Have you ever heard of Wesley Newcomb Hohfeld? I met him early in my legal career. I was studying in the stacks of the library at my law school. Becoming bored, I yielded to the temptation of the books that beckoned from their shelves around me, reached up and randomly grabbed his Fundamental Legal Conceptions as Applied in Judicial Reasoning. I began to read and did not stop until the last page. Then I read him again. Hohfeld was offering me, a first year law student, a solution to the dizzying chaos of the new legal ideas that were whirling, tumbling and spinning within my mind. In the pages of his book I discovered an attempt to establish a framework within which legal understanding could take place. Thus began my infatuation with Mr. Hohfeld. Hohfeldian analysis sharpened the crux of my legal arguments in law school and, thereafter, in my legal practice. Hohfeld established a system of jural opposites and correlatives. However, Hohfeld derived them by induction from examples of judicial reasoning. He did not deduce them from a theory. Although his jural opposites and correlatives are themselves quite simple and straightforward, his derivation of them is somewhat obtuse and difficult to understand. Many law professors, lawyers and jurists have only a surface familiarity with his doctrine. They recognize his words, 'right', 'no-right', 'duty' and 'privilege'. Unfortunately, the words alone, not their meaning, measure the depth of their understanding

When I was given the opportunity to teach law to a class of high school students. I knew that I would share Hohfeld with them. However, upon thinking about how to do so I realized that teaching Hohfeld to high school students would be impossible without a theory. Merely telling them that jural opposites and correlatives exist would not be enough. I needed a theory to explain why they exist. The reason for the existence of a fact is often as important and interesting as the fact itself. Christopher Columbus is celebrated for discovering that the world is round. Yet, he did not discover why the world is round. Someone else did. Thus, the exigency of teaching drove me to reverse engineer Hohfeld's doctrine. I took him apart and I put him back together again - hopefully with more success than all the king's horses and all the king's men. In the process, I had a number of legal epiphanies and made a number of legal discoveries. In a Unified Theory of a Law, I share them all with you. A Unified Theory of a Law is the missing theory that gives the body of Hohfeld's doctrine legs. In this article, I shall provide you with summary of my discoveries:

#1: The best way to view the facts is as a flow of conduct from source to recipient in circumstances.

A fact pattern can be viewed in an infinite variety of ways. However, is one way better than another? Yes. The best way to view a fact pattern is as a flow of conduct from source to recipient in circumstances. Why? The explanation can be found in the courtroom. Have you ever wondered why there are only two types of litigant in a court of law? Typically there is only a plaintiff and a defendant. Why not some other type of litigant? That there are two seems natural - the way it should be. But why? What is the simplest explanation for the existence of only two types of litigants? Only two types of litigants typically exist in a court of law because conduct has only two ends and the focus of a court of law is upon conduct. At one end is a source doing conduct who in court is called a defendant. On the other end is a recipient receiving conduct who in court is called a plaintiff. If conduct had one end or three ends instead of two, the types of litigants in a court of law would be a number other than two. Hence, the two participants in the conduct, 1) a source doing conduct and 2) a recipient receiving conduct are the eyes of a fact pattern. A legal thinker must see them in a fact pattern to understand a law.

#2: The same conduct comes in two versions: 1) on and 2) off

Conduct is on or off, flowing or still. As a light can be turned on or off, so too conduct. Conduct that is on or flowing is affirmative conduct. Conduct that is off or still is negative conduct. The word 'not' turns affirmative conduct into negative conduct. Affirmative and negative conduct are the two polarities of a flow of conduct.

#3: The number of opinions a lawmaker can form about a flow of conduct is finite and, not only finite, but just three in number.

A lawmaker can hold three opinions about a fact pattern. Moreover, a lawmaker's opinions about a fact pattern are no different than our opinions. A lawmaker either

#4: A lawmaker expresses her opinion with either a command or a permission.

An opinion escapes from the head of a lawmaker via either a command or a permission. A command allows two opinions to escape: 1) like and 2) dislike. A permission conveys indifference.

The decision whether or not a source of conduct ought to engage in a course of conduct belongs to the lawmaker when a command is issued and to the source of conduct when a permission is issued. Commands are the language of regulation. Permissions are the language of deregulation

#5: The number of permutations of a law is finite and, not only finite, but just three in number

A law can come in any of three permutations:

#6: A lawmaker's opinion toward a source doing conduct and a recipient receiving conduct is the origin of Hohfeld's 'duty', ' privilege' 'right' and 'no-right'.

Here is where Hohfeld's jural opposites and correlatives get deduced from a theory. Our logic starts at a lawmaker and ends with one of the two participants in the conduct. They appear in the top and bottom rows of the version of the Periodic Table of the Elements of a Law below.

Hence, the words, 'duty', 'right', 'privilege' and 'no-right' have the following meanings:

Hohfeld is as simple as this!

Hohfeld's jural opposites and correlatives exist simply because of the relationships between the opinion of a lawmaker about the conduct and each of the participants in the conduct. This is important. It is the origin of all of our laws. When a legal thinker looks at any one of the three permutations of a law, the source doing conduct and the recipient receiving conduct are, as Hohfeld would say, correlative to one another. When a legal thinker looks from one permutation of a law to the next, he is viewing jural opposites. Because there are three permutations of a law, there are two opposites to any particular permutation. A law that is not a command for affirmative conduct is either a permission for both polarities of conduct or a command for negative conduct and so on.

