Abstract

AbstractAt the core of Hohfeld's contribution to legal theory is a conceptual framework for the analysis of the legal positions occupied by agents in intersubjective legal relations. Hohfeld presented a system of eight “fundamental” concepts relying on notions of opposition and correlation. Throughout the years, a number of authors have followed Hohfeld in applying the notion of opposition to analyze legal concepts. Many of these authors have accounted for Hohfeld's theory in direct analogy with the standard deontic hexagon. This paper reviews some of these accounts and extends them employing recent developments from opposition theory. In particular, we are able to extend application of opposition theory to an open conception of the law. We also account for the implications of abandoning the assumption of conflict-freedom and admitting seemingly conflicting legal positions. This enables a fuller analysis of Hohfeld's conceptual analytical framework. We also offer a novel analysis of Hohfeld's power positions.

Highlights

  • In recent decades, Wesley Newcomb Hohfeld’s (1879–1918) theory of fundamental legal concepts has been revisited and applied out of historical interest.[1]

  • Note that when we leave the level of fundamental legal concepts and enter the level of complex legal concepts, we leave an ideologically neutral territory and enter a space in which institutions of law reflect the configuration of a state of affairs at a particular time and place

  • Our analysis shows that this interpretation of Hohfeld needs to be more nuanced if one assumes an open normative system; contradiction still leads us from one vertex of the cube to the farthest other vertex, but the three positions in the triangle of contrariety—“duty” (A), “duty not” (E), and “liberty” (Y)—are opposed to weak positions, which are the result of applying negation to the existence of a normative position—“no duty,” “no duty not,” and “no liberty.”[111]. If we take Hohfeld’s opposition to mean negation in this sense, “liberty” cannot be reached from “duty” or “duty not,” and it stands on its own as a legal position

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Summary

INTRODUCTION

Wesley Newcomb Hohfeld’s (1879–1918) theory of fundamental legal concepts has been revisited and applied out of historical interest.[1]. Hohfeld.”[2] In 2002, Curtis Nyquist called for an academic rediscovery of Hohfeld by assessing the advantages of applying his concepts in the classroom.[3] In 2012, Ivana Tucak argued for the use of Hohfeld’s conceptual framework in legal education in countries associated with the civil law tradition.[4] Despite receiving justified criticism over the past hundred years, Hohfeld’s theory remains highly influential.[5] For example, Kit Barker argues that Hohfeld’s influence is deeper than it appears to be, and, given the growing interest in the Hohfeldian conceptual framework, he suggests two reasons why its use is more necessary than ever: to discipline and rationalize a growing rhetoric of rights and to disentangle the increasingly complex relationship between public and private law, which coincided with the rise of the modern administrative state in the twentieth century.[6] At the core of Hohfeld’s contribution is a conceptual framework for the analysis of the positions occupied by agents in intersubjective legal relations In providing such a framework, Hohfeld presented a. The various structures contrast the contributions from other authors on the Hohfeldian conceptual framework

Overview
The Vagueness of the Term “Privilege” and the Solution
The Incompleteness of Hohfeld’s Scheme and the Solution
THEORY OF OPPOSITION
Triangle of Contrariety
Opposition Theory beyond the Hexagon
FUNDAMENTAL LEGAL CONCEPTS IN THE HEXAGON OF OPPOSITION
CONCLUSION
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