HOHFELDIAN SYMMETRIES - PROTECTING HUMAN BEINGS WITHIN THE STRUCTURE OF LAWS: Notes 16 to 30
16. Hohfeldian Symmetries - Introduction.
Hohfeld did not call his legal theory symmetrical. However, it obviously is. He defines the fundamental legal relations as if they were elements of the periodic table of all possible molecular legal structures. This sense of fundamental legal order suited him as one who studied chemistry before studying the law. Just as there were many different versions of the periodic table and not without controversy until many other researchers corrected and codified the table, so too we have many attempts to "explain Hohfeld's legal relations."
17. Faithfulness of Extension.
Fascinating though this legal archaeology be, we shall extend Hohfeld's elemental insights by extending them in a way which he could not and did not foresee. In brief, Hohfeld's schema locks onto (1) jural opposites and (2) jural correlatives. We shall show that there is an underlying rotational permutation symmetry that links both, which is obvious under symmetry analysis, and that Hohfeld did not quite understand how symmetric his schema was. We improve his schema by suggesting a slight adjustment, and extend his essentially, monadic and dyadic schema to the triadic and thereby, hopefully achieving some resolution of how legal structures are incorporated in social structures. This theoretical extension of Hohfeld using symmetric ideas into the realm of the social is as far as I can tell, novel.
18. Why We Need Not Relax Hohfeldian Premises
Many theorists have tried to extend Hohfeldian theory into political and sociological analysis and in doing so, they relax his premises. For example, by saying that the elemental legal relation such as "rights can be applied to defined groups or bodies such as corporations" we have a vitiated version of Hohfeldian theory. A close reading of Hohfeld shows that he would have either despaired or rejected such modification since it leads to legal calculations which ignore the fundamental human-to-human relationships and therefore, misses the practical mark which Hohfeld felt was essential to any jurisprudence worth calling a theory. Thus, although Hohfeldian jurisprudence may seem abstract and unworldly, Hohfeld was at pains to say that any jurisprudential theory that did not improve the lot of practice was really quite useless. We take the same view here with our theories. So, we shall remain faithful to his elemental schema, and where we recommend improvements, they are but slight re-arrangements consistent with symmetric principles and where we extend, we build on his foundations keeping his theory intact and whole, ready for an enlarged application to more complex social phenomena including finance and matters such as credit, banking, sovereign and global financial risk.
18. Hohfeld's Schema of Jural Opposites and Jural Correlatives
Hohfeld's legal elements are very simple. There are essentially four positive elementary legal relations:
(1) right
(2) privilege (or liberty)
(3) power and
(4) immunity.
From these four, we can construct their JURAL OPPOSITES, which are respectively,
(5) no-right
(6) duty
(7) disability and
(8) liability.
From the elementary positive legal relations, we can also construct their correspondent JURAL CORRELATIVES, which are respectively:
(9) Duty. (= 6)
(10) No-right (= 5)
(11) Liability. (= 8)
(12) Disability (= 7)
19. The Monadic Perspective of Jural Opposites - Taking Cue from Aristotle's Canon
Imagine you are Aristotle, establishing the fundamental principles of logic or you are Levi-Strauss investigating the thought processes of your fellow human beings. How do we think about anything at all. How would you begin?
Aristotle begins just as Hohfeld does and vice versa (so that the structure of their conceptualisations could literally be called isomorphic). Both begin with OPPOSITES. Aristotle's logic features the "excluded middle," that is, something cannot be x and not-x at the same time if we are talking about essential characteristics of being. Later, in fact much later, the logicians in the 20th century clarify this distinction somewhat by using existential modifiers, but that's another story. For our purposes, it would be sufficient if we were to imagine that jural opposites are constructed LOGICALLY from the perspective of a single human being. We call this singular perspective MONADIC.
20. Jural Opposites: RIGHT versus NO-RIGHT
So, for example, given the concept of right or claim for something x, what is the opposite of this in the law? Hohfeld's answer is "no-right." This is indeed a logical opposite to right and it seems quite trivial. But let's define the other three positive legal relations and their opposites.
