5.1 Introduction

Private law theory increasingly gravitates toward extremes. In area after area and across methodologies, private law is pushed in opposite directions. This polarization takes place along many dimensions. Familiar are the opposition of internal and external perspectives on law, holistic and reductionist methodologies, conceptualism and nominalism, deontology and consequentialism. Often what is left out in this picture are the details of law and its workings, which relate individual behavior and morality to larger questions of justice and societal organization. As a result of privileging the micro or the macro, private law theory has trouble relating these two levels, with a lot of hand waving substituting for a well-grounded account of any kind.

All of which makes an encounter with the legal phenomenology of Adolf Reinach more than a little startling. According to Reinach, a close consideration of our intuitions will provide access to a realm of law made up of real, timeless entities, which he identifies as being synthetic a priori.Footnote ¹ That is, it is not logical, but neither is it conventional or contingent. Broader than the Kantian a priori, what the a priori was for Reinach is intertwined with the kind of close analysis called for in his phenomenology. An entry point to the a priori is by way of our considered intuitions about law. The intuition can be direct, or it can be indirectly ferreted out through telltale signs like the naturalness of enactments that accord with the a priori.Footnote ² We will argue that these signposts of the a priori are important for private law theory regardless of the ultimate status of what Reinach sees as a priori.

For Reinach, the a priori or essential in law is not conventional, but it can be superseded by positive enactment when it comes to actual law and legal concepts. Although such enactments can deviate from the a priori, the latter is always there. It not only leaves hints at its presence in terms of ease of enactment, patterns of legal thinking in new contexts, and the like. Reinach also suggests that the a priori has a gravitational pull such that deviations from it would be more common if they only responded to external considerations and did not work against the pull of the a priori.Footnote ³

Most importantly, the a priori is a legal ontology that is presupposed when we deal with law, even when law deviates from this underlying reality. By studying closely the presuppositions of law we can get a sense of its architecture – its deep structure – even if we don’t have infallible access to the a priori – or, we will argue, even if it does not have that status. That is, looking for the a priori can put on the table what about law is so robust as to be more than conventional and perhaps so taken for granted that it is not immediately apparent. Sometimes it will be difficult to tell this deep structure apart from certain widespread and psychologically, socially, or economically motivated aspects of law. In the end, one can question whether there is that much difference: one can accept that Reinach’s phenomenological procedure gets at something deep about law while entertaining a range of sources for it, ranging from natural law to psychology to overwhelming practical considerations.

This is strong stuff. It grows out of a phenomenological tradition that is quite optimistic about the project of direct analysis of experience. We will not enter into the debates over phenomenology itself, nor will we argue that Reinach’s extension of this methodology into law is the solution to the ills of current private law theory. Instead, we will employ the lens of Reinach’s a priori and its surprising successes in providing insights into aspects of private law to argue that his philosophy can be the starting point for thinking about how to fill the law-shaped gap in current theorizing.Footnote ⁴ We will show that Reinach’s a priori is a good entry point to aspects of law that are deep and robust, whatever their source – natural, psychological, or practical. These aspects of law relate to the social acts between individuals and their ‘micro’ interactions, and at the same time they organize behavior in a way that allows society to function better or worse. In Reinach’s a priori we can be attentive to detail and venture abstract generalizations, without thereby becoming overly reductionist. By ferreting out the Reinachian a priori in law, we can in the spirit of the New Private Law bring the poles of thinking we began with – the internal and external, holistic and reductionist, conceptualist and nominalist – closer together and ultimately relate the micro in law to the macro of the legal system and society writ large.

This chapter will examine current private law theory through a Reinachian lens. In Section 5.2, we set the stage by pointing out what is missing from a wide variety of approaches to private law across legal systems: how the details of law as a working system relate to the micro and the macro. In Section 5.3, we show how Reinach tackles the law on its own terms and brings out some striking insights about law, especially in the areas of property, the transfer of rights, and representation. Finally, we draw some lessons from Reinach for addressing the micro–macro problem in private law theory and examine the full range of foundational theories that could benefit from an infusion of Reinachian deep structure, whatever its ultimate status.

5.2 Private Law Theory and Its Discontents

Private law is less unified than ever. Along quite a few dimensions, theorists push in wholly opposite directions and wind up standing at odds with one another. First, internal and external perspectives style themselves as opposites.Footnote ⁵ Internal theories seek to understand law from the perspective of a participant, to get at the law’s ‘self-understanding’, during which one is to take what courts say seriously rather than as deception or false consciousness. By contrast, external perspectives analyze the law in light of some extralegal criterion, be it efficiency, distributive fairness, or even deontology. With the rise of Legal Realism in the United States, external perspectives, especially functionalist ones, have become the mainstream there.

Related to but distinct from the internal–external divide are various approaches to reductionism. Functionalist theories of law often seek to explain or justify law in terms of one variable, such as efficiency, welfare, or fairness, and in some versions, like much of law and economics, employ simple models of individual behavior. Internal perspectives run the opposite risk, of replicating the phenomenon they seek to explain or justify. However, reductionism does not track the internal–external divide exactly. Functional theories can be pluralist, responding to multiple values, and internal theories can see in (or read into) law one overriding value. An interesting contrast are old and new institutional approaches to law and economics: the style of the original institutionalists was holistic, with the invocation of society-level variables like culture and power.Footnote ⁶ New institutionalists react to but still take as a starting point modern microeconomics with its methodological individualism and (unless modified) rational actor models.Footnote ⁷

One major arena in which the question of reductionism looms large is the nature of concepts in law. In natural law, legal concepts are taken as robust and not the result of convention. Doctrinalism sees concepts as more or less given and not easily manipulated, and crucially as performing an important role in the law. The caricature of ‘deductive’ formalism would be an extreme example.Footnote ⁸ At the opposite extreme is a kind of nominalism. Notably, the Legal Realists preferred narrow and shallow concepts that stuck close to ‘the facts’ and could be altered easily in response to social needs and policy.Footnote ⁹ (Realists wrote casebooks that were organized around industries and social situations – employment contracts, medical contracts, construction contracts – rather than offer and acceptance, consideration, conditions, and the like.Footnote ¹⁰)

Finally, and again in a somewhat crosscutting fashion, deontologists and consequentialists face off, with the former evaluating law in terms of its inherent rightness or wrongness with the latter more focused on law’s consequences. Sometimes this dichotomy closely tracks external and internal, with external theories explaining law in terms of (external) consequences and internal perspectives positing an immanent morality of the law. However, one can be an external deontologist.Footnote ¹¹ And consequentialist reasoning has always been a part of judges’ reasoning. Nevertheless, in modern theory, deontology and consequentialism stand largely in opposition to each other.

How related these polarizations are presents a large and difficult question and one open to dispute. We can offer no more than some informed speculations on how we got here. Our main focus is the future: what can be done about the systematic – and yawning – lacuna in private law theory? There is an unaddressed yet vitally important gap between the law’s micro and macro levels, and, not unrelatedly we think, there is a series of divides between internalists and externalists, holists and reductionists, conceptualists and realists, deontologists and consequentialists. Later we will argue that legal phenomenology is a good place to start in diagnosing the problem and in evaluating various solutions.

What is the source of this polarization? We can start by recognizing that it was not always so. In earlier times natural law could be used directly to make arguments of obvious relevance at the level of the law itself.Footnote ¹² Natural law connected private law to larger questions of justice on the one hand and to morality at the individual level on the other. Once very widely accepted, natural law as an underpinning for law receded in the later nineteenth century.Footnote ¹³ The loss of faith in natural law left a vacuum that rendered late nineteenth-century formalism vulnerable: even if it was not as mechanically formal as its detractors claimed, post-natural law mainstream legal thought was rather hollow. It purported to be about the level of law but was not grounded or even tethered to much of anything.

Intellectual histories of law capture this polarization in various ways. Famously, Duncan Kennedy contrasted classical and modern legal thought in terms of individualism and altruism.Footnote ¹⁴ These broad movements were said to be reflected in individual decisions. However, these decisions were taken more as results than as internally justified, and tellingly, many of Kennedy’s examples of altruism in law were equity cases. The more legal-level view of law and equity is suppressed. Nevertheless, it cannot be gainsaid that at the level of legal thought broad tendencies have contended and sometimes contradicted each other. In the civil law too, individualism and community have been a theme among legal commentators.Footnote ¹⁵ And Marietta Auer has located the necessity of these high-level oppositions – between the social and the individual, and between community and autonomy – in an irreducible conflict within modernism itself.Footnote ¹⁶

Private law theorists might seem to be suffering from irreconcilable differences. But before going their separate ways, theorists should take a closer look at Reinach’s account of law. If one does so, one discovers connective tissue in law that was hiding in plain sight.

5.3 Reinach’s Excavation of Law’s Foundations

Reinach’s book is entitled ‘The Apriori Foundations of the Civil Law’, and it is the insights that he provides into the civil law itself that provide a starting point for a new kind of theorizing in private law. Reinach posits an ontology of ‘essential’ law that is universal and foundational in the sense of being presupposed in actual legal systems, even when actual law deviates from the a priori. Before we turn to how this deep structure can inform current private law theory, we take a close look at some examples of Reinach’s theory in action. After all, if Reinach’s a priori helps bridge the various gaps in private law theory discussed in the previous section, there must be something specific there to play this role.

5.4 Reinach as a Challenge and Catalyst

As we saw in the previous section, Reinach’s method offers many surprising insights about law. Many of these insights stand whether or not one regards them, as did Reinach, as being essential and timeless – a priori. There is a deeper contribution that Reinach’s work offers: it points to the need for a level of law or, rather, some kind of structure supporting the law that has some robustness. This ‘deep structure’ is needed to bridge the micro and the macro and the various dichotomies that are characteristic of current theorizing about private law.Footnote ⁶⁷ Again, this level is important even if it can be grounded in various ways, some very different from Reinach’s a priori.

We adopt the term ‘deep structure’ with caution. ‘Deep’ is evocative, and the notion of deep structure in linguistics has led to much confusion. However, what deep structure was in early generative grammar bears some resemblance to the ‘essential’ or a priori layer that Reinach exposes. Deep structure is a level that is presupposed by all the rules that get us to the surface structure of what we see.Footnote ⁶⁸ Deep structure is distinct from the more readily apparent surface structure, and one of its selling points is how it allows linguistic structures to hang together in a uniquely compelling fashion. Deep structure was also offered as being psychologically real, and in its outlines hardwired. Deep structure has its own architecture that is accessible through analysis of patterns in language. As in the study of law, there is a debate as to how much crosslinguistic variation we need to examine in order to be able to make universal statements, including about the contours of deep structure. In both the legal a priori and deep structure in 1960s linguistics, there are challenging questions about its status and how it relates to other aspects like meaning.Footnote ⁶⁹ Finally and quite strikingly, Chomsky introduced a level of deep structure in defiance of the then reigning strictures of behaviorism that eschewed ‘mental’ entities in theorizing. An analogous preference for the concrete is also characteristic of post-Realist theories of law, which are highly skeptical of ‘abstract’ legal concepts altogether.

We can range the possibilities for the sources of deep structure from the more given to the more constructed.Footnote ⁷⁰

At the most robust end are various ways of taking deep structure as metaphysically real. Reinach sees it as having a nonphysical but timeless existence. He distinguishes this view from natural law.Footnote ⁷¹ As Reinach sees it, natural law tries to account for actual law, and as law that is unconditionally valid. Reinach’s a priori stands outside the law and is not contradicted by deviations from it in the actual law. At any rate, one source for a robust deep structure of law would be something exogenous and irreducible – metaphysically real.

Moving away from the metaphysical, one could take Reinach’s a priori as not really a priori but built into human psychology. There could be various accounts of how it got there, running from the contingent to a robust neo-Kantian view about how we are made up to encounter the world. Interestingly, the kind of evidence for psychological versions of Reinach’s a priori might include the kinds of arguments Reinach made. Perhaps at some point we might be able to appeal to neurological evidence as well.

