Wesley Newcomb Hohfeld

Wesley Newcomb Hohfeld (August 9, 1879 – October 21, 1918)^[1] was an American jurist. He was the author of the seminal Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays (1919).

During his brief life, he published only a handful of law review articles. After his death the material forming the basis of Fundamental Legal Conceptions was derived from two articles first published in the Yale Law Journal (1913) and (1917) that had been partially revised in anticipation of publication in longer form. 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 and the implications of liberty. To reflect Hohfeld's continuing importance, a chair at Yale University is named after him. The chair is currently occupied by Gideon Yaffe as of 2019^[2] and was last held by Jules Coleman, who retired in 2012.

Career

Wesley Newcomb Hohfeld was born in Oakland, California, in 1879. He graduated first in his class from the University of California, Berkeley, in 1901, and was elected to Phi Beta Kappa.^[3] He went on to Harvard Law School, where he served as editor of the Harvard Law Review, and graduated in 1904.^[4]

After returning to California after graduation, Hohfeld practiced law for one year with the San Francisco law firm of Morrison, Cope & Brobeck, the distant ancestor of two large law firms: Morrison & Foerster (still in business today), and Brobeck, Phleger & Harrison (which collapsed in 2003).^[5] After Alexander Morrison died in 1921, Hohfeld's brother Edward obtained the permission of Morrison's widow, May Treat Morrison, to use the Morrison name for his new law firm: Morrison, Hohfeld, Foerster, Shuman and Clark.^[6]

Hohfeld briefly taught as an instructor at the law school then called the Hastings College of the Law.^[5] He then joined the faculty of Stanford Law School, where he became a full-time professor and taught from 1905 to 1914.^[7] He also continued to work as a consultant to the Morrison firm on various matters, such as the division of Claus Spreckels's estate.^[7]

In 1913, the Yale Law Journal published Hohfeld's landmark article, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning". According to Arthur Corbin, Yale Law School offered Hohfeld a professorship on the basis of that article.^[8] Hohfeld cleverly applied his own ideas about "rights" and "privileges" to the deal he struck with Yale and Stanford: after one academic year, he would have the "right" to a permanent faculty appointment at Yale and the "privilege" of returning to Stanford, while Stanford agreed to grant him the "privilege" of leave for one year or longer, with the "right" to return to Stanford after one academic year.^[8]

When Hohfeld started teaching at Yale in 1914, many of his students signed a petition to Yale's president to send him back to Stanford.^[9] They were terrified he would flunk them for their inability to master his strange ideas.^[9] When the president told Hohfeld to take it easy on his students, Corbin had to play mediator, calm down a frustrated Hohfeld, and explain to the president the deal which Hohfeld had worked out between the two law schools.^[9] Hohfeld then exercised his right to stay at Yale, apparently because he believed Yale students would come around, like his former Stanford students who had already begun to express their gratitude for the utility of his ideas.^[9] He continued to teach at Yale until his death in 1918.^[10] He died on October 21, 1918, in Alameda, California, of endocarditis induced by a severe infection during the 1918 flu pandemic.^[11] The Yale Law Journal published a commemorative issue in his memory.^[11]

In 1958, Edward Hohfeld, as trustee of the May Treat Morrison Foundation, endowed a chair at Yale in his late brother's memory.^[12]

Hohfeld as professor of jurisprudence

Jurisprudence is the branch of philosophy 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.^[13]

Hohfeld is also credited as the progenitor of the concept of the bundle of rights, although Hohfeld himself never used the term.^[14] The American Law Institute's first Reporter of Property, Harry Bigelow, "fully assimilated and embraced" Hohfeld's view of property rights, and propagated them to a wider audience in the form of the first Restatement of Property.^[14]

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.

		(1)	(2)	(3)	(4)
JURAL OPPOSITES		Right No-right	Privilege Duty	Power Disability	Immunity Liability

		(1)	(2)	(3)	(4)
JURAL CORRELATIVES		Right Duty	Privilege No-right	Power Liability	Immunity Disability

This use of the words right and privilege correspond respectively to the concepts of claim rights and liberty rights.

