Fundamental Legal Conceptions As Applied in Judicial Reasoning by Wesley Newcomb Hohfeld

David Campbell, Philip Thomas

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781351935203
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Wesley Newcomb Hohfeld, born in 1879, died prematurely in 1918. He left only a few law journal articles as his published work. His 'Fundamental Legal Conceptions', originally published as two articles in the 'Yale Law Journal' for 1913 and 1917 and left incompletely revised at his death is, however, one of the principal foundations of analytic jurisprudence. The analysis of rights that Hohfeld offers is still regularly cited and relied upon by both lawyers and philosophers, and it is treated as a source of insight into the nature of moral rights as well as the legal rights that were Hohfeld's own focus of concern. Although some of his analytical distinctions were anticipated by earlier jurists, their insights were fragmentary and imperfect by comparison. Hohfeld's systematic and exhaustive (yet concise) treatment is generally regarded as unsurpassed. This is not to say that he has not been criticized, but his book forms the essential starting point for any discussion of the nature and structure of rights. 'Fundamental Legal Conceptions' has long been difficult to obtain. This new edition makes this classic of analytic jurisprudence available with a comprehensive introduction by Dr. N.E. Simmonds of Corpus Christi, University of Cambridge, UK.

Section 1

From very early days down to the present time the essential nature of trusts and other equitable interests has formed a favourite subject for analysis and disputation. The classical discussions of Bacon¹ and Coke are familiar to all students of equity, and the famous definition of the great chief justice (however inadequate it may really be) is quoted even in the latest text-books on trusts.² That the subject has had a peculiar fascination for modern legal thinkers is abundantly evidenced by the well-known articles of Langdell³ and Ames,⁴ by the oft-repeated observation of Maitland in his Lectures on Equity,⁵ by the very divergent treatment of Austin in his Lectures on Jurisprudence,⁶ by the still bolder thesis of Salmond in his volume on Jurisprudence,⁷ and by the discordant utterances of Mr Hart⁸ and Mr Whitlock⁹ in their very recent contribution to our periodical literature.

It is believed that all of the discussions and analyses referred to are inadequate. Perhaps, however, it would have to be admitted that even the great intrinsic interest of the subject itself and the note-worthy divergence of opinion existing among thoughtful lawyers of all times would fail to afford more than a comparatively slight excuse for any further discussion considered as a mere end in itself. But, quite apart from the presumably practical consideration of endeavouring to ‘think straight’ in relation to all legal problems, it is apparent that the true analysis of trusts and other equitable interests is a matter that should appeal to even the most extreme pragmatists of the law. It may well be that one’s view as to the correct analysis of such interests would control the decision of a number of specific questions. This is obviously true as regards the solution of many difficult and delicate problems in constitutional law and in the conflict of laws.¹⁰ So, too, in certain questions in the law of perpetuities, the intrinsic nature of equitable interests is of great significance, as attested by the well-known Gomm case¹¹ and others more or less similar. The same thing is apt to be true of a number of special questions relating to the subject of bona fide purchase for value. So on indefinitely.¹²

But all this may seem like misplaced emphasis; for the suggestions last made are not peculiarly applicable to equitable interests: the same points and the same examples seem valid in relation to all possible kinds of jural interests, legal as well as equitable, - and that too, whether we are concerned with ‘property,’ ‘contracts,’ ‘torts,’ or any other title of the law. Special reference has therefore been made to the subject of trusts and other equitable interests only for the reason that the striking divergence of opinion relating thereto conspicuously exemplifies the need for dealing somewhat more intensively and systematically than is usual with the nature and analysis of all types of jural interests. Indeed, it would be virtually impossible to consider the subject of trusts at all adequately without, at the very threshold, analyzing and discriminating the various fundamental conceptions that are involved in practically every legal problem. In this connection the suggestion may be ventured that the usual discussions of trusts and the other jural interests seem inadequate (and at times misleading) for the very reason that they are not founded on a sufficiently comprehensive and discriminating analysis of jural relations in general. Putting the matter in another way, the tendency - and the fallacy - has been to treat the specific problem as if it were far less complex and it really is; and this commendable effort to treat as simple that which is really complex has, it is believed, furnished a serious obstacle to the clear understanding, the orderly statement, and the correct solution of legal problems. In short, it is submitted that the right kind of simplicity can result only from more searching and more discriminating analysis.

If, therefore, the title of this article suggests a merely philosophical inquiry as to the nature of law and legal relations, - a discussion regarded more or less as an end in itself, - the writer may be pardoned for repudiating such a connotation in advance. On the contrary, in response to the invitation of the editor of this journal, the main purpose of the writer is to emphasize certain oft-neglected matters that may aid in the understanding and in the solution of practical, everyday problems of the law. With this end in view, the present article and another soon to follow will discuss, as of chief concern, the basic conceptions of the law, - the legal elements that enter into all types of jural interests. A later article will deal specially with the analysis of certain typical and important interests of a complex character, - more particularly trusts and other equitable interests. In passing, it seems necessary to state that both of these articles are intended more for law school students than for any other class of readers. For that reason, it is hoped that the more learned reader may pardon certain parts of the discussion that might otherwise seem unnecessarily elementary and detailed. On the other hand, the limits of space inherent in a periodical article must furnish the excuse for as great a brevity of treatment as is consistent with clearness, and for a comparatively meager discussion - or which might otherwise merit greater attention. In short, the emphasis is to be placed on those points believed to have the greatest practical value.

