1. Hohfeld, Wesley Newcomb, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913)CrossRefGoogle Scholar [hereinafter Hohfeld, FLC #1]; Hohfeld, Wesley Newcomb, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale L.J. 710 (1917)CrossRefGoogle Scholar [hereinafter Hohfeld, FLC #2].

2. Legal philosophical literature often refers to the conceptually basic kinds of rights (a claim, power, privilege, and immunity) and their correlatives (e.g., a duty, liability, etc.) as “normative positions.” This term is suggestive of peoples’ and institutions’ identities and/or statuses within a normative system or domain (a legal system, a corporation, etc.). It is also slightly controversial, as some philosophers deny that certain positions (e.g., privileges and powers) constitute norms on the grounds that they do not guide or regulate behavior. E.g., Carl Wellman, Real Rights (1995), at 8. Hohfeld styles the basic positions as “relations.” However, he invites confusion by using that word to refer to: (i) a singular position (e.g., a claim); (ii) the relationship between two positions, such as that between a claim and a duty; and (iii) the larger construct (a “jural relation”).

3. Shapiro, Fred R. & Pearse, Michelle, The Most-Cited Law Review Articles of All Time, 110 Mich. L. Rev. 1483, 1490 (2012)Google Scholar. Hohfeld's FLC #1 is therein ranked 50th. “Fundamental” is used here in the sense of being conceptually basic or simple, not as marking a judgment about which rights are morally or politically essential for persons, justice, a legal order, etc. A popular idea in Analytic philosophy is that concepts are (often) complex and decomposable into more basic ones. I take no stance on whether this is true of most concepts, and will simply use “fundamental” and “conceptually basic” (interchangeably) as a purported quality of Hohfeld's conceptions.

4. Unless specified otherwise, “Legal Realism,” “the Realists,” and “Realism” refer throughout this article to American Legal Realism, rather than (a) Scandinavian Legal Realism or (b) Metaphysical realism. On the Scandinavians, see infra note 128. On the metaphysicians, see infra notes 227–228.

5. Schauer, Frederick, The Generality of Rights, 6 Legal Theory 323, 323 (2000) [hereinafter Schauer (2000)]CrossRefGoogle Scholar; Singer, Joseph, The Legal Rights Debate from Bentham to Hohfeld, Wis. L. Rev. 975, 979 (1982)Google Scholar [hereinafter Singer (1982)]; William Twining, Karl Llewellyn and the Realist Movement (2d ed. 2012), at 27, 82, 378; Morton Horwitz, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (1994), at 182, 319 n.125; N.E.H. Hull, Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence (1997), at 98, 103 n.92, 104 (but cf. id. at 115); Brian H. Bix, Ross and Olivecrona on Rights, 34 Aust. J. Legal Phil. 103, 108 (2009); Carl Wellman, A Theory of Rights: Persons Under Laws, Institutions, and Morals (1985) [hereinafter Wellman (1985)], at 9.

6. For some relatively recent accounts of Realism, see Twining, supra note 5; Hull, supra note 5, at 175; John Henry Schlegel, American Legal Realism and Empirical Social Science (1995) [hereinafter Schlegel (1995)], at 24, 43; Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (2007), at 21–22; Brian Tamanaha, Beyond the Realist/Formalist Divide: The Role of Politics in Judging (2009); Dagan, Hanoch, The Real Legacy of American Legal Realism, 38 Oxford J. Legal Stud. 123 (2018)CrossRefGoogle Scholar.

7. The contemporary philosophical convention is to use all capitals to mark concepts. This, to distinguish them from denotations of words, phrases, and terms, for which quotation marks are used instead.

8. Hohfeld, FLC #1, supra note 1, at 30.

9. The term “ligation” comes from Kocourek, Albert, Wanted: A Lawyer's Phrase for Legal Capabilities and Restraints, 9 ABA J. 25, 26 (1923)Google Scholar. Years before Hohfeld, John Salmond noted the lack of a generic term for the four correlatives (duty, liability, etc.), but failed to coin one. John Salmond, Jurisprudence, or The Theory of the Law (1st ed. 1902) [hereinafter Salmond (1902)], at 236. While there is no common term, “ligation” is the least bad option. Pavlos Eleftheriadis calls the four “legal negations.” Pavlos Eleftheriadis, Legal Rights (2008), at 123. However, this misses certain positions’ affirmative qualities, e.g., a duty's requirement to act, to have one's position changed in a liability, etc. The same problem arises with Pierre Schlag's entitlements/disablements distinction. Schlag, Pierre, How to Do Things with Hohfeld, 78 L. & Contemp. Probs. 185, 188 (2015)Google Scholar. Other scholars divide the eight terms into four “advantages” and four “burdens,” but Hohfeld shows why many liabilities are desirable and sometimes even advantageous. Hohfeld FLC #1, supra note 1, at 54 n.90. The same might be said for the other three kinds of ligations.

Kocourek was an Imperative theorist, holding that all jural relations involve some form of legal constraint. However, one can employ “ligation” as a technical term that excises that feature: not all ligations are obligations, borne of legal officials’ commands, let alone subject to sanction for non-conformity. Kocourek's terminology of “dominant” and “servient” parties (dominus and servus) may also be a good way to distinguish right-holders and ligation-bearers. Kocourek, Albert, Plurality of Advantage and Disadvantage in Jural Relations, 19 Mich. L. Rev. 47, 49 (1920)CrossRefGoogle Scholar.

10. Hohfeld, FLC #1, supra note 1, at 30.

11. On most readings of Hohfeld, the positions must serve as components within a jural relation. Hence, there is no right without a duty and vice versa.

12. Hohfeld, FLC #1, supra note 1, at 30; Kocourek, Albert, The Hohfeld System, 15 Ill. L. Rev. 24, 27 (1920)Google Scholar; Radin, Max, A Restatement of Hohfeld, 51 Harv. L. Rev. 1141, 1148 n.7 (1938)CrossRefGoogle Scholar [hereinafter Radin (1938)]; Matthew Kramer, Rights Without Trimmings, in Matthew Kramer et al., A Debate Over Rights: Philosophical Enquiries 8 n.1 (Matthew Kramer ed., 1998).

13. However, logical contradictoriness might be a property of propositions, not of concepts. Further, as Hohfeld notes, not all of the basic positions are logical contradictories. For example, a duty to do φ is not the opposite of a privilege to do φ; for the two positions may co-obtain. Instead, a contradiction arises when the word “not” is added before one of the two positions’ specified actions, e.g., a privilege to do φ is the contradictory of a duty not to do φ. Hohfeld, FLC #1, supra note 1, at 32–33; Williams, Glanville, The Concept of Legal Liberty, 56 Colum. L. Rev. 1129, 1135–1138 (1956)CrossRefGoogle Scholar.

14. Hohfeld, FLC #1, supra note 1, at 30.

15. Id. at 35 n.39, 54; Hohfeld, FLC #2, supra note 1, at 746 (“complex aggregates”); Cook, Walter W., Hohfeld's Contributions to the Science of Law, 28 Yale L.J. 721, 730 (1919)CrossRefGoogle Scholar [hereinafter Cook (1919)]; Gerald Postema, Legal Philosophy in the Twentieth Century: The Common Law World (2011), at 102. See also Henry Terry, Some Leading Principles of Anglo-American Law Expounded with a View to Its Arrangement and Codification (Philadelphia, T. & J.W. Johnson & Co, 1884) [hereinafter Terry (1884)], at 386.

16. The analysis ought to have been in Hohfeld, FLC #1, supra note 1, at 30–32. Contrast that section with the subsequent ones on the other three jural relations, which provide some analyses, howsoever inadequate. Hohfeld's FLC #2 addresses claims and duties, but primarily to elucidate his multital/paucital distinction. (See infra note 205.) He still does not really analyze claims and duties there, which one might have thought would be indispensable for advocating on behalf of the multital/paucital distinction as an alternative to the traditional in rem/in personam one.

17. Hohfeld, FLC #1, supra note 1, at 31. Ernst Bierling, August Thon, and John Salmond had already identified this sense of “a right” as the term's “strict sense.” 2 Ernst Bierling, Zur Kritik der Juristischen Grundbegriffe (Gotha, Friedrich Andreas Berthes 1877), at 74; August Thon, Rechtsnorm und Subjektives Recht: Untersuchungen zur Allgemeinen Rechtslehre (Weimar, Hermann Bohlau 1878), at v–vi; Salmond (1902), supra note 9, at 231, 234.

18. E.g., Salmond (1902), supra note 9, at 225, who cites to earlier scholars employing it.

19. E.g., Nigel Simmonds, Rights at the Cutting Edge, in Matthew Kramer et al., A Debate Over Rights: Philosophical Enquiries 223 & n.137 (Matthew Kramer ed., 1998); Eleftheriadis, supra note 9; Horwitz, supra note 5, at 155; Singer (1982), supra note 5, at 986; Radin (1938), supra note 12, at 1148, 1152; Radin, Max, Correlation, 29 Colum. L. Rev. 901, 903–904 (1929)CrossRefGoogle Scholar [hereinafter Radin (1929)]. Cf. Karl Llewellyn, The Bramble Bush: On Our Law and Its Study (1960, “1960” edn., originally published in 1930) [hereinafter Llewellyn (1960)], at 85. Certain nineteenth-century German scholars also treated ANSPRUCH (a claim) as an active kind of a right. E.g., Alois von Brinz, Lehrbuch der Pandekten (1st ed. Erlangen, Andreas Deichert 1857), at 49–50, 52; Bierling, supra note 17, at 39–40.