21. Jural Opposites: PRIVILEGE versus DUTY
Privilege, which means having no duty to perform x, has the opposite, the duty to perform x. Privilege can also be expressed as liberty, which means freedom from doing x, and the opposite would again be having a duty to perform x.
22. Jural Opposites: POWER versus DISABILITY
Power means having the ability or capability to do x. Its opposite is the inability to do x, or the disability to do x. Many times financial lawyers do not make such a clean distinction between right and power. Just below we shall see that this is a practical error.
23. Jural Opposites: IMMUNITY versus LIABILITY
Finally, immunity means that a particular law or laws should not apply to you while its opposite simply means that a particular law or laws shall apply to you. When a law applies to you, we say you are liable. Most of the time, we think of liability in the negative sense of "potential liability" as in being potentially liable for damages in case of civil litigation. But liability can also be thought of positively as when a testator signs a will, providing for a bequest to the community, the community is in a sense liable to receive the gift upon the testator's demise. For our purposes of investigating the structure of laws and finance, negative liability corresponds to the superficial notion of legal risk while the more fully formed sense of liability, inclusive of negative and positive liability is isomorphic to the modern financial concept of risk. That is, financial risk incorporates both negative and positive results to the one carrying the risk. Seen from the monadic perspective, this wholistic risk is "perceived risk" (a fundamental constant that forms one of the dimensions to the Risk Symmetries Framework, see in a future note).
24. Jural Correlatives - The Dyadic Perspective
Given the logical definitions provided by jural opposites, which are simply four legal elements and their logical opposites, no different from saying, x and not-x for each of the four positive legal relations, we may naturally ask, "But what happens under the cover of the operation of the black letter laws?" And here, Hohfeld shows his genius for simplification but not so simple as to descend to the level of triviality or absurdity.
He answers this question by simply imagining two persons mediated by a common legal relation which can itself be characterised by CORRELATIVE legal relations. So, the main point of differentiation between jural opposites and jural correlatives is the NUMBER of parties involved. For jural opposites, it is an Aristotelian contemplating the logical space of legal definitions from his own selfish perspective where nobody need exist except himself, and therefore these legal relations can cover the entirety of legal space for the Monad. But for jural correlatives, the world is re-imagined to two persons,.
25. Protecting the Humans
And we emphasise that Hohfeld was adamant that he meant "human persons" because no matter what legal entity may be involved in say litigation where laws are interpreted and tested, the ultimate legal actors where legal relations reside are in individuals. In a strong sense, Hohfeld's stance on the underlying necessary requirement that legal relations remain with humans and not artificial legal entities means that (1) his legal theory is intended to protect humans and (2) apparently complex legal relations which go to the question of substance versus form for Hohfeld always comes down to an analysis of the legal relations involving real and actual human beings. Those critics of Hohfeld who would relegate Hohfeldian legal theory to merely mechanical operations of black letter laws would completely misunderstand the deep humanistic tradition which Hohfeld 's system seeks to protect. Further on, we will apply Hohfeldian analysis to instances of market abuse and regulatory such as the flash crash of May 6, 2010 [see: http://www.zerohedge.com/news/zero-hedge-kindly-requests-immediate-resignation-mary-schapiro-gross-breach-professional-respon]
26 Hoheldian Jural Correlatives - Two Perspectives of a Single Legal Relationship = Two Jural Correlatives
The practical aspect of Hohfeld's jurisprudence begins to reveal itself with jural correlatives since they all involve situations where at least two different parties are engaged in a human-to-human legal relationship. The legal relationship can can be viewed from one or the other party's perspective. For example, Corbin, a student of Hohfeld took the simplest of legal relations, that of the contract, and applied the Hohfeldian right versus duty jural correlatives. The contract is the legal relationship, and it is composed of a legal relation called "right" held by one party and another legal relation called, "duty" by the other party. Later, we shall introduce a simple and cogent "arrow" notation borrowed from Category Theory for these relations.