Legal Conceptions Contrasted with Non-Legal Conceptions

At the very outset it seems necessary to emphasize the importance of differentiating purely legal relations from the physical and mental facts that call such relations into being. Obvious as this initial suggestion may seem to be, the arguments that one may hear in court almost any day, and likewise a considerable number of judicial opinions, afford ample evidence of the inveterate and unfortunate tendency to confuse and blend the legal and the non-legal quantities in a given problem. There are at least two special reasons for this.

For one thing, the association of ideas involved in the two sets of relations - the physical and the mental on the one hand, and the purely legal on the other - is, in the very nature of the case. Extremely close. This fact has necessarily had a marked influence upon the general doctrines and the specific rules of early systems of law. Thus, we are told by Pollock and Maitland:

Ancient German law, like ancient roman law, sees great difficulties in the way of an assignment of a debt or other benefit of a contract … men do not see how there can be a transfer of a right unless that right is embodied in some corporeal thing.¹³ The history of the incorporeal things has shown us this; they are not completely transferred until the transferee has obtained seisin, has turned his beasts onto the pasture, presented a clerk to the church or hanged a thief upon the gallows. A covenant or a warranty of title may be so bound up with land that the assignee of the land will be able to sue the covenantor or warrantor.¹⁴

In another connection, the same learned authors observe:

The realm of mediaeval law is rich with incorporeal things. Any permanent right which is of a transferable nature, at al events if it has what we may call a territorial ambit, is thought of as a thing that is very like a piece of land. Just because it is a thing it is transferable. This is no fiction invented by the speculative jurists. For the popular mind these things are things. The lawyer’s business is not to make them things but to point out that they are incorporeal. The layman who wishes to convey the advowson of a church will say that what he means to transfer is not that structure of wood and stone which belongs to God and the saints, but a thing incorporeal, as incorporeal as how own soul or the anima mundi.¹⁵

A second reason for the tendency to confuse or blend non-legal and legal conceptions consist in the ambiguity and looseness of our legal terminology. The word ‘property’ furnishes a striking example. Both with lawyers and with laymen this term has no definite or stable connotation. Sometimes it is employed to indicate the physical object to which various legal rights, privileges, etc., relate; then again - with far greater discrimination and accuracy - the word is used to denote the legal interest (or aggregate of legal relations) appertaining to such physical object. Frequently there is a rapid and fallacious shift from the one meaning to the other. At times, also, the term is used in such a ‘blended’ sense as to convey no definite meaning whatever.

For the purpose of exemplifying the looser usage just referred to, we may quote from Wilson v Ward Lumber Co:

The term ‘property,’ as commonly used, denotes any external object over which the right of property is exercised. In this sense it is a very wide term, and includes every class of acquisitions which a man can own or have an interest in.¹⁶

Perhaps the ablest statement to exemplify the opposite and more accurate usage is that of Professor Jeremiah Smith (then Mr Justice Smith) in the leading case of Eaton v B C and M R R Co:

In a strict legal sense, land is not ‘property,’ but the subject of property. The term ‘property,’ although in common parlance frequently applied to a tract of land or a chattel, in its legal significance ‘means only the rights of the owner in relation to it.’ ‘It denotes a right over a determinate thing.’ ‘Property is the right of any person to possess, use, enjoy, and dispose of a thing.’ (Selden, J., in Wynehamer v People, 13 N.Y., 378, p.433; 1 Blackstone’s Com., 138; 2 Austin’s Jurisprudence, 3d ed., 817, 818) … The right of indefinite user (or of using indefinitely) is an essential quality of absolute property, without which absolute property can have no existence … This right of user necessarily includes the right and power of excluding others from using the land. (See 2 Austin on Jurisprudence, 3d ed., 836; Wells, J., in Walker v O.C.W.R.R., 103 Mass., 10, p.14).¹⁷

Another useful passage is to be found in the opinion of Sherwood J in St Louis v Hall:

Sometimes the term is applied to the thing itself, as a horse, or a tract of land; these things, however, though the subjects of property, are, when coupled with possession, but the indicia, the visible manifestation of invisible rights, the evidence of things not seen … Property, then, in a determinate object, is composed of certain constituent elements. To wit: the unrestricted right of use, enjoyment, and disposal, of that object.¹⁸

In connection with the ambiguities latent in the term ‘property’ it seems well to observe that similar looseness of thought and expression lurks in the supposed (but false) contrast between ‘corporeal’ and ‘incorporeal’ property. The second passage above quoted from Pollock and Maitland exhibits one phase of this matter. For further striking illustration, reference may be made to Blackstone’s well-known discussion of corporeal and incorporeal heraditaments. Thus, the great commentator tells us:

But an hereditament [says Sir Edward Coke] is by much the largest and most comprehensive expression; for it includes not only lands and tenements, but, whatsoever may be inherited, be it corporeal or incorporeal, real, personal, or mixed.¹⁹

It is clear that only legal interests as such can be inherited; yet in the foregoing quotation there is an inextricable confusion between the physical or ‘corporeal’ objects and the corresponding legal interests, all of which latter must necessarily be ‘incorporeal’ or ‘invisible,’ to use the expression of Mr Justice Sherwood. This ambiguity of thought and language continues throughout Blackstone’s discussion; for a little later he says:

Hereditaments, then, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses, such as may be seen and handled by the body; incorporeal are not the objects of sensation, can neither be seen nor handled; are creatures of the mind, and exist only in contemplation.

Still further on he says:

An incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal), or concerning, or annexed to, or exercisable within, the same … Incorporeal hereditaments are principally of ten sorts: advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents.

Since all legal interests...