Wesley Newcomb Hohfeld (August 9, 1879,

Oakland, California Oakland is the largest city and the county seat of Alameda County, California, United States. A major West Coast port, Oakland is the largest city in the East Bay region of the San Francisco Bay Area, the third largest city overall in the ...

October 21, 1918,

Alameda, California Alameda ( ; ; Spanish for " tree-lined path") is a city in Alameda County, California, located in the East Bay region of the Bay Area. The city is primarily located on Alameda Island, but also spans Bay Farm Island and Coast Guard Island, as we ...

) was an American

jurist A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholar, mostly (but not always) with a formal qualification in law and often a legal practitioner. In the U ...

. He was the author of the seminal ''Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays'' (1919). During his life he published only a handful of law journal articles. After his death the material forming the basis of ''Fundamental Legal Conceptions'' was derived from two articles in the ''

Yale Law Journal The ''Yale Law Journal'' (YLJ), known also as the ''Yale Law Review'', is a student-run law review affiliated with the Yale Law School. Published continuously since 1891, it is the most widely known of the eight law reviews published by students ...

'' (1913) and (1917) that had been partially revised with a view to publication. Editorial work was undertaken to complete the revisions and the book was published with the inclusion of the manuscript notes that Hohfeld had left, plus seven other essays. The work remains a powerful contribution to modern understanding of the nature of

rights Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical theory ...

and the implications of

liberty Liberty is the ability to do as one pleases, or a right or immunity enjoyed by prescription or by grant (i.e. privilege). It is a synonym for the word freedom. In modern politics, liberty is understood as the state of being free within society fr ...

. To reflect Hohfeld's continuing importance, a chair at

Yale University Yale University is a private research university in New Haven, Connecticut. Established in 1701 as the Collegiate School, it is the third-oldest institution of higher education in the United States and among the most prestigious in the w ...

is named after him. The chair is currently occupied by Gideon Yaffe as of 2019 and was last held by Jules Coleman, who retired in 2012.

Career

Wesley Newcomb Hohfeld was born in California in 1879. He graduated from the

University of California, Berkeley The University of California, Berkeley (UC Berkeley, Berkeley, Cal, or California) is a public land-grant research university in Berkeley, California. Established in 1868 as the University of California, it is the state's first land-grant un ...

in 1901. He went on to

Harvard Law School Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States. Each c ...

, where he served as editor of the ''

Harvard Law Review The ''Harvard Law Review'' is a law review published by an independent student group at Harvard Law School. According to the ''Journal Citation Reports'', the ''Harvard Law Review''s 2015 impact factor of 4.979 placed the journal first out of 143 ...

'', and graduated in 1904 with honors. From 1905 to 1914 Hohfeld taught at

Stanford Law School Stanford Law School (Stanford Law or SLS) is the law school of Stanford University, a private research university near Palo Alto, California. Established in 1893, it is regarded as one of the most prestigious law schools in the world. Stanford La ...

. He then moved to

Yale Law School Yale Law School (Yale Law or YLS) is the law school of Yale University, a private research university in New Haven, Connecticut. It was established in 1824 and has been ranked as the best law school in the United States by '' U.S. News & World ...

, where he taught until his death in 1918.

Hohfeld as professor of jurisprudence

Jurisprudence Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning ...

is the branch of

philosophy Philosophy (from , ) is the systematized study of general and fundamental questions, such as those about existence, reason, knowledge, values, mind, and language. Such questions are often posed as problems to be studied or resolved. ...

which deals with principles of law and the legal systems through which the law is applied. Hohfeld's contribution was to simplify; he created a very precise analysis which distinguished between fundamental legal concepts and then identified the framework of relationships between them. His work offers a sophisticated method for deconstructing broad legal principles into their component elements. By showing how legal relationships are connected to each other, the resulting analysis illuminates policy implications and identifies the issues which arise in practical decision making.Luca Fiorito and Massimiliano Vatiero (2011), "Beyond Legal Relations: Wesley Newcomb Hohfeld's Influence on American Institutionalism". Journal of Economics Issues, 45 (1): 199-222.

