Law and Contemporary Problems
Pierre Schlag, How to Do Things with Hohfeld, 78 Law & Contemp. Probs., nos. 1-2, 2015, at 185, available at http://scholar.law.colorado.edu/articles/57/.
Wesley Newcomb Hohfeld’s 1913 article, Fundamental Legal Conceptions as Applied in Judicial Reasoning, is widely viewed as brilliant. A thrilling read, it is not. More like chewing on sawdust. The arguments are dense, the examples unfriendly, and the prose turgid.
“How to Do Things With Hohfeld” is an effort to provide an accessible and sawdust-free account of Hohfeld’s article, as well as to show how and why his analysis of “legal relations” (e.g., right/duty, etc.) matters. Perhaps the principal reason is that the analysis furnishes a discriminating platform to discern the economic and political import of legal rules and legal regimes.
My project here is to offer a forward-leaning interpretation of Hohfeld — to show how and why his insights remain highly relevant today. The article engages with the jural relations, decomposition and recomposition, the bundle of relations, the critique of reification, and recent discussions in property theory as well as the “New Private Law.” I am keen on protecting Hohfeld’s platform from some (legal realist) over-extensions as well as showing how the views of the “Hohfeld critics” are in many ways consonant with Hohfeld’s own thinking. The article closes with some questions about the limitations of Hohfeld’s approach.
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