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LEGAL POWERS IN PRIVATE LAW

Published online by Cambridge University Press:  21 November 2016

Christopher Essert
Christopher Essert*
Affiliation:
Queen's University Faculty of Law, [email protected]
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Abstract

This article explores the nature and role of legal powers in private law. I show how powers are special in that they allow agents to change their (and others’) legal circumstances merely by communicating an intention to do so, without having also to change the nonnormative facts of the world. This feature of powers is, I argue, particularly salient in private law, with its correlative or bipolar normative structure; understanding powers and their role in private law thus requires careful attention to this correlativity. In the final section, I argue that the correct explanation of a variety of substantive problems in private law, many having to do with the role of a party's intention, turns on correctly understanding legal powers.

Type
Research Article
Information
Legal Theory , Volume 21 , Issue 3-4 , December 2015 , pp. 136 - 155
Copyright
Copyright © Cambridge University Press 2016 

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References

1. Hohfeld, Wesley N., Some Fundamental Legal Conceptions as Applied in Judicial Reasoning , 23 Yale L.J. 16 (1913)CrossRefGoogle Scholar.

2. Another thing I do not do is to attempt any kind of comprehensive review of earlier discussions of legal powers. I discuss the best-known views in notes 14 and 44 and accompanying text.

3. Hohfeld, supra note 1, at 45–54. I discuss some of these powers in Section IV infra.

4. See H.L.A. Hart, The Concept of Law (3d ed. 2012), at 81.

5. Pierson v. Post, 3 Cai. R. 175, 2 Am. Dec. 264 (N.Y. 1805).

6. O'Brien v. Cunard S.S. Co. Ltd., 28 N.E. 266, 266 (Mass. 1891).

7. Restatement (Second) of Contracts §2.

8. Here I am assuming that in understanding legal powers, we should take account of the law's own internal understanding of them. For defense of this sort of methodology as applied to theorizing about private law more generally, see Ernest J. Weinrib, The Idea of Private Law (1995); Zipursky, Benjamin C., Pragmatic Conceptualism , 6 Legal Theory 457 (2000)CrossRefGoogle Scholar.

9. For discussion of the idea of bipolar normativity, see Weinrib, supra note 8; Thompson, Michael, What Is It to Wrong Someone? A Puzzle about Justice , in Reason and Value: Themes from the Moral Philosophy of Joseph Raz (Wallace, R. Jay, Scheffler, Samuel & Smith, Michael eds., 2004)Google Scholar; Stephen Darwall, The Second-Person Standpoint (2006).

10. See Immanuel Kant, The Metaphysics of Morals (Mary Gregor trans., 1996), at 6:237–238, 245–246, 253.

11. Shiffrin, Seana Valentine, Promising, Intimate Relationships, and Conventionalism , 117 Phil. Rev. 481 (2008), at 500–502CrossRefGoogle Scholar.

12. Taking up Owens's evocative phrase, we can say that legal powers allow us to shape our legal landscapes in a distinctive way: David Owens, Shaping the Normative Landscape (2013).

13. Hohfeld, supra note 1, at 50.

14. Raz, Joseph, Voluntary Obligations and Normative Powers , 46 Aristotelian Soc'y Supplementary Vol. 79 (1972), at 80Google Scholar. It is worth noting that Hohfeld's full account requires that power-holder's exercise of volitional control be “paramount” as compared to any other person's. So Hohfeld does have the resources to say why I am not exercising legal power when I convince my neighbor to invite you into her house. (Although my volitional control may be at work in that case, her volitional control is paramount.) Still, the objection in the text seems decisive in showing how Hohfeld's account is overbroad, and the overbreadth tracks the central distinction in that Hohfeld's account captures cases in which the legal change is not brought about in the distinctive way that, as I am arguing, genuine exercises of legal power do. We might read Hohfeld differently by ascribing to him a quite specific understanding of “control,” such that a fact is under my control only when I can determine whether or not it obtains without requiring any kind of empirical or causal process, or something along those lines. That would be a better account, as the discussion below makes clear. But Hohfeld does not offer any explanation of such a notion of control or, indeed, any reason to think that this is what he actually has in mind.

