DRAFT: Please do not cite without permission All comments welcome: k. barker@law.uq.edu.au

Analytical Philosophy and Private Law

The Modern Value of Wesley Newcomb Hohfeld

Moscow School of Social and Economic Sciences

June 23rd­24th 2016

Kit Barker* Abstract: Wesley Newcomb Hohfeld is perhaps the best­known analytical philosopher to have influenced private law in Western, common law legal systems in the twentieth Century, but it is sometimes suggested that his scheme has had little impact on the law. This piece suggests that his influence is more profound that has been acknowledged and notes an increased interest in his work in recent years by both courts (particularly in Australia) and academics across both private and indeed, to some extent, public law. It suggests that there are two reasons why he is more relevant and more needed in the modern age than ever – to discipline and rationalise an increasingly insistent rhetoric of moral, civil and political rights; and to assist in unpicking the increasingly complex relationship between private and public law which has resulted from the rise of the modern administrative state. Despite the relative antiquity of his technique, Hohfeld’s philosophy makes him a man for the increasingly complex, modern legal world.

1. Introduction The question posed by this conference is: how has legal thinking has been influenced by history and philosophy? It contains at least three ambiguities: What is philosophy, or history? What do we mean by legal thinking? What is influence? Each of these sub­questions is hard enough in its own right, inviting indeterminate answers, and each worried me as I sought to decide upon a suitable topic for this presentation. Did our organisers mean moral or political philosophy, or can other philosophical forms that are less heavily normatively­laden count? By legal thinking, do they mean the thinking of a particular group of lawyers, and, if so, which one – legislators, law reformers, judges, practitioners, academics, or law students? Can one prove influence only by pointing to the explicit recognition of ideas in authoritative legal texts and judgments, or by referencing implicit attitudes and particular behaviours? How strong does ‘influence’ have to be to cross the definitional threshold that they require? In deconstructing the conference question into these different component and sub­component parts, I may already have provided a clue as to the way in which I intend to answer it. My intention is speak to you about a figure who is, in theWest at least – and at least in respect of our understanding of the private law – regarded as one of the finest analytical philosophers of the twentieth century, and whose work has, more than that of any other, come to shape the way in which lawyers in common law jurisdictions think about legal rights. I speak of

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Wesley, Newcomb Hohfeld, distinguished Law Professor at Stanford and Yale, who died nearly 100 hundred years ago in Connecticut at the age of only 39. My claim in this paper is that Hohfeld’s influence upon private law, although variable, has nonetheless been profound, and more importantly that, far from oxidising beneath the patina of time, or being buried by less ‘formal’ approaches toward law and legal reasoning that developed through the legal

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realist and critical legal studies movements in the United States in the twentieth century, his approach is currently experiencing a new revival. I shall explore some of the reasons for this and identify some of the features of his approach that make it invaluable to all legal and political systems and across all time frames. I shall also provide some recent examples of ways in which his analysis of legal rights has recently been considered useful by courts and commentators in the West. For the purposes of exposition only, I shall skip rather lightly over the criticisms that have been directed at his work, of which there are plenty, although I shall venture to make some general observations about them that deflect some of their force. I shall suggest that are two, main reasons why Hohfeld remains relevant and useful to us today, even a hundred years after his death. Firstly ­ and this was genius in its own right ­ he told us not what to think about legal rights, but how to think about them. The use of his

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method does not therefore predicate the endorsement of any particular set of values, or the use of the law to any particular end; and it is more easily transmissible, therefore, from one society to another. He gave us a critical methodology and a common language to use regarding legal rights, not a defined text to read. This is the beauty and the freedom that is granted by analytical philosophy and it gives his work a high degree of resilience. The second reason is that the world of law, at least where I come from, is now increasingly saturated with both the fact and the ever­more insistent rhetoric of rights. Often, the aims of the new ‘rights­speak’ is strongly socially progressive, being directed at enhancing greater personal welfare for individuals and increased respect for fundamental human interests and realms of choice (human rights); sometimes, by contrast (and rather ironically), it is associated with a more conservative political agenda that mandates judges not to use the private law in welfarist ways, but to leave welfarism to government and to public, not private law. Either way, the dramatic increase in the intensity and volume of this discourse about

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rights invites, I think, all sorts of new controversy, as well as bringing a new set of concepts and a certain looseness of language. Legal rights and relationships are being normatively reconstructed for new social and political ends and in such conditions, a basic analytical toolkit for understanding the way in which these relationships are being reconfigured and what this reconfiguration might mean appears to be especially valuable in helping us to

1*Professor Private Law, TC Beirne School of Law, The University of Queensland, Australia; Fellow, Australian Centre of Private Law. My thanks to Jordan English for his able research assistance. Although ‘formal’ in analytical form, it is often pointed out that Hohfeld’s deconstructive, analytical technique was actually the inspiration for many subsequent, realist writers in the United States and elsewhere. To that extent, there is an irony in contrasting his approach with that of the legal realists. But legal realism is a wide school and Hohfeld’s approach was to use deconstruction to improve the law’s internal formal reasoning, not to challenge it externally in the way that some forms of legal realism came to do. From that point of view, and for this reason, he remains popular with ‘doctrinal’ scholars, as well as with judges and practitioners. For further discussion of whether Hohfeld was a formalist or a realist, see N Simmonds, ‘Introduction’ in in D Campbell and P Thomas (eds) Hohfeld’s Fundamental Legal Conceptions as Applied in Legal Reasoning (Dartmouth, Ashgate, 2001). Simmonds concludes pragmatically that perhaps clear thinking is neither formalist, not realist, but ‘just clear thinking’. 2 The expression is that of Pierre Schlag, ‘How to do things with Hohfeld’ (2015) 78 Law & Contemporary Problems 185, 189. 3 On the conservative use of rights by some recent ‘rights fundamentalists’, see P Cane, ‘Rights in Private Law’ in D Nolan & A Robertson, Rights and Private Law (Oxford, Hart, 2011), ch 2 esp at 48 (observing that the effect of these theories of rights is actually to ‘suppress private law’s interest­protecting instincts’ and bizarrely to use rights as way of ‘minimising the incidence of liability­creating duties’ (48).

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determine their wisdom and potential social effects. Such a device, I shall suggest in Section 5 below, can also help us to unravel the increasingly complex relationship between private and public law that has been brought about by the rise of the modern administrative state in the twentieth century. This non­judgmental analytical toolkit is Hohfeld’s legacy. His continuing relevance in the modern day is hence in part, I suggest, a facet of the durable, scientific objectivity of his technique and, in part, of its disciplining utility at a point in time in which rights are becoming highly politically charged and the legal relationships between states and citizens are increasingly complex.

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2. The Man and His Mindset

In Hohfeld’s case, to know the man and his mind­set is actually to know much about his method. He was, by the accounts written shortly after his untimely death, a somewhat lonely

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figure, an exceptionally high achiever and a workaholic. He was also an inspiring teacher, albeit one who taught, ‘for the upper third’, demanding a great deal of his students and having little time for indolence, or ‘surface thought’. He was therefore loved by some of his

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students, but resented by others, although it is said that some of those who were unseated by the rigour of his analytical method at the time later came to appreciate it in their legal practice and to thank him for it. Before embarking on an academic career in law, Hohfeld studied

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chemistry and analogies are often drawn between his particular, deconstructive, analytical 8

method and the way chemists and biologists break compounds down into molecules and atoms. His interest in theory may have been sparked by working for a time as a student for John Chipman Gray, a professor of property law and legal philosopher at Harvard, who had that special penchant for demystification that was later to be recognised as a central tenet of American Legal Realism. A colourful depiction of Hohfeld’s mind­set appears in editorial

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notes published in the California Law Review shortly after his death. As a summation, it can barely be improved upon, so I shall quote it in full:

Hohfeld's mind was of that sensitive logical temper, almost Greek in its character, that a fallacy was to it as ugly as a deliberate false­hood. It had no patience with the so­called legal reasoning that hides behind metaphors and takes refuge in ambiguous phrases. It had the courage to attempt the Herculean task of stripping off the masks from legal commonplaces and showing their true nature, as distinguished from the accidental costumes which they wore, the legacy of history. Such work is comparable to that of the mathematician or the pure physicist or the philosopher. It is not of the sort which the mass of mankind appreciates, yet the entire structure of modern life rests upon the results of such workers' devotion. 10

This was therefore a difficult man of great intellectual ability, with a post­enlightenment, scientific bent, an intolerance of laxity and an ability to look past the forms of legal history for further meaning. His desire was to strip law of its mystique and to discipline the way that

4 On the problem of complexity in modern private law, see K Barker, ‘Private Law as a Complex System: Agendas for the Twenty­First Century’, in K Barker, K Fairweather and R Grantham (eds)Private Law in the Twenty­First Century (Oxford, Hart, forthcoming) ch 1. 5 For brief biographies and some touching personal details see Editorial, (1918­19) 28Yale Law Journal 166 and 795; Editorial Notes, (1919) 7California Law Review 58; Carl Wellman, ‘Hohfeld,’ American National American National Biography Online http://www.anb.org/articles/11/11­00419.html <accessed 30 May 2016. 6 Editorial, (1918­19) 28 YLJ 795, 796­97. 7 Wellman (n 5). Wellmann is one of those listed in this biography as having been most heavily influenced by Hohfeld’s work. 8 S Ratnapala, Jurisprudence (Cambridge, CUP, 2009) 300. 9 Wellman (n 5). 10 (1918­1919) 7 Cal Law Rev 58, 59.

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lawyers talk about it ­ in particular the way that they think about legal rights. Although reductive, his purpose in deconstruction was not to tear the law apart, but rather, by identifying its most basic, ‘fundamental’ conceptions, to demonstrate its unity, illustrating connections and analogies between different parts of its doctrine. His view was therefore that a more searching and discriminating form of analysis could ultimately yield a better form (what he call ‘the right kind’) of simplicity, as well as lay bare the important questions of

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principle and policy underlying the law. Rather like the particle physicist who seeks, in 12

identifying the basic building blocks of the universe, to demonstrate that everything is connected, Hohfeld’s mission was to make the law make more sense as a whole, as well as to clarify its reasoning and inform its normative choices. Unlike other philosophers, he also expressly intended his work to be useful to practicing lawyers, and to ‘aid in the

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understanding and in the solution of practical, everyday problems of the law.’ He meant, 14

therefore to speak not just to students, but to judges and practitioners and to assist in the rational solution of some of the difficulties they face.