The Reinachian layer might also be a result of social practice, even though it is in some sense abstract. This could be for functional reasons. More abstract concepts might emerge from complex interactions at a more basic level.Footnote ⁷²

Perhaps any Reinachian deep structure might have multiple sources. Another way to think about it is in terms of information and complexity. As we saw with nemo dat, stating nemo dat with exceptions like good faith purchase is simpler than the other way around. The idea would be that nemo dat is formulated in such a way that the situations it potentially applies to are a superset of those for good faith purchase. This can be true even if good faith purchase actually applies more often. If nemo dat is taken as a more general rule encompassing the domain of good faith purchase in a pattern of general case and exceptions, this formulation may correspond to the shortest description in an agreed-upon metalanguage, making it less complex in an important sense.Footnote ⁷³ Perhaps the Reinachian layer generally allows for more compact formulation. Or, corresponding to the ‘naturalness’ of law that tracks the a priori, we might say that such law contains less information (is less ‘surprising’, or shows lower ‘entropy’); perhaps we might find that law that respects Reinachian presuppositions minimizes legal entropy in a quantifiable way.Footnote ⁷⁴

Reinach’s a priori might relate to complex systems in a variety of ways. If we think of the elements of the a priori, the various concepts and social acts, as standing in relationships to each other, we can see that some are more interconnected than others. One interpretation of Reinach’s a priori would deny that it is on some categorically different metaphysical footing. However, the dense interconnection of some elements, ownership and promise for example, suggests that it would be very difficult to alter them.Footnote ⁷⁵ The more systemic the notion, the more robust and the more apparently a priori it will be.Footnote ⁷⁶

Relatedly, in the vein of the social and practical, one heuristic for deep structure is the impossibility of replicating it by contract. Henry Hansmann and Reinier Kraakman argue that asset partitioning (especially the protection of entity assets from the claims of owner’s creditors) cannot be accomplished by contract.Footnote ⁷⁷ They term this the ‘essential’ role of organization law, and it makes organizational law a kind of property law. Gabriel Rauterberg likewise offers an account of the essential role of agency law in terms of asset partitioning that could not be replicated by contract.Footnote ⁷⁸ What form asset partitioning may take varies, but it may be the case that the concept of asset partitioning and its basic vocabulary are more invariant.

Reinach’s a priori also relates to complexity: the a priori responds to the problem of complexity as a method of managing it. Reinachian deep structure points us toward the role of architecture in private law and its practical consequences. For example, consider Carliss Baldwin and Kim Clark’s account of how to modularize a complex system:

It is an interesting and much-debated question whether nature has ‘joints’, and it is not obvious that our language can or should carve at those joints if they exist.Footnote ⁸⁰ We take no position on such questions here. Yet the natural breaking point idea is suggestive for present purposes.

One of the most prominent reasons for modularizing a complex system is that it will make complexity more manageable. Such modularity can be achieved by breaking a system apart in a wide range of places, even arbitrary ones. We might nonetheless think that there is value in breaking apart a complex system at those places where users of the system will perceive natural breaking points (whether or not such points exist in nature). If we use a car for an example, we might treat the brake system as a unit rather than the brake plus adjustable seating system. And this idea of what is a ‘natural’ breaking point may be true for legal systems as well. Why should that be? It is not because modularizing at an apparently ‘natural’ point of division will necessarily lead to optimal substantive outcomes in the law; nor can we rely on such breaking points to increase simplicity in comparison to other locations. Rather, it is because doing so may lead to greater accessibility. And here we can see an additional way that Reinach’s work is useful.

If Reinach is right about the synthetic a priori, the essential rules that apply to legal structures are not merely essential: we also have ready intuitive access to them. Their details may need to be worked out through painstaking thought and research, but their basic implications are easily recognized.Footnote ⁸¹ And some are basic indeed. Thus, Reinach notes: ‘What we understand with evidence is that for instance a claim is extinguished on being fulfilled’.Footnote ⁸² That does not take much legal training or research to figure out. We know it almost immediately, and maybe without being able to say why. Indeed, the legal features that Reinach uncovers are often matters of tacit knowledge,Footnote ⁸³ known by lawyers and laypersons alike.Footnote ⁸⁴

This accessibility shows up repeatedly in Reinach’s work. For example, Reinach concludes that the essential rules are not only there to be found by law, but also that they are capable of being ‘grasped and intuited’ by ‘untrained laymen’.Footnote ⁸⁵ In saying this, he doesn’t just mean that they are simple; they are also experienced as ‘self-evident’.Footnote ⁸⁶ He likewise emphasizes that the legally talented jurist will have a knack for understanding these essential laws. The jurist will have “the sense” for what is legally relevant, that is for events of a certain kind which are subject to essential laws, as well as the understanding of these laws’.Footnote ⁸⁷ Furthermore, in application, he thinks people use these essential laws without being fully aware of them.Footnote ⁸⁸ The idea that certain aspects of law come so naturally to trained and untrained alike suggests something valuable that is distinct from what you get with modularity in the abstract. These features are accessible, in addition to being modular.Footnote ⁸⁹

We have just emphasized the micro level (e.g., how claims are extinguished), but such accessibility may also bear on the relation of the micro to the macro.Footnote ⁹⁰ There is a suggestion of system effects in Reinach’s discussion of how investigating civil law concepts can illuminate concepts within public law. As Reinach argues:

Whether or not these concepts are genuinely a priori, Reinach’s idea of accessible rules – rules that are often experienced as self-evident – is illuminating if we want to understand how concepts will operate when we move from one part of the legal system to another.Footnote ⁹² And, notwithstanding the ways that Reinach distances his approach from a psychological one, there is a psychological point to be made here. If the features Reinach describes are accessible in the ways he describes, then we have a reason in favor of using them to help modularize the law. We need not decide if they actually carve at nature’s joints in that case; it may be enough if they seem to do so. In all these ways, Reinach’s interest in essential law is, despite initial appearances, anything but distant from legal policy debates.

Reinach’s a priori has much to offer private law theory. Let us return to the dichotomies with which we opened this chapter. The a priori, whatever its ultimate status, transcends the internal–external divide among theorists. Like the internal perspective it is something – something deep – about law’s own self-understanding. And yet it stands outside enacted law and connects to something beyond the law. This may be psychological, or it may be the complex process of navigating the world and solving the problems to which social acts are directed. Or it may be both. In any case, the a priori points to ways of thinking about how the internal and external perspectives are connected.

Likewise for holism and reductionism. Reinach’s method is far from reductionist. Indeed, the point is to look closely at what is actually there. And yet what he finds is a rather compact set of interlocking notions presupposed by the law. Here Reinach’s project suggests the right kind of reductionism, seeking simple local structures that produce complex and nuanced results at a more systemic level.

Reinach’s a priori manages to produce complex results with relatively simple materials, because his a priori also transcends the debates over conceptualism. As we have seen, Reinach is no apologist for existing legal concepts and is unafraid to go against the grain of positive law, even in the face of claims about what is conceptually impossible. On the other hand, his philosophy is anything but nominalist. If he is right, his a priori is highly robust. And to the extent that actual legal concepts track the a priori – and there is a gravitational pull in terms of workability and understanding for them to do so – legal concepts partake of this robustness as well.Footnote ⁹³

Finally, Reinach’s a priori accommodates a measure of both deontology and consequentialism. We say ‘accommodates’, because Reinach insists that the a priori is not inherently moral and he distinguishes his approach from natural law in not being a theory directly about actual law. Nevertheless, many of the social acts that interest Reinach have a moral dimension – think promise, release, and the like – and deontologists thus gain a foothold for their own program. Furthermore, as we have seen, part of the appeal, and perhaps the very accessibility, of Reinach’s a priori is how it is built into a practical system of social acts and presuppositions that permit us to navigate the world. This is why his a priori is a good candidate for psychology, for functional practicality, and emergence from a complex social system.

By asking questions about law’s ‘deep structure’, one is engaging in the New Private Law. The essence of this movement is to take law seriously but to be open to perspectives that bring out its nature and importance. Especially in bringing internal and external perspectives together and relating the micro to the macro, Reinachian themes will doubtless feature prominently in the New Private law in the future.Footnote ⁹⁴

5.5 Conclusion

Reinach’s synthetic a priori offers an approach to private law that cuts through the seemingly intractable debates between those who favor internal and external perspectives, between reductionists and doctrinalists, between deontologists and consequentialists. Much of what he describes looks like a deep structure to the law, presupposed by widely divergent legal theories. To say this is not to say that his approach dissolves all debates, nor is it to endorse phenomenology or Reinach’s idea of timeless, essential rules. Rather, his work merits our attention for what it picks out: whether it is a matter of metaphysics, psychology, conventional practices, or functional benefits, the rules he describes are often deep-seated components of legal reasoning. They are robust, accessible, and, in many cases, possessed of considerable gravitational pull.

Thinking through Reinach’s applications also offers repeated insights into law and the surrounding social practices that law interacts with. With his analyses of property, transfers, and representation, Reinach explains the structures within private law – and within social practices – in a way that illuminates both. His work is thus a valuable starting point if we want to discern and understand that architecture. Perhaps surprisingly, his work is also a valuable starting point if we want to adjust the law’s architecture.Footnote ⁹⁵ Reinach offers provocative and yet very productive new ways to take the law seriously.

In this chapter, I consider the extent to which the concepts recognised in the positive private law are answerable to concepts that exist outside of the law and in what ways the justification of positive private law rests upon its relationship to normative facts that exist independently of it. Reinach prompts reflection on these matters in that he directs his attention to a set of abstract entities (rights, claims etc.), and propositions relating to those entities (a priori laws) which, he claims, do not owe their validity to the positive law, but exist in the same way as mathematical objects and truths. In this way, he goes beyond the positive law, and in a subtle sense to be explored, considers the positive law answerable to the a priori law.

I will argue, in a section on ‘Concepts’, that performing Reinach’s kind of analysis on concepts to which the positive law refers can be illuminating, and normatively fruitful, but carries with it the risk of deflecting attention from the normative issues faced by the positive law – a risk to which Reinach himself is alert. I then consider, in a section on ‘Justifications’, Reinach’s understanding of the normative demands placed on the positive law by a priori truths about law, and the normative impact of the positive law. Here I examine his view that there are non-moral obligations to which the law may give effect, and his explanation of how the positive law can alter what people are genuinely required, permitted, or empowered, etc., to do.

6.1 A Brief Primer on Reinach

In contemporary theorising about private law, few, if any, theorists describe their enterprise, with Reinach, as a search for the ‘a priori foundations’ of the domain. This eyebrow-raising category does not appear, for instance, in Stephen Smith’s well-known taxonomy of the field.Footnote ¹ Other, more detailed, treatments of the nature of Reinach’s inquiry will be found in this book, but it will be useful to have a brief statement of his basic approach.

Reinach aims to identify a priori foundations (Grundlage) of civil law. What are ‘a priori foundations’? It’s not exactly clear what Reinach intends here.Footnote ² It seems to range from necessary truths about the subject matter of the civil law, to necessary truths about the essence of civil law or the normative entities which it employs and to which it makes reference, to necessary, essential truths about civil law that can be known by intuition and justified independently of experience. Perhaps the last of these three possibilities is the predominant one.

