Aditi Bagchi (Fordham University School of Law) has posted The Contingent Politics of Legal Formalism (eds. Balganesh, Sichelman & Smith, The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries (Cambridge University Press, 2018)) on SSRN. Here is the abstract:
This essay is for an edited volume exploring Wesley Hohfeld’s contributions to legal theory. It argues that Hohfeld’s scheme has latent political implications that render the scheme less than hospitable to a more egalitarian private law structure. Even as Hohfeld deconstructs some analytic choices and reveals their contingency, he reifies other choices that are equally contingent. The broader point is that such simultaneous deconstruction-reification is unavoidable.
The essay identifies three features of the Hohfeldian scheme that undermine the intelligibility, and even more so the plausibility, of alternative private law orders. Each stems from hyper-individuation within the Hohfeldian scheme. First, Hohfeld does not recognize any lateral references in his scheme of entitlements. Rights, privileges, powers and immunities are borne by individuals and are assigned no justificatory role; they are free standing, as if they stand in only a logical rather than a normative relation to duties, “no-rights”, liabilities and disabilities. The result is that the content of entitlements between two people never depends conceptually on what other people’s entitlements are.
Second, the correlative structure of rights and duties in Hohfeld’s framework denies imperfect legal rights. He is committed famously to the idea that rights and duties run bilaterally, albeit between numerous pairs. By contrast, most private rights plausibly derivative from distributive injustice are imperfect.
Finally, Hohfeld’s scheme lends itself to the idea that fully specified rights will rarely conflict. Properly sorted, all entitlements can be rearranged into the boxes he offers. He does not encourage us to expect anything will be left out; that the legal scheme might fail to recognize one type of entitlement by virtue of having committed itself to having recognized another; and that such a failure could be a cause for system regret.