Whether it is possible to build a system of law using deconstructive techniques alone is, of course, very doubtful. One cannot make law simply by thinking more and more carefully

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what legal rights mean. Nor can one decide what direction the law should take – what rights we should or should not have – without an underlying moral or political theory. Hohfeld would have disagreed with neither of these propositions and neither challenges his central point. He never said that clear analytical thinking solves the law’s moral or political challenges, merely that it is an essential precondition of any rational solution to them. Clear thinking is not necessarily good thinking, but good thinking, in Hohfeld’s world, is always clear thinking.

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3. The Hohfeldian Analytical Scheme.

11 Wesley Newcomb Hohfeld, Fundamental Conceptions as Applied in Judicial Reasoning (ed W Cook, Yale University Press, 1919) (‘FLC’), 26. This work originally appeared as two articles in (1913) 23YLJ 6 and (1917) 26 YLJ 710. By ‘the right kind’ of simplicity, I surmise Hohfeld means a kind that results from an appreciation of complexity, not one that exists in ignorance of it. 12 ‘If all these relations are reduced to their lowest generic terms … it becomes possible not only to discover essential similarities and illuminating analogies in the midst of what appears superficially to be infinite and hopeless variety, but also to discern common principles of justice and policy underlying the various jural problems involved … in short, the deeper the analysis, the greater becomes one's perception of fundamental unity and harmony in the law’: FLC 64. 13 FLC 25. 14 FLC 26. 15 A Corbin, ‘Jural Relations and Their Classification (1921) 30 YLJ 226. Schlag (n 2) 233 also makes the point that trying to isolate legal reasoning and concepts from our normative aims is likely to prove ultimately fruitless: ‘the offer to try to develop a legal concept that is decisionally useful whilst ... bereft of socio­economic content seems like an impossible task.’ This should not, however, blind us to the utility of the analytical technique as a way of revealing the normative choices that we need to make. 16 In ‘Some Professorial Fallacies about Rights’ (1971­2) Adelaide Law Review 377, 382, John Finnis puts it this way:

a secure grasp of Hohfeld opens the way to a ready penetration of … common sophistries. To be sure, no­one is going to be secured against the moral and political confusion of the age merely by his technical logical facility and clarity. But an awareness of technical derailments in the arguments of intelligent men is the basis for any enquiry into the deeper causes of the confusion.

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Hohfeld wrote only a handful of works. His greatest contribution is still regarded as being 17

his particular approach to the understanding of legal rights that is set out in two articles, sharing the title ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning.’ Interestingly, these were designed more for the education of law students than for any other audience. Few, if any, of the concepts used in his scheme were new, but it is generally

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accepted that his was nonetheless the most complete way in which the ideas and their relationship to one another had been articulated. It is also to be noted that Hohfeld claimed that each of the relevant concepts in his scheme was drawn from examples of their judicial use. To this extent, his approach works from the bottom­up (from the meanings attributed to rights as instantiated in existing legal usage), not top­down. This section is designed to set out some of the basic features of the scheme, skipping over some of the controversies for now. Hohfeld distinguishes between four ‘basic’ conceptions of legal ‘right’ that a person (let’s

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call that person A) might have: claim­rights, privileges (often referred to by more modern writers as ‘liberties’ ), powers and immunities. Each right that A might have in this basic

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scheme has a jural ‘correlative’ from the point of view of another party, B; and it also has an ‘opposite’. Each form of right that might be held by A therefore predicates a different form of legal relationship to someone else, B. The four different types of right that A might have are sometimes collectively referred to as ‘legal advantages’, because, in one way or another, they are beneficial to A. The set of correlatives to these advantages are sometimes, rather unsurprisingly, referred to as legal ‘disadvantages’. The way the scheme works is best illustrated by working our way through the list of four main rights or advantages, identifying each right’s correlative and opposite concept in each case and providing a practical example or two. It is essential to remember, when proceeding through each set of propositions, that each correlative disadvantage is simply the flip­side of the advantage to which it is correlated and is necessarily entailed by it. Much of Hohfeld’s time in Fundamental Legal Conceptions is spent highlighting the confusions that can occur in the law when judges mix the various terms up, or when they forget this essential fact. (i) The Four Main Legal Advantages (‘Rights’), their ‘Correlatives’ and ‘Opposites.’ (Claim) Right According to Hohfeld, if A has a ‘claim’ right against B, then this means that B has a correlative dutyto A. The opposite of A having a claim right against B is simply that A has ‘no claim right’ against B. Illustration 1:

17 ‘The Nature of Stockholders’ Individual Liability for Corporation Debts’ (1909) Columbia Law Review 285; ‘The Individual Liability of Stockholders and the Conflict of Laws’ (1909) 9 Columbia Law Review 492, (1910) ibid 283, 520; ‘The Relations Between Equity and Law’ (1913) 11Michigan Law Review 537;FLC (n 11); ‘Vital School of Jurisprudence and Law’ (1914) Proceedings of Association of American Law Schools; ‘The Conflict of Equity and Law’ (1917) 26 Yale Law Journal 767, ‘Faulty Analysis in Easement and License Cases’ (1917) 27 Yale Law Journal 66 18 FLC 27. 19As to originality, see further below, section 4(iii). 20 In this piece I will use the term ‘right’ to refer to the whole class of legal advantages (claim rights, privileges, powers and immunities) that Hohfeld identifies. This is not Hohfeld, but I think it is helpful to be able to use the term ‘rights’ to refer to the generic class, not simply to the narrower conception of claim­right identified by Hohfeld. See, similarly, S Munzer A Theory of Property (Cambridge, CUP, 1990) [2.2­2.3] 17 – 27. 21 See e.g., Glanville Williams, ‘The Concept of Legal Liberty’ (1956) 56Columbia Law Review1129; M Kramer, ‘Rights Without Trimmings’ in M Kramer, N Simmonds and H Steiner, A Debate Over Rights (Oxford, OUP, 2000). I shall adopt the same language.

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Claim Right: A has a claim right that B wash his car. Correlative: B has a duty to A to wash A’s car. Opposite: A has ‘no claim right’ that B wash his car. Illustration 2: Claim Right: A has a claim right that B pay him damages for a civil wrong Correlative: B has a duty to pay A damages for the wrong Opposite: A has no claim right to damages for the wrong. Privilege (Liberty) By contrast, if A has aliberty, as against B, then B has (correlatively)no right against A. The opposite of A having a liberty is that he has a duty to B. Illustration 3: Privilege/Liberty: A has a privilege, as against B, to walk upon land Correlative: B has no right that A not walk upon the land Opposite: A has a duty to B not to walk on the land. Power A has a power if he has an ability, through the exercise of volition, to change the legal relations between himself and B, or between B and another party (C). In such a case B (or both B and C) is (are) liable to have their legal relations changed by A and therefore have a correlativeliability (or liabilities). The opposite of A having a power is that he has adisability to change any of these legal relations. Illustration 4: Power: A has the power to enter a contract with B. Correlative: B is liable to obtain new contractual rights and duties vis a vis A Opposite: A has a disability to enter a contract with B. Illustration 5: Power: A, a local authority, has the power to terminate B’s license to trade in liquor Correlative: B has a liability to have his license to trade terminated by A Opposite: A has a disability to terminate B’s license An important observation at this point is that correlative term ‘liability’ that Hohfeld uses to describe the legal position of someone who is subject to another’s power carries a very different and more specific meaning to that which it is often given in common usage. Quite often, it has been observed, the term ‘liability’ is used by lawyers in a looser sense to refer simply to the extent of B’s remedial duties to A (as in illustration 2). When I say that B is ‘liable’ to me in the sum of $100,000, that is what I tend to mean – I mean that it is his duty to pay me this amount. But I am then using the term in a very different way, potentially causing the sort of confusion that Hohfeld would very much like us to avoid. The very different meaning that the term ‘liability’ has in the scheme is illustrated by the fact that some ‘liabilities’ in the Hohfeldian sense can actually work to a person’s practical advantage. I can for example, be ‘liable’ to an improvement in my legal rights by winning a million dollars in a lottery. All that ‘liability means in the Hohfeldian scheme is that the person who has it is subject to the power of another to have his legal rights or duties changed. But this change could just as well be for the better, as for the worse. That is never the case if we use the term ‘liability’ to refer to a remedial monetary duty in the loose sense. For remedial duties are always a burden to those who are subject to them, not a benefit.

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Immunity: A has an immunity when he is not liable to have his legal relations changed by B. B then has a correlative disability to change A’s legal relations. The opposite of A have a legal immunity is that he has a liability to some change in his legal relations. Illustration 6: Immunity: A, a judge, is immune to proceedings by B for negligence in court. Correlative: B has no power to take proceedings in respect of any negligence of A Opposite: A is liable to proceedings by B for negligence. The basic picture of rights, with their correlatives and opposites, then ends up looking like this. Alternative ways of representing the complex of legal relations diagrammatically are possible, but this is perhaps the most basic vision:

‘Rights’ of A Claim­Right Privilege Power Immunity Correlative Duty No­right Liability Disability Opposite No­right Duty Disability Liability

It is important to appreciate that the various different legal ‘rights’ are not exclusive of one another and can exist at the same time, provided that they are not logically inconsistent with one another. For example, the legal liberty that A has to walk around on his own property is usually accompanied by a right to do so – others are also under a duty not to prevent him from walking there. The liberty is also accompanied by a power, because A has the ability to alienate both his right and his liberty to walk on the land by selling the land to someone else – in doing so, he volitionally changes the legal rights and duties of others in relation to both himself and in relation to the person who purchases the land. Sometimes the existence of one type of legal relationship is not just logically consistent with another, but implied by it. So, for example, if A has a duty to B to wash B’s car, he impliedly also has a liberty to do so. To add a further layer of complexity to the picture, each of the various different legal ‘rights’ can be analysed in terms of a raft of further distinctions that Hohfeld makes, according to whether the ‘right’ in question is paucital or multital; general or particular; consensual or constructive; primary or secondary; perfect or imperfect, and concurrent or exclusive. Two

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of these are of particular importance for current purposes: the distinction between primary and secondary rights and the distinction between multitial and paucital rights. (ii) Primary and Secondary Rights All of the main legal relationships that Hohfeld identifies can apply to both primary and secondary (remedial) rights. The distinction between primary and secondary rights was not invented by Hohfeld, (he adopted it from Austin), but his scheme is capable of operating in both dimensions. This point is drawn out in respect of rights and duties in the contrast between illustrations 1 and 2 above. A’s claim rights can hence be primary entitlements that the law gives (such as the right to the performance of a contract, or the right not to be defamed), or second­order remedial entitlements provided at law when first­order entitlements are violated, such as A’s claim right to the payment of damages by B.