It is in this way knowable and true, Reinach says, that a promissory duty is discharged when performance is rendered, that a promisee has a power to waive the promissory duty, that a promise creates a non-moral obligation to perform it, that a person may acquire rights in their own capacity or in a representative capacity for another, that a promise is only made when the promise is heard by the promisee, that a person who produces an object from unowned materials owns the object, that factual possession is different from a right over an object, and so on.Footnote ³ These are like mathematical truths (a comparison Reinach makes).Footnote ⁴ This seems to involve their being knowable a priori and their existence as abstract objects.Footnote ⁵

In so far as it focuses on ‘legal entities’, an a priori account aims to understand their ‘essence’ and the necessary truths concerning these entities – the a priori entailment relations that hold between them.Footnote ⁶ In relation to some of these truths, no more foundational explanation can be given of their validity: ‘To try to explain it [why a promise binds] would be just like trying to explain the proposition, 1 x 1 = 1. It is a fear of what is directly given (Angst vor der Gegebenheit), a strange reluctance or incapacity to look the ultimate data in the face and to recognize them as such which has driven unphenomenological philosophies, in this as in so many other more fundamental problems, to untenable and ultimately to extravagant constructions.’Footnote ⁷

How exactly does one come to know a priori truths about the subject matter of civil law? Not by empirical generalisation from past or present civil law systems.Footnote ⁸ Even if every positive system of civil law claims that a non-promisee directly gains rights from a promise, this does not alter the truth of the proposition that promises only directly create rights in the promisee. Instead, a priori truths are arrived at through reflection on the subject matter of civil law. By considering whether things could be other than they are, one arrives at the necessary properties of the phenomena; these are ‘self-evident’.Footnote ⁹ These properties may then entail further necessary truths, which it is the task of an a priori theory to reveal.

Reinach has a subtle account of the relationship between the a priori foundations of civil law and the content of any particular positive civil law. It is not the case that the positive law always ought, all things considered, to mirror the content of the a priori foundations:

In the next two sections, we will consider in greater depth Reinach’s precise account of the relationship between the positive law and the a priori.

6.2 Concepts

Theoretical accounts of private law and its concepts are often classified as ‘internal’ or ‘external’.Footnote ¹¹ The former are conventionally described as foregrounding the law’s own conceptual self-understanding, the perspective adopted by legal officials in applying and developing the law and being resistant to ‘functional’ explanations. The latter, often associated with work in the law and economics tradition, are conventionally described as providing explanations and justifications which do not privilege the law’s own conceptual self-understanding.

Reinach is not straightforwardly classifiable in either category. On the one hand, he is an ‘externalist’ in that he seeks to identify a priori foundations that may or may not be reflected in the law; even if the positive law wholly departed from such foundations, the a priori law would be unaffected. The views of legal officials are largely irrelevant to the content of the a priori law. On the other, he resists ‘reductive’ explanations of the concepts employed by the law when these overlap with or refer to the a priori concepts and laws.

Yet Reinach is ultimately not so different from modern arch-internalists, such as Ernest Weinrib. Weinrib’s work moves out from an analysis of the essential structure of private law, which, in this view, is constituted by relational duties that correlate with rights, powers of enforcement vested in right-holders, and remedial rights and duties that aim to ensure or restore a normative equality between the parties. The foundational concepts in this theory do not owe their existence to the positive law and have an existence independent of their construal in the positive law. Whatever judges might say about the matter, for instance, what makes a duty owed to another is whether the duty’s mandated conduct is required in order to maintain normative equality between the duty-bearer and another person; the positive law does not alter this. Of course, and this is a major emphasis in such views, the positive law has a normative impact, making determinate the abstract notions built in to abstract right, and rendering innate and acquired right possible and enforceable without wronging others. However, it is still the case that the foundational concepts of innate right, epistemically, causally and ontologically, are not due to the positive law. Indeed, it would seem that these concepts can be known a priori in much the way that Reinach claims his laws can be known, albeit that reflection on the positive civil law may guide the way.

Is there a value in pursuing an investigation into a priori concepts of the civil law? Here are three possible reasons for doing so. First, if one takes seriously the analogy with mathematical truths, one might say that, just as there can be a value in knowing the abstract truths of mathematics (‘there is no highest prime’), there is a value in knowing abstract normative truths (‘promises necessarily generate waivable claims’), and understanding the essential properties of abstract normative objects (‘commands are inherently addressed to another’s conduct), regardless of their recognition in the positive law.

Second, there is plausibly some kind of normative constraint that justifies criticism of legal departures from certain truths that do not owe their existence to law. When a legal argument involves a logical circularity, for instance, its objectionability is, fundamentally, a moral one. Consider, as an example, the role of locality in determining whether an interference is unreasonable in the tort of private nuisance. In English law, the position is that interference with another’s land not amounting to physical damage will be wrongful only when it is abnormal by reference to the standards of the locality.Footnote ¹² One problem that arises in the application of this principle is the role of the defendant’s own conduct in determining the character of the locality: if the defendant builds a new shopping centre, can they rely upon their own conduct to say that the neighbourhood has changed? In Lawrence v Fen Tigers, the majority took the view that the interferer’s activity (running a speedway stadium) could not be relevant to how one defines the locality if it amounts to a private nuisance.Footnote ¹³ This introduces a logical circularity into the law. The defendant’s activity is relevant to the characterisation of the locality only if it is not a private nuisance, but to determine whether it is a private nuisance one already needs to have specified whether it is part of the character of the locality.

Fundamentally, what is objectionable about this departure from the demands of logical validity is not its illogic, however, but rather the fact that it makes the law impossible to determine. This is not necessarily to deny that there is a general value in correct (including, logically correct) reasoning. It seems doubtful, however, that failures of reasoning always amount to a breach of a moral obligation. If I believe that I have solved a maths puzzle but in fact my reasoning involves a failure, I breach no duty, even if things go worse (for me). The special moral significance of judicial or legal failures of reasoning is the triggering of other moral obligations that apply in that context, including the risk of causing wrongful harm, and the moral values implicated in the Rule of Law. Since it should be possible to have reasonable clarity about one’s private rights and duties, rules which make the content of one’s rights dependent on circular arguments make this impossible and are objectionable on this ground. The point is not merely that, in the absence of reasonable clarity about the content of primary rights, there is a risk that force will be employed without fair warning, but also, simply, that a person may be held to have violated another’s rights in circumstances in which it was impossible to determine in advance whether the conduct amounted a right violation. Nor is the concern exhausted by the failure to provide guidance to legal subjects; circular rules effectively lead to rule by judicial fiat, the rules themselves not pointing in the direction of a particular legal conclusion.Footnote ¹⁴ Insofar as there any legal a priori laws, there may be a similar moral reason to adhere to them on grounds of otherwise making the law unclear or confusing, albeit not simply on the ground that the law does not live up to its a priori foundations.

A third reason is simply that identifying the nature of the concepts employed by the law allows for clearer normative disputes – in identifying the essential features of such concepts, one better understands what is at stake in normative disputes. It is true that some, perhaps all, normative disputes can be conducted without a complete conceptual analysis of the concepts in question. For instance, we can reasonably engage in normative disputes about outcome luck – whether the causal effects of one’s conduct bear upon one’s moral assessment – without a complete analysis of the concept of causation. This may be because we know that whatever the necessary and sufficient conditions, or grounding properties, of causation turn out to be, we know that they will always involve a relation between facts or events that may fail to hold due to matters of luck, and the moral puzzle of outcome luck resides in that property. However, sometimes, the concept in question may be open to several possible analyses that need disambiguation in order to make any progress. For instance, consider the question of whether tort liability ought to depend upon the breach of a moral duty. The answer to this question may turn on whether one understands duties as exclusionary reasons, as weighty reasons, as all-things-considered requirements, and so on. It may be that tort liability ought to depend upon a breach of a duty in some of these senses but not others.Footnote ¹⁵

A clearer articulation of the conceptual structure of the law also sometimes leads to normative insight, or more modestly, suggests a possible normative insight. One example of this in private law is the distinction between primary duties and primary liabilities.Footnote ¹⁶ A primary duty is a legally recognised or imposed requirement to do or not to do an act, which does not arise from the breach of another requirement. A primary liability is being situated such that another person may alter one’s position by the exercise of a power, absent the breach of a duty on one’s part. The very fact of making this distinction reminds one of the possibility that, for instance, court-ordered duties to compensate may not always hinge upon the breach of an anterior legal duty. Not all the reasons that support the recognition of being liable to be ordered to pay compensation support primary duty norms. In so far as legal duties state all-things-considered requirements – they tell us what we must do all things considered – then they give us a very particular form of guidance. Yet it is not obvious that duties to compensate should always be made contingent upon the breach of such a primary duty. There are plausibly situations in which a person is permitted to act in a certain way, yet the costs of doing so, if these involve harm to others, are justly theirs. Now, doing the conceptual work of distinguishing between ‘primary duties’ and ‘primary liabilities’ does not itself, of course, tell us anything of normative significance, but the distinction may be useful in drawing attention to a possible kind of legal relation that persons might justly be held to be under. Admittedly, it may sometimes, perhaps always, be an inchoate, unarticulated, normative insight that drives the recognition of a conceptual distinction.

Here is another, recent, example, of how analysis of the nature of a legal concept – and, arguably, an implicit claim that the concept corresponds to an external abstract object, a la Reinach – can prompt a normative claim. Consider the claim made by Robert Stevens and Donal Nolan that a legal wrong happens at a moment in time.Footnote ¹⁷ Stevens and Nolan effectively propose this, in Reinachian spirit, as a necessary, a priori, truth about wrongs. From it, they draw a surprising implication: the conceptual impossibility of having a legal right not to be caused loss. There is no point in time, Nolan argues, at which a person is caused to be worse off. Suppose that after one is negligently injured, one meets the love of one’s life in hospital, but later this leads to a terrible accident in which one suffers further injuries. It is impossible, Nolan thinks, to say that the initial injury has made one worse off at a particular time, yet if there is a right not to be negligently caused loss, then it must be possible to say at a particular time that one has been made worse off. They infer that one cannot have a right not to be caused loss because the violation of a right must be something that can be determined at a particular time. Nolan employs the conclusion of this argument to argue that (i) the right in negligence is a right not to be caused damage (roughly, being put in a negative state at a particular time) through unreasonable risk impositions, and (ii) limitation periods based on when a person suffers a loss are hopelessly confused. Whatever we think of the merits of this argument,Footnote ¹⁸ it makes a normative proposal based on a purported essential and a priori truth about wrongs, and thus about civil law.Footnote ¹⁹

Clearly, one can accept that there are benefits in conceptual clarity without following Reinach in believing that some legal concepts correspond or refer to abstract objects that exist independently of the law. There is a value in conceptual clarity about the concepts employed in the positive law, independently of whether they have extra-legal existence. And even when concepts do not owe their existence to the law, such as the concept of causation, a conceptual analysis might seek to capture ordinary understandings without being committed to Reinach’s metaphysical claims (even if some modern authors, in their analysis of the nature of duties, rights and wrongs do seem committed to something like this). Still, Reinach reminds of the possibility that a clarifying conceptual analysis need not be tied entirely to the positive law.

Now, two broad reasons for scepticism about Reinach’s enterprise. First, while Reinach is surely correct in claiming that certain conceptual distinctions he identifies hold independently of whatever the positive law says – for instance, factual power and ownership are simply different ideas, or the distinction between acquisition on one’s behalf and for another – it seems doubtful that one can move, as Reinach does, from these conceptual claims to claims that, ontologically, the normative entities or relations to which they refer are actually instantiated independently of the positive law.Footnote ²⁰ We can accept, as a matter of our deep conceptual architecture, if you like, that there is a distinction between acquisition on one’s own behalf and representative acquisition of rights. However, is it the case that anyone can indeed successfully achieve acquisition on behalf of another – make it normatively the case that through their purported exercise of a power, they succeed in conferring a right on the represented – independently of the positive law? It seems to me that whether any of these normative relations or entities are realised (other than as a matter of social fact) depends upon – perhaps very abstract – normative argument. There is a gap, in other words, between identifying a set of deep conceptual possibilities, and the claim that those conceptual possibilities are in fact instantiated as a matter of normative reality. Compare the Hohfeldian scheme of jural relations. One can accept the conceptual possibility of claims, privileges, immunities, disabilities, etc, without also accepting that these in fact exist. Whether anyone has a genuine claim or immunity depends (at least partly independently of the law or a conventional practice that purports to confer on them) on a normative argument that explains why.