Salmond's view is similar to Hohfeld's, but he claims that only acts done with the intention to bring about the legal change (“directed to that end”) can constitute the exercise of a power. The problem with a view like this, as Raz saw, is that many acts could be done on a given occasion with the intention of bringing about a legal change, yet this does not seem to change them into the exercise of a power. (I cannot make my moving house the exercise of a power just by doing with the intention of bringing about the relevant legal changes.) See John W. Salmond, Jurisprudence (4th ed. 1913), at 192–193; and see Raz, supra note 14, at 81, for the criticism. (I discuss Raz's own view in note 44, infra.) In addition to Hohfeld's and Salmond's basically common-law views, there is another set of views espoused by theorists from civilian jurisdictions, tracing back (at least) to Hans Kelsen, Alf Ross, and G.H. von Wright. These views tend to refer to legal power as “legal competence.” Torben Spaak, a sophisticated contemporary proponent of such views, argues, similarly to Salmond, that a person has legal power when, if he or she performs “in the right way” some act that “depends for its legal effect on having been performed with an (actual or imputed) intent to bring about the relevant legal effect,” the relevant legal effect is brought about. But in addition to its mysterious “right way” requirement, Spaak's characterization fails in that it does nothing to account for the central distinction. See Spaak, Torben, Explicating the Concept of Legal Competence , in Concepts in Law 67 (Hage, J.C. & von der Pforden, D. eds., 2007), at 78Google Scholar. For more on the civilian tradition see Torben Spaak, The Concept of Legal Competence (1994); Lars Lindahl, Position and Change (1977).

15. Joseph Raz, Practical Reason and Norms (2d ed. 1999), at 103.

16. Hart, supra note 4, at 81. Hart's discussion of power-conferring rules in The Concept of Law is closely related to the ideas with which I begin this section. Hart's thought is, at least in part, that powers are constitutive of many common kinds of legal arrangements, and so a duty-based account of law will necessarily be inadequate.

17. H.L.A. Hart, Bentham on Legal Powers, 81 Yale L.J. 799 (1972), at 820 (emphasis in original). Hart goes on to draw a connections between this idea and J.L. Austin's theory of speech acts, as something like the central distinction applies in both cases. On Austin's view, speech acts have illocutionary effects, which are brought about noncausally, and perlocutionary effects, which are brought about causally. When I say “I promise I'll meet you for lunch,” for example, the illocutionary effect of my utterance is that I am now obligated to meet you (which is not caused by my utterance), and the perlocutionary effect might be that you cancel your plan to see a movie tomorrow afternoon (which would be caused by it). There are disputes about how to draw the line between these two different aspects of my speech act. For more on the distinction, see J.L. Austin, How to Do Things With Words (2d ed. 1975), at 109–120 & passim; Jennifer Hornsby, Illocution and Its Significance, in Foundations of Speech Act Theory (Savas L. Tsohatzidis ed., 1994), at 187; Moran, Richard, Testimony, Illocution, and the Second-Person , 87 Aristotelian Soc'y Supplementary Vol. 115 (2013)CrossRefGoogle Scholar. For more on the connection to speech-act theory, see notes 25, 29 & 56 infra. Another interesting early account, which crosses the line between legal powers and speech acts and applies in certain ways to both of them, is Reinach's theory of social acts. See Reinach, Adolf, The A Priori Foundations of Civil Law , 3 Aletheia 1 (1983)Google Scholar.

18. This formulation suggests that Aristotle's distinction between productive and constituent means might be another way to get at the difference. For discussion, see Essert, Christopher, How Law Matters in Why Law Matters , 12 Jerusalem Rev. Legal Stud. 1 (2015)CrossRefGoogle Scholar.

