Abstract
Wesley Newcomb Hohfeld is well-known for his view that certain terms – ‘right’, most prominently – do not have a single referent, but may instead encompass a multiplicity of different relationships. And for Hohfeld, distinguishing among these relationships was essential for clear thinking. But an intriguing aspect of Hohfeld’s thought relates to his diagnosis of the cause of the problem he influentially identified. The widely accepted explanation is that Hohfeld believed that lawyers had treated a single word as necessarily having only a single meaning, and as a result, to use contemporary terminology, had ‘reified’ the idea of a right. But another possibility, at times explicit and more often implicit in Hohfeld’s writings, is that the confusion Hohfeld identified is caused by a failure to distinguish specialized (or technical) legal usage, as exemplified in reported cases, and ordinary non-legal usage. Hohfeld’s legacy therefore includes a set of valuable insights on the enduring problem of legal language as technical language, and the relationship between legal language as technical language and legal language as ordinary language.
Schauer, Frederick, Hohfeld on Legal Language (May 23, 2018). Forthcoming in The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries (Shyam Balganesh, Ted Sichelman and Henry Smith eds, Cambridge University Press, 2018 forthcoming).
First posted 2018-06-14 19:15:19
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