Hohfeldian analysis

Overview

Hohfeld noticed that even respected jurists conflate various meanings of the term ''right'', sometimes switching senses of the word several times in a single sentence. He wrote that such imprecision of language indicated a concomitant imprecision of thought, and thus also of the resulting legal conclusions. In order to both facilitate reasoning and clarify rulings, he attempted to disambiguate the term ''rights'' by breaking it into eight distinct concepts. To eliminate ambiguity, he defined these terms relative to one another, grouping them into four pairs of Jural Opposites and four pairs of Jural Correlatives. This use of the words ''right'' and ''privilege'' correspond respectively to the concepts of

claim rights and liberty rights Some philosophers and political scientists make a distinction between claim rights and liberty rights. A ''claim right'' is a right which entails responsibilities, duties, or obligations on other parties regarding the right-holder. In contrast, ...

. Hohfeld argued that right and duty are correlative concepts, i.e. the one must always be matched by a claim about the other. If A has a right against B, this is equivalent to B having a duty to honor A's right. If B has no duty, that means that B has a privilege, i.e. B can do whatever he or she pleases because B has no duty to refrain from doing it. Each individual is located within a matrix of relationships with other individuals. By summing the rights held and duties owed across all these relationships, the analyst can identify both the degree of liberty — A would have perfect liberty if A has no duty to refrain from acting and others have a duty never to interfere with A's actions — and whether the concept of liberty is comprised by commonly followed practices, thereby establishing general moral principles and

civil rights Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life ...

Examples of Hohfeldian analysis

Hohfeld defines the correlatives in terms of the relationships between two individuals. In the theory of "

in rem ''In rem'' jurisdiction ("power about or against 'the thing) is a legal term describing the power a court may exercise over property (either real or personal) or a "status" against a person over whom the court does not have ''in personam'' jurisd ...

rights", there is a direct relationship between a person and a thing. Real rights are in this respect unlike claim rights or "rights in personam", which by nature must be exercised against a person, the best example being when someone is owed money by another. Hohfeld demonstrates that this way of understanding rights in general is wrong. In particular, Hohfeld demonstrates that there is no such thing as a legal relation between a person and a thing, since a legal relation always operates between two people. As the legal relations between any two people are complex, it is helpful to break them down into their simplest forms. Legal rights do not correspond to single Hohfeldian relations, but are compounds of them. A right can be defined as an aggregate of the Hohfeldian relations with other people. Hohfeld replaces the concept of "right in personam" by "paucital right" and "right in rem" by a compound or aggregate of "multital rights". Rights held by a person against one or a few definite persons are paucital (or "in personam"), and rights held by a person against a large indefinite class of people are multital (or "in rem"). A contract right is paucital (or "in personam") because it can be enforced only against the specific parties to the contract. A property right is multital (or "in rem") because a landowner has the right to exclude not only specific people from his land but the "whole world". The landowner has many rights, privileges, powers, and immunities; his multital rights are composed of many paucital rights. For example, the owner has a right that others do not step on his land but there is not just one such right against a mass of persons (the community), but many separate although usually identical paucital rights with this content (as many instances as there are people in the community). This is what Hohfeld calls "multital" rights. Consider also the definition of liberty. In Hohfeldian analysis, liberty is defined by an absence both of a duty and of a right. B is free because he has no duty to refrain from acting and because A has no right that he not act. That does not deny that B might decide to do what A wants because that is the essence of liberty. Nor does it deny the possibility that B might accept a duty to A to give a benefit to C. In that situation, C would have no right and would have to rely on A to enforce the duty. The truth is that liberty is significant from both a legal and a moral point of view because only liberty ensures that an individual has control over his or her choices on whether and how to act. If something interferes with this choice, the natural reaction is to resent it and to seek a remedy. The correlative between right and duty inevitably describes the way in which two people are limited in their choices to act, and the outside observer cannot capture the legal and moral implications without examining the nature of the right held by A. Hence, this relationship is qualitatively different. An interference with liberty would be considered wrongful without having to ask for detailed evidence. Yet whether A's relationship with B is morally suspect could only be determined by evaluating evidence on precisely what B's duty requires B to do or not to do.

References

External links

*Hohfeld, Wesley Newcomb & Cook, Walter Wheeler (ed.)
''Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays'' (Yale University Press, 1919)
at Archive.org *Hohfeld, Wesley Newcomb
''Some Fundamental Legal Conceptions as Applied in Judicial Reasoning'', 23 Yale Law Journal 16 (1913)
at HIIT.fi
Taking the Right Seriously: Hohfeldian Semiotics and Rights Discourse
{{DEFAULTSORT:Hohfeld, Wesley Newcomb 1879 births 1918 deaths American legal scholars Philosophers of law Philosophy of law Harvard Law School alumni University of California, Berkeley alumni