19. Mark Greenberg endorses this way of thinking about the power to promise when he says that promises generate obligations noncausally; Greenberg, Mark, Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication , in Philosophical Foundations of Language in the Law 217 (Marmor, Andrei & Soames, Scott eds., 2011), at 238–239CrossRefGoogle Scholar. Interestingly, Greenberg is also among those who endorse a view of the nature of law that seems to deny that legal authority, or law as such, is to be understood in terms of normative power (or something in the neighborhood). This is because Greenberg's view, drastically simplified, holds that our legal obligations are the causal upshots of actions of legal institutions (or, more precisely, they are the moral obligations that we have in the world as that world has been causally affected by the actions of legal institutions). See Greenberg, Mark, The Moral Impact Theory of Law , 123 Yale L.J. 1288 (2014)Google Scholar. A view like this seems hard to square with the intuition, shared by many legal philosophers, that the legal authorities determine their subjects’ legal obligations in the distinctive way associated with normative power. Ronald Dworkin and Scott Hershovitz also argue for views similar to Greenberg's. Dworkin's discussion of law in the final chapter of Justice for Hedgehogs departs significantly from his earlier work and endorses a view on which law, as a branch of morality, is to be understood in terms of the moral effects of the actions of legal institutions. See Ronald Dworkin, Justice for Hedgehogs (2011), at 408–409. For discussion, see Jeremy Waldron, Jurisprudence for Hedgehogs (NYU School of Law, Public Law Research Paper No. 13–45, 2013), http://ssrn.com/abstract_id=2290309 (accessed January 8, 2016); and Essert, Christopher, A Theory of Legal Obligation , in The Legacy of Ronald Dworkin 245 (Sciaraffa, Stefan & Waluchow, Wil eds., 2016)CrossRefGoogle Scholar. Hershovitz argues that we should abandon the idea that law has “distinctively legal upshots”: Hershovitz, Scott, The End of Jurisprudence , 124 Yale L.J. 1160 (2015)Google Scholar.

20. Raz, Practical Reason, supra note 15, at 103; Raz, Voluntary Obligations, supra note 14, at 80. For clear discussion of Raz's view on this point see Pratt, Michael G., Promises, Contracts, and Voluntary Obligations , 26 Law & Phil. 531 (2007), at 540CrossRefGoogle Scholar.

21. Kenny, Anthony, Intention and Purpose in Law , in Essays in Legal Philosophy 150 (Summers, R.S. ed., 1968)Google Scholar; cited in Raz, Practical Reason, supra note 15, at 103. Yet another closely related way to capture the contrast is by saying that the exercise of legal powers brings about legal change directly rather than derivatively. See Essert, Christopher, Legal Obligation and Reasons , 19 Legal Theory 63, 81 (2013)Google Scholar.

22. Hocutt, Max, Aristotle's Four Becauses , 49 Philosophy 385 (1970)CrossRefGoogle Scholar.

23. For discussion, see Rosen, Gideon, Metaphysical Dependence: Grounding and Reduction , in Modality: Metaphysics, Logic, and Epistemology 109 (Hale, Bob & Hoffman, Aviv eds., 2010)CrossRefGoogle Scholar; Fine, Kit, Guide to Ground , in Metaphysical Grounding: Understanding the Structure of Reality 37 (Correia, Fabrice & Schnieder, Benjamin eds., 2012)CrossRefGoogle Scholar; Schaffer, Jonathan, On What Grounds What , in Metametaphysics: New Essays on the Foundations of Ontology 347 (Chalmers, David, Manley, David & Wasserman, Ryan eds., 2009)Google Scholar; Audi, Paul, Grounding: Toward a Theory of the In-Virtue-Of Relation , 109 J. Phil. 685 (2012)CrossRefGoogle Scholar; Bennet, Karen, Construction Area (No Hard Hat Required) , 154 Phil. Stud. 79 (2011)CrossRefGoogle Scholar.

24. Aristotle, Nicomachean Ethics, 5.1.1192a17.

25. Compare John Searle, Speech Acts (1969), at 47:

Human communication has some extraordinary properties, not shared by most other kinds of behavior. One of the most extraordinary is this: If I am trying to tell someone something, then (assuming certain conditions are satisfied) as soon as he recognizes that I am trying to tell him something and exactly what it is I am trying to tell him, I have succeeded in telling it to him. Furthermore, unless he recognizes that I am trying to tell him something and what I am trying to tell him, I do not fully succeed in telling it to him.