20. E.g., Simmonds, supra note 19, at 223.

21. Compare this with Option B in the discussion of Sanction theories in Section III below.

22. E.g., Williams, supra note 13, at 1145; Salmond (1902), supra note 9, at 223; Finnis, John, Some Professorial Fallacies About Rights, 4 Adelaide L. Rev. 377, 380 (1972)Google Scholar; John Finnis, Natural Law and Natural Rights 200 (2d ed. 2011) [hereinafter Finnis (2011)]; Wellman (1985), supra note 5, at 65; Andrew Halpin, More Comments on Rights and Claims, 10 Law & Phil. 271, 293 (1991); Kramer, supra note 12, at 13–14, 22 n.8.

23. Hohfeld, FLC #1, supra note 1, at 30.

24. Id. at 55. These definitions are rather unhelpful, especially because what he means by “affirmative” here is unclear. Is it intended to show a contrast between: (A) positive and negative rights; (B) active and passive ones; (C) both; (D) neither? Perhaps he thinks claims are like powers because they are both active positions: rights their holders use (to make claims or to change legal relations respectively). Elsewhere, Hohfeld makes an affirmative/negative distinction to distinguish between a right to another's action and a right to another's forbearance (Hohfeld, FLC #2, supra note 1, at 719), but that cannot be what he has in mind in this context.

Hohfeld is also inconsistent about CORRELATIVITY throughout his works. In some places, he suggests that the positions within a jural relation must be symmetrical in their content and/or structure. However, in other places he presents them as being asymmetrical. In the quote above bearing his definitions, for example, does a privilege mark the absence of another party's having a claim (a “no-right”), or does it instead outweigh the other party's claim, such that the privilege-holder has “freedom from” that claim? On the latter interpretation, a NO-RIGHT can mean either the lack of a claim or a defeasible one. As another example, if I have an immunity does that mean that you have no power to change my legal relations, or that my position simply outweighs or trumps your power such that I have “freedom from” it? Does A DISABILITY mean the lack of a power, or a defeasible power? I explain these different conceptions of CORRELATIVITY (and further bases for Hohfeld's CLAIM being contested) elsewhere. David Frydrych, Rights Correlativity, in The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries (Shyam Balganesh, Ted Sichelman & Henry Smith eds., Cambridge University Press, forthcoming 2019) [hereinafter Frydrych, Rights Correlativity].

25. E.g., Hohfeld, FLC #1, supra note 1, at 30–31 (quotes from Justices Jackson and Sneed), 41–42 (the quote from Justice Cave that rights can invariably be “remedied or prevented by legal process”).

26. Hohfeld, FLC #2, supra note 1, at 717 n.16 (citing Mellinger v. City of Houston, 3 S.W. 249, 253 (Tex. 1887) (some italics in the original, some emphasis added)). Part of this quote was added to the posthumous book edition version of Hohfeld's FLC #1, but without the prefatory caveat. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays (Walter W. Cook ed., 1919), at 38 n.32a.

The confusion about A CLAIM may have been compounded by the book versions. New footnotes and materials were added in the first edition of 1919. As far as I can tell, all of the scholarship to date on Hohfeld misses the fact that the books incorporated new footnotes (marked by the letter “a,” e.g., 32a) or material added to existing ones that is marked by being placed in square brackets (e.g., at the end of footnote 29 in the 1919 book edition). Unfortunately, the markings were dropped in certain later editions. Compare Hohfeld (1919) with Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (David Campbell & Philip Thomas eds. 2001).

Some, but not all, of the added material may lend itself to an active interpretation of Hohfeldian claims. Whether these were (all) Hohfeld's own alterations, or those of his editor, Walter Cook, remains a mystery. For one thing, there is no proof that Hohfeld actually prepared a book manuscript. The best evidence we have for one is the mention of his heavily annotated version of Hohfeld's FLC #1 being sent to his brother Edward Hohfeld upon his death. Letter from Walter Wheeler Cook to Edward Hohfeld (Jan. 20, 1919) (on file with Professor Ted Sichelman, University of San Diego School of Law); Letter from Edward Hohfeld to Walter Wheeler Cook (Feb. 5, 1919) (on file with Professor Ted Sichelman, University of San Diego School of Law). The annotated copy's whereabouts remain unknown. It is also uncertain whether Edward Hohfeld sent the copy back to Walter Cook, and hence whether the new material incorporated into the book edition originates from it.

27. Hohfeld, FLC #1, supra note 1, at 32, 39, 55, 58 n.99.

28. Id. at 42 n.59, 55.

29. For this reason, certain Hohfeldians believe that the eight positions can be analytically reduced to two: a duty and a power. E.g., Thompson P. Marsh, The Legal Continuum, 64 Nw. U. L. Rev. 459, 461–464 (1969); Postema, supra note 15, at 101.

30. This is what HLA Hart's conception of a private law right does, for example. HLA Hart, Essays on Bentham: Jurisprudence and Political Theory (1982) [hereinafter Hart (1982)], at 183–186.

31. Hohfeld, FLC #1, supra note 1, at 30. “[N]othing conduces more to the perception of fundamental identities in legal problems, and hence to broad generalization, than perfect analysis and reduction of the various problems to the lowest generic conceptions known to the law.” Hohfeld, Wesley Newcomb, A Vital School of Jurisprudence and Law: Have American Universities Awakened to the Enlarged Opportunities and Responsibilities of the Present Day?, 1914 AALS Proc. 76, 97 (1914)Google Scholar [hereinafter Hohfeld, Vital]. He cites to Hohfeld's FLC #1 as an example. Id. at 97 n.17.

32. David Frydrych, The Architecture of Rights (2016) (DPhil thesis) (on file at the University of Oxford Faculty of Law Library), at 258. Cf. John Goldberg & Ben Zipursky, Hohfeldian Analysis and the Separation of Rights and Powers, in The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries (Shyam Balganesh, Ted Sichelman & Henry Smith eds., forthcoming 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2894521.

33. Wesley Newcomb Hohfeld, The Relations Between Equity and Law, 11 Mich. L. Rev. 537, 553–557, 569 n.32 (1913) [hereinafter Hohfeld, Equity]. Cf. Hohfeld, FLC #1, supra note 1, at 40 n.52; Hohfeld, FLC #2, supra note 1, at 712. The primary/secondary/tertiary rights distinction is commonplace in jurisprudence. Primary rights are substantive entitlements, e.g., to engage in free speech, to purchase some land, etc. Secondary rights do several things. Some authorize their holders to initiate dispute resolution mechanisms (litigation, arbitration, mediation, etc.) when primary rights seem to have been, or are threatened to be, violated. (They also authorize right-holders to waive such processes.) Others are the rights afforded and used within official proceedings. Still others are employed outside such settings too, e.g., entitlements to undertake self-help remedies. Tertiary rights are the entitlements provided by official dispute resolution mechanisms like courts and the means by which to enforce or waive those too. See, e.g., Hart (1982), supra note 30, at 183–184.

The usual way of carving the distinction nonetheless has its critics. For one thing, the power to trigger litigation obtains regardless of whether one has a valid claim. Hence, rights of action are really “procedural” primary rights that are unconnected to one's “substantive” primary rights. E.g., Terry (1884), supra note 15, at 120. (For another, Hohfeld suggests that self-help privileges are (what the usual distinction would identify as) tertiary ones. Hohfeld, Equity, supra, at 556 (“Example 55”).)

34. One advantage of the “Equity” article's approach may be that, instead of requiring a fourth category to cover the positions used to enforce “remedial” rights, parties just use “adjective” ones to do so. Others may nonetheless complain that something is missing by treating the power to initiate a legal action and the power to compel a sheriff to enforce a court order as falling under the same (“adjective”) category.

35. Hohfeld, Equity, supra note 33, at 553–557. In an uncharacteristic passage, Hohfeld says the tripartite classification is merely adopted for “convenience of exposition and reference” and that opinions might differ on whether certain jural positions fall into one category or the other. Id. at 569 n.32. Elsewhere, he further distinguishes between “primary” and “secondary” stages of proceedings, i.e., pre- and post-judgment. Hohfeld, FLC #2, supra note 1, at 760–762.

36. E.g., Hohfeld, FLC #2, supra note 1, at 752, 760.

37. Hohfeld, FLC #1, supra note 1, at 35 n.39.

38. Hohfeld, FLC #2, supra note 1, at 753, 760. The latter may also serve as another textual basis for the active interpretation of claims. Cf. Hohfeld, Wesley Newcomb, Nature of Stockholders’ Individual Liability for Corporation Debts, 9 Colum. L. Rev. 285, 293–294 (1909)CrossRefGoogle Scholar [hereinafter Hohfeld, Nature]; Hohfeld, Wesley Newcomb, Review of Charles Huston's The Enforcement of Decrees in Equity, 25 Yale L.J. 166, 170 (1915)CrossRefGoogle Scholar [hereinafter Hohfeld, Review]. Hohfeld also posits that there can be secondary and tertiary privileges and powers. Hohfeld, Equity, supra note 33, at 550, 554, 556.

