Page:Hohfeld System of Fundamental Legal Concepts.djvu/3
molar physics, where often qualitative analysis instead is demanded. Without trenching on the medieval debate of nominalism and realism, it is clear enough that where words are lacking, ideas are usually wanting. Confusion of all jural relations under one undifferentiated idea, ‘rights,’ cannot but result in inaccurate thinking, and, as likely as not, occasionally, in incorrect legal solutions. The chief attribute of scientific progress is greater clearness of distinction. In this the law has been the most backward of sciences, and it is really astonishing, when one stops to consider the fundamental importance of ultimate categories in legal reasoning, that the insufficiency of our technical apparatus, in a scientific sense, had not long before impressed itself.
3. It made conspicuous the uniqueness (singleness) of jural relations as existing only between two persons, and never more than two persons. The confusion which existed on this point was disastrous in cases of rights in personam involving correal or solidary obligations. Nothing in Hohfeld’s System points more clearly to the sharpness of insight of Professor Hohfeld and his colleagues than this important and necessary distinction.
4. It gave to the concept ‘liability’ a new and useful extension, which includes advantage as well as detriment. A certain “linguistic contamination” adheres to the term ‘liability’ which a layman might find it difficult to remove, but in legal science this may readily be ignored. The utility of a two-sided correlative to power as a juristic fact seems indispensable, and no substitute probably could be found without a Benthamic coinage which would require for its establishment two or three generations of insistent repetition.
We now pass to what we regard as the demerits of the system.
1. The table of jural ‘opposites’ (a) is in part inconsistent, and (b) it has little, if any, juristic utility.
- Prof. Corbin has especially emphasized this point: “Legal Analysis and Terminology,” Yale L. Jour., XXIX, 165.
- Prof. Corbin has especially emphasized this point: “Legal Analysis,” Yale L. Jour., XXIX, 169; cf. the remarks of Dean Pound, Int. J. Ethics, XXVI, 92 (97).
This enlargement of the term liability is necessary not in jural relations proper which involve fundamentally the idea of constraint, but only for the broader use of the concept juristic fact, a distinction entirely disregarded and probably misapprehended in the Hohfeld System.
It may here be noted that while Prof. Hohfeld (“Fund. Concepts,” p. 16) and Prof. Cook (id., p. 7) clearly employ ‘power’ with both an abrogative and a constitutive function, Prof. Corbin in a recent statement issued with collaboration of his associates, seems to limit ‘power’ to the function of creating “new legal relations” (“Legal Analysis and Terminology,” Yale L. Jour., XXIX, 168).