Hohfeldian Analysis, Liberalism and Adjudication (Some Tensions)

Abstract

Wesley Newcomb Hohfeld’s 1913 article, “Fundamental Legal Conceptions as Applied in Judicial Reasoning,” is in some ways a stunning success. It has played an important role in shaping a variety of schools of thought — analytical jurisprudence, legal realism, law and economics, critical legal studies, and property theory. At the same time, Hohfeld’s platform, has been largely ignored among the judiciary and among those legal academics who embrace judicial or doctrinal discourse.

In this chapter, I immediately put aside the easy and obvious explanations (without prejudice) for a deeper account — namely, the suggestion that there are ongoing tensions between the Hohfeldian platform on the one hand and liberalism as well as liberal forms of adjudication on the other. The Hohfeldian platform enables us see in liberalism and its forms of adjudication certain aspects that neither endeavor might otherwise want to recognize and address.

The chapter closes with an entreaty that, in this particular moment of political and legal uncertainty, legal thinkers move beyond the cloistered comforts of liberal thought and consider the organization of state and civil society in broader, even if more challenging, theoretical terms.

Keywords: Hohfeld, Hohfeldian Analysis, Privileges, No Rights, Liberalism, Liberal Democratic State, Adjudication, Legitimation, Realization, Bifurcation, Decoupling

JEL Classification: A12, D60, D62, K10, D31, D33, K11