27. Jural Correlatives: RIGHT v. DUTY
The right versus duty relationship is probably the most prevalent of all legal relationships in Western law, that is, the common law and civil law legal systems that circumscribe the world. To find a right versus duty jural correlative, all one need do is: (1) identify the party who has the claim of x and (2) identify the other party who has the duty to perform x. So long as one has identified the parties and their respective right to claim x and duty to do x, one has described the jural legal relations. As a preview to Category Theory, let us call one party, A, and the other party, B. The right or claim to x is a morphism from A to B, and the duty to do x is a morphism from B to A. So,
r = right
A ------------------->B
<------------------
d = duty
The nice thing about Category Theory diagrams is that we can readily generalise and see the austere structure of all the various relationships. We have much more to say about the applicability of Category Theory to law and finance later.
28. Jural Correlatives: PRIVILEGE v. NO-RIGHT
If we ramp up a bilateralized right, that is, a right which implies a context of another who has a duty, into a context where the assumption of the parties involved is that a certain party has a liberty that applies whether or not there is any conscious agreement amongst the parties, then we have a privilege that is more powerful or more generalised that a mere right. The holder of a privilege implies a social context where the others who stand in relation to the privilege holder have no right to assert that the holder of the privilege has no such privilege. One of the points of this rather convoluted description is that the the privilege holder and the others standing in direct relationship to the holder asserting the privilege X simply do not have any claim to X. The relation of one who has the privilege of X to the one who has no-right to deny the other of the privilege of X is not merely incapable under the law, rather the one having no-right simply cannot pinpoint the exact claim since such claimed has been in a strong sense been "defined away," that is, such right does not exist in the law. This is different from being incapable of asserting a right that does exist. So, strictly speaking having a no-right is not the same as having a disability or incapability under the law. Having no-right means not even being able to specify the legal or equitable claim. In a strong sense, the Law as a system the specific claim when we say a person has no-right.
29. Jural Correlatives: POWER v. LIABILITY
The correlative of power versus liability is an ingenious distinction which is directly analogous to Aristotelian principles of potentiality and potential actuality. When a contract refers to a right which may be exercised in the future, the fact that bit is not being exercised now and that it could (potentially) be exercised in the future means that the purported right is actually a power. At the time the power is created, for example, as in a power of attorney, there is simultaneously created a liability in the other party. This liability is very much like the modern financial -economic concept of risk, where it can have either a negative or positive value. It is this very legal notion of liability which maps isomorphically to the financial-economic concept of risk that allows us to build bridges between legal and financial discourse, and most importantly, to appropriate Category Theory as a substantive formalism that can map the legal and financial implications of financial instruments, regulatory interpretation, compliance, and critique under one integrative programme language.
30. Jural Correlatives: IMMUNITY v. DISABILITY
What is immunity that it should be able to disable the application of law? In other words, does the concept of immunity incorporate exceptionality to the rule of law or is it provocatively implicating naked power against the application of law? Legal theorists such as Gerdht and Negrii have argued for the concept of "exceptionality" as the new feature of law as it is performed at the edges of global empire. Grand words. More prosaically, western legal systems have always recognised the limits of application of particular laws to particular conditions, and the particularities of the laws as opposed to the Law require subtle differentiation, of conceiving at least to the of isomorphism exactly how a particular law might potentially apply to a particular set of circumstances (e.g. agency, contract, tort, criminal) and accorded to particular types of people (e.g. trustees, regulators versus beneficiaries and regulates). In this specification created by particular laws, we have in a strong sense the identification of situations (circumstances and types of people) where the particular law does not apply. These might be called the negative interstices where a particular law may not by definition, apply. Now these negative interstices in the most obvious and glaring form indicate or evidence hierarchy, where one's position is endowed with certain immunities. At the same time as a particular position is "announced" or "made known," all the other subjects to the legal system in question are disqualified from applying a law that would have been applied to any other person in the land except for the person holding such immunity. This is not exceptionality of the legal system per se writ large, rather it is the application of a well-wrought and long established mechanism of the law that corresponds to hierarchical position and if across generations to status.
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