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22 FLC, 67. 23 Note that Hohfeld thought that these secondary duties arise immediately on violation of the primary right –FLC, 102­ in contrast the modern vision of ‘civil recourse’ theorists examined in section 5(ii) below.

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In the same way, liberties, immunities and powers can all be secondary, as well as primary. For example, although I have a primary duty not to deceive you (and you have a correlative right not be deceived by me), you normally have a liberty from any secondary duty to pay me damages if the deception causes you no actual harm. You also have the power to discharge any secondary duty that I do owe you to pay damages by settling the proceeding against me by mutual consent, subject to the approval of a court. If the limitation period on your action expires, I have a secondary immunity from any liability to pay you damages. Your primary rights are unaffected by the expiration of the time period, but you no longer have any power to obtain a remedy in respect of my wrong, unless, of course, the court exercises its own power to waive the bar upon the action and allow the remedial claim to proceed. Secondary liberties, immunities and powers can hence all co­exist alongside primary legal relations. (iv) Paucital and Multitial Rights and the Unmasking of Property A difficult distinction that has not entirely taken off (perhaps in part because the language is more alien) is the one that Hohfeld draws between mutititial and paucital rights. Paucital rights are rights, liberties, powers and immunities that operate against one, or a small, definite number of other persons, whereas multitial rights, liberties, powers and immunities operate against a large and indefinite class. One can think of this distinction as being one about the

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determinacy of the class in respect of which each type of right operates. A primary 25

contractual right is hence paucital, because it operates only against other parties to the contract. Primary rights provided by the law of torts (delicts) are multitial, because they are in principle exercisable against large numbers of people, without specification of the duty­holding class. One of the most revolutionary aspects of Hohfeld’s analysis of rights is that he substituted the distinction between multitial and paucital rights for the traditional distinction between rights ‘in rem’ and ‘in personam’ when thinking about property. For him, it made no sense whatsoever to talk about a right ‘to’ or ‘in’ property, because all legal relationships exist as between persons. ‘Property’ for Hohfeld is hence simply a term for the collection of rights, powers, liberties and immunities than exist between persons in respect of things (tangible or intangible), not legal relationships between persons and the ‘things’ (tangible or intangible) themselves. On Hohfeld’s analysis, to say that property itself is subject to a right would be

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to say that it can owe a correlative duty, have a liability, etc, which is a nonsense. Only natural or legal persons can have duties or liabilities, because only they are moral agents. This brilliant de­masking of the concept of property is sometimes thought to have given rise to what is commonly referred to as, the ‘bundle of rights’ theory of property (although Hohfeld never actually used that term). This has now become the ‘mainstream’ understanding of property in Anglo­American law, but has not proven popular with all property lawyers, as

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24 FLC, 72. The full distinction is set out as follows: ‘A paucital right, or claim (right in personam), is either a unique right residing in a person (or group of persons) and availing against a single person (or single group of persons);or else it is one of a few fundamentally similar, yet separate, rights availing respectively against a few definite persons.’ A multital right, or claim (right in rem), is alwaysoneof a largeclassoffundamentally similar

yet separate rights, actual and potential, residing in a single person (or single group of persons) but availing respectively against persons constituting a very large and indefinite class of people. 25 More accurately, it is based on a combination of both the number of members in, and the certainty of the membership of, the class. 26 FLC 28­30. 27 J Penner, ‘The “Bundle of Rights” Picture of Property’ (1996) 43UCLA Law Rev 711, 711. Penner points out at 724­33 that the ‘bundle of rights;’ theory is in fact an awkward combination of Hohfeld’s ideas and those of Tony

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you might imagine, for reasons we will come to in more detail in the next section when we examine the evidence of Hohfeld’s influence. For one thing, it eliminates ‘property’ as a singular institution and substitutes for it a varied set of legal relationships at a lower, reductive level. This makes it impossible to have a positive explanatory theory of the institution of ‘property’ as such, because property is in fact no more than a series of other abstract relations between persons. It also elides the distinction between property law and other parts of the law involving multitial rights, such as the law of torts (delicts) and the law of unjust enrichments. No specialist likes to be told that his or her speciality is no longer special – it is bound to make him or her defensive. For similar reasons, Peter Birks’ famous contention that property is not a category that ought to be included on the modern map of private law, but simply a legal conclusion to be drawn about the sort of rights that private law often gives, seems to

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have fallen on similarly fallow ground. It is just too challenging to the existing order. 29

It is interesting to note that the exploded conception of property that views it as simply an aggregate collection of rights, duties and so on between persons in respect of things chimes with a visible trend that is ever more current in today’s society – the increased ‘dematerialisation’ of property. The dematerialisation of property is the phenomenon according to which fewer and few of our ‘assets’ consist in physical things such as houses, land or goods, and more and more that is intrinsically or economically valuable to us resides instead in immaterial rights held against one or more other parties – shares, futures, options, oil exploration licences, ‘carbon trading allowances’ and, of course – currently one of the world’s biggest assets – good, old fashioned debt. The social explanations for the historic shift from tangible to intangible property forms are likely to be multiple. They perhaps reside in part in the ingenuity of modern economic markets in constructing complex financial products, in part in the modern preference for geographical mobility; and in part in the strong demand for credit that is associated with the current fashion for living a life that is in the future, not the present. Whatever the explanations, purely intangible rights comprise a higher percentage of the stock of our personal ‘value,’ I suggest, that at any previous time. This dematerialisation of value – the lessening in the relative importance of its physical manifestations – makes Hohfeld’s point about the illusion of the physical aspect of property all the clearer. Whether things are tangible or intangible,legal property is not the thing itself, but the legal relationships that underpin it. Taking stock, the basic tools of the Hohfeldian scheme thus enable us to understand much of the legal landscape of the law in terms of a complex set of abstract legal relationships between different agents. The scheme does not, it must be confessed, make very exciting reading – one writer (who is ironically an enthusiast for the work) has described the process of digesting it as akin to ‘chewing on sawdust’. But the complexity of the law can be better understood,

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and the normative choices involved in granting or withholding rights can be better revealed by

Honore, ‘Ownership’ in A Guest (ed), Oxford Essays in Jurisprudence (Oxford, OUP, 1961) 107. The combination is awkward because Hohfeld did not believe in rights ‘to a thing’ whereas Honore’s thesis depends on such rights. Penner also notes the presence of ideas of ‘bundling’ in respect of property rights in the much earlier work of John Lewis, A Treatise on the Law of Eminent Domain in the United States (Chicago, Callaghan & Co, 1888) 43: ibid 713, fn 8. 28 P Birks, ‘Property and Unjust Enrichment – Categorical Truths’ [1997] NZ Law Rev 623. This conclusion stemmed from Birks’ strategy of organizing private law by ‘causative events’. For the view that property itself can be such a causative event, see R Grantham, and C Rickett, ‘Property and Unjust Enrichment – Categorical Truths or Unnecessary Complexity’[1997] NZ Law Rev 688. 29 Hohfeld planted the same deconstruction bomb under the concept of the corporation: ‘Stockholders’ Liability’ (n 17). Changes in the rules surrounding the corporation have apparently made that understanding of corporate entities more problematic: See R Grantham, ‘The Legitimacy of the Company as a Source of (Private) Power, in K Barker, S Degeling, K Fairweather and R Grantham (eds), Private Law and Power (Oxford, Hart, 2016) ch 10. 30 Schlag (n 2)186.

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carefully deconstructing what we mean by the term ‘right’ in each case. This is necessarily not going to be a flightly flick through a romantic novel. Analytical work is hard and thankless. Almost all the possibilities in respect of legal rights are nonetheless revealed as products of the basic elements of Hohfeld’s scheme. That scheme can unsettle some of our presumptions, as it does in the case of our understanding of ‘property’, but that is precisely its point. By checking our thinking and requiring us constantly to consider what we mean by rights, and what we intend by them, we are encouraged to think more clearly about them and

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are thereby placed in a better position to assess their normative possibilities and social and political implications. This ultimately makes for better law.