A second reason points to a general difficulty with moving from a priori philosophical analysis of a concept and then using this analysis as part of a normative argument about the concepts which the law should recognise. In short, there is a risk, in such an inquiry, in moving illicitly from the claim that such and such represents the a priori nature of a concept to the claim that the law ought to reflect that a priori nature in its conceptual scheme. Reinach himself is keenly aware of this:

Clearly, this allows for a divergence between the a priori laws and the justified positive law. It may even resist the idea that there is a pro tanto reason for the positive law to reflect the a priori law or concept. That seems the correct position: in the contingent circumstances of a particular legal system, recognising the a priori position in the positive law may have detrimental consequences that prevent there being even a pro tanto reason for legal recognition. Enoch, Fisher and Spectre have recently made a similar point in relation to epistemology and (some) normative theories of the law of evidence. They identify as mistaken ‘the attempt, roughly, to do legal epistemology just by doing epistemology, or to treat epistemological considerations (say, about the nature of knowledge or evidence) as decisive, or even just intrinsically relevant, to normative questions in evidence law theory’.Footnote ²² The background to their article is a literature in the theory of evidence law which draws extensively upon certain privileged epistemic statuses that a belief might have, as identified by epistemology – it might constitute knowledge, or have warrant or be produced by a process that is highly likely to produce knowledge, etc. – and then argues that the law should track that status. For instance, various objections to the use of purely statistical evidence are put in epistemological terms – one view is that statistical evidence that p cannot generate knowledge that p.Footnote ²³ Enoch and his co-authors argue, somewhat similarly to Reinach’s warning above, that, without more, insisting that factfinders’ beliefs have certain epistemic status amounts to a kind of epistemological fetishism. In every case, one should ask whether one is willing to trade off the existence of that epistemic status against the other goods which evidence law must secure. For instance, if one insists that factfinders have knowledge, and do not act upon purely statistical evidence, one must be willing to accept an increased rate of false convictions or false acquittals. Once we see that insisting upon a certain privileged epistemic status rubs up against the pursuit of other goals, it follows that some value must be identified in beliefs having that status which can justify this.

A similar point could be made about another area in which the results of philosophical inquiries seem, sometimes, to be taken to bear directly upon the content of the law: causation.Footnote ²⁴ One approach to theoretical questions about how the law should approach causation might be described as ‘metaphysics first’. Essentially, one outsources the question to the metaphysicians.Footnote ²⁵ Legal norms employing the concept CAUSE should, ideally, track whatever the best metaphysical account of causation is. This approach, unadorned, is subject to a similar objection to that framed by Reinach (and Enoch, Levi and Spectre). Suppose that the best view is that absences (omissions are an example) are not causes, or that absences, in so far as they are causes, are metaphysically importantly different, causally speaking, from positive states of affairs or events. Even if so, it seems an entirely open question whether this metaphysical fact should have any legal significance. If a person can be morally responsible for omissions and outcomes to which those omissions stand in a certain relation, and such omissions ground moral rights which the law may permissibly enforce, then it is neither here nor there whether the relation in question is properly termed ‘causal’ by metaphysical lights.

It might be objected that, if the best metaphysical view is that omissions are not causes, then the law should not misdescribe reality by purporting to hold people liable on a causal basis for their omissions. Omissions liability should be described by the law as ‘non-causal’ in nature, similar to a company’s vicarious (non-causal) liability for the acts of its employee. After all, it matters that the law accurately describes the reasons for its decisions, independently of the outcomes reached. In response to the objection, two points may be made. First, in deciding what legal rights, duties, liabilities etc. to recognise, one can accept the objection and still deny that metaphysical truths or distinctions have a direct bearing on the ideal content of those rights, duties and liabilities. In designing the ideal laws, the question is essentially: ‘What relations to an outcome should give rise to legal liability?’ In answering that question, it is at best a secondary matter whether the relevant relations are properly described according to the best philosophical theory as ‘causal’ or not. Second, if there is a reason for the law accurately to describe the metaphysical basis of liability, it is surely easily defeated. Suppose that ordinary thought recognises omissions as causes, contrary to metaphysical reality, and so guidance to legal subjects is considerably better achieved by describing omissions liability in law as ‘causal’. In other words, suppose the law is much more readily understandable by legal subjects if this description is used, and the only reason for departing from this description is metaphysical accuracy. In those circumstances, it does seem like a kind of fetishism to insist upon metaphysical accuracy.

Nothing I have said casts doubt on the value of normative theorists of causation in the law engaging in, or with, metaphysical analysis. Understanding the kinds of relation to an outcome that generate moral responsibility (and so, potentially, legal responsibility) in respect of an outcome will require such analysis. If we can better understand the relation that exists between an agent and an outcome when that person is not necessary for the outcome, yet still seems to play a role in its production, we will better be able to identify situations in which a person is potentially morally responsible for the outcome. The only point, with which Reinach would agree, is that one should not assume that a metaphysical distinction tracks a moral, and legally relevant, one.

6.3 Justifications

It should already be clear that Reinach’s project in the Foundations is not intended to be a normative one. It does not seek to provide a justification of a system of private law, nor does it contain any specific normative proposal about the content of the positive law. Still, Reinach makes some interesting general observations that bear upon questions of justification, and the relationship between law and normative standards that do not owe their existence to the positive law. These can usefully be grouped into two general themes: (i) the relationship between positive civil law and morality, and (ii) the normative effects of the positive law.

6.4 Conclusion

No contemporary theorists describe their work as seeking the a priori foundations of private law. Yet sometimes it does. Unlike Reinach, contemporary theorists not infrequently seek to identify normative truths, rather than essential non-moral laws, that they ultimately seem to consider knowable a priori. The basic, appealing, idea underpinning neo-Kantian theories that each person is entitled to stand in an equal relation to each other is not something that is read off the content or structure of legal institutions; it is a normative truth (albeit its content is open to multiple institutional concretisations) that is grasped by reflection on the kind of beings that we are, and obtains regardless of any institutional fact. The boundaries between abstract a priori truths about normative entities such as duties, rights, powers and so on, and a priori moral truths are porous, however, and so the distance between Reinach and contemporary normative theories is not as great as may initially appear. I have suggested that Reinach’s attention to the abstract conceptual structure of basic normative ideas referred to in private law can be normatively fruitful, albeit it carries a risk, one Reinach recognises, of imbuing features of concepts with a normative significance that they have not been established to have.

7.1 Introduction

Adolf Reinach died tragically at a young age, and with his death the world was deprived of a talented philosopher who was revered by his contemporaries. Reinach left us with a significant scholarly legacy that is yet to be properly appreciated, including, prominently, his A Priori Foundations of the Civil Law. In Foundations, Reinach offers original and insightful perspectives on general jurisprudential questions (e.g., on the nature of law, and the relationship between natural law, positive law, and universal elements of legal form), interlaced with equally illuminating reflections on enduring philosophical questions about private law (e.g., about promissory obligations and the nature of property rights). The insights in Foundations reflect the ingenuity of Reinach’s theory of social acts (a precursor of the speech act theories of Austin and Searle) as well as Reinach’s conviction in his novel method of phenomenological elucidation of a priori truths about law (i.e., about juridical social acts).

Reinach’s phenomenological method is not Kant’s, yet both may be viewed as offering variants on themes common to transcendental idealist thought about law. Reinach, like Kant, believed in the possibility of reasoned discernment of a priori truths about relations of right, and both believed themselves to have identified them. Furthermore, Reinach, like Kant, held that these truths – being a priori – are true universally and independently of contingent features of human experience (including those that influence the development of positive law). Of course, unlike Kant, Reinach recognized that relations of right are not merely given as a matter of practical reason but are available to reason through experience insofar as they are practiced as social acts (a distinctive subset of normative speech acts). Further, and again departing from Kant, Reinach denied that a priori truths about law are grounded on metaphysical and/or moral truths about human nature and the human condition.Footnote ¹

Kant’s account in the Doctrine of Right of three basic categories of private right (property, contract, and status) is undeniably elegant. But, notwithstanding celebrated efforts to show that it illuminates contemporary private law,Footnote ² the gulf between Kant’s transcendental rendering and what is familiar in, and important from, lawyerly experience diminishes its appeal to some. Reading Reinach, by comparison, those interested in philosophical theories that make closer contact with law are rewarded with richly nuanced analysis of a wider array of familiar legal concepts that are undeniably profoundly important to private law, all presented without any attempt to locate them within a constraining transcendental deduction of categories of private right. One finds in Foundations bracingly original treatments of notions of personhood, capacity, power, obligation, claim, promise, grant, waiver, revocation, transfer, assignment, command, possession, lien, authorization, representation, and more. Contemporary private law theorists should find in Reinach’s analysis of these concepts several profitable points of departure and return, whatever they think about the merits of his method.

As is reflected in other chapters in this volume, Reinach has much to offer even to those working the well-tilled fields of tort, contract, and property theory. This chapter ventures in a different direction, looking for insights from Reinach on two related, under-analyzed, legal concepts found interstitially and transversally, between and across private law’s basic categories of private right: concepts of personality and representation.

One cannot understand, much less evaluate, Reinach’s account of representation without examining it alongside his treatment of personality and, in turn, one cannot properly evaluate either contribution without coming to terms with his method. Accordingly, my presentation of Reinach’s thought will proceed sequentially as follows. Section 7.2 offers a brief summary and critical analysis of Reinach’s method, focusing on his claim to offer phenomenological analysis of a priori synthetic truths about law as well as his suggestion that law is constituted by social acts (Reinachian speech acts). Section 7.3 examines Reinach’s views on legal personality, highlighting the sense in which persons are pivotal to Reinach’s method (phenomenological discernment of a priori synthetic truths) and his objects of analysis (law, manifested behaviorally in juridical social acts). Section 7.4 investigates Reinach’s account of representation, noting ways in which it parallels that of Hobbes, subject to Reinach’s distinctive emphasis on representation as something performative (i.e., as manifested in successful social acts of representation).Footnote ³ Section 7.2 also introduces some concerns about aspects of Reinach’s method (the aims and modality of phenomenological discernment of a priori truths about law, not his speech act theory of law), and Sections 7.3 and 7.4 show how these concerns are borne out by certain deficiencies in Reinach’s analyses of personality and representation. Section 7.5 concludes with thoughts on how contemporary private law theorists might make the most of Reinach’s contributions.

7.2 Method

The philosophical questions that Reinach pursued, and the interest held by his answers, are attributable in part to his innovative phenomenological method. The method combines elements of phenomenological and transcendental idealist thought in ways that are, to an analytical mind, nonobvious and even awkward.Footnote ⁴ It is phenomenological insofar as it aims at the elucidation of truths disclosed by deliberate and self-conscious attention to experience of the human condition.Footnote ⁵ But it shares in aspects of transcendental idealist thought: the truths meant to be disclosed are a priori and so are believed to have truth-value prior to and independent of experience. In combination, the method appears to involve a breadth and depth of meditative deliberation on experience that permits transcendent discernment (i.e., that enables one to notice and to see through, and hence beyond, what is merely contingent in human experience).

The characteristics of Reinach’s method were touched upon by Husserl in his commemoration of Reinach:

Unfortunately, the modalities of thought involved in Reinach’s method are exemplified rather than described by him. Thus, his method remains opaque as a method (i.e., as a structured way of contemplating and of elucidating what is salient in experience). While one will look in vain for detailed exposition and defense of the phenomenological method, there are occasional suggestive comments in Foundations, such as this one:

In this passage, Reinach nods to the phenomenologist’s emphasis on insight gleaned through deliberate attention to experience as well as to the transcendentalist’s aim to uncover a priori truths. Also notable is his insistence that there are a priori truths about law; axioms that have truth-value every bit as robust as those of mathematics and the natural sciences. This claim is certainly bold, and one might understandably be skeptical about it. But Reinach is alive to reasons for skepticism or, at least, reasons that derive from the view that law is inherently artifactual. Reinach has something to say about that view, and so one should shelve associated doubts for now.

