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Status to Contract—Refuted or Refined

Published online by Cambridge University Press:  16 January 2009

N. J. Jamieson
N. J. Jamieson
Affiliation:
Senior Lecturer in Law, University of Otago, New Zealand.
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If Hohfeld's analysis of fundamental legal conceptions is valid it promises to afford a very simple means of confirming or refuting Maine's thesis that social progress has hitherto been from status to contract. Anthropology may elucidate the issues of human development thereby put at stake. Legal theory may corroborate or contradict the outcome of testing Maine with Hohfeld. Beyond that, however, the process of verification depends neither on empirical data nor speculative thought. Instead of social science or legal philosophy, it is the outcome of abstract logic. On this account Maine's thesis that status has hitherto given way to contract among the progressive societies is at risk of being dismissed as a logical fallacy.

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The Cambridge Law Journal , Volume 39 , Issue 2 , November 1980 , pp. 333 - 359
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Copyright © Cambridge Law Journal and Contributors 1980

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References

1 Hohfeld, W. N., “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23 Yale L.J. 16,Google Scholar“Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1917) 26 Yale L.J. 712.Google Scholar These articles are reprinted in Cook, W. W., Fundamental Legal Conceptions (Yale, 1919).Google Scholar It is to this source that further references in this article to Hohfeld's work are made.

2 Sir Henry Maine, Ancient Law (London, 1861), pp. 182, 192. References in this article are to Pollock's edition 1930. For a recent discussion of Maine's thesis, see Stein, Peter, Legal Evolution (Cambridge, 1980), pp. 84–85, 96–97, 114–115.Google Scholar

3 The full force of this reservation is dealt with subsequently in relation to a theory of types. Until then its working definition may be taken merely as the date of Maine's first publication of Ancient Law in 1861.

4 Allen, C. K., Legal Duties and Other Essays in Jurisprudence (Oxford, 1931), p. 35.Google Scholar

5 Dias, R. W. M., Jurisprudence (London, 1976), pp. 64–65Google Scholar, and for his temporal approach to jurisprudence in general, ibid., pp. 24–26. See also the previous edition of his same work (pp. 20–22, 272) and “Temporal Approach Towards a New Natural Law” [1970]Google Scholar C.L.J. 75.

6 This sort of enterprise was not unforeseen by Hohfeld although his more ambitious claims to “help us to discern common principles of justice and policy underlying the jural relations involved” have been disputed. See Stone, J., Legal System and Lawyers' Reasonings (Sydney, 1964), p. 161Google Scholar, where it is said that “…Hohfeld's enthusiasm led him to use words implying more ambitious claims.”

7 Hart, H. L. A., The Concept of Law (Oxford, 1961).Google Scholar

8 Hall, J., Foundations of Jurisprudence (Indianapolis, 1973).Google Scholar

9 Although Maine used the word status in his famous dictum, whenever he wrote about the correlative societies (op. cit., pp. 29, 30, 180) he described them as “stationary.” Maine's use of the word “stationary” has been retained throughout this article. Without belittling the propriety of rhetoric in argument, this is intended to emphasise the article's concern for logic.

10 Ibid., p. 182.

11 Ibid., p. 31.

12 London, 1859.

13 In the sense that the passage of time did not in itself explain events.

14 Allen, C. K., in his Introduction to Ancient Law (1931), p. xivGoogle Scholar records that to his knowledge, there is “…only one direct reference to Darwin in Maine's principal writings; in Early Law and Custom…” For a different view in which Maine in later years is said to have “hastened to borrow new weapons from the armoury of Darwin” see Barker, E., Political Thought in England from Spencer to Today (London, 1915), p. 161.Google Scholar The more one considers the issue of Maine's debt to Darwin, the more complex the outcome of this episode in the history of ideas becomes. After all, Wallace claimed Darwin's indebtedness, and that within the province of biology alone. Stein op. cit. p. 88 see supra n. 2, now resiles from his first view of Maine's debt to Darwin—but he may yet be proved right twice over—the first in an abstract and general way and the second more particularly and concrete.

