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Appendix: Hohfeld, The Two Meanings of Power and Toxic Derivatives

Module by: John Bosco. E-mail the author

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Isaac Newton is credited with saying “If I have seen further, it is by standing on the shoulders of giants.” On the shoulders of Wesley Neccomb Hohfeld do I stand and to his genius I dedicate my course. In 1913, Hohfeld submitted an article to the Yale Law Journal entitled, "Fundamental Conceptions as Applied to Judicial Reasoning". Although Hohfeld is indeed my intellectual ancestor, and his work inspired me to look at a law systematically, other than a shared use of the words, 1) right, 2) no-right, 3) duty, and 4) privilege, Hohfeld and I part company. Hohfeld felt the need to use four more words, 5) power, 6) disability, 7) liability and 8) immunity. I look at these last four as toxic derivatives. They hide meaning rather than expose it.

Power has two meanings. One of its meaning deals with before while the other comes into play after a law is born. The power to make laws is one meaning. Lawmakers such as the Congress of the United States have the power to make laws. However, there is another kind of power. When a law already exists, a person can make a condition of a law come to be. This is the second meaning of power. This second meaning does not exist unless and until a law exists.

Tools of expression exist within A Unified Theory of a Law for each of the three activities that a lawmaker does in the process of making a law: 1) INTRUSION, 2) RECOGNITION and 3) FORMATION. They make the mind of a lawmaker manifest. To express INTRUSION, the words, duty and privilege do the job. No other word is needed. To express RECOGNITION, the words, right and no-right do the job. No other word is needed. To express FORMATION, a sentence in the form of a Command or a Permission does the job. No other sentence is needed. Hence with A Unified Theory of a Law only the following words or sentences are needed to capture what goes on during the lawmaking process
  • duty
  • privilege
  • right
  • no-right
  • command
  • permission
5) power, 6) disability, 7) liability and 8) immunity are not needed to capture anything that goes on during the three activities that are done by the lawmaker during the lawmaking process.

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