Hohfeld and Rules

Abstract

This essay is related to a broader project I have been working on, which suggests that a preoccupation with a legal relations level analysis misrepresents the full intentions Hohfeld had for his analytical scheme. This paves the way for contemplating what a completed, dual-level Hohfeldian scheme of analysis would involve, paying equal attention to the legal relations level and an aggregate level of analysis. An important finding of that project is that a reductionist character has been falsely attributed to Hohfeld’s analytical scheme, and is incompatible with his own extant writings.

The present essay focuses on what can be regarded as an offshoot of the critique of (conventionally understood) Hohfeldian reductionism, the view that Hohfeldian analysis is destructive of efforts to represent the law in the form of rules. James Penner and Henry Smith are significant proponents of this view in arguing, respectively, that Hohfeldian analysis is incapable of supporting the normative guidance that law provides, and that it is incompatible with legal generalizations.

The essay proceeds by first demonstrating the general position that Hohfeld was not analytically hostile to legal rules. Three key points are used in evidence here: (i) Hohfeld himself deals with legal rules in a routine way in his writing when applying his analysis; (ii) Hohfeld’s analytical scheme was employed for the crafting of legal rules in the American Restatements; (iii) Arthur Corbin reveals that Hohfeld’s general understanding of law was to see it as consisting of positive, formal rules, contrary to Corbin’s own realist viewpoint.

More particularly, the essay then considers how it is possible to reconcile Hohfeld’s analytical recognition of rules with Penner’s and Smith’s concerns. Partly, it is suggested, there is a misunderstanding of Hohfeld, partly a misunderstanding (or imperfect representation) of the operations of law, affecting their concerns. Both the deficiencies contributing to their portrayals of Hohfeld and rules, and any residual legitimacy in their concerns, are taken to reinforce the need for embracing a dual-level Hohfeldian scheme of analysis.

Alongside the principal investigation of Hohfeld and rules, some wider reflections are offered on the reception of Hohfeld’s analytical scheme and the enduring controversy associated with it. It is speculated that the reception of Hohfeld’s scheme would have been significantly different if appropriate recognition had been accorded to the importance of the aggregate level of analysis.

Keywords: Hohfeld, Hohfeldian analysis, Hohfeldian aggregate, Hohfeldian reductionism, legal rules, property theory, legal realism