June 28, 2006
Are Hohfeld's Fundamental Conceptions Useful?
One of Wesley Hohfeld's great contributions to legal theory was the observation that words like "rights" and "duties" can have many meanings. To remedy this problem, Hohfeld proposed a series of correlative concepts that would more precisely define legal relationships – claim-rights and duties; privileges and no-rights; powers and liabilities; and immunities and disabilities. Stephen Munzer noted that “Hohfeld’s vocabulary has no serious rival of its kind in intellectual clarity, rigor, and power,” and I have no reason to disagree. I’ve been wondering, though, whether the level of detail provided by Hohfeld’s vocabulary is actually useful. The initial point that the word “right” can have many meanings is an important one to keep in mind when considering all sorts of legal issues, and I’m all for precision in theoretical discussion. But I don’t think I’ve ever seen a theoretical discussion where Hohfeld’s vocabulary really added that much. Can anyone point me to one?
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Thomas Merrill has some important--and critical words--about Hohfeld in Property and the Right to Exclude, 77 Nebraska L. Rev.730 (1998).
Posted by: Al Brophy | Jun 28, 2006 2:10:21 PM
Dan Bromley from Wisconsin has a new book out: Sufficient Reason: Violitional Pragmatism and the Meaning of Economic Institutions, where he draws heavily on Hohfeld in establishing a comprehensive theory of institutions, with a particular emphasis on property. The book should be of interest to those interested in the law-economic intersect.
Posted by: Kurt Paulsen | Jun 28, 2006 7:51:22 PM
Jeremy Waldron's insightful article, "From Authors to Copiers: Individual Rights and Social Values in Intellectual Property", (1993) 68 Chi.-Kent L. Rev 841, builds direcly on part of Hohfeld's analytical framework. Not sure whether the "vocabulary" was all that crucial, but the ideas certainly were.
Posted by: Jeremy deBeer | Jun 30, 2006 11:02:34 AM