David Frydrych (National University of Singapore (NUS) - Faculty of Law) has posted Hohfeld vs. the Legal Realists on SSRN. Here is the abstract:
2018 marks the centenary of Yale Law professor Wesley Hohfeld's untimely passing. His schema of jural relations is widely considered to be a permanent contribution to legal scholarship, and his first most famous work on the matter is among the most cited American law review articles of all time. In recent years, quite a few prominent legal historians and philosophers have identified Hohfeld as having been a Legal Realist. This article argues that he was no such thing, that his work need not be understood in such lights, and that he in fact made a much smaller contribution than is generally believed. While some might find that interesting in its own right, making the case against the Realist identification actually has greater implications. It requires addressing hitherto ignored evidence of key Realists' views of rights and duties, which in turn impacts the long-standing "what is Legal Realism?" debate. Despite scholarly efforts to excise a predictive component from Legal Realism, key members' views, some of which are explicit modifications to Hohfeld, serve as evidence that the Realists endorsed Predictive (and Sanction) theories of law after all. Hence, no matter which account of Legal Realism you prefer, it must be supplemented with this information about predictions, sanctions, rights, and duties. What about Hohfeld, though? He has nothing to do with theories of adjudication that identify "extra-legal" factors as being the real drivers of judicial decision-making. It is also untrue that the schema or a Hohfeldian analysis must advance a "Realist" political agenda. Further, Predictive and Sanction theories are not distinctly Realist, and they need not play a role in Hohfeld's schema of jural relations anyway. Although Hohfeld may have been a Sanction theorist, that alone cannot render him a Realist.Distinguishing him from the Realists will correct some misunderstandings about the schema of jural relations, demonstrate its utility in many more contexts and ways than a Realist reading of Hohfeld allows, and also raise some pressing concerns for contemporary Realists.