26. Hornsby, supra note 17, at 194.

27. Ripstein, Arthur, Beyond the Harm Principle , 34 Phil. & Pub. Aff. 215 (2006), at 236 n.29CrossRefGoogle Scholar.

28. Weinrib, supra note 8.

29. One might think something similar is true of the ways in which certain kinds of speech acts seem to presuppose a kind of reciprocity between speaker and hearer. For some discussion of this idea of reciprocity, see Hornsby, supra note 17; and for a very helpful linking of the reciprocity of some kinds of speech acts to the idea of correlative normativity, see Moran, supra note 17.

30. Liability-holders can “only be guided by overt acts and the manifestations of [the power-holder's] feelings,” rather than the feelings themselves. O'Brien, supra note 6, at 266.

31. Restatement (Second) of Contracts §2.

32. Pierson, supra note 5.

33. Rose, Carol, Possession as the Origin of Property , 52 Chi. L. Rev. 73 (1985), at 77CrossRefGoogle Scholar.

34. 2 William Blackstone, Commentaries *9. See also id. at 258.

35. Kant, supra note 10, at 6:258.

36. Shiffrin, supra note 11, at 520, glosses an example of Scanlon's to suggest how the communication needed to exercise of the power to promise does not need to take the form of language.

37. Pierson, supra note 5.

38. Id.

39. Compare foxes; sperm whales (Swift v. Gifford, 23 F. Cas. 558 (D. Mass. 1872)); finback whales (Ghen v. Rich, 8 F. 159 (D. Mass. 1881)); unowned shipwrecks (The Tubantia, [1924] P. 78, [1924] All ER 615); and baseballs (Popov v. Hayashi, 2002 WL 31833731 (Cal. Sup. Ct., Dec. 18, 2002)). Rose discusses the point with respect to whales explicitly; Rose, supra note 33, at 83. Henry Smith's account in terms of custom suggests that the acts that constitute communication might be selected by reference to the special body of knowledge appropriate to a particular community. See Smith, Henry, The Language of Property: Form, Context, and Audience , 55 Stan. L. Rev. 1105 (2003), at 1117–1125Google Scholar.

40. Drassinower, Abraham, Capturing Ideas: Copyright and the Law of First Possession , 54 Clev. St. L. Rev. 191 (2006)Google Scholar. The intellectual property case shows that communication of the relevant intention is a more abstract category that subsumes capture as a particular instance, because in respect of acquisition of unowned physical objects, the common law has determined that capture constitutes communication of the intention to appropriate, but in respect of intellectual property, other acts—in copyright, the act of original expression—constitute the requisite communication.

41. Hugo Grotius, On the Rights of War and Peace (William Whewell trans., 1853), at 451.

42. Raz, Voluntary Obligations, supra note 14, at 81; Raz, Practical Reason, supra note 15.

43. Raz, Voluntary Obligations, supra note 14, at 81.

44. Because Raz's discussion of legal power (and normative power more generally) will be familiar to readers, I should say something about it here. Raz's basic thought is that A has power over B when the law allows A to bring about legal change normatively rather than causally by performing an act that (per the passage quoted just above) is normally performed only by those who wish to bring about that legal change. See Raz, Voluntary Obligations, supra note 14; and Raz, Practical Reason, supra note 15, at 98–104. While Raz's account is characteristically insightful, it seems incomplete, at least if we are focusing on the private law context, as I am here. The incompleteness stems from the account's focus on the position of the power-holder to the exclusion of the liability-holder. There are many varieties of actions that would fit Raz's definition but which could not constitute the kind of communication that is required by the correlativity of the legal change brought about by the exercise of a power. For instance, A would standardly not form an intention to bring about a legal change unless she wanted to do so, but as shown above, such a formation of an intention is not sufficiently communicative to constitute the exercise of a power in private law. (Incidentally, this shows why the account offered in Halpin, Andrew, The Concept of a Legal Power , 19 Oxford J. Legal Stud. 129 (1996) fails.)CrossRefGoogle Scholar Raz, of course, could reply that his account is meant to be more general than mine—it seems that on Raz's account of normative power more generally, the formation of a decision counts as the exercise of a power, since (as he claims) the formation of a decision creates an exclusionary reason because of the desirability of there being such a reason—and that any distinctive communicative or correlative elements of private law powers are to be explained separately. Perhaps that is right, and the communicative element of the account here could somehow be fitted into a Razian picture, but I leave that possibility to the side. I should note that at one point, Raz characterizes the power to promise in terms of communication of an intention to undertake an obligation; Raz, Joseph, Promises and Obligations , in Law Morality and Society: Essays in Honour of H.L.A. Hart 210 (Hacker, P.M.S. & Raz, Joseph eds. 1977), at 218Google Scholar. I take it that Raz thinks communication in the normal (noncorrelative) sense is relevant here simply because we promise, normally, through making utterances of one sort or another. The notion of communication I employ, of course, is quite a bit broader and (in addition to being correlatively structured) includes many things that Raz does not think of as communication.