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.

Examples of Hohfeldian analysis

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

^ The Yale Law Journal. Vol. 28, No. 2, Dec. 1918, page 167: "Wesley Newcomb Hohfeld".
^ "Gideon Yaffe to Present Inaugural Wesley Newcomb Hohfeld Lecture".
^ Sichelman, Ted M. (2022). "Selected Personal Papers of Wesley Newcomb Hohfeld". In Smith, Henry E.; Balganesh, Shyamkrishna; Sichelman, Ted M. (eds.). Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries. Cambridge: Cambridge University Press. pp. 71–96. ISBN 9781108135597. (At p. 76.)
^ Sichelman, Ted M. (2022). "Selected Personal Papers of Wesley Newcomb Hohfeld". In Smith, Henry E.; Balganesh, Shyamkrishna; Sichelman, Ted M. (eds.). Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries. Cambridge: Cambridge University Press. pp. 71–96. ISBN 9781108135597. (At p. 79.)
^ ^a ^b Sichelman, Ted M. (2022). "Selected Personal Papers of Wesley Newcomb Hohfeld". In Smith, Henry E.; Balganesh, Shyamkrishna; Sichelman, Ted M. (eds.). Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries. Cambridge: Cambridge University Press. pp. 71–96. ISBN 9781108135597. (At p. 80.)
^ O'Hara, Eileen (2006). Morrison & Foerster LLP: The Evolution of a Law Firm. San Francisco: Morrison & Foerster. p. 32. Retrieved October 29, 2023.
^ ^a ^b Sichelman, Ted M. (2022). "Selected Personal Papers of Wesley Newcomb Hohfeld". In Smith, Henry E.; Balganesh, Shyamkrishna; Sichelman, Ted M. (eds.). Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries. Cambridge: Cambridge University Press. pp. 71–96. ISBN 9781108135597. (At p. 81.)
^ ^a ^b Sichelman, Ted M. (2022). "Selected Personal Papers of Wesley Newcomb Hohfeld". In Smith, Henry E.; Balganesh, Shyamkrishna; Sichelman, Ted M. (eds.). Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries. Cambridge: Cambridge University Press. pp. 71–96. ISBN 9781108135597. (At p. 87.)
^ ^a ^b ^c ^d Sichelman, Ted M. (2022). "Wesley Newcomb Hohfeld: On the Difficulty of Becoming a Law Professor". In Smith, Henry E.; Balganesh, Shyamkrishna; Sichelman, Ted M. (eds.). Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries. Cambridge: Cambridge University Press. pp. 494–517. ISBN 9781108135597. (At p. 510.)
^ Dictionary of American Biography 5:124 (Charles Scribner's Sons, New York 1933); Guide to American Law 6:58 (St. Paul, West Publishing 1984); see also Hohfeld's obituary, "Wesley Newcomb Hohfeld", 28 Yale Law Journal 166 (1918) and Walter W. Cook, "Hohfeld's Contributions to the Science of Law", 28 Yale Law Journal 721 (1918).
^ ^a ^b Sichelman, Ted M. (2022). "Selected Personal Papers of Wesley Newcomb Hohfeld". In Smith, Henry E.; Balganesh, Shyamkrishna; Sichelman, Ted M. (eds.). Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries. Cambridge: Cambridge University Press. pp. 71–96. ISBN 9781108135597. (At p. 90.)
^ Sichelman, Ted M. (2022). "Selected Personal Papers of Wesley Newcomb Hohfeld". In Smith, Henry E.; Balganesh, Shyamkrishna; Sichelman, Ted M. (eds.). Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries. Cambridge: Cambridge University Press. pp. 71–96. ISBN 9781108135597. (At p. 91.)
^ 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.
^ ^a ^b Merrill, Thomas W.; Smith, Henry E. (January 2014). "Why Restate the Bundle?: The Disintegration of the Restatement of Property". Brooklyn Law Review. 79 (2): 681–708.