In understanding Reinach’s phenomenological method, it is important to notice that it is applicable to different objects of experience. In Foundations, it is said to enable elucidation of a priori truths about law. This, in turn, meant, for Reinach, disclosing the sense in which law is constituted by a distinctive set of social acts (speech acts), each of which has formal properties that can be known a priori. One could therefore treat Reinach’s phenomenological approach as his method and social acts as being amongst its possible objects. But I think a better approach – apt in itself and more fitting in its recognition of Reinach’s legacy – is to treat Reinach’s analysis of social acts as, at once, a subsidiary but severable element of his phenomenological method and an object of inquiry. Reinach is, after all, responsible for a major innovation in the philosophy of language and its extension to the philosophy of law: development of a speech act theory of law. The speech act theory encompasses a distinctive method of examining law as a set of sociolinguistic practices as well as the results of same (i.e., analyses of particular speech acts).

Reinach’s speech act theory antedated those of J.L. Austin and John Searle, both usually credited as progenitors. In Reinach’s terminology, speech acts are ‘social acts.’ Social acts are ‘social’ insofar as they are communicative acts directed at others (or at oneself positioned as other, as in social acts of self-evaluation). They involve ‘action’ insofar as they are directly performatively effective where communicatively successful (e.g., expression of consent is effective as consent). Social acts encompass both ‘spontaneous acts’ (acts initiated by the actor) and ‘passive’ acts (acts responsive to the spontaneous acts of others). Both kinds of social act encompass ‘internal’ states (e.g., intentions) and ‘external’ communicative behavior. Spontaneous social acts are communicatively successful, and hence performatively effective, only where the external communicative behavior is ‘heard’ via the passive social acts of a listener/correspondent. And, Reinach emphasizes, they are authentic or ‘sincere’ only where internal and external dimensions are aligned.Footnote ⁸

As is true of other speech act theories, Reinach’s theory is illuminating on matters of general jurisprudence (e.g., the sense in which lawmaking and law enforcement involve social acts, such as enacting and ordering) while also informing conceptual analysis aimed at elucidating, and discerning the relationship between, normative concepts and the social behavior, ritualized and spontaneous, that these concepts contemplate, denote, shape, or otherwise structure.

It should be remembered that, for Reinach, social acts constitutive of law (juridical social acts) are but a species of social act. That said, they were a species of special interest to Reinach; indeed, seemingly of greater interest than the genus. Reinach would not deny that other normative systems are constituted by social acts. However, he was interested in elucidating a priori truths about juridical social acts, not contingent truths about social acts that figure in positive law, in custom, in conventional morality, or in other constructed normative systems.

Given Reinach’s insistence that there are a priori truths to be discovered about law, one should be unsurprised by his insistence upon maintaining analytical distance from conventional morality and positive law. Equally, though, given that law is inherently normative,Footnote ⁹ one might be surprised by Reinach’s rendering of the a priori foundations of law as a set of value-neutral existential rather than moral truths. Nevertheless, Reinach also maintains deliberate analytical detachment from morality and from the natural law tradition and its aim to show how the law is or ought to be responsive to moral truths about human nature and the human condition. I shall comment briefly on both points of detachment in turn.

Reinach emphasizes that the a priori foundations of law and phenomenological discernment of them ought not to be confused with positive law and positivistic legal analysis, whether the latter takes the form of lawyerly doctrinal or philosophical thought. As he would have it, ‘[t]he positive law is caught up in constant flux and constant development … the propositions found in the positive law are quite essentially different from the propositions proper to science.’Footnote ¹⁰ The a priori foundations of law are taken by Reinach to be illuminating of positive law, in that discernment of them might have influenced its development. But, being a priori, they are utterly independent of the positive law and the contingent social and political forces that influence lawmaking. Hence, Reinach suggests that rich experience with positive law can disclose and validate but not disconfirm statements about the a priori foundations of law.Footnote ¹¹ Indeed, it should be expected, Reinach says, that the positive law will often diverge from what is given a priori (e.g., positive law’s concept of promising may deviate from what is essentially true of promising).Footnote ¹²

Reinach’s reasons for distancing phenomenological discernment of the a priori from positivistic analysis of positive law are also his reasons for rejecting the notion that conventional morality has any bearing upon the essential formal properties of juridical social acts. Whatever the relationships of mutual influence that might link positive law and conventional morality, Reinach treats them as irrelevant to his project. Both concern contingent specification of norms and points of connection between constructed normative systems. One cannot hope to elucidate a priori truths about law by dwelling upon the interaction of what is historically, socially and culturally contingent in constructed normative systems.

One might think that Reinach would be at least open to the idea that the a priori foundations of law (essential formal properties of juridical social acts) evince universal moral truths about human nature and the human condition. But Reinach flatly rejects any association between the a priori foundations of law and natural law.Footnote ¹³ For Reinach, truths about the nature of juridical social acts are a priori and synthetic but not moral truths. One might think, nevertheless, that fulsome understanding of juridical social acts demands normative as well as formalistic analysis.Footnote ¹⁴ But Reinach shows little sensitivity on this point. Furthermore, he is clearly diffident about the general normative upshot(s) of the a priori. For example, Reinach treats it as an open question whether and how the a priori should influence the development of positive law. He is seemingly of the view that if a priori truths about law have normative force, it is epistemic and linguistic rather than practical: it governs the true or correct invocation of words (e.g., ‘promising,’ ‘claiming,’ and ‘enacting’) denoting juridical social acts.

If we may now examine the merits of Reinach’s method, the results are mixed. It cannot be doubted that he achieved great insight. He offers compelling analyses of many legal concepts that are profoundly important to private law (and to public law as well). For example, his account of representation is arguably rivalled only by that of Hobbes in its sophistication. Any legal theorist interested in conceptual analysis should find engagement with Reinach richly rewarding.

But how did Reinach achieve the insights he did? And, where he disclosed important truths about legal concepts, what kind of truths are they?

As to the question how, I think that most of the fruits of Reinach’s labors are attributable to his novel speech act theory of law. It was in recognition that law is constituted partly by social acts that Reinach identified and profitably analyzed the content and conditions requisite to the performative effectiveness of legal notions of promising, granting, transferring, owning, enacting, representing, and so on. He understood that these notions are better understood through a speech act rather than reference theory of meaning (e.g., to understand what promising is, one must understand how it is enacted and what it accomplishes; to understand authorization one must understand acts of authorization and how they beget authority, etc.).

It is difficult to say what additional contribution, if any, is attributable to Reinach’s phenomenological method. Reinach is clearer in asserting that there are a priori truths to be discovered phenomenologically about social acts, and in delineating what he takes these truths to be, than he is in explaining how one goes about discovering them. More specifically, it is not clear what the method involves (how it is practiced) and how one could be reasonably confident that one has successfully deployed it (i.e., that one has unearthed a priori truths about law). As noted earlier, Reinach suggests that the method begins with, but entails transcendence of, what is given in human experience. But it is unclear how one could practice contemplation so as to achieve knowledge of transcendent truths about law. And there is a real risk of self-delusion in the aspiration. People are in the habit of developing highly abstract generalizations – synthetic interpretations – based on observation and experience and are prone to the vice of falsely believing them to reflect axiomatic truths. How is one to know that one has in fact achieved transcendent knowledge of truths about law, and not, rather, robust (credible, yet empirically falsifiable) generalizations still very much rooted in experience?

As for the question what kind of truths Reinach might have unearthed, it is most probable that they are synthetic a posteriori truths and not, as he believed, synthetic a priori truths. Because the phenomenological method is opaque, one is reluctant to follow Reinach fully through to his conclusion that the formal elements of juridical social acts are true of law a priori. Despite Reinach’s insistence upon detachment from positive law and positivistic thought, his analyses of social acts are imbued with insights borne of lawyerly perspectives: the perspectives of those who, like Reinach, are deeply learned in law and versed in the formal technicality of legal semantics and of legal argument. This aperture is at once partial (e.g., not likely to be shared by laypersons) and firmly rooted in experience. Thus, my suggestion that the truths uncovered upon by Reinach are likely a posteriori. Reinach would have doubtless resisted this on the basis that inconsistency in the specification of juridical social acts in positive law is a bar to robust generalization. But these worries are overblown. It is possible to develop robust generalizations from experience of positive law that have truth value (i.e., that may be reasonably believed true, on a synthetic a posteriori basis) without treating every instance of deviation as falsifying the generalization. Rather, it is common – and, I think, perfectly valid – to engage in synthetic interpretation of positive law that aims at rational reconstruction of the formal properties of legal rules and concepts, with the rationality of the reconstruction being a function of its absolute and relative coherence (relative coherence being assessed in terms of the practical point of the rule or concept).

Finally, as intimated earlier, Reinach’s insistence upon detachment from knowledge rooted in experience of morality and of positive law put him in the difficult position of claiming to elucidate truths about a normative system and associated normative social practices without being able to ground or otherwise to explain their normativity. The normativity of positive law is often thought to be grounded upon morality as well as the political authority of lawmakers and legal institutions. The normativity of natural law is, in turn, usually thought to be rooted in reasoned appreciation of the objective moral value of the good, the virtuous, and the just. By insisting upon methodological detachment from positive law and morality, Reinach’s a priori looms as a phantasm of normativity. Even if one were to allow that it enjoys an epistemic rather than a practical normativity, one worries that that is not the right sort of normativity. Juridical social acts are, after all, prescriptive in what they imply of necessity about right conduct (e.g., about the kinds of obligations and claims that promising in fact generates), and not just right ways of thinking (e.g., of forming justified true beliefs about what promising consists in).

7.3 Persons

All conceptions of law as a normative system are impliedly premised on a conception of persons (a juristic conception, or set of conceptions, which we may call legal personality or legal personhood, or personality or personhood, for short). This is true whether by law one means to refer to a priori, natural, or positive law. In positing and in interpreting positive law, lawmakers develop conceptions of persons iteratively, explicitly, and impliedly, for every law necessarily denotes persons as author(s), addressee(s), and/or object(s).

In respect of positive law, the pertinent conception of persons is that which is found in the law as such. In respect of natural law, the conception is at once juristic and moral (and, often, also metaphysical or ontological), with emphasis on the moral status, capacities, and inherent (natural) rights and duties that obtain for human beings generally. As I shall explain, Reinach recognizes that a conception of persons is pivotal to his elucidation of the a priori foundations of law, both in respect of his method and objects of inquiry.Footnote ¹⁵ However, his treatment of persons is sporadic and unresolved and, by the end of Foundations Reinach seemed ambivalent, suggesting that a priori truths about law transcend human experience and the human condition.

Why might Reinach have become ambivalent? And why was his exposition of legal personhood – in marked contrast to his analysis of other legal concepts – sporadic and unresolved? I will suggest that Reinach’s ambivalence might have reflected the destabilizing effect of attempting to analyze the concept through his preferred methods. Reinach’s speech act theory presupposes personhood but cannot illuminate it, other than indirectly (i.e., insofar as social acts reveal aspects of human nature and the human condition). And his phenomenological method, aimed at elucidation of a priori truths, was believed by him to entail detachment from normative judgments of the sort that imbue positive and natural law alike. Reinach, like so many other jurisprudes of his time and ours, had a real facility with analysis of the legal concepts that delineate jural relations but grave difficulty devising a nonnormative concept of personhood. That is because personhood is, at once, pivotal to our concept of law and ineluctably normative.

But we should begin with the positives, for there are some. Reinach’s comments on persons are suggestive. And he is, I think, to be commended for addressing the topic, especially in view of a long-dominant tendency to ignore it.

