Page:Hohfeld System of Fundamental Legal Concepts.djvu/15



The subject matter of Professor Hohfeld’s tables is full of intrinsic difficulties, and the present writer cannot safely assume with too much confidence, in pointing out what seem to him to be valid objections, that he has always succeeded in his understanding of the Hohfeld System, and that he has been able, on the other hand, to avoid falling into errors of his own. One of the most competent authorities in this field has already spoken of Professor Hohfeld’s tables as showing ingenuity, to which sentiment we subscribe without reservation. The same authority has also advanced objections on other grounds to some of the terminology used by Professor Hohfeld as lacking juristic significance.

Professor Hohfeld’s table arouses curiosity as to how he proceeded to work it out. No explanation is given. Can we be sure that there are only four fundamental juristic terms? Could there not be more than four? No answer is given by Professor Hohfeld or by his associates, or, so far as is within our knowledge, by anyone who has adopted Professor Hohfeld’s System. Superficially, the tables seem to be an enumeration, but a closer inspection shows a regular alternation of the secondary terms when the two tables are compared; thus ‘no-right’ and ‘duty’ change places, as do also ‘disability’ and ‘liability.’ This may perhaps explain the rigid symmetry of the scheme, and this rigidity may account for some of the objections which have been offered. But why did Professor Hohfeld select, or how did he discover, four fundamental jural terms—the “lowest common denominators”? No satisfactory answer can be given, and surmise is all that is left.

Hohfeld was not ex professo a teacher of jurisprudence, but there can be no question that he was an assiduous student of it and that he had a natural bent for that kind of thinking. His literary apparatus shows an intimate acquaintance with everything on the subject printed in English, but it shows no acquaintance at any point with an important literature, especially in German, which has explored juristic ideas in various directions which have not yet been made familiar to us in our own language. This isolation must be regarded as a great hindrance to any investigator in jurisprudence, but in spite of it, or rather because of it, Hohfeld succeeded in building up a structure which has the unquestioned merit of originality and ingenuity. The terms themselves used by Professor