4. Influence and Criticisms (i) The Difficulty of Assessing Influence This is certainly not the first article to consider the impact of Hohfeld in recent years. The

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assessments of his influence are mixed in their conclusions and the inconsistency is partly a consequence of the difficulties I identified at outset regarding the meaning of impact, how one should measure it, and the group upon whom it should be measured. Those writing from the public law point of view unsurprisingly suggest that his impact has been limited. Hohfeld was originally writing about private law, so it was always more likely that he would be read and used by those interested in this sphere. But if we read him literally, he did says that his analysis could be applied not just to ‘property, contracts and torts’ but ‘any other title’ of the law and academics have, in more recent times, increasingly thought his framework

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applicable to many areas of public law including the criminal law, comparative law and 34 35

public international law. Salmond, upon whose own work Hohfeld’s was based, expressly 36

accepted that correlative duties and rights exist in the field of public, as well as private law, 37

which makes it somewhat less likely that Hohfeld intended to exclude public law from the potential reach of his scheme. He may simply never have got round to considering the question, not being a public lawyer himself and dying at such an early stage of his academic career. How he would have answered it is impossible to know for sure and any attempt to do so is likely to spark the same sort of debate as raged in The Guardian newspaper last year about whether or not one should have the audacity to complete Schubert’s unfinished 8th

31 Schlag (n 2) explains this idea nicely, pointing out the way in which the system helps to eliminate ambiguity, prevent unconscious slippage between different ideas, and prevent the blending of one idea with another: ibid 192­99. 32 See, eg, J Wilson, ‘Hohfeld ­ A Reappraisal’ [1980]UQLJ 8; M Addo, ‘Does Hohfeld Still Matter?’ (1997) 29 Bracton Law Journal 7 (concluding that he has had little influence on the way the language of rights is used, but that he matters nonetheless – note, however, that the author writes from the perspective of public, not private law, which may help explain the lack of impact he observes); Schlag (n 2); G Sturgress, ‘Hohfeld’s Rights & Duties’ (PhD Thesis, University of Queensland, 1981) (concluding that Hohfeld has been ignored – his influence in the court room being small and his work being thought of academically as of only historical importance). An early attempt to consider his influence, written before the 1st US Restatement of Property had been completed is: G Farnum, ‘Terminology and the American Law Institute’ (1933) 13 BUL Rev 203 (concluding that it was hard at that stage to assess the influence with Bench and Bar, but that he was likely to have had an evolutionary influence; also that he was strongly welcomed in pedagogical circles and amongst American academics). 33 FLC 26. 34 See, eg, Wilson (n 32), Ratnapala (n 8), R Perry, ‘Correlativity’ (2009) 28Law & Phil537, 544­5 (a collective rights analysis of criminal law may be possible); M Kramer, ‘Rights without Trimmings’ in Kramer, M, N Simmonds, H Steiner, A Debate Over Rights (Oxford, OUP, 1998) 58 (accepting the applicability of Hohfeld’s scheme to public law more generally). InRugs­a­million (WA) Pty Ltd v Walker[2007] WASCA 23 [48] the Court suggested that Hohfeld was ‘not so readily applicable in the case of public duties’ but then added the rider ‘unless the correlative right is seen to exist in the Crown or the State’. 35 M Hoecke, ‘Hohfeld and Comparative Law’ (1996) 9 International Journal for the Semiotics of Law 185. 36 J Morss, ‘Power and International Law: Hohfeld to the Rescue’ [2011] WA Jurist 3. 37 Salmond, Jurisprudence (2nd edn, 1907) 185.

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symphony. My own view on this matter is that there is no harm in ‘finishing’ the work, 38

provided you do not pretend that Schubert (or the ‘spirit’ of Schubert) wrote the final score. A review of primary and secondary legal materials in the United Kingdom and Australia certainly reveals significant evidence of Hohfeld’s work being judicially cited and the statistics in the United States are, unsurprisingly, considerably higher. He is sometimes cited

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by counsel in argument, as well as in the body of judgments. His understanding of the various legal relations was also written, almost word for word, into the definitions section of the Restatement of Property, which is about as significant a use of an academic’s work as can be imagined in the United States, short perhaps of its statutory enactment. Restatements operate as a source of persuasive authority and represent the expert consensus of the national legal community. Any citation of the definitions section of the Restatement of Property is hence also a citation of Hohfeld, even if it does not expressly mention his name. The ‘bundle of rights’ theory of property, said to be based on Hohfeld, has also been very extensively used by courts in the United States, to the extent that is now accepted as the dominant paradigm. It is

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impossible to know how many times his framework has been used by judges without attribution; and it is equally (perhaps more) impossible to make any quantitative assessment of the impact of his work upon students. The teaching of his work has been kept alive until recently in my own law school by one particular jurisprudential enthusiast, but that figure

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has recently retired and Hohfeld appears to have gone into retirement with him, save on my own elective courses, where I require students to define their terms using his scheme before we begin discussion. A student of mine told me recently that ‘Fundamental Legal Conceptions’ had changed his world and that he now saw Hohfeldian relationships everywhere. I would like to think that this is Emersonian proof that the mind, once expanded, can never shrink again to its former dimensions, not that Hohfeld is capable of inducing some form of paranoid schizophrenia in those that read him. (ii) Evidence of Recent Judicial Citation The matters in which Hohfeld’s work has been recently cited judicially include, but are not confined to: discussions of the powers and duties of beneficiaries and trustees under a trust;

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whether or not private law protects a claim right, or merely a liberty to work and trade; the 43

meaning of the word ‘right’ in section 8 of the Acts Interpretations Act 1901 (Cth) in Australia; the meaning of ‘property’ both at common law and under various statutory

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38 P Clark, ‘Schubert’s Unfinished Symphony; Should we Resist Closure?’ 28th July 2015. The controversy was caused by the release of a version of the symphony by the Divine Art Label, which adds a third movement Scherzo and concluding Finale to the original two movements. The suggestion that Schubert did not finish the 8th because he was too ill is generally thought false, since he managed to finish other works before dying. Perhaps he considered the work complete, or simply lost interest. 39 A search for the term ‘Hohfeld’ in Australian judgments published on lexisnexisau throws up 88 cases in which Hohfeld has been cited, 24 of which were decided at High Court level. All but 5 citations have been since 1990 and there interestingly appears to have been an acceleration since the new Millennium. A search of the UK case law database on Westlaw using the same search term yielded only 27 cases. A very cursory analysis of US case law using the same database suggests that the express citation count is much higher and may be as high as 250 cases. All of these counts obviously leave out of account instances in which Hohfeld’s scheme may have been or referred to entirely without attribution. 40 For citations of the relevant case law, see Penner (n 27) fns 28­40 and accompanying text. 41 Suri Ratnapala (n 8), a great colleague. 42 CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53[44] (analysing the rule inSaunders v Vautier in terms of a Hohfeldian power). The analysis was cited with approval in Beck v Henley [2014] NSWCA 201 [32]. 43 Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 (restraint of trade). 44 Mathieson v Burton (1971) 124 CLR 1;Dai Xing Yao v Minister For Immigration And Ethnic Affairs (1996) 46 ALD 273 (refusing to confine the term to a Hohfeldian claim­right and taking a broader view of the term’s meaning that could include immunities and powers).

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provisions using that term; whether planning permissions are ‘rights’ that are capable of 45

being abandoned through long term non­use; whether emissions allowances under the 46

European Union carbon trading scheme or Transhipment and Desalination licenses under 47

the Environmental Protection Act 1986 (WA) are claim rights or merely liberties 48

(permissions); whether or not the media have any claim right to appear in criminal proceedings relating to child abuse and to protest at an application for the identity of the parties to be suppressed; what sort of ‘rights’ are implicated when a court stays a legal

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proceeding; whether a waiver of a person’s ‘rights’ rids them only of claim rights that they 50

have, or also of their liberties and immunities; the meaning of the term ‘liability’ in the 51

context of a trust, statutory provision or contract; whether a taxpayer has a right 52 53 54

(sufficient standing – which is actually surely a procedural power and a liberty?) to challenge expenditures of federal funds by seeking information on CIA expenditure; the nature of the

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legal relations created between the state and a taxicab franchisee by the National Labour Relations Act; and whether or not merely accessing a prisoner’s prison account (without

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debiting any money from it) constitutes an interference with his ‘property’ sufficient to trigger the due process clause of the United States Constitution. Interestingly, in the last of these

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examples, which is a recent decision of the US Court of Appeals, the Court held that it was such an interference, because a prisoner’s property rights include not just his right to credit in the account, but also the right to exclude others from it. This judgment is perhaps the most high­profile attempt of a United States Court in recent years to engage with the Hohfeldian analysis in a meaningful way and engages directly with the ‘bundle of rights’ theory that he is said to have inspired. The court expressly described its task as a Hohfeldian one and acknowledged the dominant influence that Hohfeld’s work has had upon judicial understandings of property in the United States.

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45 Wily (In His Capacity As Official Liquidator Of Space Made Pty Ltd (In Liq)) v St George Partnership Banking Ltd (1999) 161 ALR 1 [32]­[38] (analysing the nature of the rights provided by a floating charge and openly discussing Hohfeld’s analysis of paucital and multitial rights);Yanner v Eaton (1999) 166 ALR 258 (analysing the statutory meaning of ‘property’ under the s 7(1) Fauna Conservation Act 1974 (Qld) merely referred to aggregate public rights of control over physical property subject to native title). 46 Slough Estates Ltd. v Slough Borough Council and Another (No 2) (1968) 19 P&CR 326 (Hohfeldian analysis disclaimed). 47 Armstrong DLW GmbH v Winnington Networks Ltd [2012] EWHC 10 (Ch) [48]. 48 Mineralogy Pty Ltd v Chief Executive Officer, Dept of Environment Regulation [2014] WASC 468 [99]­[108] (licenses create freedoms, they do not confer rights). 49 Nationwide News Pty Ltd v District Court of New South Wales (1996) 40 NSWLR 486, 489 (no right to be heard – the matter lies at the judge’s discretion). 50 Assaubayev & Ors v Michael Wilson & Partners, Ltd [2014] EWHC 821 (QB) (a stay on proceedings to recover solicitors costs provides a remedy akin to a ‘no­right’ under the Hohfeldian scheme). 51 City Inn Ltd v Shepherd Construction Ltd [2010] CSIH 68 [67] (Lord Osborne), [102] (Lord Carloway, considering the Hohfeldian analysis ‘perhaps over­elaborate’, but agreeing that the appeal should be dismissed). 52 Liquidator of the Ben Line Steamers Ltd, Noter [2010] CSOH 174. 53 Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 221 ALR 1 (HCA) [61]­[68] (s 733 (1) Local Government Act 1993 (NSW)(applying a Hohfeldian analysis). 54 Conister Trust Ltd v John Hardman & Co & Anor [2008] EWCA Civ 841 (21 July 2008) (Hohfeldeian definition of liability not intended by parties to litigation funding agreement­ parties meant any enforceable obligation). 55 Flast v Cohen (1942) 88 SCR 392 US 83 (The answer given was ‘yes.’ Justice Harlan, dissenting, noted that it is common in considering standing questions in public law in the US to refer to plaintiffs as either ‘Hohfeldian’ or ‘Non­Hohfeldian’ and used those terms to ‘mark the distinction between the personal and proprietary interests of the traditional plaintiff, and the representative and public interests of the plaintiff in a public action’). See, similarly, US v Richardson (1974). 56 Golden State Transit Corp v City of Los Angeles (1989) 493 US 103, 114­115 (Kennedy J, dissenting on basis that the jural relation created was a Hohfeldian power­immunity relation only, not a right­duty relation). 57 Burns v PA Department of Correction (2008) 544 F 3d 279 (United States Court of Appeals, Third Circuit). 58 ibid 280 fn1, 287­ 88.

