Wesley ホーフェルド
Wesley new comb ホーフェルド (Wesley Newcomb Hohfeld, from August 8, 1879 to October 21, 1918) is an American jurist. The specialty is philosophy of law.
Table of contents
Person
For 1,879 years, it was born in California. I go to Harvard Law School while acting as the editor of the Harvard low review after graduation in California University Berkeley school in 1901. I graduated from the school in 1904 and, Stanford University law school, it was Yale University law school from 1913 through 1918 and tell me from 1905 through 1913 [1].
Thought
I proposed "the ホーフェルド diagram" which grasped law relations for mechanism and had a big influence on the later American philosophy of law, philosophy of morality, political idea [2].
ホーフェルド diagram
ホーフェルド did not have the concept of four of "the exemption right" (immunity) and each and antagonism "authority" (power) by legal right duty relations "special privilege (privilege)" "right (claim)", and, "no right (no-right) in the correlation," "inability (disability)" showed the following diagram in combination with the concept of four of "responsibility (liability)" "duty (duty)" [3].
- Antagonism (item legal opposition) -The first diagram
| Right | Special privilege | Authority | The exemption right |
| No right | Duty | The inability | Responsibility |
- Correlation (legal correlative clause) -The second diagram
| Right | Special privilege | Authority | The exemption right |
| Duty | No right | Responsibility | The inability |
- Right, duty, special privilege, no right
The second diagram first line expresses a right and relations of the duty. For example, when a sales contract was concluded between XY, X has a right to receive the delivery of the product from Y and assumes obligation that Y delivers a product to X. In other words, "assume an obligation doing V for X in Y" states, "X has the right to Y performing V for Y" from the side of the rightful claimant by the same law relations, or state from the side of the person of duty; is different and, at a point, is grasped with item correlation (correlative) each other. As for each holder of the correlative clause, it is a different person so that the holder of the right says that the holder of the duty becomes Y at the time of X.
On the other hand, the second diagram second line points at a special privilege and the relations of no right. For example, when a sales contract is not concluded between XY, Y has the special privilege which does not deliver a product for X, and X does not have a right to receive the delivery of the product from Y. Here, "(= no right) that X does not have the right to Y doing V for Y" is item correlation to point to the same law relations saying "Y has the special privilege which does not do V for X".
A right and no right are grasped with item opposition (opposite) when they look at the first diagram first row here. This means that negation of "X has the right to Y doing V for Y" becomes "X does not have the right to Y doing V for Y". Unlike the second diagram, the holder of item FIG. 1-style opposition is the same person.
In addition, in the first diagram second line, a special privilege and duty are grasped with item opposition. As for this, negation of "Y has the special privilege which does not do V for X" "assumes obligation that Y does V for X", and negation of "Y has a special privilege doing V for X" "assumes obligation that Y does not do V for X" and means. "Do not assume an obligation" with the special privilege and can, so to speak, call it "no duty".
- The authority, responsibility, exemption right, the inability
The second diagram third line points at authority and relations of the responsibility. For example, when owner X of the thing transfers it to Y, X has authority to assume Y an owner, and Y takes responsibility that it is to the owner of the thing. Here, "Y takes responsibility that law relations are changed by X for X" is item correlation to point to the same law state saying "X has authority to change law relations of Y for Y".
The second diagram fourth line points at the exemption right and incompetent relations. For example, when there is X which is not owner Y and the owner of the thing, Y has the exemption right not to be robbed of its proprietary rights of the thing by X, and X does not have authority to take the proprietary rights of the thing away for Y. Here, "(= inability) not to have the authority that X changes law relations of Y into for Y" is item correlation to point to the same law state saying "Y has the change させらない exemption right by law relations for X".
Authority and the inability are grasped with item opposition when they look at the first diagram third row here. As for this, negation of "X has authority to change law relations of Y for Y" means that it is in "X does not have authority to change law relations of Y for Y".
In addition, in the first diagram fourth line, the exemption right and responsibility are grasped with item opposition. "Y takes responsibility that law relations are changed by X for X", and, as for this, negation of "Y has the change させらない exemption right by law relations for X" means.
An evaluation and criticism
Some morality philosophers pay their attention to the point where ホーフェルド arrests claims and obligations-related other legal relations literally on "a mark concerned", and the duty that a right to cope in the world does not exist and duty to cope with develop criticism that they are incomplete by the ホーフェルド diagram since a right not to exist exists. This criticism is right at the point pointing out that ホーフェルド diagram took a privacy law into consideration to the last. However, it may be said that there is the effect of the ホーフェルド diagram at a point promoting claims and obligations-affiliated understanding with directionality from "whom to whom" in the beginning of the law education if having developed in a model in privacy law studies to the last and the diagram consider what was written for the student of the law school mainly as for the modern law [4].
In addition, none of eight concepts that ホーフェルド gives has the definition by words, and the philosopher is, but morality to criticize the point where I simply nominate an example for is invention for this to let an abecedarian understand those concepts. This is because you should let you grasp it while normal, what cannot understand the definition by words suddenly even if shown raising specific example as for the abecedarian, and explaining it [5].
These ホーフェルド diagram is useful for not only the analysis of the right concept in the existing legislation but also the analysis of the right concept by a philosophy of law person and the morality philosopher, and it is judged to have arranged legal relations logically. [6].
Footnote
- And it is 28 obituary notice "Wesley new comb ホーフェルド" Yale Law Journal 166 (1918), W. of ホーフェルド (St. Paul, West Publishing, 1984) at ^ Dictionary of American Biography 5:124 (Charles Scribner's Sons, 1933), 6:58 W. 28 Cook "concepts Yale Law Journal 721 (1918) of ホーフェルド in the science of the law"
- It is page 120 ^ Hiroshi Kamemoto "philosophy of law" (document temple, 2011)
- It is 222-223 pages ^ Jomyo Tanaka "modern jurisprudence" (有斐閣, 2011)
- ^ previous citation, 137-139 pages of note 2 "philosophy of law"
- ^ previous citation, 141-142 pages of note 2 "philosophy of law"
- ^ previous citation, 142-143 pages of note 2 "philosophy of law"
References
- W.N.Hofeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (1919)
- 1-28 pages of 54 Kenzo Takayanagi "development (one) (two, 完) with the right thought" Association of Political and Social Sciences magazines (1940) 5, 6 13-62 pages. I reprint "the U.S. and British law trend of thought" to agree with to 125-216 pages (Haikou Bookstore, 1948)
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