Although commands and permissions are the devices that allow lawmakers to externalize their opinions, they are, at times, unwieldy in communication. Hence, the four words, 'duty', 'privilege', 'right' and ' no-right' are handles that make the conveyance of the opinions of a lawmaker easier.

To understand the meaning of a 'duty', 'privilege',' right' and 'no-right', we must always begin with the opinion of a lawmaker and work our way from there to the facts, i.e., a flow of conduct from source to recipient in circumstances. When a law is divorced from its lawmaker, confusion and legal misunderstanding ineluctably arise.

#7 Applying A Unified Theory of a Law to a fact pattern.

It is helpful to show you howA Unified Theory of a Law works in practice by applying it to a simple fact pattern. Let us examine the conduct of a fact pattern that has drawn the attention of lawmakers since Cain met Able. Recall that"Thou shall not kill" was one of the law's original top ten. Hence, the conduct is killing, the source doing conduct is a killer and the recipient receiving conduct is a victim. Please note that killing is affirmative conduct. It is on or flowing. Not killing is negative conduct. It is off or still.

A Unified Theory of a Law gives us a ladder of understanding that stands between a lawmaker and each of the participants in the conduct. It has four rungs. The names of the rungs are Opinion, Expression, Bondage, and Decision Maker. To understand a law, one must travel up and down its rungs. The meaning of a law becomes crystal clear only to those who complete the trip.

When God told Moses, 'Thou shall not kill', he entered the ladder of understanding at the rung called Expression. 'Thou shall not kill' is a particular instance of the general category of laws called commands for negative conduct. Lawmakers who issue commands for negative conduct hold an opinion whose preference is that they dislike the conduct and whose desire is that they do not want a source to do the conduct. This translates from the general to the particular as God dislikes killing and does not want a killer to kill. God binds this command for negative conduct, 'Thou shall not kill', upon a killer by giving him a duty not to kill. Since commands are the language of regulation, God is substituting his decision about whether or not to engage in killing for the Source's.

We were able to systematically talk about 'Thou shall not kill' from the perspective of a source doing conduct because we traveled the four rungs of the ladder of understanding, 1) Opinion, 2) Expression, 3) Bondage and 4) Decision Maker. We can also do this for the other participant in the conduct, the recipient receiving conduct. In Holfeldian language, this would be a look at the correlative.

The trip from a lawmaker to a recipient receiving conduct for 'Thou shall not kill' looks similar to the trip from a lawmaker to a source doing conduct. The preference component of the Opinion, the Expression and the Decision Maker are the same. However, the desire component of the Opinion and the Bondage change. A lawmaker, God, who dislikes conduct, killing, does not want its recipient, the victim, to receive the conduct, killing. God binds this command for negative conduct upon its recipient by giving the recipient, the victim, a right not to be killed.

Now let us change the permutation of the law to a permission. The permission, 'Thou may kill' is one of the two jural opposites to 'Thou shall not kill'. The second jural opposite to 'Thou shall not kill' is the command for affirmative conduct, 'Thou shall kill'.

A lawmaker who says, 'Thou may kill', again enters the ladder of understanding at the rung called Expression. 'Thou may kill' is a permission for either polarity of conduct. Lawmakers who issue permissions hold the opinion of indifference to the conduct. An indifferent lawmaker does not care whether or not its source kills. Permissions are the language of deregulation so the lawmaker is not substituting his decision for the source's but is giving the source the freedom to decide. The lawmaker binds the permission to its source by giving the source a privilege to kill or not to kill as the source decides. That was the trip from the lawmaker to the source. The trip from the lawmaker to the recipient for 'Thou may kill' again would look similar. The preference component of the Opinion, the Expression and the Decision Maker would be the same. However, the desire component of the Opinion and the Bondage would change. A lawmaker who is indifferent to killing does not care whether or not the recipient is killed. The Lawmaker binds this permission upon its recipient by giving the recipient a no-right

I'll leave the third permutation of a law, 'Thou shall kill', to you so you can take the trip by yourself through the four rungs of the ladder of understanding as an exercise

#8: Anyone can understand a law as well as a legal genius who understands a Unified Theory of a Law

Anyone of ordinary intelligence even the high school and college student can learn a Unified Theory of a Law, and by doing so, elevate his or her understanding of a law to the level of the legal genius. Do not pass this point by without grasping its full significance. Its import is not small. I am making a claim that, on its face, seems preposterous in its extravagance. Yet, I tell you, my claim is true. How is this possible? Forgive me for forcing you to ruminate about a ruminant by using a bovine analogy; but, a law can be likened to a cow that gives the same quantity of milk no matter who does the milking. A legal genius can milk a law for no more meaning than the ordinary legal thinker who understands A Unified Theory of a Law. A law, when properly understood, has only a finite amount of meaning to give. The boundaries that define our knowledge of a law have been discovered, explored and mapped. A Unified Theory of a Law is the map.

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Last edited by John Bosco on Sep 13, 2010 6:53 pm -0500.