39. Hohfeld, Nature, supra note 38, at 293–294; Hohfeld, Equity, supra note 33, at 553–557; Hohfeld, Review, supra note 38, at 170; Hohfeld, FLC #2, supra note 1, at 753, 760.

40. Hohfeld, Equity, supra note 33, at 569 n.32. One might think that the very need for A SECONDARY RIGHT suggests that primary rights are not self-enforcing. Indeed, in FLC #2 Hohfeld sometimes affixes quotation marks around the words “enforced” and “enforcement” vis-à-vis primary and secondary (here, meaning “adjective”) positions. E.g., Hohfeld, FLC #2, supra note 1, at 714, 716, 763, 768. In addition to serving as further evidence for the passive interpretation of A CLAIM, this may also suggest that he deems the idea of enforcing such rights to be a misnomer; this, because a different right is being utilized. If so, and if primary, secondary, and tertiary rights are just singular claims, then are primary and tertiary rights passive, while secondary rights are active? If that is the case, then Hohfeld is presenting different concepts of A CLAIM. On the other hand, if all three are complexes (and not merely individual claims), but primary rights are not self-enforcing, then primary, secondary, and tertiary rights are analyzable into distinct fundamental positions, i.e., where secondary rights contain enforcement powers, while primary and tertiary ones do not.

41. Hohfeld, FLC #1, supra note 1, at 34–35, 36; Hohfeld, FLC #2, supra note 1, at 745, 747.

42. E.g., Hohfeld, FLC #1, supra note 1, at 35–37, 52–53; Hohfeld, FLC #2, supra note 1, at 747, 755–757.

43. On this gap, see Finnis (2011), supra note 22, at 202–203, 465 n.35.

44. Hohfeld, Equity, supra note 33, at 552. Cf. Hohfeld, FLC #2, supra note 1, at 712, on the possibility of “imperfect” relations. Salmond also discusses “imperfect” rights. Salmond (1902), supra note 9, at 239–243.

45. E.g., Hohfeld, Equity, supra note 33, at 569–570 n.34: “If no ordinary suit can be maintained in equity, that must be because the remedial machinery of the law court is able to give adequate relief; and equity indorses and sanctions such remedial proceeding in the law court by refusing an injunction against it.” However, there must be grounds for such a suit in equity in the first place, which may or may not be the case for all legal rights.

46. Hohfeld, FLC #2, supra note 1, at 757.

47. Id. at 753–755.

48. Id. at 754.

49. Id. at 755.

50. Id.

51. Hohfeld, Equity, supra note 33, at 543–544, 570–571.

52. Id. at 571 n.36 (emphases added):

53. Id.:

54. Id. at 569 n.34 (emphasis added).

55. That is a dubious metric anyway; for not only can people commence and prosecute legal actions on spurious grounds, but Hohfeld himself believes that courts can err. Hohfeld, FLC #1, supra note 1, at 36–37. In other words, he believes that “a mistake” is a genuine legal phenomenon, not a mischaracterization or mystification of legal practice.

56. Hohfeld presents the schema in his “Equity” article too. Hohfeld, Equity, supra note 33, at 569 n.33.

57. Hohfeld, FLC #2, supra note 1, at 711–712. Cf. Cook (1919), supra note 15, at 723; Letter from Arthur Corbin to Eugene Rostow (Aug. 22, 1957) Thomas Swan Papers, box 1 folder 12 (on file with the Yale University Library) [hereinafter Corbin (1957)], at 8; Wellman (1985), supra note 5, at 9–10, 22.

58. Hohfeld, FLC #1, supra note 1, at 59 (emphases added).

59. Id. at 28. Cf. id. at 19 (“… the correct solutions of legal problems”).

60. E.g., Postema, supra note 15, at 104, regarding the Unity & Harmony proposition.

61. Hohfeld, FLC #1, supra note 1, at 58.

62. Page, William Herbert, Terminology and Classification in Fundamental Jural Relations Terminology and Classification in Fundamental Jural Relations - A Symposium, 4 Am. L. Sch. Rev. 616 (1920)Google Scholar.

63. Quinn v. Leathem [1901] AC 495, 534 (quoted in Hohfeld, FLC #1, supra note 1, at 36). Technically, the union was said to have committed the tort of a conspiracy to conspire.

64. Hohfeld, FLC #1, supra note 1, at 36.

65. Id. at 36–37.

66. But see Kramer, supra note 12, at 22–23 (as the schema is a corrective to legal technical language it is not subject to empirical refutation). That stance is false, e.g., when trying to compare the veracity and utility of rival jurisprudential accounts of a conception, e.g., Hohfeld and HLA Hart's rival accounts of A RIGHT.

67. Hohfeld, Equity, supra note 33, at 539–540 n.3; Hohfeld, Vital, supra note 31, at 99.

68. Hohfeld, FLC #2, supra note 1, at 767.

69. See supra note 52 and accompanying text.

70. Id.

71. Hohfeld, Equity, supra note 33, at 557.

72. Notice that this need not affect one's view about Hohfeld's relationship to Sanction theories, as the legal rules remain real/in effect even if their application in a given case is trumped by an equitable one.

73. Hohfeld, Vital, supra note 31, at 107–108, 129.

74. Id.

75. Id. at 99 (emphasis added).

76. Id. at 96–99.

77. Woozley, Anthony, Legal Duties, Offences, and Sanctions, 77 Mind 461 (1968)CrossRefGoogle Scholar; PMS Hacker, Sanction Theories of Duty, in Oxford Essays in Jurisprudence: Second Series 131 (A.W.B. Simpson ed., 1973); Neil MacCormick, Legal Obligation and the Imperative Fallacy, in Oxford Essays in Jurisprudence: Second Series 100 (A.W.B. Simpson ed., 1973). Cf. Joseph Raz, Ethics in the Public Domain (rev. ed. 1994) [hereinafter Raz (1994)], at 256–258.

78. E.g., Terry (1884), supra note 15, at 15–16. An Imperative theorist, Terry nonetheless denies that (all) primary duties are (tied to) sanctions. Instead, most “sanctioning” duties are secondary ones, which necessarily arise on primary ones’ being breached. Id. at 12–15.

79. For William of Ockham apparently, legal rights (ius) are necessarily enforceable in courts and protected interests. Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law 1150-1625 (1997), at 117–121, 189. Cf. 4 Roscoe Pound, Rights, in Jurisprudence 41 (1959) [hereinafter Pound (1959)]; Simmonds, supra note 19.

80. For example, John Chipman Gray believes the law is just what the courts say it is, e.g., legislation is only “a source” of law because its meaning is not fixed until a court does that task. John Chipman Gray, The Nature and Sources of the Law (1909), at 82, 118–120. This could be construed as a form a Sanction theory, whereby only secondary or tertiary rights and duties are real, and one wherein not all legal officials (e.g., judges vs. legislators) are deemed to be equal… For the influence of Gray's account of law on the Realists, see Twining, supra note 5, at 21, 447–48 n.39. Gray was also Hohfeld's professor at Harvard and an influence on him too. Postema, supra note 15, at 98.

81. E.g., John Austin, Lecture I, in The Province of Jurisprudence Determined 21–22 (Wilfred Rumble ed., 1995) (1832).

82. This is one difference between John Austin's and Hans Kelsen's accounts. Austin, supra note 81; Hans Kelsen, Pure Theory of Law (2d. ed., Max Knight trans., 1967).

83. E.g., Pollock, Frederick, Law and Command, 1 L. Mag. & Rev. 189 (1872)Google Scholar; Salmond (1902), supra note 9, at 52–59; Pound, Roscoe, The Scope and Purpose of Sociological Jurisprudence, 24 Harv. L. Rev. 591, 594–595, 596–598 (1911)CrossRefGoogle Scholar; Hohfeld, FLC #1, supra note 1, at 42 n.59; HLA Hart, The Concept of Law (2d ed. 1994) [hereinafter Hart (1994)], at 27–38.

84. Hacker, supra note 77, at 132; Woozley, supra note 77, at 477.

85. E.g., Holmes, Oliver Wendell Jr., Book Notices, 6 Am. L. Rev 723, 724 (1871–1872)Google Scholar; Holmes, Oliver Wendell Jr., The Path of the Law, 10 Harv. L. Rev. 457, 457–458 (1897)Google Scholar [hereinafter Holmes (1897)]. “[A] legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; – and so of a legal right.” Id. at 458.

Holmes expressed a desire to write a book that would “get[] rid of all talk of duties and rights—beginning with the definition of law in the lawyer's sense as a statement of the circumstances in which the public force will be brought to bear upon a man through the Courts, and expounding rights as the hypostasis of a prophesy.” Letter from Oliver Wendell Holmes, Jr. to Frederick Pollock (Apr. 21, 1932), in 2 Holmes-Pollock Letters: The Correspondence of Mr Justice Homes and Sir Frederick Pollock, 1874–1932, at 307 (Mark Dewolfe Howe ed., 1961).

