Scaling Up Legal Relations

The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries (Shyam Balganesh, Ted Sichelman & Henry Smith, eds.) (Forthcoming, Cambridge University Press, 2018)

Harvard Public Law Working Paper No. 18-05

23 Pages Posted: 27 Dec 2017 Last revised: 13 Apr 2018

Andrew S. Gold

Brooklyn Law School

Henry E. Smith

Harvard Law School

Date Written: December 21, 2017

Abstract

Wesley Hohfeld’s scheme of jural relations possesses two fundamental strengths. First, the legal relations tend to correspond closely to potential legal results availing between individual persons – who can sue whom for what. Second, the system of “fundamental” relations possesses a symmetry and generality that made it attractive to the Realists as a springboard to their approach to law. In this paper we argue that Hohfeld’s scheme is incomplete: without more, the legal relations identified by Hohfeld do not scale up properly. Instead of being mere aggregates of more basic relations, complex relations and legal doctrines are structured and interact as a system. Activities that belong at the mid-level between the individual and large populations are most difficult to capture. What is required is a formulation of the legal relations that connects the micro of parties and the macro of the legal system at the level of society. The adoption by the Legal Realists of Hohfeld’s incomplete scheme built a gap between the micro and the macro into most subsequent American theorizing about private law. By contrast, other pre- and non-Realist versions of the broadly “Hohfeldian” program, and in particular that of Albert Kocourek, pay more attention to realistic, “economical” methods of delineating legal relations. These analytical but less reductionist formulations “scale up” better than the conventional picture, and can inspire new theories that explain more of the emergent properties of the legal system.

Keywords: Hohfeld, legal realism, property, torts, inclusive functionalism, rights, privileges, powers, immunities, emergent properties, legal delineation, modularity, information costs

Suggested Citation

Gold, Andrew S. and Smith, Henry E., Scaling Up Legal Relations (December 21, 2017). The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries (Shyam Balganesh, Ted Sichelman & Henry Smith, eds.) (Forthcoming, Cambridge University Press, 2018); Harvard Public Law Working Paper No. 18-05. Available at SSRN: https://ssrn.com/abstract=3091652

Andrew S. Gold (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

Henry E. Smith

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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