15 This depends on one's view of genetics in linking the origins and ends of life.

16 See the accounts given by Kocourek, A., Jural Relations (Indianapolis, 1927, 1928), pp. viGoogle Scholar, 21–49; Pound, R., “Fifty Years of Jurisprudence” (1937) 50 Harv.L.R. pp. 571–575Google Scholar; Dias, R. W. M., Jurisprudence (London, 1976), pp. 34–35Google Scholar; Dias, R. W. M., A Bibliography of Jurisprudence (London, 1979).Google Scholar

17 At least in Anglo-American jurisprudence.

18 Cook, op. cit., Foreword by A. L. Corbin, pp. x–xv.

19 G. Coode, “Appendix to the Report of the Poor Law Commissioners on Local Taxation, presented to Parliament in 1843” (H.C. Papers, 1843, Vol. XX), and republished as On Legislative Expression; or the Language of the Written Law (London, 1845). References in this article are to its reprint in Driedger, E. A., The Composition of Legislation (Ottawa, 1957), App. I, pp. 167–232.Google Scholar

20 There is no mention of Coode, to the writer's knowledge, in any work on Hohfeldian analysis or analytic jurisprudence.

21 Coode, op. cit., pp. 172–174.

22 See Tarski, A., Introduction to Logic (New York, 1941), pp. 134–140Google Scholar; Hilbert, D. and Ackerman, W., Principles of Mathematical Logic (New York, 1950), pp. 87–101Google Scholar; Basson, B. A. and O'Connor, M. A., Introduction to Symbolic Logic (London, 1953), pp. 62–92.Google Scholar

23 Kanger, S., New Foundations for Ethical Theory (Stockholm 1957)Google Scholar; but see also Kanger, S. and Kanger, H., “Rights and Parliamentarianism,” (1966) 32 Theoria, 85–115.CrossRefGoogle Scholar

24 Pörn, I., The Logic of Power (London, 1970).Google Scholar

25 A new awareness of as yet unrecognised sui generis legal concepts may yet be needed to resolve outstanding problems of Hohfeldian analysis (thus admitted to be incomplete). One example is that of criminal law. To resolve the problem posed by the absence of rights correlative to duties under the criminal law (see Dias, op. cit., p. 38) it is proposed that renewed recognition be accorded to the ancient but no ways obsolete concept of challenge. On this account of criminal law one dares a penalty in challenging society by breaking the law. There is no legal (as distinct from what may be a clear moral) duty to refrain from committing an offence. At law one simply dares to bear the penalty. This is particularly true of criminal codes and statutory offences. The language of criminal law as amply substantiates this legal concept of challenge as it otherwise evidences and promotes confusion between legal and moral duties. It will be instructive to consider the logico-linguistic analysis of “dare,” and the history of challenge and trial by battle in English common law.

26 The distinction is most explicitly drawn in its classical form for common law by Coke C.J. in Prohibitions del Roy (1607) 12 Co. Rep. 63.

27 This is the contribution to legal philosophy of Roy Stone, for an account of which see Hadden, T. B., “Law and Philosophy” (1968) 26 C.L.J. 131.Google Scholar The identity is instanced and confirmed by the work of Pörn, op. cit., in using Hohfeldian analysis to exemplify the methodology of logic at large, by the relevance of the liar paradox to legal reasoning shown by Hicks, J. C., “The Liar Paradox in Legal Reasoning” (1971) 29 C.L.J. 275Google Scholar, and by the application of symbolic logic to case and statute law. For literature relating to, and an instance of the latter, see Jamieson, N. J., “Towards a Systematic Statute Law” (1976) 3 Otago L.R. 543, 569–577.Google Scholar

28 See the titles to both Hohfeld's articles, op. cit., ante, note 1. Compare his use of the word “essential” in the first sentence of his first article with Coode's use of the same word. Hohfeld also uses the word “basic,” as in the first sentence of the second paragraph of his second article.

29 “The strictly fundamental legal relations are, after all, sui generis; and thus it is that attempts at formal definition are aways unsatisfactory, if not altogether useless”: Hohfeld, op. cit., p. 36.

