Abstract
Hohfeldian normative system are normative systems that can be described by means of the analytical framework expounded by Hohfeld in his two famous papers on the fundamental legal conceptions. In this article I analyze some features of this particular kind of normative systems. Hohfeld’s original idea was to design a universal tool capable of describing, at the most basic level, the web of normative relationships between persons created by a system of rules. My claim is, instead, that if we take Hohfeld’s framework literally as it is, Hohfeldian normative systems are few. This happens because, amongst other peculiarities, standard Hohfeldian normative systems are necessarily complete and unclosed. In the final part of the article I will show how we can have instead incomplete and closed Hohfeldian normative systems, extending in this way the descriptive range of Hohfeld’s framework.
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Notes
As it can be seen, I use a slightly different nomenclature from the one used by Hohfeld. In particular, I call liberties what Hohfeld called privileges, and no-claims what he called no-rights.
To define Hohfeldian elements and relations I will use the following variables: a) X, Y, W, Z … for the subjects (holders and counterparts) involved in a Hohfeldian relation; b) φ, χ, ψ, ω … for the actions or omissions targeted in a Hohfeldian relations; c) A, B, C, D … for the Hohfeldian concepts; I will indicate with the same letter – specified by subscripts – all the elements involved in a single norm.
For instance, this seems to be claimed by Rainbolt (2006).
In this sense, Hohfeld’s element are the analytical «atoms» of justice. As I have said, Hohfeldian norms are better seen as the complete relationship going on between correlating elements. Basic Hohfeldian norms can be then combined together in order to describe more complex norms. A rule regarding private property, for example, puts together a large set of Hohfeldian norms: claims/duties norms regarding respect of property, liberty/no-claims norms regarding possibility of using property, immunity/disability norms and power/liability norms regarding selling, dispossessing, giving away, etc. In this way, using the Hohfeldian framework, a general rule with a bidirectional structure can be analyzed in more elementary norms.
See for instance Kramer (1998: 17–22).
The cardinality of the set of Hohfeldian elements in this normative system is the same as the cardinality of the set of Hohfeldian elements in a normative system which takes into account infinite actions: the two sets are bijective – their elements can be put in a one-to-one correspondence.
For the general concept of normative action see Von Wright (1963: 75–8). Hohfeld does not speak of normative actions, he speaks instead of «facts» of «group of facts» needed in order to be there a change in rules – see Hohfeld (2011: 21).
If power-conferring norms and immunity-conferring norms share the same cardinality, then they must be both infinite.
It could be possible to avoid these infinite-triggering normative actions if the normative system rules an infinite number of actions: in this case, the cardinality of actions, norms of conducts, and norms of competence is the same, since both three sets are bijective and their elements can be put into a one-to-one correspondence. As the cardinality of action is infinite, their number equates that of normative actions: still, there could be actions that are not normative (action), as there are integers which are not odd, even if integers and odd numbers form sets sharing the same infinite cardinality. Anyway, it is rather plain that a normative systems taking into account infinite actions is purely hypothetical and just as uninteresting in real life as systems with actions triggering multiple or infinite powers.
Unclosedness could be simply resolved by adding closing rules to Hohfeldian normative systems. These rules would state the impossibility to have power-conferring norms over a certain level of norms of competence. In other words, a closing rule would state that, above a certain threshold, further norms of competence contain only immunity/disability norms. If we think of the recursive stacking of levels of norms of competence in a Hohfeldian normative systems as a tree, we could say that closing rules states that beyond a particular point all the subsequent ramifications will be uninteresting, as they will be composed exclusively by immunities. Nevertheless, this kind of solution, while resolving unclosedness, still maintains completeness, and as such is, in my view, flawed.
References
Hohfeld, W. N. (1913). Some fundamental legal conceptions as applied in judicial reasoning. Yale Law Journal, 23.
Hohfeld, W. N. (1917). Fundamental legal conceptions as applied in judicial reasoning. Yale Law Journal, 26 (1917).
Hohfeld, W. N. (1919). Fundamental legal conceptions as applied in judicial reasoning. New Haven: Yale University Press.
Hohfeld, W. N. (2001). Fundamental legal conceptions as applied in judicial reasoning. Dartmouth: Ashgate.
Kramer, M. (1998). Rights Without Trimmings. In Kramer & Simmonds & Steiner (1998).
Kramer, M., Simmonds, N., & Steiner, H. (1998). A Debater Over Rights. Oxford: Clarendon.
Rainbolt, G. (2006). The Concept of Rights. Dordrecht: Springer.
Simmonds, N. E. (1995). The analytical foundation of justice. Cambridge Law Journal, 54–2.
Steiner, H. (1994). An essay on rights. Oxford: Blackwell.
Steiner, H. (1998). Working rights. In Kramer & Simmonds & Steiner (1998).
Steiner, H. (2013). Directed duties and inalienable rights. Ethics, 123.
Van Duffell, S. (2012). The Nature of Rights Debate Rests on a Mistake. Pacific Philosophical Quarterly, 93–1.
Wenar, L. (2005). The Nature of Rights. «Philosophy & Public Affairs» 33.
Williams, G. (1970). The concept of legal liberty. In R. Summers (Ed.), Essays in legal philosophy. Berkeley, CA: University of California Press.
Wright, V., & Henrik, G. (1963). Norm and action. A logical enquiry. London: Routledge & Kegan Paul.
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Biasetti, P. Hohfeldian Normative Systems. Philosophia 43, 951–959 (2015). https://doi.org/10.1007/s11406-015-9637-z
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DOI: https://doi.org/10.1007/s11406-015-9637-z