In a prefatory way, we ought to begin with this tendency of avoidance, for I suspect it has origins in common with the reasons for Reinach’s ambivalence. The tendency is especially prominent for jurisprudes in the positivist tradition who are committed to a concept of law rooted in social facts and responsive to what is familiar in our social landscapes (e.g., the relationship between legal and other social rules, and the links between legal and other social practices). Avoidance of talk of persons and personhood by positivists is, in one sense, unsurprising if, as I have claimed, the concept is inherently normative and so exerts pressures on one’s commitments to positivism. But it is remarkable given positivists’ points of emphasis (on social facts and social practices) and characteristic claims about the concept of law (e.g., that law is a system of peremptory normative guidance traceable to persons or institutions with recognized authority to govern). These points of emphasis and these claims direct attention to what is normatively salient about, and for, persons, viewed in social context. Social facts about law are, after all, facts about persons living in communities that feature legal systems; social rules are authored by persons and they figure in constructed normative systems (systems of social rules); social rules (including legal rules) are addressed to persons and are typically about and involve characterization of persons; and social practices, insofar as they might be shaped by legal and other social rules, are defined by and constituted through the interaction of persons. Positivists’ relative neglect of legal personhood is thus glaring, even if it is also predictable.

Reinach is, as I have said, ambivalent about, not neglectful of, legal personhood. And in comparing his approach to that of positivists it bears repeating that Reinach rejects any association with positivists’ interest in developing a concept of law that privileges experience with systems of positive law. That said, Reinach’s views seem perfectly compatible with certain precepts held in common by many positivists and natural lawyers; namely that law is meant to supply practically authoritative normative guidance to persons; that law guides by treating and by characterizing persons as amongst its authors, addressees, and objects; that individuals enact generic legal personhood through normative economies of behavior in which law is one currency (alongside others, consisting in norms derived from other sources); and that individuals prove capable of authoring and of being addressed by law through linguistic expression rooted in and reflective of a common human capacity for practical reason.

I think that Reinach was willing to allow (as positivists generally have not) that personhood is pivotal to law in that he recognized, however dimly, a similar set of precepts as underlying his thesis that law is constituted by juridical social acts (enactments, declarations, orders, justifications, promises, waivers, offers, acceptances, hearings, statements, replies, rejoinders, objections, and so on). Reinachian social acts are modalities of normative speech acts through which law is discerned, articulated, and its guidance realized in the context of social practices that exemplify a legal-normative economy (i.e., practices that are intelligible as evincing a legal form of social order).

Reinach seemed to recognize that a conception of persons and, in turn, a juristic notion of personhood, is presupposed by his method and objects of philosophical interest. The phenomenological method presupposes a practitioner: a self-conscious intelligent being possessed of capacities for practical reason and language. And, again, social acts are acts of persons – focally: individual human beings or natural persons – with the same capacities.

Where positivists sidestep, Reinach backs uneasily into the concept of legal personhood, refusing to ignore it even as he was indecisive about it. Reinach’s views on persons and legal personhood must be gleaned from scattered references, each of which indicates something different about what it is to be a legal person.Footnote ¹⁶

Reinach sometimes treats legal persons as bearers of entitlements and burdens, distinguishing persons from things. Whereas things (property) can be the subject matter of claims and obligations, they cannot be bearers. To be a legal person is, then, at least in part to be rationally fit or eligible to bear claims and obligations.Footnote ¹⁷ In turn, Reinach says, claims and obligations are unintelligible absent reference to a person: ‘Claim and obligation presuppose universally and necessarily some bearer (Träger), some person to whom the claims and obligations belong.’Footnote ¹⁸

Elsewhere, Reinach construes legal persons as agents, focusing upon a capacity for self-determination. Persons are agents who are or who become self-determining by engaging in juridical social acts, these being ‘experiences which not only belong to a self but in which the self shows itself as active (tätig).’Footnote ¹⁹ The capacity for self-determination and hence this facet of legal personhood is construed as inherently social, just as social acts are social. Both contemplate interpersonal encounter. Commenting on social acts, Reinach explains that ‘in distinction to other spontaneous acts …[a social act] presupposes in addition to a performing subject a second subject to whom the act of the first subject is directed in a very definite way.’Footnote ²⁰ Later, Reinach evocatively suggests that social acts are those ‘which, by the one who performs them and in the performance itself, are as it were cast towards another person in order to fasten themselves in his soul.’Footnote ²¹ Reinach does not describe legal agency, but he evidently takes it to encompass legal capacities (‘abilities’ to engage in various particular juridical social acts).Footnote ²² His most extensive comments connecting agency and associated concepts (capacity and power) with legal personality are as follows:

At yet another juncture Reinach treats persons as bearers of legal statuses and of status-mediated inalienable claims and obligations. Persons are, viewed from this aspect of personhood, bearers of certain claims and obligations that are absolute, which Reinach suggests indicates something (it is not clear what) definitive and decisive about legal personhood and an individual’s enjoyment of same. Being absolute and vested (rather than provisional and/or conditional), claims and obligations mediated by statuses cannot be assigned, granted, waived or otherwise treated as fungible. Illustrating this point, Reinach emphasizes family statuses: ‘Let us also recall the Persönlichkeitsrechte of the civil law … let us just think of the duties of spouses to each other, and their duties toward their children. None of these rights and duties can be transferred. Whatever is grounded in the person as such or in certain relationships between or among persons, cannot be separated from this ground.’Footnote ²⁴

Reinach’s comments on persons and legal personhood are mostly lawyerly. However, an exception is found where he links personhood with self-consciousness and, more specifically, self-aware experiencing of juridical social acts as normative. In distinguishing persons from other beings capable of experience (e.g., animals), Reinach says: ‘[b]eing grounded in a supporting subject is something which our legal entities have in common with experiences (Erlebnisse) of all kinds, for these too always presuppose a subject whose experiences they are. But this class of possible bearers is here much broader; animals too can be the bearers of experiences but never of claims and obligations. Here it is persons who by an essential law are presupposed as bearer.’Footnote ²⁵ Put otherwise, persons are beings who have and can reflect insightfully and productively upon an experience of normativity that belongs properly to law. Hence, Reinach’s insistence that only human beings are ‘persons’ a priori, with the implication that artificial persons (e.g., corporations) enjoy personality only by ‘fiction’ of positive law.Footnote ²⁶ As he puts it: ‘It is an essential law that only persons can be holders of rights and obligations. That a given being is a person is a fact which can never be produced by an efficacious enactment. When therefore the law recognizes rights and duties in foundations or even in certain estates, we can only be dealing with a fiction in virtue of which such a thing is treated ‘as if’ it were a person.’Footnote ²⁷

Finally, in tallying Reinach’s views, we come to some surprising sentences at the end of Foundations. There, despite having acknowledged that persons and legal personhood are pivotal to his project, Reinach seems to deny that any of part of it – the phenomenology, the elucidation of a priori truths about social acts, the extension of both to law – depends in any way on insights about persons, and so, in turn, about human nature and the human condition. A priori truths about law, Reinach now urges, transcend everything that is given in experience, including the qualities of being human and modes of experiencing normativity that are uniquely available to us in virtue of our humanity:

This surprise turn, being inconsistent with Reinach’s other comments on persons and legal personhood, might be dismissed as aberrational. It is an aberration. But it deserves attention because it is telling of wider and deeper problems with Reinach’s method and with the analyses he provides of personality and representation.

Let me introduce three problems with Reinach’s account of personality, some of which reflect limitations of his method and, specifically, his ambition to discover a priori truths about law, the truth-value of which obtains independently of considerations of morality and of positive law.

The first problem, already noted, is that Reinach does not give us a cohesive account of the a priori essentials of legal personality. Given Reinach’s predominant tendency to view persons and personhood as central to his project, it is striking that his thoughts are unresolved. As Neil Duxbury has noted, this is a significant lacuna in Reinach’s thought.Footnote ²⁹ One does not find in Foundations a single clear paragraph or page in which he explains the essentials of personhood, what it is about persons that enable us to appreciate a priori truths about law and other things, and/or how the formal properties of legal personhood prefigure and are manifested in the social acts of actual persons. Reinach does usefully highlight important facets of legal personhood: agency, the bearing of claims and obligations, and the bearing of statuses, these being features prominent in positive law.Footnote ³⁰ However, Reinach does not even gesture at the relationship between these facets of legal personhood, much less does he show that they are jointly constitutive of personhood viewed a priori.

The second problem is that some of Reinach’s characterizations of persons and legal personhood – offered as a priori truths – defy the strictures of his phenomenological method, being best construed as either (a) a posteriori synthetic truths (or statements that are plausibly true) about received conceptions of persons in broader culture and of legal persons as characterized in positive law; (b) sub silentio moral judgments about features of human nature and/or of the human condition that are pertinent to law; and/or (c) both (a) and (b). Each of these alternatives is a plausible candidate for assessing Reinach’s claim that persons are distinguished from nonpersons (including animals and things) insofar as the former but not the latter are proper bearers of claims, obligations, and statuses. The same holds for Reinach’s claim that agency and self-determination are essential to legal personhood (on which, see also his assertion that persons have an absolute ‘moral entitlement’ to personal developmentFootnote ³¹). And consider Reinach’s suggestion that self-conscious experience of normativity is essential to personhood. If this capacity is linked to our ability to discern what is true a priori about law, and so to understand and to participate in its pure normativity, self-conscious discernment of the a priori must be dissociable from self-aware participation in other normative systems (e.g., of positive law, conventional morality, or true morality). But this begs questions of comprehensibility. What is this experience of a pure, transcendent normativity like? Reinach does not say. And perhaps he does not say because knowledge of a genuine practical normativity that is utterly detached from morality is unavailable to us.

The third and final problem is the incoherence introduced by Reinach’s concluding comments to the effect that the a priori foundations of law are true independently of truths about persons and are valid ‘not only for our world for any conceivable world.’ One way of coping with indecision is minimization of the significance of a matter for decision. So, if persons and legal personality proved a conundrum for Reinach, one can understand his caving in to impulse in suggesting that his project is unaffected by his inability to come to terms with the notions. But the dodge is glaring because Reinach had already articulated powerful reasons for thinking it to be of central importance to his work. Briefly, again: (a) the phenomenological method implies the existence of self-conscious beings – persons – who are aware of and can access and reflect productively on social experience of normativity; (b) social acts are acts of persons, and moreover, reflect distinctively human capacities (practical reason and language); and (c) juridical social acts are, ipso facto, also acts of persons.

By suggesting that ‘men’ (human beings) are immaterial to the a priori foundations of law, Reinach introduces a host of difficult and unanswered questions. For instance: in what sense is law intelligible absent reference to the focal exemplar of a person – a human being – and of legal personhood? And, supposing that law might be intelligible for nonhuman beings or entities, what analogues of human nature and the human condition must be true of such a being or entity for something like law to be intelligible as a mode of order? Further: why should we suppose that nonhuman beings in ‘any conceivable world’ would have need of or use for law?

The destabilizing effect of these questions for Reinach’s project may be best appreciated through reflection on a hypothetical. Imagine, at opposite ends of a spectrum, beings who have bodies like ours but have hive minds (i.e., collective consciousness, motivations, intentions, and other cognitions) and beings whose minds are like ours but whose bodies are protected by an impenetrable carapace, both in environments in which resources essential to meeting needs and desires are plentiful. Would these beings experience and know of what Reinach deems to be the a priori essentials of promising? What need would the hive-minded have for promising? For them, solidarity and, in turn, cooperation and coordination, are instinctive. What impulse would drive the carapace-embodied to promising, lacking need-based motivation to promise or the sense of risk latent in interpersonal dependence and vulnerability consequent upon transactions that we, soft-bodied, beings often experience? What need would either species have for private ownership, given an abundance of goods and the impulse of the hive-minded to put the needs of the hive first, alongside the impulse of the carapace-embodied to delight in opportunistic satiation, free of the worst sort of credible threats of violent dispossession? The point is not that these beings would have no need for laws, nor even that their laws would be completely unlike ours (they might still benefit from laws somewhat like ours that facilitate cooperation or coordination). The point is that Reinach’s concluding assertion that his account of the a priori foundations of law hold for nonhuman beings and for all possible worlds is dubious. When one strips important features of human nature and the human condition away from the concepts of ‘person’ and ‘law,’ it is not clear what, if anything, is left for common signification by these terms.