30 “One of the greatest hindrances to the clear understanding, the incisive statement, and the true solution of legal problems frequently arises from the express or tacit assumption that all legal relations may be reduced to ‘rights’ and ‘;duties’ …”: Hohfeld, op. cit., p. 35. It is more likely, however, that of Hohfeld's eight, only right, privilege, power, and immunity are independent. On this account each concept with its correlative are but aspects (or contrasts) of the one relationship, just as sale and purchase are but aspects of a single transaction. A further reduction to the key concepts of right and power may even be required to satisfy a more rigorous elimination of superfluous axioms. Thus we may reduce the range of fundamental legal conceptions provided we increase our understanding of their relationship to theorems of the system. Indeed, Goble, G. W. “A Redefinition of Basic Legal Terms” (1935) 35 Columbia L.R. 534, 540Google Scholar reduces Hohfeld's eight to one.

31 “… the need [is] for dealing somewhat more intensively and systematically than is usual with the nature and analysis of all types of jural interests.” Hohfeld, op. cit., p. 26. This concern of Hohfeld for completeness is also seen by Cook, op. cit., p. 5; “… Hohfeld sets forth the eight fundamental conceptions in terms of which he believed all legal problems could be stated”: and so too by Pörn, op. cit., p. 46: “… it is safe to say, I believe, that [Hohfeld] thought that all legal problems could successfully be stated in terms of the elements of his scheme.”

32 See op. cit., note 22.

33 It is also explicit in Kocourek's enumeration of the additions to our knowledge of jural relations attempted in his book: op. cit., pp. vi–ix.

34 See Fig. 1.

35 Williams, G., “The Concept of Legal Liberty” (1956) 56 Columbia L.R. 1129, 1135, 1138.Google Scholar

36 See Fig. 2.

37 See Fig. 3 drawn from Sinclair, W. A., The Traditional Formal Logic (London, 1937), p. 99Google Scholar (after Analytica Priora, II, 15, 63b, 27). The point of following the square of opposition in traditional logic and applying it even more closely to Hohfeldian analysis has been demonstrated by Fitch, F. B., “A Revision of Hohfeld's Theory of Legal Concepts” (1967) 39–40Google ScholarLogique et Analyse 269–276, and Rosdorff, L. W., “Hohfeld's Theory of Fundamental Concepts: A No Revision” (1973) 5 Etudes de Logique Juridique 259–271.Google Scholar

38 Kocourek used the same device of independent tables, but his concern for consistency and completeness led him to correlate all his fundamental legal conceptions into a single table. The resultant complexity of his system, and the idiosyncracy of his nomenclature (e.g. his table of jural opposites, op. cit., p. 85) has unfortunately led first to avoidance and then to ignorance of his work. Indeed, by attaining a remarkable degree of consistency and completeness, his idiosyncracy of nomenclature has more cause to be forgiven than most.

39 Compare Hohfeld's table of jural relations, op. cit., p. 36, which in so far as it goes beyond representing one generic dichotomy between jural opposites and jural correlatives to indicate eight others of a specific nature, is less integrated than Williams. This lack of integration emphasises the sui generis nature of the fundamental legal relations, see note 29, ante.

40 See Basson and O'Connor, op. cit., p. 146.

41 Op. cit.

42 Op. cit.

43 Dias, op. cit., p. 35, Paton, G. W., Jurisprudence (Oxford 1946, 1951), p. 225Google Scholar, and see Kamba, W. J., “Legal Theory and Hohfeld's Analysis of a Legal Right” (1974) 19 Juridical R. 249, 251.Google Scholar

44 Op. cit., ante, note 5.

45 Op. cit., ante, note 7.

46 op. cit., ante, note 8.

47 See Salmond on Jurisprudence, 11th ed., ed. Williams, p. 278.

48 Ibid.

49 Williams's notion of changing relationships entails time.

50 Op. cit., ante, note 7, 77–79, 90–96. That this is the same dichotomy is accepted by Fuller, L., The Morality of Law (Newhaven, 1964) p. 134Google Scholar, note 50 and pp. 136–137. See also Stone, op. cit., p. 156 where Hohfeld is described as being “no mean precursor of Hart”in the field of definition.

51 Op. cit., ante, note 8, pp. 123–125; Williams, op. cit., ante, note 47; Dias, Jurisprudence pp. 64–65.

52 Edinburgh Review, C1 xxviiii, 104.

53 Op. cit., ante, note 5.

54 In the sense that every logic carries within itself a metalogic, philosophy, or ideology; and so also every system of legal reasoning its own theory of law.