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In not all of the above cases was Hohfeld’s analysis necessarily found to be conclusive, or helpful in disposing of the case; and it is quite clear, that courts, litigants and legislatures continue to use the language of rights in ways that are less disciplined than Hohfeld would have liked. For example, it appears to be accepted that the term ‘property’ is sometimes used by legislatures to refer to things themselves, not just to the bundle of abstract rights that relate to things; and it is accepted that the terms ‘liability’ and ‘legal power’ can be – and are – used in several different ways, none of which can be disregarded. It is also accepted that private individuals, when using terms such as ‘right’ and ‘liability’ in their contracts, are unlikely to be aware of Hohfeld’s lexicon and to be intending to use it. Nonetheless, the fact that these meanings are held alongside Hohfeld’s in a way that cautions one against confusion is itself, I think a testament to the success of his method. There is also, as we shall see in the Section 5 below, a reviving academic interest in his work and a fertile range of problems that his framework can usefully be used to help us untangle. (iii) Criticisms There are many criticisms of Hohfeld’s scheme and space precludes their full exposition and debate here. My purpose is to demonstrate the active and continuing potential of his work for solving some of the law’s riddles more than anything else. Nonetheless, to make a balanced presentation, we must mention some of the objections that have been raised against his work. One of these – that his scheme was not completely original can be wholly accepted whilst

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also, I think, being set aside as irrelevant to its potential utility. Another – that not all of his ‘fundamental conceptions’ are really fundamental because they are not irreducible must also be accepted, but can also be bypassed for the same reason. Liberties, powers and immunities can, it is true, all ultimately be understood as propositions about the existence, absence, creation and extinction of basic rights and duties and in this sense can further be reduced to this level. But one can overdo the process of analytical reduction, just as one can

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over­reduce a bolognese sauce and thereby burn the pan. These other legal concepts may not be fundamental in the sense of being fully logically reduced to the very base level – they may, if you like, be molecules, not atoms, quarks or neutrinos in the legal universe – but they are integral to the language and reasoning of courts and therefore still fundamental in the sense of being useful building blocks in the life of the law. The legal world needs molecules as well as atoms. So that analytical concern can also, in my view, easily be set aside. Potentially more serious is the proposition that the correlativity axiom that is that the heart of Hohfeld’s scheme does not always hold true. There can, it is said, sometimes be legal duties without correlative rights – or rights without correlative duties. That is said to be impossible in the Hohfeldian scheme, because the one is always entailed by the other. Examples often given of duties without correlative rights are the public duties owed by individuals in the

59 As several authors have pointed out, many aspects of the scheme draw on Austin (who distinguished lay and legal meanings, identified the correlativity of the terms right and duty; provided the distinction between primary and secondary rights and came up with the distinction between multitial and paucital rights), H Terry, Some Leading Principles of Anglo­American Law (Philadelphia, 1884); An Elementary Treatise on the Common Law, for the Use of Students (1906) and John Salmond (whose scheme was very similar). For discussion, see W Cook, ‘Introduction ­ Hohfeld’s Contribution to Science of Law’ in FLC, 5­6; A Dickey, ‘Hohfeld's Debt to Salmond’ [1971] UWA Law Rev 4 (concluding at 62­63 that ‘in essence Hohfeld’s analysis is Salmond’s analysis’).See also J Stone, The Province and Function of the Law as Logic Justice and Social Control (Associated General Publications Pty Ltd, 1950) 115­20. It is generally accepted, however, that none of these forerunners used the conceptual apparatus to the same practical ends as Hohfeld, and that Hohfeld further worked on Salmond’s ideas so as to complete the project. 60 A Halpin, Rights and Law Analysis and Theory (Oxford, Hart, 1999), ch 2 (these concepts­ indeed, six of the eight conceptions constructed by Hohfeld ­ are aggregates of the only two ‘fundamental’ ones­ right and duty). See, similarly, Munzer (n20) 19.

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criminal law, or by the state; moral duties to be charitable; duties owed to animals, or the deceased. Examples given of rights without duties include the immediate right of an intestate child to the estate of a deceased parent (even before the appointment of any administrator with a duty to execute it); and the rights that unborn children havein utero even before they

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acquire full legal personality. If any of these examples really threw up a problem with the 62

correlativity axiom, it would, I think be a serious matter, for the integrity of the scheme depends upon it. In fact, however, they do not. It is no coincidence, I think, that most of the counterexamples provided by critics involve subjects or objects of rights and duties that are not live, human beings – they involve dead people, the unborn, inanimate objects, or the state. The problems presented by such cases, I suggest, are not ones about lack of correlativity (the relevant relation), but ones stemming from our hesitations about human agency (who we think can be a partyto such a relation). If you accept that the state is an agent that is capable of holding powers (which we clearly do) then you must also accept that it is an agent to whom duties can be owed by its citizens, and an agent that can owe them duties. Similarly, if you are prepared to overlook the question of life and death and accept for certain, instrumental legal purposes the existence of a person before they are born and after they die (which, again, we in practice do), then you must also accept that it is possible for that fictional entity to owe a duty or have a right that correlates to the duty or right of another, living individual, or group of individuals. Hohfeld did not purport to provide us with a theory of agency, but if you accept the existence of agency in each of the above examples, the supposed correlativity problem goes away. The duty of a doctor to a child in utero – Perry’s example – is then simply correlative to a right in the phoetus. The public duty I owe to pay my taxes or not to kill my fellow man is correlative to the right of the state, as the agent of society, that I pay my way, or that I not engage in acts of killing that are likely to disrupt the social order. The cases involving duties not to harm animals and inanimate objects are different, but are solvable in other ways – the correlative rights and duties in such cases exist between individuals and the animals’ owners and/or the state. The duty of charity is a moral duty, not a legal one, and is

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either owed to ‘God’ (another fictional agent), or, if society is Godless, to society itself. Another set of criticisms I shall set aside, not because they lack interest or importance, but because they seem to me to miss the point that Hohfeld’s project was one of pure analytical legal philosophy. It has thus been said, for example, that his concept of a liberty is too weak – equating to a ‘nothing’ in law; or (this is another way of putting the same point I think) that

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for the idea of ‘rights’ to be properly morally meaningful, they must be both permissive (ie entail a Hohfedlian liberty) and be inviolable (entail a claim­right with a corresponding duty owed by another party). Or it is said that Hohfeld’s conception of a ‘power’ misses

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61 D MacCormick ‘Rights in Legislation’ in P Hacker & J Raz (eds)Law, Morality and Society: Essays in Honour of HLA Hart (Oxford, Clarendon, 1977) 189. 62 Perry (n 34). 63 On the question whether the Hohfeldian scheme applies easily or happily to moral or political rights and duties and the possible implications if it does, see E Curran, ‘Blinded by the Light of Hohfeld ­ Hobbes’s Notion of Liberty’ (2010) 1 Jurisprudence 85 (arguing that in this context, the dominant Hohfeldian conception of a claim right is not the best foundational idea for rights ­ liberty is better). 64 F Maher, ‘The Kinds of Legal Rights’ (1965) 5MULR 47, 72. See, similarly, A Taitslin, ‘Is Liberty a “Right”?’ (2014) AJLP 39 (arguing that liberties are not ‘legal relations’ between people, because the absence of a duty is not ‘legal’ and it is not a ‘relation’). For an attempt to rebut this criticism, see V Brown, ‘Rights, Liabilities and Duties: Reformulating Hohfeld’s Scheme of Legal Relations? (2005) 58 Current Legal Problems 343. Brown argues that whilst some liberties ­ such as the liberty not to incriminate oneself ­ don’t involve legal relations, some (permissions, or ‘correlative liberty rights’) do. An example of a ‘correlative liberty right’ is the liberty of A to enter B’s land where B has given express permission. 65 This was Kant’s point of view, considered and criticised in N Lazarev, ‘Hohfeld’s Analysis of Rights: An Essential Approach to a Conceptual and Practical Understanding of the Nature of Rights’ (2005) 12 Murdoch University Electronic Jnl of Law precisely because it conflates the two distinct idea of claim­right and liberty and is therefore more likely to confuse judges than illuminate their discussion.