7.4 Representation

If Reinach’s analysis of persons reveals limits of his phenomenological method, his analysis of representation shows those limits, too, while also exemplifying the methodological promise held by his speech act theory of law. Where Reinach hesitatingly and sporadically expressed views on persons and legal personhood, he was comparatively (and characteristically) direct and confident on representation. Indeed, his account is rivalled only by Hobbes’ in the way in which it illuminates the nature of the specifically legal form (as contrasted with social and political forms) of representation.

Reinach begins by critically examining a positivistic view of representation as an artificial mode of social action: one foreign to extralegal social experience,Footnote ³² being something conjured and regulated by positive law. The positivistic view does not claim, implausibly, that we have no extralegal concept(s) of representation. Rather, the thought is that the positive law leads with its artifice, shaping downstream social practices and beliefs. Through increasing familiarity with mechanisms of representation in public law (e.g., via laws creating and regulating public offices) and in private law (e.g., via laws enabling private administration of persons, property, and institutions) we have come to develop rough analogues of legal representation in extralegal spheres of social life (i.e., in informal social practices of speaking or acting for others).

Reinach recognizes the intuitive appeal of the positivistic view but rejects it as ‘fundamentally wrong.’Footnote ³³ Representation is, he maintains, a distinctive kind of juridical social act cognizable a priori.Footnote ³⁴ By implication, the essential formal properties of representation have nothing to do with positive law; one can understand them without canvassing the various mechanisms of representation found in or made available by private or public law. Indeed, Reinach suggests, experience of ‘acting on behalf of another’ is a commonplace in extralegal settings in which people speak up for, attend to the interests of, assert claims for, answer for, or otherwise put themselves in the position of another.

Before analyzing representation, Reinach carefully distinguishes it from other modes of conduct in which one is deliberately responsive to the ends or interests of another, all falling under a wide genus of social action undertaken ‘on behalf of another.’ Amongst other things, he distinguishes representation from mandate, command, commission, and advisement. Each of the latter kinds of social act involves ‘action on behalf of another,’ in the sense of deliberate responsiveness to the ends or interests of another, but none involves representation in the sense governed by its essential formal properties.

In comparing representation with adjacent varieties of juridical social action, Reinach insightfully suggests that they have in common the engagement of a capacity for attentiveness to others consisting in ‘inner experiences’ of sympathetic attunement. Attunement, Reinach emphasizes, is not merely a matter of deciphering and/or being motivated to act according to another’s intentions. Rather, it involves ‘feeling oneself sympathetically into the experiencing of another.’Footnote ³⁵ Sympathetic attunement, so understood, encompasses sharing in the perspective of another with respect to their views, plans (including intentions), feelings, interests, prospects for flourishing, and so on. Importantly, it does not imply endorsement, acceptance, or personal identification otherwise with another’s experience (these being distortions of sympathy: a substitution of appraisal for understanding another’s experience).

On representation specifically, Reinach notes that, like all social acts, it encompasses ‘internal’ and ‘external’ dimensions. Authentic social acts reflect continuity between the ‘internal experience’ of the act by the actor and ‘external experience’ of it by others. Inauthentic social acts are those in which the internal experience is discontinuous with the external experience (e.g., reflecting mistake or deception). For example, one whose behavior bears outward indicia of representative action will be a false representative if their internal experience is one of self-concern (e.g., one poses as a representative in order to evade liability) rather than sympathetic attunement.Footnote ³⁶ Here, too, Reinach breaks ground, anticipating later work distinguishing vires and fides in representative action. He suggests, plausibly, that although improperly motivated representation might be effective (lawful), it is inauthentic as representation precisely in virtue of a discontinuity between internal and external dimensions of ostensibly representative behavior.

Somewhat less innovative is Reinach’s characterization of representation as such. Here, one finds plentiful echoes of Hobbes’ thought. Reinach observes that representation entails the performance of the very juridical social acts that individuals usually and presumptively undertake personally. Representation modifies attribution of the legal consequences, but not the legal nature, of juridical social acts. Just as we can directly shape the normative landscape within which we are positioned vis-à-vis others by personally performing juridical social acts (e.g., by promising, claiming, exercising a power, or waiving a right) so too can we do so indirectly through representatives who bear our person. It is thus that representation is correctly understood in terms of capacities (‘abilities,’ in Reinachian lingo) and powers. Representatives personate others by acting upon their normative capacities and powers. Furthermore, Reinach emphasizes, representation can be effective absent the represented person having specific knowledge, much less settled intentions, in respect of particular juridical social acts performed on their behalf by a representative.Footnote ³⁷ Representatives wield standing authority: an authority that is prior to and that transcends representative performance of discrete juridical social acts.

Further on authority: Reinach recognizes that one cannot fully comprehend representation by focusing on the position and behavior of representatives alone. Representation is premised on bilateral or multilateral relationships that bind representatives and persons represented. Legal representation implies the legal authority to act for others, which in turn means that it is premised on constating juridical social acts. Reinach considers and rightly dismisses the notion that the pertinent act is transferring or promising. Transferring effectuates alienation of resources and alienable entitlements, while promising effectuates personal undertakings; neither can explain the third-party effects that are essential to representation (the representative’s authority to exercise entitlements and to incur burdens for represented person(s) vis-à-vis others). The pertinent constating act is, instead, granting.Footnote ³⁸ Representation arises when represented persons grant to representatives the authority to act on their behalf, with the implication that juridical social acts subsequently performed by representatives will be attributed to represented persons as having been authorized by them.Footnote ³⁹

Reinach has rather less to say about representation ‘in action,’ perhaps because he (correctly) believes that juridical social acts undertaken representatively are usually formally identical to those undertaken personally. However, one finds fresh insight in Reinach’s distinction between active and passive dimensions of representation, tracking a broader distinction between active and passive social acts. Certain juridical social acts (e.g., promising, claiming, waiving) are active in that they involve the deliberate exercise of a legal capacity in ways that are patently performative. Others – especially responsive juridical social acts (e.g., receipt, acknowledgement, acceptance, acquiescence) – tend to be passive or less patently performative. Reinach innovates in observing that both are important modalities of representation.Footnote ⁴⁰

With the essentials of his account of representation now in view, we may take stock. As noted, Reinach’s is one the most compelling accounts ever provided of the nature of legal representation. His account echoes that of Hobbes in its rendition of the nature of representation,Footnote ⁴¹ but this is to his credit: Hobbes and Reinach landed at the same place from divergent glide paths, giving additional reason for confidence that we’ve arrived with them at something approximating the truth about what representation consists of. Furthermore, there is much that is original in Reinach’s analysis. His speech act theoretical method enabled him to surface facets of representation that others miss, including (a) the ‘internal experience’ of representation via sympathetic attunement and the expectation of continuity between it and the more familiar ‘external experience’ of representation through observation of juridical social acts; (b) the distinction and relationship between constating juridical social acts establishing representation (authorizing acts) and performative juridical social acts of representation (representing acts); and (c) in respect of the latter, the distinction and relationship between active and passive social acts undertaken by representatives.

Despite being mostly convincing, Reinach’s analysis does have a few flaws. I will highlight three.

The first is that Reinach’s account is likely not what it purports to be. That is, it is not an elucidation of a priori truths about representation. As noted in Section 7.2, Reinach has not given us a convincing reason to think his phenomenological method results in statements about law that have this sort of truth-value. That is partly because the method is poorly described, and also because, unlike laws of science and of mathematics, the a priori status of truths about the formal properties of social acts does not reveal itself to us, even upon prolonged reflection. But one ought not to despair over this. If one can be contented with apprehension of a posteriori synthetic truths about law – robust generalizations informed by experience of positive law – one will find good reason for appreciation of Reinach’s analysis of representation.

The second flaw is really an entire set of problems that Reinach’s account of representation inherits from his analysis of personality. As Reinach recognizes, representation involves personation: legal representatives bear the legal person(s) of those whom they are authorized to represent. Representation is therefore unintelligible absent reference to persons and social acts, the latter being a form of communicative behavior for which human beings are by our nature uniquely fit. Defects in one’s views on persons and legal personality may be expected to have ripple effects for one’s account of legal representation. And so it proves for Reinach. I will note just a few issues. First, because Reinach does not provide a coherent account of the essential formal properties of legal personhood, it is unclear whether and how the various facets of personhood that he mentions are manifested in the social acts through which representation is established (constating acts) and made effective (representing acts). Second, Reinach’s evocative suggestion that the ‘internal experience’ of representation involves sympathetic attunement requires an account of the moral capacities of human beings such as might support the claims (a) that persons are capable of sympathetic attunement; and (b) that authentic representation entails such attunement. Reinach here runs aground, again, as a result of his deliberate refusal to comment on the distinctive moral status, anthropology, and psychology of human beings. Third, we can perhaps now better appreciate the absurdity in Reinach’s concluding suggestion that persons and personhood are immaterial to a priori truths about juridical social acts. Reinach’s references to sympathetic attunement imply the existence of beings with a capacity for same, much as his wider theory of social acts implies other capacities (notably, of language and practical reason) that are distinctively human. Reinach’s ambivalence on persons destabilizes the entire edifice of his theory of social acts.

Fourth and finally, because Reinach was so preoccupied with phenomenological elucidation of a priori truths about law that transcend experience, Reinach failed adequately to consider points of similarity and difference between legal representation and adjacent modes of relating to others through sympathetic attunement. In this, his work is out of step with more recent studies – including Pitkin’s celebrated workFootnote ⁴² – that emphasize semantic and phenomenological variation in relationships of ‘representation’ (relationships in which a person or group is said to represent, or to be representative of, other persons or groups). Reinach asserts that representation in the narrower sense of interest to him is familiar from extralegal experience. Everyday life, he says, supplies examples of situations in which one claims standing to speak or to act for another. But given his narrow and lofty gaze – his aim, again, for transcendent truths about law – Reinach does not consider that some of these situations might involve representation in a materially different sense, or modes of care and concern for others that do not involve representation in any sense. In some, the experience of attunement and assertion of standing to speak or act for another is spontaneous and unilateral. That is, the ‘representative’ presumes to speak for, advocate on behalf of, defend, or otherwise align themselves with another. In others, there is a more innocent (less officious) identification with another that involves attunement and responsive behavior (acts of care and concern). It is, of course, fine for Reinach to focus on distinctively legal representation, but given that his phenomenological method compels a finer attention to experience, his exposition would have been more plausible had he contemplated different varieties of representation and forms of behavior reflecting sympathetic attunement.

7.5 Conclusion

My assessment of Reinach’s contributions is mixed. Praise for his speech act theoretical method is leavened by criticism of his phenomenological method (especially his central claim to have disclosed a priori synthetic truths about the nature of law). Likewise, I have suggested that Reinach’s largely convincing speech act theoretical rendition of representation is marred by his irresolution on persons and personhood. While most work of legal theory can be faulted for ignoring ontological, moral, and juridical questions about persons and personhood, Reinach’s work surprises, excites, and disappoints, especially because puzzles about persons and personhood go to the very core of what is original and insightful in Foundations.