45. A can bring about a change in what B knows only causally, but a successful act of communication explains the knowability of its contents noncausally.

46. Athwal v. Pania Estates Ltd. (1981), 11 C.E.L.R. 17 (B.C. S.C.) (Can.).

47. Vitale v. Henchey, 24 S.W.3d 651, 659 (Ky. 2000); Tom v. Lennox Hill Hospital, 627 N.Y.S.2d. 874 (N.Y. Sup. Ct. 1995).

48. This is a version of the Weinribian thought about tort law. It is beyond my scope to argue this point here, but, especially given Weinrib's embrace of the idea of personality (“the capacity for purposiveness”) as “mutually entailed” by correlativity, it is plausible to suppose that the power-liability relationship is just as important for understanding the kind of correlative normativity that Weinrib claims is embodied by private law. Indeed, Weinrib sees acquisition and transfer as “the exercise . . . of purposiveness,” thus endorsing a view on which personality and correlativity require the possibility of legal powers (understood as I am claiming they should be); see Ernest J. Weinrib, Corrective Justice (2012), at 11, 23. We might go even further and suggest that normative powers are fundamental to our conception of ourselves not just as purposive agents (who might have rights) but as what we might call normative agents (a phrase I take from Heal, Jane, Illocution, Recognition, and Cooperation , 87 Aristotelian Soc'y Supplementary Vol. 137 (2013), at 145)CrossRefGoogle Scholar, able to make normative change in just the way that powers allow.

49. Dorfman, Avihay, Private Ownership , 16 Legal Theory 1 (2010)CrossRefGoogle Scholar. To the same general effect, see Katz, Larissa, Exclusion and Exclusivity in Property Law , 53 U. Toronto L.J. 275 (2008), at 290CrossRefGoogle Scholar.

50. Consent can be exercised implicitly and without the owner's actual subjective intention. See Walter v. Dexter (1874), 34 U.C.Q.B. 426; R. v. Can. Pac. Ry., [1931] A.C. 414 (P.C.) (Can); Restatement (Second) of Torts §§167, 892(2). This applies to chattels as well as real property; Driscoll v. Colletti, [1926] 2 D.L.R. 428 (Ont. C.A.) (Can.); Restatement (Second) of Torts §§252, 892(2). For more on this point, see infra, notes 60–61 and accompanying text.

51. This is simplified in that it refers only to land. For more general ideas, see Essert, Christopher, Property in Licenses and the Law of Things , 59 McGill L.J. 559 (2014)CrossRefGoogle Scholar.

52. The alternative position cannot be saved by claiming that nonowners merely have a duty not to make unauthorized entry onto the land of others; see Dorfman, Avihay, The Society of Property , 62 U. Toronto L.J. 563 (2012), at 574CrossRefGoogle Scholar; and see Civic Western Corp. v. Zila Industries Inc., 66 Cal. App. 3d 1, 16 (1977). This is because either “unauthorized” means “unwanted,” in which case the account fails by grounding B's liability for entry entirely on a fact about A's subjective psychology, or else it means “without authorization having been communicated,” which is to say it means that the power has not been exercised. In more recent co-authored work, Dorfman defends his view on this point at greater length, marshaling “conceptual, normative, and doctrinal claims” for his view. But his conceptual argument fails to take on the crucial point above. Given that, the normative and doctrinal arguments are (basically) irrelevant. See Dorfman, Avihay & Jacob, Assaf, The Fault of Trespass , 65 U. Toronto L.J. 48 (2015), at 64, 73–74CrossRefGoogle Scholar.