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something because it doesn’t refer to the need for power to be based on good, legitimising reasons that constitute it in terms of authority, or because it makes the central concept of

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power turn on the idea of ability tochoose, when it should really turn on the ability todecide. Sometimes it is said that it is hard to apply Hohfeld’s scheme to moral or political rights

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and duties, because such rights and duties have a less determinate content. 68

There is no doubt that each of these criticisms makes an interesting and valid point in its own way, but reading many of them is a little like reading the report of a book reviewer who is critical of a book not because it fails to achieve its own aims, but because it does not engage in another, more worthwhile project that the reviewer thinks is more important, does not take a different point of view, or make itself more morally, or rhetorically attractive. It may well be that Hohfeld’s scheme does not convey the powerful rhetorical, moral, social or political messages about rights, powers and liberties that some people would like it to in the modern day. And this could, of course, mean that people are less attracted to it and less likely to use it. Hohfeld’s name is not going to be writ large on banners at civil rights marches, for precisely this reason. But that, in fairness, was not his ambition and it would have contradicted his method and defeated his purpose, which was to separate the analytical from the moral and the political as best as can be done. If one tinkers with the details of his scheme for moral or political ends, one does not accept him on his own terms and risks undermining the value of his work. That, to my mind, would be a mistake. It does mean that there is something of a problem in marketing Hohfeld to the public – analytical schemes are less compelling than rights agendas loaded with powerful normative messages, but one hopes that those engaged in the rational development of the law will see past its dryness and appreciate the dispassionate utility of its logical form. A final set of criticisms, the surface of which I can only scratch here, relates to the effect of Hohfeld’s deconstructive technique upon our understanding of property. These I alluded to above. One of the more penetrating points that appears to be made in this context is Penner’s criticism that, if one follows the Hohfeldian path, one never ends up with a theoryof property; one ends up without one. This, he says, leaves many decisions about new cases to be made on vague, policy grounds, not according to any stable theory. The potentially destabilising

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effect of deconstructive techniques such as Hohfeld’s on unitary conceptions and theories cannot be denied, but is, in a sense, part of the project. One cannot demystify and reify at the same time; one cannot construct by deconstructing. These criticisms go far beyond Hohfeld and reach deeply into our inquiries about the possibilities and mechanisms of progress in all forms of understanding. The particular approach that Hohfeld takes toward the idea of property may indeed open up a wider range of moral and political choices than would be possible through the adoption of more unitary, centripetal understandings of property rights, but that was the whole point. Exposing the diversity of the various legal relationships that

66 This appears to be Raz’s position, also discussed in Lazarev, ibid. 67 A Halpin, A ‘The Concept of a Legal Power’ (1996) 16 OJLS 129, 140, 151­52. Under the choice conception, Halpin and others have pointed out, it becomes possible to envisage a person having the ‘power’ to have himself imprisoned for murder by choosing to kill someone, when in fact the power to imprison is best thought of as resting with the court, which makes the decision on this matter. The point is an excellent one and requires only a small tweak to Hohfeld’s scheme to make it work. It does not affect the basic structure of the scheme. 68 A point alluded to by W Edmundson in ‘The Conceptual Neighbourhood of Rights: Wesley Newcomb Hohfeld’ch5 in An Introduction to Rights (Cambridge, CUP,2012) 87, drawing on Bentham’s observations about the indeterminate nature of moral rights. Compare J Brady, who sees a useful role of Hohfeld in moral as well as legal discourse: ‘Law, Language and Logic: The Legal Philosophy of Wesley Newcomb Hohfeld’Transactions of the Charles S. Peirce Society, Vol. 8, No. 4 (Fall, 1972), 246. 69 Penner (n 27) 714­15, 721. Penner’s own preference is for a theory of property based on a unitary right of exclusive use in respect of a thing, where all the traditional ‘incidents’ of property are identified as instantiations off that same, singular right, not as distinct rights within a substantive bundle: ibid.

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underpin property conceptions and providing a vocabulary for their discussion clears the ground for the construction of whatever conception of property we consider to be desirable.

5. A Reviving Interest and Some Twenty­First Century Applications

I hope to have done enough to demonstrate the basic stability and utility of Hohfeld’s scheme, as well as to give a sense of some of its inherent limitations. His method in helping us to develop conceptions of meaning through deconstructing signs and examining separate constituent elements that underlie common terms and concepts has parallels in the field of semiotics and in the philosophy of language. In this section, I highlight what appears to be

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a revival of interest in his method and scheme in recent years and identify a number of 72

novel, constructive uses to which his work can be put. Aside from the continuing difficulties of working out the nature and incidence of legal rights in still emerging fields of the law, such as the law of unjust enrichment (where Hohfeld can certainly, I suggest, be useful in working out what is going on) there are, I think, at least two plausible explanations for the sudden uptake in interest in him. First, the language of rights is now rhetorically prolific in the way I adverted to in the introduction. The increase in the use of the language of rights (human rights, civil rights, rights to privacy, rights to freedom of choice, rights to self­determination and so on), because politically or morally inspired, is sometimes not accompanied by the analytical rigour that it should be. The meaning and the potential practical implications of recognising rights can get lost in the rush to secure them. More discipline in the language of rights is therefore needed in order to forestall the possibility that lax reasoning will lead to undesired results. Second, the rise of the welfare state throughout the course of the twentieth century in many liberal jurisdictions has complicated the relationship between private and public rights; and between public law and private law. I examine two examples of this increased complication below. First, because states now have many more regulatory powers to intervene in private lives than they did at the time Hohfeld was writing, there is much more potential for them to cause harm through the exercise, or non­exercise, of these powers. The result is that questions now more frequently arise about the extent to which the exercise of these public powers for the public good should be accompanied byprivate law duties to particular individuals who are harmed by decisions relating to their exercise. This in turn has required courts to ask what

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the relationship is between a public body’s public law duties to make sure that decisions

70 J Balkin, J, ‘The Hohfeldian Approach to Law and Semiotics’(1990) 44 U Miami Law Review 1119, esp 1121­22 (drawing attention to the work of Ferdinand de Saussure in Switzerland and the American philosopher Charles Sanders Peirce): ‘Hohfeld deserves to be called the first legal semiotician because he was the first to systematically and self­consciously discuss legal concepts such as rights, duties, and privileges rhetorically and as a system of mutually self­defining relations’ (1120). 71Brady (n 68) (arguing that Hohfeld’s analytical approach is consistent with more modern ‘ordinary language’ philosophy). 72 The revival of interest in the United States was noted by Brady, ibid 246, as early as the 1970s. It has continued to accelerate since then. 73 See, for example, in Australia: Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424; Pyrenees Shire Council v Day [1988] HCA 3; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 (HCA); Graham Barclay Oysters Pty Ltd v Ryan & Ors (2002) 211 CLR 540 (HCA); Brodie v Singleton Shire Council (2001) 206 CLR 512 (HCA). In the UK, see: X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (HL); Stovin v Wise [1996] AC 923;Barrett v Enfield London Borough Council [2001] 2 AC 550 (HL) andPhelps v Hillingdon London Borough Council [2001] 2 AC (HL);Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15 (HL); Van Colle and Anor v Chief Constable of the Hertfordshire Police [2008] UKHL 50. For a recent attempt to analyse some of the issues flowing from the ‘discretionary’ aspect of the public powers, see K Barker, ‘Public Power, Discretion and the Duty of Care’ in Barker et al (n 29) ch 9.

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regarding the exercise of its powers are legal and rational (under public, administrative law) and its duties to take care in the way the decision is made in private law. There is, in this

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context, a complex intertwining of public powers, duties, liberties and immunities with private law ones. Second, and perhaps more fundamentally, it has been suggested that private law itself now needs to be understood in more public terms – not as a system describing merely a two­party relationship of ‘rights’ between private parties – between wrongdoers and their victims; but as a complex, three­party network of rights duties, powers and liabilities between victims, wrongdoers and the state (in particular, courts). This approach, known in the United States as ‘civil recourse’ theory brings the state more centrally into focus in

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understanding private law and the Hohfeldian toolkit proves especially helpful in unlocking the way in which the various, complex relationships work. Whether or not one is ultimately persuaded by civil recourse theory, I shall argue that the Hohfeldian framework is essential to understanding what is going on in the arguments for and against it. (i) The Rise in Rights Rhetoric – Hohfeld as a check. Rights­talk is ubiquitous and insistent. In private law in my own jurisdiction, this started long ago when lawyers started thinking about civil claims not in terms of the procedures required to bring a claim, but in terms of the reasons that might permit the bringing of the claim (causes of action). This shift signalled a new interest in thinking about the law in terms of rights, not writs and remedies and was more a rationalising, organisational shift than anything else. Hohfeld was well aware of it. But that was a long time ago. In more recent times, the rights movement has been as much political and moral as conceptual or taxonomic. It is a product of legitimate demands for greater human welfare, and for more protection for fundamental human interests. Political demands for the greater protection of interests such as privacy, dignity and personal autonomy create a powerful culture for responsive change in the law, manifested in many jurisdictions in both international and domestic human rights provisions. There have also been calls within private law for judges to do more to ‘vindicate’ the rights that private law already provides. These calls take the form of demands for new

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and more powerful forms of secondary, remedial right, such as rights to orders for the specific performance of contracts, for restitution of exact property that one has transferred by mistake, for court­ordered apologies for wrongs done, and even for the award of substantial sums of

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damages to ‘vindicate’ a plaintiff’s rights, despite the fact that a wrongdoer has caused his victim no actual, personal loss. Such ‘vindicatory’ awards are sometimes thought to have a

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function in ‘marking’ the infringement of rights and ‘expressing’ public messages about their importance.

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74 One view is that the public law criteria of right, duty, immunity and disability that apply in respect of the state’s relationship with a citizen affected by the decision should also regulate their private law relationship, so as to avoid contradiction between them. See eg Stovin ibid. Another is that public and private law should develop their own set of criteria, because the purpose of the public and private legal relations are different: Barker, ibid. 75 See, B Zipursky, ‘Rights, Wrongs and Recourse in the Law of Torts’ (1998)Vand L Rev 1; ‘Civil Recourse, Not Corrective Justice’ (2003) 91 Geo LJ 695; J Goldberg & B Zipursky, Unrealized Torts, (2002) 88 Vand L Rev 1625. 76 On the various meanings that are given to this emotive term in both private and (potentially) public law, see K Barker, ‘Private and Public: The Mixed Concept of Vindication in Torts and Private Law' in S Pitel, J Neyers and E Chamberlain (eds), Tort Law: Challenging Orthodoxy (Oxford, Hart 2013). 77 E Bant and M Bryan, ‘Specific Restitution Without Trusts’ (2012) 6 J Eq 181. 78 A measure mooted, but ultimate rejected by the UK Supreme Court inWalumba Lumba v Secretary of State for the Home Department [2011] UKSC 12. See Barker (n 76), J Edelman, ‘Vindicatory Damages’ in Barker et al (n 4). See also, K Barker, ‘Damages Without Loss: Can Hohfeld Help?’ (2014) 34 OJLS 1. 79 For a critical review of such ‘expressive’ theories of private law, see A Gold, ‘Expressive Remedies in Private Law’ in (F Lichere & R Weaver, eds)Remedies and Property (Press Universitaires d'Aix­Marseille, 2013); Barker, ibid.