What is often missed in discussions of Holmes’ account of rights and duties is his effort to eliminate the notion of primary, if not also secondary, positions. Take contracts, for example. Instead of rights and duties, the violation of which may give rise to institutional means to seek remedies for breach, Holmes claims that contracting parties really only possess the (risk of) liability to pay damages on the one hand and (the probability of possessing) a capacity to procure those damages on the other.

Letter from Oliver Wendell Holmes, Jr. to Frederick Pollock (Mar. 25, 1883), in 1 Holmes-Pollock Letters: The Correspondence of Mr Justice Homes and Sir Frederick Pollock, 1874–1932, at 20–21 (Mark Dewolfe Howe ed., 1961). (The “extreme application” referenced is to Oliver Wendell Holmes, Jr., The Common Law (Boston, Little Brown & Co. 1881), at 177, 300–301); 2 Holmes-Pollock (1961), at 200, 233–234. See also William Buckland, Some Reflections on Jurisprudence (1945), at 97. Holmes’ formulations are inconsistent between a pure Sanction theory (promisees really bear a liability to pay damages unless the agreed-upon event comes to pass) and a Predictive-Sanction hybrid (promisees bear the risk of liability should the agreed-upon event fail to come to pass).

86. Hart (1994), supra note 83, at 124–154.

87. Brian Leiter argues that the Realists did not subscribe to this view, and that Hart therefore argued against a strawman. Brian Leiter, American Legal Realism, in The Blackwell Guide to the Philosophy of Law and Legal Theory 61–63 (Martin Golding and William Edmundson eds., 2005) [hereinafter Leiter (2005)]. Indeed, they could not, on Leiter's account, because he believes that Legal Realism is best understood as a theory of appellate adjudication, one positing that legal rules are not the sole or dispositive factors determining judicial decisions. However, that thesis itself presupposes the existence of rules, i.e., they must both obtain and be reckonable in order to be denigrated in status within a Realist causal-explanatory account of adjudication. For evidence that the Realists believed in rules, see, e.g., Karl Llewellyn, The Theory of Rules (2011), at 62; Karl Llewellyn, On Reading and Using the New Jurisprudence, in Jurisprudence: Realism in Theory and Practice 149, 152–153 n.17, 153 (1962) [hereinafter Llewellyn (1962a)]; Tamanaha (2009), supra note 6, at 6–7.

88. Cf. Fisch, M. H., Justice Holmes, The Prediction Theory of Law, and Pragmatism, 39 J. Phil. 85 (1942)CrossRefGoogle Scholar; Moskowitz, David H., The Prediction Theory of Law, 33 Temple L.Q. 413, 418–421 (1966)Google Scholar; Richard Posner, What Is Law, and Why Ask?, in The Problems of Jurisprudence 221–228 (1993). These authors frame matters in terms of legal rules’ applications to particular cases, though, not in terms of specifying disputants’ legal positions.

89. Brian Bix suggested to me that the main difference between “strong” and “weak” versions of Predictive theory is that it is difficult under the former to make sense of the idea of a court (or at least a high court) making “a mistake” about the law. Email from Brian Bix to author (Jan. 17, 2018, 12:02 CST) (on file with the author). But see Schauer, Frederick, Legal Realism Untamed, 91 Texas L. Rev. 749, 760–764 (2013)Google Scholar [hereinafter Schauer (2013)] on those holding milder or narrower interpretations of Realism, who, along with non-Realists, are accused of erroneously persisting in the belief that courts can even make “mistakes” (rather than having substantive views with which people simply disagree), which in turn suggests that “seemingly unregulated cases have legally right answers” after all. Id. at 763. (Can this be explained either in terms of an error theory or disingenuousness?)

90. E.g., Hull, supra note 5, at 103, 115; Twining, supra note 5, at 35; Horwitz, supra note 5, at 152; Schlegel (1995), supra note 6, at 24, 43. Schlegel rejects other historians’ identifications of Hohfeld as a Realist, but without argument. Schlegel (1995), supra, at 6, 24, 42–44; John Henry Schlegel, Wesley Newcomb Hohfeld: On the Difficulty of Becoming a Law Professor, in The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries (Shyam Balganesh, Ted Sichelman & Henry Smith eds., forthcoming 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2897524, at 35.

91. E.g., Jane Baron, Rescuing the Bundle-of-Rights Metaphor in Property Law, 82 U. Cin. L. Rev. 57, 64, 64 n.42 & n.43 (2014); Twining, supra note 5, at 35; Postema, supra note 15, at 103 n.17.

92. For a non-exhaustive list of the articles concerning Hohfeld from the first half of the twentieth century, see Singer (1982), supra note 5, at 989 n.22.

93. E.g., Cook (1919), supra note 15; Corbin, Arthur, Legal Analysis and Terminology, 29 Yale L.J. 163 (1919)CrossRefGoogle Scholar; Clark, Charles, Relations, Legal and Otherwise, 5 Ill. L.Q. 26 (1922)Google Scholar; Goble, George, Negative Legal Relations Re-Examined, 5 Ill. L.Q. 36 (1922)Google Scholar; Radin (1938), supra note 12; Llewellyn (1960), supra note 19.

94. E.g., Llewellyn, Karl, Some Realism About Realism—Responding to Dean Pound, 44 Harv. L. Rev. 1222, 1234 (1931)CrossRefGoogle Scholar [hereinafter Llewellyn (1931)]; Twining, supra note 5, at 82, 375; Leiter (2007), supra note 6, at 17–18, 59–60. Of course, this is not to deny that they held shared ideas, views, or commitments. For a candidate list thereof, see Llewellyn (1931), supra, at 1224, 1236–1238.

95. For a partial catalogue of types, see Frederick Schauer, Forward, in William Twining, Karl Llewellyn and the Realist Movement, at ix–xii (2d ed. 2012) [hereinafter Schauer (2012)]; Schauer (2013), supra note 89, at 749 n.2.

96. E.g., Leiter (2007), supra note 6; Schauer (2013), supra note 89; Leslie Green, Law and the Causes of Judicial Decision, Oxford Legal Studies Research Paper, Paper number 14/2009 (April 2009), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1374608.

97. Leiter (2007), supra note 6, at 9–12. Whether the Realists believed legal rules to be (a) indeterminate or (b) under-determinate is largely an implicit debate within the scholarly literature. Under-determinacy entails that a given legal rule, or group of rules, do not justify or cause a unique outcome in a decision, e.g., a judge's ruling. The rules justify a limited set of possible outcomes, but not all possible ones. By contrast, indeterminacy entails that the legal rule has no constraining power over what sort of conclusion is possible. Hence, any outcome is legally valid. Leiter (2007), supra note 6, at 79; Leiter (2005), supra note 87, at 51. The under-determinacy option is a more plausible interpretation of Realism. For one thing, the Realists would deny that people must always turn to officials to settle the meaning or content of every aspect of their legal positions, or that the law can never guide people absent such proceedings. This may nonetheless prove to be in tension with their accounts of rights and duties discussed below.

98. Leiter (2007), supra note 6, at 9–12. Certain versions hold that, while the rules are causally under-determinate, they may nonetheless be rationally determinate. Id. at 9–10. One reason could be this: a single rule is “on point” that could generate a unique outcome in a case, but it is a mere “paper” rule.

99. Id. at 9. Cf. Leiter (2005), supra note 87, at 51–52, 64. Perhaps some of these bases can instead be understood as vehicles through which the real drivers of official decision—extra-legal factors and/or real rules—get effectuated, e.g., they motivate a judge to “interpret” a (paper) rule narrowly or broadly.

100. Llewellyn (1931), supra note 94, at 1252; Herman Oliphant, Stare Decisis—Continued, 14 ABA J. 159, 159 n.5, 160 (1928); Cohen, Felix, The Problems of a Functional Jurisprudence, 1 Mod. L. Rev. 5, 10–12 (1937)CrossRefGoogle Scholar [hereinafter Cohen (1937)]; Green, Leon, Recent Steps in Law Administration, 15 J. Am. Judicature Soc'y 113, 115 (1930)Google Scholar, quoted in Wilfred Rumble, American Legal Realism: Skepticism, Reform, and the Judicial Process (1968), at 56 n.15.

101. E.g., Llewellyn, Karl, The Effect of Legal Institutions on Economics, 15 Am. Econ. Rev. 665, 665 (1925)Google Scholar; Karl Llewellyn, Some Realism About Realism—Responding to Dean Pound, in Jurisprudence: Realism in Theory and Practice 61 & n.“d” (1962). (Llewellyn added this footnote decades later in this book version of the article.) See Pound, Roscoe, Law in Books and Law in Action, 44 Am. L. Rev. 12, 18–19, 20–22 (1910)Google Scholar [hereinafter Pound (1910)] for the notions of “extra-legal” factors driving decisions and a paper/real rule distinction. (Pound was not a Realist, though.)