55 See Stone, op. cit., ante, note 6, p. 156 for a discussion of this criticism.

56 Jurisprudence p. 64.

57 Neither Hart nor Hall apply their theory directly to Hohfeld's work but transcend it with a far broader view.

58 Lect. XV. 401, quoted Allen, op. cit., p. 29, see ante, note 4. See also Austin's Lectures XL–XLIII.

59 Just as contract may be accounted for according to a right-duty and privilege-no-right relationship, so also may we expect status to have similar syntactic relationships of jural correlatives and opposites. In the face of such expectations the question of status can hardly be seen to be entirely semantic.

60 Op. cit., p. 28, see ante, note 4.

61 See the discussion of various meanings in Salmond, op. cit., p. 292.

62 See Holdsworth, A History of English Law, III, pp. 455–533: IX, pp. 3–126.

63 Notwithstanding which, in English jurisprudence alone there are Austin, op. cit., Salmond, op. cit. and Allen, op. cit.

64 Op. cit., p. 181.

65 See Zeller, A History of Greek Philosophy (London, 1881), Vol. II.; Gomperz, Greek Thinkers (London, 1906), Vol. I.; Webb, C. J., A History of Philosophy (Oxford 1915), pp. 27Google Scholar and et seq. Armstrong, A. H., An Introduction to Ancient Philosophy (London, 1947), p. 9–11Google Scholar for an account of the conflict of opposites still embodied in our adversarial legal system. It was Heraclitus, like Pythagoras also a pre–Socratic, who first propounded the logos, recognised by lawyers today as the Rule of Law, by which the chaos of injustice is dispelled.

66 See Guest, A. G., “Logic in the Law,” Oxford Essays in Jurisprudence (Oxford, 1961) p. 176Google Scholar, pp. 190–193.

67 Pound, op. cit., p. 572.

68 And to Heraclitus and beyond.

69 Cook, op. cit., p. 36.

70 Thus reconciling the conflict of co-existing opposites for the western mind.

71 Croce, B., What is Living and What is Dead in the Philosophy of Hegel (trans. Ainslie), (London 1915)Google Scholar, c. 4.

72 This is a deep question which should take account of Korzybski's attack on Aristotelian logic: see Korzybski, A., Science and Sanity: An Introduction to Non-Aristotelian Systems and General Semantics, 4th ed. (Lancaster, Pa., 1958)Google Scholar, notwithstanding the extent to which this work is disfavoured by professional philosophy.

73 Anderson, A. R., “Logic, Norms, and Roles”(1962) 4 Ratio 36–49.Google Scholar

74 Op. cit., see ante, note 23.

75 Op. cit., see ante, note 24.

76 Idem, p. 46.

77 Dias, Jurisprudence, pp. 532–542 in dealing with Maine as “… the greatest representative of the historical movement in England,” considers the anthropological approach to jurisprudence as a product of the Historical School.

78 “[Kocourek] makes it clear that the constrasted ideas, [of opposites and correlatives] used to bring out [the legal conceptions of right, duty, power, liberty, and privilege] and define them clearly, are not for that reason themselves legal conceptions or to be treated as such.” Pound, op. cit., pp. 575–576.

79 Maine, op. cit., p. 180.

80 Ibid., pp 181–182.

81 Ryle, G., Philosophical Arguments (London, 1945)Google Scholar; The Concept of Mind (London, 1949).Google Scholar

82 See Dias, Jurisprudence, p. 534, note 1, and Allen, op. cit., p. 47.

83 Polanyi, M., Personal Knowledge—Towards a Post-Critical Philosophy (London, 1958), pp. 214–245, 376.Google Scholar

84 Idem. It is also more than hinted at by Hart's use, op. cit., of the words “internal” and “external” in relation to rules.

85 Dias, Jurisprudence, pp. 64–65.

86 Hart, op. cit., p. vii.

87 Ibid., p. 89.

88 Ibid., p. 90.

89 “The introduction of the remedy for each defect [uncertainty, static character, and inefficiencyrsqb; might, in itself, be considered a step from the pre-legal into the legal world: certainly all three remedies together are enough to convert the regime of primary rules into what is indisputably a legal system.” Ibid., p. 91.