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) Archived July 18, 2011, at the Wayback Machine at HIIT.fi
Taking the Right Seriously: Hohfeldian Semiotics and Rights Discourse

[1] The Yale Law Journal. Vol. 28, No. 2, Dec. 1918, page 167: "Wesley Newcomb Hohfeld".

[2] "Gideon Yaffe to Present Inaugural Wesley Newcomb Hohfeld Lecture".

[Sichelman_Page_76-3] Sichelman, Ted M. (2022). "Selected Personal Papers of Wesley Newcomb Hohfeld". In Smith, Henry E.; Balganesh, Shyamkrishna; Sichelman, Ted M. (eds.). Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries. Cambridge: Cambridge University Press. pp. 71–96. ISBN 9781108135597. (At p. 76.)

[Sichelman_Page_79-4] Sichelman, Ted M. (2022). "Selected Personal Papers of Wesley Newcomb Hohfeld". In Smith, Henry E.; Balganesh, Shyamkrishna; Sichelman, Ted M. (eds.). Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries. Cambridge: Cambridge University Press. pp. 71–96. ISBN 9781108135597. (At p. 79.)

[Sichelman_Page_80-5] Sichelman, Ted M. (2022). "Selected Personal Papers of Wesley Newcomb Hohfeld". In Smith, Henry E.; Balganesh, Shyamkrishna; Sichelman, Ted M. (eds.). Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries. Cambridge: Cambridge University Press. pp. 71–96. ISBN 9781108135597. (At p. 80.)

[O'Hara_Page_32-6] O'Hara, Eileen (2006). Morrison & Foerster LLP: The Evolution of a Law Firm. San Francisco: Morrison & Foerster. p. 32. Retrieved October 29, 2023.

[Sichelman_Page_81-7] Sichelman, Ted M. (2022). "Selected Personal Papers of Wesley Newcomb Hohfeld". In Smith, Henry E.; Balganesh, Shyamkrishna; Sichelman, Ted M. (eds.). Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries. Cambridge: Cambridge University Press. pp. 71–96. ISBN 9781108135597. (At p. 81.)

[Sichelman_Page_87-8] Sichelman, Ted M. (2022). "Selected Personal Papers of Wesley Newcomb Hohfeld". In Smith, Henry E.; Balganesh, Shyamkrishna; Sichelman, Ted M. (eds.). Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries. Cambridge: Cambridge University Press. pp. 71–96. ISBN 9781108135597. (At p. 87.)

[Schlegel_Page_510-9] Sichelman, Ted M. (2022). "Wesley Newcomb Hohfeld: On the Difficulty of Becoming a Law Professor". In Smith, Henry E.; Balganesh, Shyamkrishna; Sichelman, Ted M. (eds.). Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries. Cambridge: Cambridge University Press. pp. 494–517. ISBN 9781108135597. (At p. 510.)

[10] Dictionary of American Biography 5:124 (Charles Scribner's Sons, New York 1933); Guide to American Law 6:58 (St. Paul, West Publishing 1984); see also Hohfeld's obituary, "Wesley Newcomb Hohfeld", 28 Yale Law Journal 166 (1918) and Walter W. Cook, "Hohfeld's Contributions to the Science of Law", 28 Yale Law Journal 721 (1918).

[Sichelman_Page_90-11] Sichelman, Ted M. (2022). "Selected Personal Papers of Wesley Newcomb Hohfeld". In Smith, Henry E.; Balganesh, Shyamkrishna; Sichelman, Ted M. (eds.). Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries. Cambridge: Cambridge University Press. pp. 71–96. ISBN 9781108135597. (At p. 90.)

[Sichelman_Page_91-12] Sichelman, Ted M. (2022). "Selected Personal Papers of Wesley Newcomb Hohfeld". In Smith, Henry E.; Balganesh, Shyamkrishna; Sichelman, Ted M. (eds.). Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries. Cambridge: Cambridge University Press. pp. 71–96. ISBN 9781108135597. (At p. 91.)

[13] 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.

[Merrill-14] Merrill, Thomas W.; Smith, Henry E. (January 2014). "Why Restate the Bundle?: The Disintegration of the Restatement of Property". Brooklyn Law Review. 79 (2): 681–708.

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