102. E.g., Llewellyn (1962a), supra note 87, at 145, 150–151; Llewellyn (1931), supra note 94, at 1242. Perhaps they thought that task was beyond the contemporary level of social scientific competency. E.g., Moore, Underhill & Sussman, Gilbert, Legal and Institutional Methods Applied to the Debiting of Direct Discounts—II. Institutional Method, 40 Yale L.J. 555, 560 (1931)CrossRefGoogle Scholar.

103. E.g., Llewellyn, Karl, A Realistic Jurisprudence—The Next Step, 30 Colum. L. Rev. 431, 444–457 (1930)CrossRefGoogle Scholar [hereinafter Llewellyn (1930)]; Llewellyn (1931), supra note 94, at 1222.

104. E.g., Llewellyn (1930), supra note 103, at 439 & n.9, 444, 447–448; Cohen (1937), supra note 100, at 9.

105. Matters are compounded here because, in addition to paper and real rules, certain Realists (seemingly) suggest a third concept: A WORKING RULE. Worse still, they may be presenting wholly distinct concepts that use the same label, “working rule.” It is therefore unclear if most Realists: (i) endorse a working/real rule distinction and (ii) advance one or more conceptions of A WORKING RULE.

For example, Llewellyn distinguishes between “working” and “real” rules. A working rule is a prescriptive norm that guides official behavior, which can differ from the “paper” rule. A real rule, in turn, is a description of regularity, not a norm. Llewellyn (1930), supra note 103, at 439 n.9, 444, 447–448 (and infra note 127 and accompanying text on “real” rules and rights). See also Moskowitz, David, The American Legal Realists and an Empirical Science of Law, 11 Vill. L. Rev. 480, 499–500 (1966)Google Scholar; Postema, supra note 15, at 107–109. Nonetheless, Schauer seems to posit an identity between working and real rules, suggesting that “real” rules are norms that can guide officials. Frederick Schauer, Editor's Introduction, in Karl Llewellyn, The Theory of Rules 23, 27–28 (Fred Schauer ed., 2011) [hereinafter Schauer (2011)]; Schauer (2013), supra note 89, at 750–751, 767 & n.81. Other Realists, however, seem to endorse the notion of a “tentative working rule.”

Laura Kalman, Legal Realism at Yale, 1927–1960 (University of North Carolina Press 1986), at 234–235 (“note 12”), quoting Letter from Arthur Corbin to Karl Llewellyn (Jan. 29, 1961), R/3/5, Llewellyn Papers (on file with University of Chicago Law School Archives).

106. Leiter, Brian, Legal Formalism and Legal Realism: What Is the Issue?, 16 Legal Theory 111, 112 (2010)CrossRefGoogle Scholar [hereinafter Leiter (2010)] (emphasis added and examples excised). There are further Realist concepts of relevance here: A SITUATION-TYPE and SITUATION-SENSE. The former is a recurring factual pattern that elicits predictable normative responses from most jurists, but that is not predicated on the legal doctrine's categories per se. See Leiter (2005), supra note 87, at 55. Cf. Leiter (2007), supra note 6, at 23; Pound, Roscoe, The Theory of Judicial Decision, 36 Harvard L. Rev. 641, 646 (1923)CrossRefGoogle Scholar; Radin, Max, The Theory of Judicial Decision: Or How Judges Think, 11 Am. Bar Ass'n J. 357, 362 (1925)Google Scholar. The extra-legal factors might all figure into the official's situation-sense, which is then either used as the basis for decision or the basis for selecting legal doctrines to decide the cases. See Postema, supra note 15, at 129; Samuel Donnelly, Book Reviews of William Twining's Karl Llewellyn and the Realist Movement and David Wigdor's Roscoe Pound Philosopher of Law, 3 Hofstra L. Rev. 899, 907 (1975). Cf. Twining, supra note 5, at 213 (“Table 1”), 217–227.

107. Leiter (2005), supra note 87, at 52 (“[T]he distinctive Realist thesis is about responsiveness to situation types as the best explanation of appellate decision.”). See also Leiter (2007), supra note 6, at 16, 61–62; Leiter (2010), supra note 106, at 125 n.64. Cf. Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (2009) [hereinafter Schauer (2009)], at 134 (The central Legal Realist claim is that judges typically make decisions based on something other than, or in addition to, existing legal doctrine, e.g., general, nonlegal norms.).

108. Leiter (2007), supra note 6, at 24.

109. E.g., Schauer (2009), supra note 107, at 135. But cf. id. at 137–138 on Karl Llewellyn.

110. E.g., Schauer (2011), supra note 105, at 23 n.52.

111. E.g., Dagan, supra note 6, at 126–128; Schauer (2013), supra note 89; Joseph Singer, Legal Realism Now, 76 Calif. L. Rev. 465, 465, 470–471 (1987).

112. E.g., Tamanaha (2009), supra note 6.

113. Karl Llewellyn, Wesley Newcomb Hohfeld—Teacher, 28 Yale L.J. 795 (1919).

114. His most famous version of his list of Legal Realists, which has been both criticized and supplemented, can be found in Llewellyn (1931), supra note 94. Horwitz claims that, had Hohfeld been alive in 1931, Llewellyn would have included him on the list. Horwitz, supra note 5, at 182.

115. Twining claims that Llewellyn used the schema’s terminology, albeit less openly, when drafting the Uniform Commercial Code. Twining, supra note 5, at 35.

116. Llewellyn (1960), supra note 19.

117. Id. at 84.

118. Id. at 85.

119. Id.

120. Id. “A has a right that B shall do something, I repeat, when, should B fail to do it, A can get the court to make trouble for B. But the right has B on the other end… If you look at the man who may call upon the court to smite the other, you see it as a right… If B has a duty to A to do something, that means that, should he fail to do it, A can get the court to make trouble for B.” Id. This deontic language (“must,” “may,” “can”) can be found in Salmond (1902), supra note 9, at 235, 236, 238. Salmond would say that Llewellyn has conflated a duty with a liability for breach of said duty.

121. Llewellyn (1960), supra note 19, at 83–84. Cf. supra note 44 and accompanying text (Hohfeld on “defective” rights).

122. Id. at 85–86.

123. Holmes (1897), supra note 85, at 459. For Llewellyn's Predictive theory–laden accounts of the other three kinds of Hohfeldian jural relations, see Llewellyn (1960), supra note 19, at 86–88. For example, a power “is a prediction two steps removed from the action of the courts.” Id. at 87.

124. Llewellyn (1960), supra note 19, at 85. One could perhaps also infer that, although legal officials have “purposes” they wish to effectuate through laws (id. at 83–84), there may be no good moral or political reasons for people to conform to those goals—or at least not simply because of the law's say-so. See Michael S. Green, Leiter on the Legal Realists, 30 Law & Phil. 381 (2011). Additionally, it is an issue whether Llewellyn's use of “purposes” here can be squared with his paper/working/real rule distinction, save insofar as the purposes are those of different kinds of officials, e.g., legislators passing statutes that must be interpreted by courts, where the latter employ their own “working” rules.

125. However, Llewellyn elsewhere goes to pains to insist on the concept's relative worth.

Llewellyn (1930), supra note 103, at 438 & n.7. He reiterates the point thus.

Id. at 442–443. Whether this can actually be squared with what Llewellyn says elsewhere (i.e., infra note 127 and accompanying text) is another matter.

126. Llewellyn (1930), supra note 103, at 437–438.

127. Karl Llewellyn, A Realistic Jurisprudence—The Next Step, in Jurisprudence: Realism in Theory and Practice 21–22 (1962). This reprint contains slight emendations to the passage. The original is Llewellyn (1930), supra note 103, at 447–448.

128. A comparison with Alf Ross, the Scandinavian Legal Realist, may prove fruitful. Ross aims to “translate” legal concepts into observable behavior in order to cultivate a social scientific understanding of the phenomena. As Brian Bix explains, for Ross:

Bix, supra note 5, at 108; Ross, Alf, Tû-Tû, 70 Harv. L. Rev. 812 (1957)CrossRefGoogle Scholar; Alf Ross, The Concept of Rights, in On Law and Justice (1959); Spaak, Torbin, Alf Ross on the Concept of a Legal Right, 27 Ratio Juris 461 (2014)CrossRefGoogle Scholar. Not all Scandinavian Realists shared this view, though. Bix, supra note 5, at 110.

As a caveat, the American and Scandinavian Legal Realists are often taken to differ considerably. Influenced by the twentieth-century Logical Positivists, the Scandinavians offer a theory of law, one aiming to explain normative discourse in terms of non-cognitivism and psychologism (e.g., in opposition to explanations of discourse about rights and duties as referring to real “things”). Leiter, Brian, Legal Realisms, Old and New, 47 Val. U. L. Rev. 67 (2013)Google Scholar; Schauer (2012), supra note 95, at xiv n.19.

129. Radin, Max, Legal Realism, 31 Colum. L. Rev. 824 (1931)CrossRefGoogle Scholar [hereinafter Radin (1931)]. Llewellyn also identifies Radin as a Realist. Llewellyn (1931), supra note 94.