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Many of these movements are to be welcomed. At the same time, there are risks that the language of rights may acquire a rhetorical power of its own that leads to its overextension and to the enactment of laws that could diminish the autonomy of us all by imposing duties that are excessive and threatening to liberal conceptions of the state. At such times, Hohfeld’s technique can operate as a useful disciplining check to ensure that we actually want what it is that we say, or think, that we want. Before we take steps to increase primary or secondary (remedial) rights, we must therefore be sure precisely what sorts of rights are at stake and think carefully about the potential repercussions of granting them. One especially important way to keep a check on things is to be sure that we are always clear about the language of right and liberty. The fact that a person has a liberty does not, Hohfeld reminds us, necessarily mean that they also have a claim right, although that is a logical possibility, since we might wish to give them both. Hohfeld’s wise counsel is that we do not allow ourselves to slip unconsciously between the two conceptions, or elide them. The fact, for example, that I have Hohfeldian liberty to say X (am under no legal duty to anyone else not to say it), does not necessarily mean that the state, or anyone else, is under a duty not to silence me, a duty to prevent others silencing me, a duty to take positive steps to enable me to speak. Nor does it mean that anyone has a legal duty to change their behaviour as a result of what I have said. The popular, modern insistence that everyone has a ‘right’ to their opinion’

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is therefore, on a proper, Hohfeldian, understanding of the existing law, completely wrong – it assumes that because one has a liberty as against others to have one’s own personal views and to express them, this also means that others have a duty to ‘respect’ the opinion and even, perhaps, to change their behaviour so as to reflect the norms that the opinion expresses. This is not so, nor should it be, in my view, given the ignorance and prejudice involved in many personal opinions and beliefs. Were we all to be subjected to duties to respect the opinions of others, there would be little liberty left. Rights in the sense of Hohfeldian claim­rights therefore have significant costs on the freedoms of us all, precisely because they impose correlative and often multitial duties. Is this necessarily what we want? Of course, it would be logically possible to design a system in which the holding of opinions or beliefs about particular matters did give rise not just to a liberty for a speaker to express them, but also to duties in others not to interfere with that expression, or deny the truth of the opinion expressed. My understanding is that Austria, Germany, Hungary and Romania all have such a system in relation to the expression of opinions regarding the Holocaust. The historically correct view that the Holocaust happened is therefore in this instance protected both by the liberty of historians to express the view that it did, and by the public duty of others (owed to the state) not to say that it didn’t. There are similar systems regarding the denial of genocide in some countries, and regarding the denial of religious views in the

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context of certain religious laws (which is why the common law of blasphemy remains on the books in the United Kingdom, albeit that this is now increasingly controversial). In January

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2005, the airing by the BBC of the stage show: Jerry Springer: The Opera, which contained

80 A similar example of the same confusion attends popular understandings of the ‘right’ not to incriminate oneself by preserving silence when questioned by the police about an alleged offence. This ‘right’ is not, of course a right in the Hohfeldian sense that the police are under any corresponding duty. It is a mere liberty. This truth is now reflected in the form of the oral warning that is given to suspects in the UK:‘You do not have to say anything. But, it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.’ 81 For example, the denial of the Armenian genocide during WW1 is banned in Greece. 82 For a useful summary of the criminal law of blasphemy, blasphemous libel and the relationship of these laws to the right to freedom of expression under the European Convention on Human Rights, see S Stokes, ‘Blasphemy and Freedom of Expression under the European Convention on Human Rights: the Decision of the European Court in Wingrove v United Kingdom’ (1997) 8 Ent L R 71. Under the modern law it seems unlikely that the mere expression of views that deny aspects of the Christian faith constitute blasphemy.

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potentially blasphemous comments about the figure of Christ led the fundamentalist Christian group, Christian Voice, to institute a private prosecution against the BBC for blasphemous libel. The High Court deftly ducked the issue as to whether or not the offence should still be on the books, by applying an exception to the offence relating to stage shows under the relevant Broadcasting Act. In doing so, it evaded the crucial, Hohfeldian question ­ should

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the ‘right’ to hold and express opinions that reflect the belief system of the Christian Religion be merely a liberty, or does it involve a multitial claim right against all its citizens that they shall not express an offending view? Hohfeld expressed no opinion about whether or not such rights and duties relating to respect for the expression of opinion are appropriate or not. But by making the distinctions between rights and liberties absolutely clear, the controversial nature of the moral and political choices involved becomes quite evident. What is certain is that we should not mix the ideas up. Recourse to the Hohfeldian framework helps to highlight the full implications of the choices available. (ii) Unravelling Complexity ­ Private Law and the State The use of Hohfeld to help to describe legal relationships between individuals and the state acting as an agent of the public good is somewhat controversial, but increasing warranted in

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my view. The rise of what is referred to as the positive state in many western jurisdictions gives the state a far greater role in individuals’ lives than at any previous time; and recent scholarship has also come to place it in a far more central place in the private law system. Whilst traditional conceptions of private law as a system of corrective justice have tended to focus on the rights that individuals have against one another and the remedies that law provides to them – on the bilateral moral and legal relationship of wrongdoer and victim – more recent approaches suggest that we need to understand private law as a tripartite relationship between the private parties to a dispute and the public agency that is the court system. Understanding what happens when courts adjudicate a private law dispute hence requires us, this scholarship suggests, to think not just about private rights, duties and powers that individuals have bilaterally against one another by virtue of the rules of private law, but also about the public rights, liberties and powers that litigants have as against courts when furnishing their claims; and the public rights, powers and liberties that courts have in respect of the determination of parties’ remedial rights. The basic message behind both of these points is that the rise of the positive, administrative state complicates our understanding of the private law’s rules and institutions of civil justice; and that Hohfeld’s scheme can once again help us to unlock some of the confusion and keep our senses clear. Public Body Liability for Negligence in the Use of Statutory Powers A first example of the utility of Hohfeld relates to the analysis of the liability of public bodies for harm caused to private individuals through the exercise or non­exercise of their public powers. This is a particular difficult and impenetrable area of the modern law that often

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defies clear analysis and accurate predictions. The State’s regulatory powers are now very broad, ranging from the power to detain individuals who are suspected of being at risk of self­harm; to the power to inspect buildings to prevent health and safety risks; to the power to prohibit or permit economic activity through licensing schemes; to the power to take children away from their parents in cases of abuse or neglect. Courts have historically taken a cautious approach to the imposition of private law duties of care on the part of public bodies in respect of decisions to use or not use such public powers, often denying the existence of duties of

83 Green, R (on the application of) v The City of Westminster Magistrates' Court [2007] EWHC 2785 (Admin). 84 See nn 33­37 and text thereto. 85 Barker (n 73).

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care, or granting the state complete immunities from liability. That approach changed somewhat during the welfarist era of the 1960’s and 1970’s, no doubt in part in response to the greater interventions being made by the state into private lives; and there are now additional pressures to increase the duties of the state in private law in the United Kingdom, owing to the state’s public duty to all its citizens under the Human Rights Act 1998 to ensure that private law adequately protects their fundamental (public) human rights. At precisely the same time, the global financial crisis has withdrawn funds from the State for front line services, making the question of state liability highly complex and politically charged. There are several signs of confused reasoning in this field, which can, I think, helpfully be dispelled by a careful Hohfeldian analysis. First, judges have sometimes in the past made the assumption that the fact that a public body has only a public power to take action (for example, to inspect a building or ban its construction) which is unaccompanied by any statutory duty to do so, means that it can not owe any private law duty to take care to protect individuals when making decisions about the use of the power. This is logically incorrect. The existence of a power is not logically

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inconsistent with either the existence of a statutory (ie public) duty, or a judicially­created duty in the law of negligence to take care when deciding whether or not to exercise it. This is certainly not to say that every regulatory power should be accompanied by a private law duty of care, but the existence of such a duty of care in favour of persons who may be adversely affected by it is a clearly available, logical choice and exists in some cases. It is a choice that courts now sometimes make, but there are still some signs of a belief that that a ‘mere

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power’ to intervene means ‘no duty’ to take care in deciding whether or not to do so, or in deciding how to intervene.’ The difficult moral and policy choices needing to be made about

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this matter are not assisted by making false logical or normative correlations between the existence of powers (on the one hand) and the non­existence of duties of care (on the other). Second, in cases in which courts have considered imposing a duty of care on the public body the existence or not of such a duty has often been said by courts to turn on whether or not the power it is exercising is ‘discretionary’; and whether or not the public body was acting ‘within’ this discretion. What courts means by this is very unclear and this has in turn made

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it very hard for lawyers to advise their clients on their prospects of bringing a successful legal claim. If one unpacks the term ‘discretion’ according to the Hohfeldian method, one finds that it can actually mean one of several different things, each of which has a different implication. It could mean that (i) the authority has a liberty from any public duty not to intervene (ie simply that it is free to do so if it wishes); (ii) it could mean that it has a liberty from any private duty to take care when intervening; (iii) it could mean that it has an immunity from any private liability in respect of any decision that it makes regarding intervention; or (iv) it could mean simply that the decision whether or not to intervene is one that involves the exercise of special knowledge and judgement.

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86 See, for example Suffolk Rivers Catchment Board v Kent [1941] AC 74 (HL) 97­98 (Lord Romer). A position close to this appears to have reared its head again more recently inGorringe (n 73). It is not accepted in Australia: Crimmins (n73). 87 See eg Crimmins, Barrett, Pyranees (n 73); 88 Gorringe (n 73). 89 See eg Anns v Merton London Borough Council [1978] AC 728 (HL), 755, 758. See also Sutherland Shire Council v Heyman (1984) 157 CLR 424 (HCA); 442 (Gibbs CJ); X (n 73) 736 (so unreasonable as to be ‘outside the ambit of the discretion’), 738 (‘outside the statutory discretion’);.Stovin (n 73) 953, Lord Hoffmann (Lords Goff and Jauncey agreeing). 90 See Barker (n 73). Another (non­Hohfeldian) use of the term is simply to mean ‘power’ (eg ‘his fate lay within the judge’s discretion’).