53. Teis et al. v. Corp. of Town of Ancaster (1997), 35 O.R. (3d) 216 (C.A.) (Can.). See also Burns Philp Food Inc. v. Cavalea Cont'l Freight Inc., 135 F.3d 526 (7th Cir. 1998).

54. To similar effect, see Dougherty, Tom, Yes Means Yes: Consent as Communication , 43 Phil. & Pub. Aff. 224 (2015)CrossRefGoogle Scholar.

55. Scanlon argues for a different view about promising; T.M. Scanlon, What We Owe to Each Other (1998). But for convincing criticism, see Shiffrin, supra note 11; and Owens, supra note 12, at 190.

56. One last point on speech-act theory: some version of this type of question is present there, too, in the dispute about whether a speaker or a listener or both get to determine whether or not some particular illocutionary act has happened. Compare Moran, supra note 17; and Heal, supra note 48.

57. Restatement (Second) of Contracts §2.

58. For a defense of the view that subjective intention is required, see, e.g., Solan, Lawrence M., Contract as Agreement , 83 Notre Dame L. Rev. 101 (2007)Google Scholar; for spirited defense of the orthodox view, see Benson, Peter, The Idea of Consideration , 61 U. Toronto L.J. 241 (2011)CrossRefGoogle Scholar. For general theoretical discussion of the question the context of legal powers, see Pratt, supra note 20; and Klass, Gregory, Three Pictures of Contract: Duty, Power, and Compound Rule , 83 N.Y.U. L. Rev. 1728 (2008)Google Scholar.

59. There is a parallel view about the morality of promising, with some arguing that subjective intention matters—see Scott Hershovitz, What Must One Intend to Promise? (unpublished manuscript); Kimberly Kessler Ferzan, The Bluff: The Power of Insincere Actions (unpublished manuscript)—and others arguing for a nonlegal analogue of the orthodox view of contracts; see Owens, supra note 12; and Shiffrin, supra note 11, at 490 n.19.

60. O'Brien, supra note 6; Restatement (Second) Torts §892. For consent in the property context, see supra notes 49–53 and accompanying text.

61. Again, there is controversy outside private law. Criminal law, in at least some jurisdictions, makes subjective intention relevant; see R. v. Ewanchuk, [1999] 1 S.C.R. 330, 348 (Can.). And in morality, we can make a case that someone who insincerely communicates consent to sex (i.e., someone who says “yes” but thinks “no”) has not actually consented; see Ferzan, supra note 59. On the other hand, it might be that the same sort of considerations about correlativity require a communicative account of consent in morality, too; see Dougherty, supra note 54.

62. Transfer of property often comes up in the context of what Raz, Practical Reason, supra note 15, at 103, calls “regulative powers,” which means powers to “change the application of norms.” James Penner motivates his theory of property in part on the basis of a worry about the way this sort of change affects the duties of others (or does not); see James Penner, The Idea of Property in Law (1997), at 75. Penner argues based on this that property cannot be understood in terms of duties owed to owners. But Penner's theory fails because we can just understand the duty as owned to the (office of the) owner of the property, and then understand the effect of the exercise of the (regulative) power of transfer to be the changing of the identity of the officeholder. See Christopher Essert, The Office of Ownership, 63 U. Toronto L.J. 418 (2013).

63. Perrin v. Morgan, [1943] A.C. 399, 406.

64. Day v. Harris and others, [2013] EWCA (Civ) 191, paras. 67–72. Restatement (Third) Property: Wills and Other Donative Transfers §6.1(a); Hardy v. Atkinson (1908), 9 W.L.R. 564 (Man. C.A.) (Can.); Schilling v. Waller, 243 Md. 271, 277 (1966).

65. Wood v. Etiwanda Water Co., 147 Cal. 228, 234 (1905). See also Simpson v. Gowers (1981), 32 O.R. (2d) 385 (Sup. Ct.) (Can.).