130. Radin (1929), supra note 19; Radin (1938), supra note 12; Radin, Max, L'analisi dei Rapporti Giuridici Secondo il Metodo di Hohfeld, 7 Rivista Internazionale di Filosofia del Diritto 117 (1927)Google Scholar.

131. Radin (1938), supra note 12, at 1149–1150, 1163. Regardless of whether it is an accurate account of CORRELATIVITY, Radin's is perhaps a sounder view of identity than Llewellyn's.

132. Id. at 1148, 1149, 1151. As a meta-theoretical desideratum, Radin posits that juristic terms ought to track existing legal linguistic practices. He criticizes some of Hohfeld's terms accordingly. Id. at 1148. Thus, his offering of “demand-right” is odd.

133. For Radin's takes on “a privilege,” “a liberty,” “a license,” and “a liability,” see id. at 1148–1149, 1158.

134. Id. at 1152 (emphasis added). Cf. id. at 1145.

135. Id. at 1152.

136. Id. at 1163 (emphasis added).

137. Id. at 1152.

138. Id. at 1151.

139. Cf. Hohfeld, FLC #2, supra note 1, at 752 (where Hohfeld seems to treat “secondary” rights as “adjective” ones). Cf. supra notes 37–39. Sometimes, though, a specific sum can be so determined. E.g., Hohfeld, Equity, supra note 33, at 554 (“Example 23”).

140. Twining, supra note 5, at 472 n.55.

141. Llewellyn (1931), supra note 94, at 1226 n.18; Schlegel (1995), supra note 6, at 8, 147–210; Hull, supra note 5, at 204, 218–219; Twining, supra note 5, at 35, 378; Horwitz, supra note 5, at 169; Leiter (2005), supra note 87, at 51.

142. Cook, Walter Wheeler, The Logical and Legal Bases of the Conflict of Laws, 33 Yale L.J. 457, 476 (1924)CrossRefGoogle Scholar.

143. Cook (1919), supra note 15.

144. Cohen (1937), supra note 100, at 15–16. Like his father, Morris, Felix also endorses an Imperative theory of law. Id. at 20–21 (and quoting Morris Cohen, Law and the Social Order: Essays in Legal Philosophy (1933), at 20). While Morris’ relationship to Legal Realism is debatable, Felix's is not. E.g., Llewellyn (1962a), supra note 87, at 155; Dagan, supra note 6, at 134; Leiter (2005), supra note 87, at 54; Tamanaha (2009), supra note 6, at 71.

145. Cohen (1937), supra note 100, at 8. Cf. id. at 18.

146. Id. at 15. He elsewhere states: “In brief, Holmes, and one should add, Hohfeld, have offered a logical basis for the redefinition of every legal concept in empirical terms, i.e., in terms of judicial decisions. The ghost world of supernatural legal entities to whom courts delegate the moral responsibility of deciding cases vanishes; in its place we see legal concepts as patterns of judicial behavior. . .” Cohen, Felix, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 828 (1935)CrossRefGoogle Scholar [hereinafter Cohen (1935)]. For an interpretation of Legal Realism as a theory that reduces law to judicial decisions, see, e.g., Rumble, Wilfred, Law as the Effective Decisions of Officials: A New Look at Legal Realism, 20 J. Pub. L. 215 (1971)Google Scholar [hereinafter Rumble (1971)].

147. Cohen (1937), supra note 100, at 15–16. For a comparable account of the Realists’ views of rights and duties, see Rumble (1971), supra note 146, at 227–228. However, Rumble misses (1) the fact that Realists’ believed that (at least some) legal rules contain a prescriptive quality; (2) the issues concerning primary, secondary, and tertiary positions; and (3) the Sanction theory aspect of the Realists’ construal of legal positions.

148. Twining, supra note 5, at 82, 378. The others are Cook, Corbin, Jerome Frank, Underhill Moore, and Herman Oliphant. Id. at 82, 378.

149. Id. at 97.

150. Id. at 97–98, 136–137, 456 n.9.

151. Id. at 97–98, 137; Horwitz, supra note 5, at 201. An example may be Llewellyn's “de-emphasis” of the concept of TITLE. Id. at 331–333. Cf. Llewellyn (1930), supra note 103, at 457–459. But see Llewellyn (1960), supra note 19, at 84:

152. Twining, supra note 5, at 336. But cf. id. at 98. See also Llewellyn (1960), supra note 19, at 84. Horwitz attributes a more conspicuously political angle to this notion. Horwitz, supra note 5, at 68, 153–156, 200. But cf. id. at 53.

153. E.g., Llewellyn (1962a), supra note 87, at 144–145, 160–161, 164; Twining, supra note 5, at 79, 237, 331–333.

154. Twining, supra note 5, at 34–35.

155. Id. He also correctly notes that the schema’s scope of application is narrower than Hohfeld advertised it to be. Id.

156. Id. at 35–36.

157. Id. at 137. Cf. id. at 35; Radin (1931), supra note 129, at 826.

158. “Formalism” is the label for a deductive, mechanical model of judicial reasoning, one that Legal Realists and certain others claim was the dominant one during the late nineteenth and early twentieth centuries in America (if not elsewhere), and that serves as the standard foil for Realist and subsequent scholars. Radin, among others, however, styled it as “Conceptualism” instead. Radin (1931), supra note 129, at 826. Cf. Singer (1982), supra note 5, at 1059.

Perhaps in order to avoid confusion on the matter, Horwitz attempts to carve a conceptualism/formalism distinction. “Late-nineteenth-century courts were ‘conceptualistic’ in the sense that they believed that one could derive particular legal rules and doctrines from general concepts such as property. And they were formalistic in believing that one could logically deduce these rules from the nature of property itself. Property, then, was thought to have an essence or a core of meaning, even if there could be legitimate argument about what was to be included at the periphery.” Horwitz, supra note 5, at 154–155.

159. Twining, supra note 5, at 36, 377. “In style [Hohfeld] was very much in the Austinian tradition, and at first sight it may seem almost paradoxical that a disciple of Austin should have provided the early realists with some of the most powerful weapons for their onslaught on the ‘formalism’ and ‘conceptualism’ for which [John] Austin is often blamed.” Id. at 35.

160. Id. at 36.

161. Id. (emphasis added). Whatever may be said about Cook's or Corbin's analyses and political goals, their view cannot be squared with Hohfeld's Unity & Harmony proposition. See supra note 58 and accompanying text. Twining notes that proposition's dubiousness, though. Twining, supra note 5, at 34–35.

162. Hull, supra note 5, at 98. “[H]e [Hohfeld] made the kind of point later legal realists, like his future student, Karl Llewellyn, would adopt as some of their fundamental tenets.” Id. Cf. id. at 104. Hull also claims, however, that “Cook made Hohfeld into the first Legal Realist.” Id. at 115.

163. See supra note 59 and accompanying text.

164. Hull, supra note 5, at 104–105.

165. Id. at 105–106. Cf. id. at 113. Even if one were to accept that, despite its ambiguity and vagueness, “Progressive” is akin to a term of art in American discourse, it becomes especially problematic in this context if there is a Realist/Progressive distinction to be had (i.e., all Realists were political “progressives,” but not vice versa). Does Hull deem Hohfeld's work to be: mainstream Realist; another sort of post-formalist scholarship; or simply conforming to, or advancing, the “correct” politics?

166. Horwitz, supra note 5, at 182. Cf. id. at 319 n.125 (Hohfeld did not represent “Classical Legal Thought”).

167. Id. at 169. See also id. at 169–172.

168. Id. at 169. Pace Horwitz, the Realists harbored certain views and concerns about adjudication, law, rights, and duties (even if not exclusively, and even if they were not their originators). While insisting that Realism was not a school (Llewellyn (1931), supra note 94, at 1222, 1224, 1225, 1233), Llewellyn nevertheless insists that the Realists shared a “method.” It concerns investigations into whether legal officials actually do that which they claim to be doing, which is based on scholarly skepticism about whether that is indeed the case, and then to find alternative explanations if there are divergences. Llewellyn (1962a), supra note 87, at 135–136; Llewellyn (1931), supra, at 1234 & n.35. Perhaps this may be better characterized as a shared working hypothesis or assumption, though, as the Realists did not all undertake the same methodological approaches (empirical research, interpreting cases, etc.). But see Horwitz, supra note 5, at 169–172; Tamanaha (2009), supra note 6, at 68.

169. Horwitz, supra note 5, at 33, 202.

170. Id. at 201.

171. Id. at 152–156. Horwitz too is aware that many of the schema’s components can be traced back to Jeremy Bentham and John Austin. Id. at 153.

172. Id. at 155.

173. Id. Joseph Singer's account is comparable. He claims that, in a tradition starting with Bentham, Hohfeld's use of Analytic Jurisprudence and fundamental legal conceptions demonstrates how the Common Law (a liberal capitalist legal order) bears important contradictions and flaws. For example, via analyses of the doctrine of damnum non injuria, Analytic jurists showed what legal liberties and no-rights really entailed, socioeconomically and politically, for their bearers. Singer (1982), supra note 5, at 978–980, 1003.

