exception of a passing reference in a footnoted quote, Hohfeld does not really address Predictive theories. While it could be argued that he opens up a conceptual space for that theory, it too would be in tension with his account of equitable positions invariably trumping their legal “opposites.” Further, he provides no account of extra-legal factors for decision, save perhaps “common principles of justice and policy,” which drive a Realist account (and their version of a Predictive theory) anyway.
The full extent of Hohfeld's possible commitment to a Sanction theory has hitherto gone unnoticed in the scholarship. Some people interpret Hohfeldian claims as being self-enforcing. (This is the idea that you make claims with Hohfeldian claims.) Although that is probably incorrect, Hohfeld nevertheless buried in the supplemental notes of one article the idea that primary rights are only really ascertainable in “adjective” processes such as litigation. On the other hand, if one detaches the schema from Sanction theories—a simple task: just ignore that supplemental note—it can account for legal rights, duties, and related legal positions in a great many more contexts than just authoritative dispute resolution contexts (e.g., courts, administrative proceedings, etc.). Severing it from both Sanction theories and Legal Realism also means that the schema need not undercut the normativity of rights and duties.
Despite the “as applied in judicial reasoning” qualifier in his two most famous articles’ titles, Hohfeld also leaves his readers wondering about into whose deliberations (a judge's, a citizen's, etc.) the fundamental positions really fit, and whether the qualifier was not just a bit of window dressing (and marketing) to mask the schema’s unoriginality.
Legal Realists adopted and modified the schema for their own purposes. Hohfeld, though, would have disapproved of—at least some—of those changes. For one thing, the Realists intentionally conflate rights with enforcement powers, and duties with liabilities. Second, they denigrate the normative and explanatory significance of primary rights and duties. Third, they render primary (and perhaps secondary) rights and duties, or aspects thereof, into mere predictions of what officials will decide them to be. Fourth, some may even have eliminated the need for the concept of A SECONDARY RIGHT. Fifth, some present unstable formulations of rights and duties because of their particular Predictival-Sanction hybrid accounts.
Whatever one thinks of the merits or demerits of the Realists’ modifications to the schema and their overall views of law or official decision-making, this article showed that they were not Hohfeld's view of things. If his schema is sound, or, at least, the best account of jural positions on the market, then, while the Legal Realists may need it, Hohfeldians do not in turn need them completely. (This, however, does not entail that Legal Realism is unimportant for understanding official decisions or the law.) For example, even if officials are driven by “extra-legal” factors when making decisions, which in turn affects certain aspects of disputants’ respective rights and duties, it remains the case that people can often or generally discern, or agree about, what their primary rights and duties mean and entail. They need not invariably resort to official dispute resolution processes to fix their legal positions’ true meanings or contents. In other words, the Realists present the exception as being the rule for understanding rights and duties.
