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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 rather than expose meaning.


Power has two meanings. One of its meaning comes into play 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 are available within A Unified Theory of a Law for each of the three stages of the process of making a law: 1) INTRUSION, 2) RECOGNITION and 3) FORMATION. They make the decision of the lawmaker at each of the three stages manifest. To express a lawmaker's decision at the INTRUSION stage of the lawmaking process, the words, duty and privilege do the job. No other word is needed. To express a lawmaker's decision at the RECOGNITION stage of the lawmaking process, the words, right and no-right do the job. No other word is needed. To express a lawmaker's decision at the FORMATION stage of the lawmaking process, 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

Hohfeld's power, disability, liability and immunity are not needed to capture anything that goes on at the three stages of the lawmaking process. They are superfluous.

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