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Judges have variously used the term discretion to mean each of these different things and it is clearly vitally important to determine which is meant. If the statute that grants the power to intervene is accompanied by an express or implied privilege from any public law duty not to do so, this says nothing about whether or not the choice to intervene will be accompanied by a legal duty of care in private law. The plaintiff might still win. If it is accompanied by a liberty from any duty to take care, then a claim is simply not possible by the particular plaintiff on the occasion in question. If it is accompanied by a multitial immunity, then no legal claims would appear to be possible by anyone whenever the power is exercised, because no one has the power to subject the public authority to any change in its remedial duties, no matter how careless it may have been. If all that is meant is that decisions regarding intervention involve special expertise, for example because they involve difficult questions about resource­allocation or sensitive decisions about whether or not to remove children from their families, duties of care are clearly possible, although it may be that courts should be more lenient as regards the standard of care they require of the state, in the same way that they are in respect of expert private decisions made by doctors. My personal view is that special state immunities and privileges are generally unwarranted and courts should not be overly ready to assume their existence in the absence of very clear statutory language indicating that they are intended, but even if you do not agree with this, you will surely agree that the language of ‘discretion’ is unhelpful as a legal determinant of the outcome. It is one of Hohfeld’s ‘chameleon­hued’ words that needs to be fully deconstructed. It would be better replaced

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with a more discriminating analysis of which of the types of Hohfeldian relation (privilege, immunity, or limited duty) stems from the exercise of statutory power. Understanding Private Law as a Set of Trilateral Hohfeldian Relations The final contemporary example of a way in which Hohfeld is currently usefully being used relates to what is known as ‘civil recourse’ theory in the United States. According to this

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theory, we need to understand private law not simply in terms of bilateral rights and duties between private parties, but as a relationship between plaintiff, defendant and the state. Plaintiffs who are wrongfully injured by defendants do not have secondary rights against defendants that the defendant remedy the wrong committed ­ they instead have rights against the state that the state provide an avenue of civil recourse against the wrongdoer in respect of the wrong committed. The state then has a public duty and a public power to provide a remedy for the violation of the plaintiff’s primary rights that has been committed by the wrongdoer, by changing the legal rights and duties of the wrongdoer. In this way, the network of right­duty and power­liability relationships extends beyond the parties to a private law dispute and includes also the courts as agents of the state. What might have been thought of as a singular, bilateral relationship of private rights and duties becomes

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a trilateral relation, with the whole set of Hohfeldian relations extending between all three points of the triangle, and extending to encompass both public and private duties; public and private powers, and public and private liabilities.

91 FLC, 35. 92 See n 75 above. 93 E Weinrib, The Idea of Private Law (Harvard University Press, 1995).

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Bilateral Conception Trilateral Conception

There is too little space here to examine all of the possible ramifications of this suggestion, or to assess the relative merits of theories of corrective justice and civil recourse. The recent

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movement to triangulate our understanding of private law may actually be a reversion to views held long ago by Blackstone. I shall, however, highlight two potential implications of

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this type of vision, using the Hohfeldian scheme. Firstly, if the vision is correct, then a tortious wrongdoer who knocks me down on the road, although he has violated one of my primary legal claim rights, does not, in consequence of his wrongdoing, owe me any immediate secondary legal duty to repair the wrong. Nor do I therefore have any immediate

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secondary legal claim right against him to the payment of damages, or indeed to any other remedial action. I have a power to initiate an action against him in a court of law, the court has a power to order the defendant to pay me damages and he is therefore under a corresponding, contingent liability to be subjected to secondary rights and duties by the court, but his liability to pay damages is probably not even a liability to me – it is a liability to have his obligations changed by the powers of the court. When the court issues an order to him to

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pay me damages, he then (at that point only) comes under a secondary duty to me to pay me a monetary sum in compensation. What is the result? Well, it is that we have for a very long time misunderstood the law of tort. A wrongdoer has no immediate legal obligation, as Austin thought he did, to do anything to remedy the consequences of his wrongdoing until a court actually says so. We are wrong, then, to think of tort law as being a system of remedial legal duties between wrongdoers and their victims – it is a system of powers and liabilities in which private remedial rights are always contingent on specific exercises of public power. Presumably, this also means that everyone has hitherto been wrong to think that there is any obligation in private law to pay pre­judgment interest on compensatory and restitutionary awards. For, if there is no legal duty on the part of the defendant to pay prior to a court judgment, there would seem to be no good

94 For some critiques of civil recourse theory, see J Stapleton,Evaluating Goldberg and Zipursky's Civil Recourse Theory, (2006) 75 Fordham L. Rev 1529; S Hershovitz, ‘Corrective Justice for Civil Recourse Theorists’ (2011) (39)Fla St U L Rev 107 (concluding that civil recourse theorists are actually corrective justice theorists, albeit ones of the best sort). G Calabresi, Civil Recourse Theory’s Reductionism (2013) 88 Indiana Law Journal 449. For a reply to critics, see J Goldberg, B Zipursky, C Benjamin, ‘Civil Recourse Defended: A Reply to Posner, Calabresi, Rustad, Chamallas, and Robinette’ (2013) 88 Indiana Law Journal 569. 95 See H Dedek, ‘Of Rights Superstructural, Incohate and Triangular – The Role of Rights in Blackstone’s Commentaries’ in Nolan and Roberston (n 3), ch 8. The approach is based on Hobbes and Locke and civil recourse theorists cite both Blackstone and Locke as inspirations ­ ibid 213. 96 For the same view expressed in relation to contract, see N Oman, ‘Why There is no Duty to Pay Damages: Powers, Duties, and Private Law’ (2011) 39 Fla St U L Rev. 137, 139. Cf contra: R Stevens ‘Rights and Other Things’ in Nolan & Robertson (n 3) 115, 133­34. For a similar view in the field of restitutionary debts, see P Jaffey, Hohfeld’s Power­Liability/Right­Duty Distinction in the Law of Restitution’ (2004) 17Can Journal of Law and Jurisprudence 295. 97 Zipursky, ‘Civil Recourse’ (n 75) 721 suggests that the liability to pay damages is one of the defendant to the plaintiff, but I am not sure that this is right, because the power to impose the duty to pay damages may lie instead with the court, not with the plaintiff, even though the plaintiff has the power to initiate the action and thereby bring the defendant under procedural public law obligations to respond to court process. All of this depends on whether you construe a power as an ability to change another’s legal relations through choice or decision. On which, see Halpin (n 67).

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reason for a court to compensate a plaintiff for being kept out of the payment until that date. Yet such interest is normally awarded as a matter of course from the first date on which a plaintiff’s cause of action arose. That, I think is a puzzle that civil recourse theory probably has to solve. There is a second, important, practical implication. If a victim’s rights do not arise directly upon a defendant’s wrongdoing, but only come into being because courts have a duty to provide a victim with some civil recourse, then there can be a wide range of variation in the available remedy and there can be all sorts of good reasons why a court might grant or withhold a remedy that have nothing to do with the moral positions of the respective parties.

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For example, one might accept that, morally speaking, the best remedy for a breach of contract is always to require a plaintiff to perform his or her primary duty of performance to the innocent party. This is the most complete way of protecting the primary right to performance. But if plaintiffs have no prior claim right to a remedy, merely a power to ask courts to give them one, the court may have all sorts of reasons of its own for making a different choice. Some of these reasons are well­known to us – for example, enforcing the remedy might be completely impractical or require constant supervision by a court, which would be inefficient and wasteful of the resources of all concerned. The denial of relief on such grounds is more readily explicable in a system that includes the state in the network of relevant legal relationships, than one which leaves it out. Similarly, court awards of punitive remedies may be more readily explicable than under a trilateral conception than a bilateral one – since the court may give effect to a broader range of public, institutional

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considerations than if remedies merely gave effect to prior rights existing between the parties to a dispute. Under a bilateral vision of private law, courts simply grant orders that give effect to the plaintiff’s already existing remedial rights. Under the trilateral model, they decide what remedy to give themselves, de novo. A plaintiff’s prior rights may be one – and indeed the most important – consideration, but it is not necessarily the only one and it is tempered by other policy aims, including for example, the potential distributive effects that granting a plaintiff a proprietary remedy may have on a defendant’s other creditors. I shall assume for now the Hohfeldian tactic of remaining neutral as to whether I think these ideas are good ones or not. The way in which courts exercise considerable discretion in relation to the remedies they grant does suggest to me that there is a good deal of truth in the tripartitie vision of private law and that, whether or not civil recourse theory itself holds the key to understanding private law in the modern day, there is much to be gained in terms of understanding the nature, configuration and meaning of the various legal relationships by deploying the Hohfeldian scheme to help unlock them. By focusing more clearly on the nature of the various public and private legal relationships that make up the practical operation of private law in an age when the state is so dominant, we are in a much better position to determine their proper configuration.

6. Conclusions No analytical technique can solve our moral, economic or social problems. Nor, in the legal context, can it tell us what rights we should have. But the increasingly powerful, political rhetoric of rights makes it more important than ever that we maintain discipline in our

98 See further, S Smith, ‘Rule­Based Rights and Court­Ordered Rights’, ch 8 in Nolan & Robertson (n 3). Contrast E Weinrib, ‘Two Conceptions of Remedies’ in C Rickett (ed), Justifying Private Law Remedies3 (Oxford, Hart, 2008) (where remedies are regarded as the continuing, but transformed instantiation of the plaintiff’s primary rights). 99 B Zipursky, ‘A Theory of Punitive Damages’ (2005­6) 84 Tex L Rev 105.

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thinking about what rights mean. The more central role of the state in modern society and the equivalently greater intersection between public and private legal relationships in and around private law means that understanding private law is now more complicated than it has ever been. This situation is only likely to increase as regulation of private markets and interests further increases. In such a world, the piercing, if sometimes unsettling insight of the analytical philosopher has a key role to play in untangling our confusions, guarding against our self­contradictions and maintaining a degree of stability in the terms of our debates. Were Hohfeld alive today, he would, I suggest, have more useful work to do than ever.

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