Singer's politicized reading of the philosophy of rights from Bentham to Hohfeld fails to account for German scholars such as Brinz, Bierling, and Thon, who helped build the analytic picture of the fundamental jural conceptions (Juristischen Grundbegriffe, as Bierling calls them in the very title of his book (Bierling, supra note 17)). Some of these German scholars had read Austin. They in turn influenced Salmond and other Anglosphere jurists. Moreover, they appear to have had nothing to do with the sort of political project for the Common Law or German Civil law that Singer suggests.

174. Horwitz, supra note 5, at 153–156.

175. Id. at 156. This story of property and other legal doctrines will be further discussed and debunked—as being Hohfeld's real view of things, that is—in Section VI.A.

176. See supra note 5.

177. Schauer (2012), supra note 95, at xii–xiii.

178. Schauer (2000), supra note 5, at 323.

179. Schauer challenges its very cogency. He thinks the Realists believe that legal rights and duties are only determinable via officials’ decisions in particular cases regarding specific people, and that talk of rights is just the reification of abstractions. That view, he argues, is explanatorily inadequate, because it cannot tell us why legal decision-makers decide one way or another, or how they understand their own practices. (The latter is often taken by Analytic legal philosophers to be an important desideratum or adequacy condition for a legal theory. E.g., Raz (1994), supra note 77, at 237; Julie Dickson, Evaluation and Legal Theory (2001), at 48, 59.) The only way to make sense of cases and legal arguments, Schauer claims, is to conceive of rights as (relatively) general reasons that are temporally and logically prior to any particular lawsuit or dispute. Rights are ex ante reasons, even if not conclusive ones, that apply to particular facts, cases, and agents. Schauer (2000), supra note 5, at 328–330. In other words, rights are reasons for action or (judicial) decision and are necessarily and logically more general than a rights-based legal result, even if the term “a right” is reserved for what Schauer would prefer to be called a “right-based result.” Id. at 330. Pace this understanding of Hohfeld, though, see Andrew Halpin, The Value of Hohfeldian Neutrality When Theorising About Rights, in New Essays on the Nature of Rights (Mark McBride ed., 2017) [hereinafter Halpin (2017)].

180. Schauer (2000), supra note 5, at 323 n.2.

181. Postema, supra note 15, at 105.

182. Id.

183. Id.

184. Id. at 102.

185. Id. at 105.

186. Id.

187. Id.

188. Id.

189. Id. at 105–106.

190. Id. at 106.

191. Id.

192. Id. at 101–102 (citing Corbin, Arthur, Jural Relations and their Classification, 30 Yale L.J. 226, 230 (1921)CrossRefGoogle Scholar; Llewellyn (1960), supra note 19, at 85).

193. Postema, supra note 15, at 102. Postema makes another argument against the Realist understanding of Hohfeld, but it rests on shakier ground. He claims that Hohfeld cannot even show that there are logical gaps in arguments that infer one component of a right from the existence of a different component. Id. at 106. Pace Postema, from the mere existence of a power, it does not follow that there is also a liberty to exercise it, e.g., a power-holder's bearing a duty not to file a right of action on contractual grounds. Hence, any such inference about a liberty from the power alone would be begging the question.

194. Halpin (2017), supra note 179, at 15. Sometimes this is framed in terms of “flattening” the law, i.e., rendering the distinctions between certain branches of the law, such as that between contract and property, meaningless. E.g., Henry Smith & Andrew Gold, Scaling Up Jural Relations, in The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries (Shyam Balganesh, Ted Sichelman & Henry Smith eds., forthcoming 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3091652.

195. Halpin (2017), supra note 179, at 15.

196. Id. at 16–17.

197. Id. at 17.

198. Id.

199. Id. (citing Hull, supra note 5, at 105, 107 n.109). This is not Hull's understanding of the evidence from Cook and Corbin, but Halpin has the better interpretation of it. (See infra notes 218–219 and accompanying text.) In discussing the Realist “revolt against formalism,” William Morrison claims that “from this point of view the use of Hohfeld, who is highly formalistic in what we should regard as an unempirical ‘conceptual’ fashion, by realists like Cook and Corbin, is ironic.” William Morrison, John Austin (1982), at 167 “n”.

Horwitz claims that, in coming to adopt a general sort of anti-conceptualism and nominalism, by the 1930s the Realists consequently became disabused of Hohfeld. Horwitz, supra note 5, at 201–202. Pace Horwitz, while it might have been consistent with the rest of their views to have dropped him, and while they may generally have embraced those sorts of methodological commitments, the evidence shows that the Realists did not abandon—their modified versions of—the schema in the 1930s.

200. E.g., Brinz, supra note 19, at 49–52; Bierling, supra note 17, at 32–73; William Markby, Elements of Law: Considered with Reference to Principles of General Jurisprudence (Oxford, Clarendon Press 1871), at 49–57.

201. E.g., Salmond (1902), supra note 9, at 218–236; Anthony Dickey, Hohfeld's Debt to Salmond, 10 U. W. Austl. L. Rev. 59 (1971). Salmond's stricto sensu case of a right is a passive position. “[A] right in the narrow sense is that which other persons ought to do on my behalf.” Salmond (1902), supra, at 235. Cf. id. at 223 (legal rights are not necessarily enforceable).

202. Salmond (1902), supra note 9, at 217–238, but particularly at 236, 238.

203. See Frydrych, Rights Correlativity, supra note 24; Frydrych, David, Rights Modelling, 30 Can. J. L. & Juris. 125, 148–157 (2017)CrossRefGoogle Scholar [hereinafter Frydrych, Rights Modelling].

204. Hohfeld, FLC #1, supra note 1, at 33. Doing so replaced Salmond's use of “liability” as a correlative for both liberty and power. Salmond (1902), supra note 9, at 236, 238.

205. The reason for his multital/paucital alternative is this. Following certain predecessors, Hohfeld thinks (i) normative positions are only ever components in a jural relation and (ii) jural relations only ever concern two persons. This entails, however, that A’s right that B stay off of Blackacre is distinct from A’s right that C stay off of Blackacre. Hence, IN REM and IN PERSONAM must be fragmented to reflect the fact that each is just aggregations of copies of rights with similar contents, held against different parties. For example, your property right is a complex of: your claim against B’s trespassing on the land, your separate claim against C’s doing so, your claim against D, etc. The difference between multital and paucital rights, then, rests only in the indefiniteness or definiteness of the number of jural positions within any such complex.

206. Hohfeld, FLC #2, supra note 1, at 728–729, 740–741, 750–751; Hohfeld, FLC #1, supra note 1, at 17, 42 n.59. Unlike Hohfeld, Salmond cited to his (German) predecessors as the source for many of these ideas about the concept(s) of A RIGHT. E.g., Salmond (1902), supra note 9, at 238, 267. As he read Salmond, it may be irrelevant whether Hohfeld ever read the German scholars. He was able to read German, though. For example, Kocourek thanks him for help in the former's translation of a work of German jurisprudence. See the translator's preface in Karl Gareis, Introduction to the Science of Law: Systematic Survey of the Law and Principles of Legal Study (Albert Kocourek trans., Boston Book Co. 1911), at xv.

207. Pound, Roscoe, Legal Rights, 26 Int'l J. Ethics 92 (1915)CrossRefGoogle Scholar. Cf. Pound (1959), supra note 79.

208. Letter from Wesley Newcomb Hohfeld to Roscoe Pound (Oct. 22, 1915). Roscoe Pound Papers, Reel 7 (on file with the Harvard Law School Library). On the Pound-Hohfeld relationship, see Hull, supra note 5, at 97–116.

209. Salmond believed in natural rights and the law's normativity, and made clear that his analysis of fundamental positions was compatible with both. Salmond (1902), supra note 9, at 222.

210. Hohfeld, FLC #1, supra note 1, at 59.

211. Again, the distinction predates Hohfeld's FLC #1 and can be found in Pound (1910), supra note 101. Hohfeld claims to have collected all of Pound's articles. They had also been friends since at least 1910 and kept a regular correspondence. Hull, supra note 5, at 97, 102. Thus, it would be incredible if Hohfeld had been unfamiliar with the ideas in Pound's 1910 piece. Cf. Twining, supra note 5, at 99.

212. Hohfeld, Equity, supra note 33, at 571 n.36.

213. See supra note 58.

214. See supra note 59.

215. Hull, supra note 5, at 104.

216. Id.

217. Id. at 107 n.109 (citing Karl Llewellyn, Lecture on Jurisprudence, Apr. 26, 1955, Karl Llewellyn Papers, C.M. 10 (on file with the University of Chicago Library), at 11).

218. Hull, supra note 5, at 107 n.109 (paraphrasing Karl Llewellyn, Lecture on Jurisprudence, Apr. 26, 1955, Karl Llewellyn Papers, C.M. 10 (on file with the University of Chicago Library), at 11).

219. Corbin (1957), supra note 57, at 7.

220. Imperative theories can be disposed of quickly: Hohfeld explicitly rejects them. Hohfeld, FLC #1, supra note 1, at 42 n.59:

221. See supra note 54 and accompanying text. While Hohfeld's Equity is integral for understanding the “jural” in jural relations, i.e., the relation between common law and equitable rights to a person's overall legal position, it is odd that the matter does not arise much in his “FLC” articles. One notable exception is where he says this: “All legal rights, if genuine and valid, are really ‘concurrently legal and equitable,’ if considered with respect to the sanctions involved.” Hohfeld, FLC #2, supra note 1, at 756. This is stated in a footnote just after the passages denying that primary rights must be understood in terms of secondary rights/enforcement capacities. Cf. supra notes 46–50 and accompanying text.