90 Supra, notes 79, 80.

91 Hart, op. cit., pp. 78–79.

92 Hall, op. cit., p. 124.

93 The little word “hitherto,” which contributes so much to the brilliance of Maine's generalisation, has a great part to play in encompassing various species of circularity. By and large, debates around the significance of “hitherto” have related either to empiric or analytic matters, but not to the logic of Maine's argument at large. “Many are now asking,” wrote Allen, op. cit., pp. 153–154 “some with apprehension, and some, it would seem, with complacency, whether the contrary movement, from contract to status, is not setting in … [I]t may be that Maine's famous principle will some day be regarded simply as a parenthesis in social history. Whether this, if it should happen, will be the mark of progressive or of retrogressive societies is a controversial question …” A more subtle species of circularity related to the need for a logic of types indicates stationary and progressive societies as being two of a kind. In Darwinian terms, they are the same species of organism. They are no more distinguishable at different levels or plateaux of attainment in the same evolutionary system where each may be differently situated at the same time. Nevertheless both pass and repass in cyclic fashion through histories of static and dynamic states, any formula of progress being imbued with the social values of the observer at the time of its making.

94 Hicks, (see post, note 95) dealt with parliamentary sovereignty, precedent, and renvoi. Fitzgerald, P. has since dealt with “The Paradox of Parliamentary Sovereignty” in (1972)Google ScholarIrish Jurist 28. In a series of articles commencing with “The Dilemma of Statutory Commencement” (1980)Google Scholar New Zealand L.J. 180 the present writer, as a former parliamentary counsel, deals with the practical problems of the liar paradox in the everyday drafting of legislation.

95 Hicks, J. C., “The Liar Paradox in Legal Reasoning” (1971) 29 C.L.J. 275.Google ScholarGoldstein, Laurence, “Four Alleged Paradoxes in Legal Reasoning” (1979) 38 C.L.J. 373Google Scholar, purports to refute Hicks and reassure lawyers that legal reasoning is not infected by paradox. His reassurance raises issues now beyond and independent of this paper. That the paradoxes described by Hicks persist in legal reasoning, and that their existence is confirmed rather than refuted by the “fundamental inquiry about the nature of laws” to which Goldstein ultimately defers, is clear to the present writer who hopes to pursue them on a further occasion.

96 See Arthurs, H. W., “Progress and professionalism: The Canadian Legal Profession in Transition” in Law and Social Change, ed. Ziegal, (Toronto, 1972), pp. 1–16Google Scholar, which should be considered in the context of Klein, F., Elementary Mathematics from an Advanced Standpoint (Geometry), (London, 1939)Google Scholar and Medawar, O., “A Geometric Model of Reduction and Emergence” in Studies in the Philosophy of Biology, eds. , Ayala and , Dobzhansky (London, 1974).Google Scholar

97 Hicks, op. cit., pp. 281–286.

98 Russell, B., “Mathematical Logic as Based on the Theory of Types” (1908) 30 American Journal of Mathematics 222CrossRefGoogle Scholar, and Whitehead, A. N., and Russell, B. A. W., Principia Mathematica (Cambridge, 1910)Google Scholar, Vol. I.

99 In terms of an hierarchic logic similar to that suggested here for individual and civic relationships see that of Klein, op. cit., supra, note 96, which relates the various axiomatic systems of Euclidean-metrical, affine, projective, and topological geometries. So, too, the same model is drawn for the empirical sciences of physics, chemistry, biology, ecology and sociology (see Medawar, op. cit., supra, note 96). Wittgenstein's Tractatus provoked Russell in its Introduction, to postulate a similar hierarchy of languages. Reich's The Greening of America led Arthurs, op. cit., supra, note 96, to suggest a like hierarchy for levels of legal consciousness. In the way that the notion of a hierarchy of mathematics is applied to the empirical sciences, even so far as to relate to language and law, it becomes imbued, with ideology. A theory of types provides a metaphysics whereby to relate ideology and methodology. This is of critical relevance to legal theory, among other things in ascertaining the relationship of law to politics.