222. See supra notes 80 and 85.

223. Hohfeld, Equity, supra note 33, at 543–544.

224. Id. at 543–544, 570–571.

225. Hohfeld, FLC #2, supra note 1, at 768. This is part of a “supplemental note” to Hohfeld's Equity, which is appended to the end of Hohfeld, FLC #2.

226. Id. Hohfeld is probably referring to Henry Maine's sense of “legal fiction” here. Henry Sumner Maine, Legal Fiction, in Ancient Law: Its Connection to the Early History of Society and Its Relation to Modern Ideas (London, John Murray 1861).

227. Metaphysical realism is a philosophical position generally holding that there is a mind-independent, objective reality and mind-independent entities (including, in some versions, ideas themselves). This, as opposed to positing that reality and ideas are simply socially constructed.

228. Metaphysical realism is mostly at odds with Legal Realism, the latter of which emphasizes discretion, indeterminacy, and “human” elements in legal decision-making. Schauer (2012), supra note 95, at 1 n.1; Schauer (2013), supra note 89, at 752 n.8. See also Cohen (1935), supra note 146. (A considerable portion of Cohen's 1935 article concerns Logical Positivism's application to law.)

229. Corbin (1957), supra note 57, at 3.

230. Radin (1938), supra note 12, at 1149–1150.

231. Hohfeld, FLC #1, supra note 1, at 29 n.25.

232. Hohfeld, FLC #2, supra note 1, at 711 n.4 (citing Holmes (1897), supra note 85, at 474–475 (emphasis added)):

233. Again, Hohfeld frequently quotes passages he believes helpful despite being partially in error. He states this on the page right after the quote from Holmes. Hohfeld, FLC #2, supra note 1, at 712. Cf. id. at 717 n.18.

234. Llewellyn (1962a), supra note 87, at 142.

235. See supra note 54 and accompanying text.

236. See supra notes 85, 121–122 and accompanying text.

237. Llewellyn (1930), supra note 103, at 437.

238. E.g., Hull, supra note 5, at 113–114; Twining, supra note 5, at 36; Horwitz, supra note 5, at 201.

239. E.g., Horwitz, supra note 5, at 172, 200.

240. E.g., Hull, supra note 5, at 105, 113 n.132.

241. “A thin line, however, has always separated the apologists, who believed, like Blackstone, that a more abstract and systematic jurisprudence would reveal the deeper rationality of the common law, from the critics like Hohfeld, whose efforts at systematic jurisprudence were inspired by the belief that only a more abstract system of legal thought could expose the irrationality of common law modes of legal classification.” Id. at 201. But see Tamanaha (2009), supra note 6, at 200, albeit without mention of Hohfeld.

242. Horwitz, supra note 5, at 155, 201.

243. Singer (1982), supra note 5, at 986, 1003.

244. Horwitz, supra note 5, at 153–156.

245. Singer (1982), supra note 5, at 979.

246. Salmond advanced all four propositions. Salmond (1902), supra note 9, at 232–233. Propositions 1, 2, and 4 can also be traced back to Bentham, at least. Jeremy Bentham, Of the Limits of the Penal Branch of Jurisprudence (Philip Schofield ed., 2010), at 75–76, 79–80, 103 n.1, 300–301, 317; Frydrych, Rights Modelling, supra note 203, at 148–153.

247. E.g., Raz (1994), supra note 77, at 254–255; Joseph Raz, The Concept of a Legal System: An Introduction to the Theory of Legal System (2d ed. 1980), at 178–180.

248. E.g., Kramer, supra note 12, at 38–44.

249. Horwitz also claims that Holmes’ “Legal Positivist” assertion of duties being logically and chronologically prior to rights was his most revolutionary maneuver and was used to subvert the natural rights tradition in America. Horwitz, supra note 5, at 154. Cf. id. at 140. Even if this was true, the idea of a logical priority of concepts (e.g., you cannot understand A RIGHT without first understanding A DUTY because a right is an entitlement to someone else's duty-required action or forbearance) does not negate the possibility of natural rights and duties, proponents of which will just continue to claim serve to ground or trump positive rights and duties. A Legal Positivist account of legal norms and legal positions, in other words, need not deny the existence of other sorts of norms and normative positions. In fact, as an account of law, Positivism is dependent upon there being nonlegal ones (in order to distinguish them from legal ones). Further, even if positive rights are wholly contingent constructs, judges might still be able appeal to the idea of natural rights as a basis for guiding their decisions qua (potentially) legitimate source of law even under a(n Inclusive) Legal Positivist view, depending on the system's rule(s) of recognition. Moreover, a Positivist analysis of property, or any other legal conception, is not going to dissuade natural lawyers and natural rights advocates from believing that that is the end of the story; again, it does not even end the story for Hohfeld, who thinks “common principles of justice and policy” undergird larger legal concepts. Cf. Postema, supra note 15, at 105.

250. I say “mostly” because someone could intentionally misuse Hohfeld (by consciously running faulty analyses and/or misrepresenting the results) in order to advance a political agenda.

251. E.g., Hohfeld, Wesley Newcomb, Faulty Analysis in Easement and License Cases, 27 Yale L.J. 66 (1917)CrossRefGoogle Scholar; Cook, Walter Wheeler, Privileges of Labor Unions in the Struggle for Life, 27 Yale L.J. 779 (1918)CrossRefGoogle Scholar.

252. Frydrych, Rights Modelling, supra note 203; Frydrych, David, Down the Methodological Rabbit Hole, 49 Crítica 41, 62–67 (2017)Google Scholar.

253. Hohfeld, FLC #1, supra note 1, at 28–30. Cf. id. at 21–25 (on “property” and “contract”). Hohfeld also quotes John Chipman Gray thus:

Id. at 29 n.25 (citing Gray, supra note 80, at viii).

254. Bentham, supra note 246, at 75–76, 150 n.

255. Morrison, supra note 199, at 122–147; Lotte Hamburger & Joseph Hamburger, Troubled Lives: John and Sarah Austin (1985), at 168–191. For a thorough refutation of the argument that Austin's analytical framework was a crypto-political project, see Morrison, supra at 122–132. For a helpful comparison of Austin to the Legal Realists, see Rumble, William, The Legal Positivism of John Austin and the Realist Movement in American Jurisprudence, 66 Cornell L. Rev. 986 (1981)Google Scholar.

256. Quinn v. Leathem [1901] AC 495 (discussed in Hohfeld, FLC #1, supra note 1, at 36–37).

257. Salmond (1902), supra note 9, at 232–233.

258. Hohfeld, FLC #2, supra note 1, at 713.

259. Postema, supra note 15, at 104.

260. See supra notes 150–151 and accompanying text. However, if Charles Clark's testimony is to be believed, then Hohfeld would have scoffed at such a project (at least a comprehensive one). “For example, the suggestions that the realists believe that exact terminology will solve problems. I suppose this goes back to the Hohfeld ideas, and yet Hoh himself and Cook and Corbin have over and over again pointed out the fallacy of this point of view.” Hull, supra note 5, at 206–207, 207 n.159 (quoting Letter from Charles E. Clark to Karl Llewellyn, Mar. 31 1931, KLP, A.II.65.b (on file with the University of Chicago Library)). Even if this accurately represents Hohfeld's view, it is difficult to square with his proclamations about what rigid adherence to the distinct terms for his eight fundamental normative positions could accomplish.

Before Clark became a federal judge, he was a professor at Yale (appointed just after Hohfeld's passing) and was apparently Hohfeld's student there. Hull, supra note 5, at 206. He is also identified as a Legal Realist. E.g., Llewellyn (1931), supra note 94. Clark also chastised the Realist notion of A SITUATION TYPE as replicating the same problems as the established legal categories. Hull, supra note 5, at 337 (citing Trubek, Charles E. Clark & David M., The Create Role of the Judge: Restraint and Freedom in the Common Law Tradition, 71 Yale L.J. 258 (1961)Google Scholar).

261. Leon Green, The Judicial Process in Tort Cases (1st ed. 1931), discussed in Leiter, Brian, Legal Realism and Legal Doctrine, 163 U. Pa. L. Rev. 1975, 1978 (2015)Google Scholar. See supra note 106 on situation-types.

262. “I care not how reclassification be made, so long as it is in terms of observation and of organizing the data usably, and with back-check to the facts. But reclassification is called for.” Llewellyn (1930), supra note 103, at 457.

263. E.g., Hohfeld, FLC #1, supra note 1, at 21, 31, 36, 46.

264. See, e.g., Terry (1884), supra note 15, at 6–7; Salmond (1902), supra note 9, at 5; Pound (1959), supra note 79, at 42–43.

265. E.g., Terry (1884), supra note 15, at 386.

266. E.g., Cook (1919), supra note 15, at 724.