Reinach surprises in forthrightly recognizing the centrality of persons and legal personhood to his project (its methods and aims). He recognizes that law is not merely a construct of reason (a set of artifacts, to be equated with institutions and their workings, and especially the generation and interpretation of legal texts); it is also – and more primordially – a system of norms that implicate normative practices constituted in and through normative performances (social acts). He recognizes, too, that these practices, these performances, these acts (and, one might add, the workings of institutions and the communication of, and about, law through authoritative text) are the practices, performances, and acts of persons (i.e., of intelligent linguistic beings possessed of a capacity for practical reason manifested in law). With these insights foremost in mind, one might initially be struck with excitement upon reading Reinach’s first comments on persons and personhood, imagining, perhaps, that promised ‘truths’ about the ‘foundations’ of law will include insights about how law is, at once, possible and necessary for persons, given other, more fundamental, truths about human nature and the human condition. These truths might disclose what law is partly by disclosing what it is for (i.e., how law is practically intelligible relative to its practical point or purpose(s)).

If one were to judge him harshly, one would say that Reinach disappoints on most of these expectations. He does not provide a cohesive account of persons and legal personhood, and is averse to questions about how legal rules and concepts are or ought to be rooted in normatively significant facts about human nature and the human condition. Reinach believed, mistakenly, but sincerely, that truths about law – including, presumably, about the law’s concept of a person – are normatively neutral (i.e., that they imply nothing about the moral status of persons or about what human beings have reason to value in and beyond the reliance we place on law as a source of authoritative normative guidance). While Reinach alights upon various facets of legal personhood that are important to a sound positivistic rendering of the notion, he has nothing to say about the more profound questions noted above (e.g., about how law is possible and necessary for persons, or what law is for). A harsh critic might say that the return on investment in Reinach consists mainly in the interest held by speech act theoretical analyses of law and in productive deployment of that method in the analysis of particular legal concepts (e.g., promising, enacting, granting, representing, and so on).

But one should not judge Reinach harshly. Viewed charitably, he may be credited with marshalling phenomenological methods so as to humanize law: to put lived experience at the center of our understanding of law and appreciation of the proper aims of legal theory. In turn, Reinach may be credited with profound insights about the nature of law that were won only through recognition that law is constituted through speech acts (social acts). Further, while his thinking on persons and personhood remained indefinite, Reinach clearly realized that phenomenological insights about law and other modes of social action are the insights of persons gleaned through human experience, and, in turn, that posited law is a construct dependent upon an apt marshalling of distinctively human capacities in ways responsive to our common humanity.

The year 1913 saw the publication of two foundational works of legal theory: Hohfeld’s ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’Footnote ¹ and Reinach’s A Priori Foundations of Civil Law.Footnote ² Hohfeld’s paper, introducing his famous taxonomy of rights, proved to be more influential than Reinach’s.Footnote ³ While Reinach’s text has been praised for his pioneering elucidation of social acts (promising, commanding, granting, transferring, allowing, enacting), his thorough accounts of moral and nonmoral rights and obligations, of ownership and of legal representation have all been largely overlooked. This is unfortunate: Reinach’s Foundations contains a myriad of insights, some of which reveal and permit correction of deficiencies in Hohfeld’s taxonomy of rights. In this chapter, I focus on what is arguably the most basic disagreement between Hohfeld’s and Reinach’s ontologies of rights. The disagreement concerns the kind of rights that Hohfeld calls ‘liberties’ and Reinach calls ‘absolute rights’. Reinach and Hohfeld both argue that the category of right should be divided between claim rights (for instance, claims that ensue from promises) and liberty rights (for instance, freedom of trade). Both characterize claim rights in a very similar manner, emphasizing that claims are necessarily correlated with an obligation of a counterparty. But they disagree on the topic of liberties. Hohfeld assumes from the outset that all rights are relations and maintains consequently that all liberties have correlatives. He calls these correlatives ‘no-rights’, for lack of a better term. Reinach, for his part, maintains that in contrast to claims, liberties essentially lack correlatives and counterparties, which is why he calls them ‘absolute rights’.

Who is right? Do liberties have or lack correlatives? I argue that both Reinach and Hohfeld overgeneralized an initially correct insight: Reinach is right, pace Hohfeld, that some liberties are absolute, but wrong that all are. Hohfeld is right, pace Reinach, that some liberties have no-rights as correlatives, but wrong that all liberties have such correlatives. The argument will be developed as follows. After having stressed some striking similarities between Reinach’s and Hohfeld’s ontologies of rights in Section 8.1, I characterize in Section 8.2 the notion of legal correlatives in terms of converse relations. Section 8.3 explains why duties of noninterference cannot be the legal correlative of liberties, a point on which Reinach and Hohfeld agree. I next present in Section 8.4 Hohfeld’s proposal according to which the correlative of liberties are no-rights, and defend it against three objections. Section 8.5 argues, this time against Hohfeld, that some liberties, in particular property rights, lack counterparties. Reinach’s proposal according to which liberties have no correlatives is presented in Section 8.6 and criticized in Section 8.7. Finally, in Section 8.8, I propose an encompassing ontology of rights which welcomes both relative and absolute liberties.

8.1 Reinach and Hohfeld: Similarities

Before delving into the main disagreement between Hohfeld and Reinach, it is worth emphasizing some striking commonalities between their two projects. Both consider the legal practices and scholarship of their time to be riddled with confusion. As a result, they both set out to clarify key legal concepts by drawing overlooked distinctions. In doing so, they engage in research from an a priori perspective: both are optimistic that a priori legal reasoning can help disentangle important conflations and discover fundamental distinctions between legal entities. Admittedly, Reinach is more of a committed a priori essentialist than Hohfeld is. Reinach thinks that legal phenomena have essences that can be grasped a priori. Reinach’s famous claim that ‘Positive law finds the legal concepts which enter into it; in absolutely no way does it produce them’Footnote ⁴ finds no counterpart in Hohfeld, who has little patience for metaphysical inquiries.Footnote ⁵ The idea of prelegal rights is not just absent from Hohfeld’s approach, but appears to be excluded by his assumption that all jural relations ‘take their significance’ from positive law.Footnote ⁶

Yet, Hohfeld also uses essentialist expressions. Hohfeld’s repeated claims that legal discussions of his times ‘are not founded on a sufficiently comprehensive and discriminating analysis of jural relations in general’, and that we should strive for ‘clear understanding’ of these, presuppose that the relevant understanding is provided not by positive law alone, but that some other source of legal knowledge lies beyond positive law. Remarkably, both Reinach and Hohfeld are skeptical of reductive analyses or definitions. They thus both adopt a primitivist approach. In this approach, basic legal entities cannot be reduced to nonlegal entities. This does not mean, however, that nothing can be said about them. Both believe that instead of analyzing into components, one can explain them by bringing out their various relationships with other legal and nonlegal entities. Thus, Hohfeld maintains that rights cannot be strictly speaking defined: they are sui generis legal relations. The elucidation of these phenomena is not a matter of defining them, but rather of showing the various relationships that they have with other phenomena:

Reinach, likewise, maintains that rights cannot be defined and are instead best understood in terms of essential connections between them:

In this respect, Reinach and Hohfeld both adopt a descriptive approach to the ontology of rights, as contrasted with a reductive one (such as the will theory or interest theory of rights).Footnote ⁹

The affinities between Reinach and Hohfeld are both substantive and methodological. In their typologies of law, Hohfeld and Reinach often independently arrive at exactly the same distinctions. For example, each emphasizes a distinction between legal phenomena and the nonlegal phenomena that determine legal phenomena. Reinach emphasizes that promises and other social acts are not themselves legal but natural phenomena which nevertheless, by their very nature, ground or generate different kinds of rights.Footnote ¹⁰ Likewise, Hohfeld insists on the existence of operative facts which ‘under the general legal rules that are applicable, suffice to change legal relations, that is, either to create a new relation, or to extinguish an old one, or to perform both of these functions simultaneously’.Footnote ¹¹ Relatedly, both insist on the distinction between possession and ownership.Footnote ¹² However, they disagree on the nature of ownership. For Hohfeld, ownership is a legal phenomenon, a bundle of rights. For Reinach, by contrast, ownership is not a bundle of rights itself, but rather the basis of property rights.Footnote ¹³ Additionally, both Reinach and Hohfeld elaborate the distinction between physical and legal power.Footnote ¹⁴ Both define legal power as the power to modify the realm or rights:

Reinach and Hohfeld also both distinguish between legal powers and what Hohfeld calls liabilities and Reinach calls (admittedly less systematically) legal abilities (Fähigkeiten),Footnote ¹⁷ that is, the capacities of having one’s rights impacted by the social acts of other persons. Finally, and crucially for this chapter, both stress the distinction between claim rights and liberty rights. Moreover, both characterize the correlative of claim rights in the very same way, as we shall see. But liberty rights are also the chief locus of divergence between their ontologies of rights.

8.2 The Notion of Legal Correlatives

Both Reinach and Hohfeld propose to divide rights into claims and liberties (which Reinach calls ‘absolute rights’). Thus, Hohfeld argues that liberties (which he also calls privileges) should be distinguished from claims or rights in the strict sense. Reinach draws the very same distinction between claims and absolute rights. A common example of a claim, for each of them, is a promissory or contractual claim. For instance, if Eve promises Bob to come to dinner, Bob has the right to have Eve come to dinner. A typical example of a liberty, for each of them, is a property right. For example, because Eve owns her bike, she has the liberty to use it as she wishes. Other liberties include freedom of speech, trade, movement, and religion. Firstly, let us focus on claims. Reinach and Hohfeld agree that claims have correlatives, which are relative duties or obligations. For example, if Paul is entitled to Julie buying him a beer, then Julie has a correlative obligation to buy him a beer. Similarly, if Margaret has a claim against Bob that he washes her car, then Bob has a correlative obligation to wash her car. Reinach offers a description of the various elements of claims and relative duties that helps us capture their relation:

1. (i) All claims and correlative duties have a holder: they are claims and duties of someone.

2. (ii) All claims and correlative duties have a counterparty, addressee, or destinee: they are held against/relative to/towards/versus/vis-à-vis somebody distinct from their holder.

3. (iii) All claims and correlative duties have a deontic force: namely, they are either claims or duties.

4. (iv) All claims and correlative duties have contents (Hohfeld also speaks of ‘tenor’): they are claims or duties to do something or to get something done.

On the whole, claims and correlative duties are of the form:

1. 1. X has a claim against Y to the effect that Y Fs.

2. 2. Y has a duty towards X to the effect that Y Fs.

Where ‘X’ and ‘Y’ stand for the parties, and ‘Fs’ stands for Y’s action (e.g., ‘X sings’). The relation between claims and obligations provides a paradigmatic and uncontroversial example of ‘correlativity’. But how exactly should we understand the relation of legal correlativity in general? That question is crucial for our present purposes. To determine whether liberties have correlatives or not, one needs to be clear about the nature of correlativity.

Reinach stresses that correlative claims and obligations have the very same content (here: that Y Fs).Footnote ¹⁸ Accordingly, a first proposal here is that legal correlatives must have the same content (a point which Kramer rightly rehearses in a recent paper).Footnote ¹⁹ Second, both Reinach and Hohfeld stress that sentences 1. and 2. are related as a matter of necessity. Reinach maintains that it is essentially impossible to have the one without having the other (they start and cease to exist at exactly the same time); Hohfeld makes an even stronger claim as he maintains that 1. and 2. are logically equivalent.Footnote ²⁰ Strictly speaking, however, 1. does not logically entail 2., nor the reverse. My proposal is that correlativity should be understood in terms of converse relations. Every relation has a converse. The converse of X is over Y is Y is under X. Likewise, the converse of X has a claim against Y (to the effect that Y Fs) is Y has a duty towards X (to the effect that Y Fs).Footnote ²¹ On top of clarifying the otherwise elusive notion of correlativity, understanding legal correlatives in terms of converse relations presents three advantages.

First, it helps us make sense of Hohfeld’s idea that legal correlatives logically imply each other. Though strictly speaking, legal correlatives are not logically equivalent (Y has a duty towards X does not logically follow from X has a claim against Y), one can understand the temptation of describing them as logically connected once one thinks about them in terms of converse relations. As plausibly argued by Williamson,Footnote ²² converse relations are identical. That is, if ‘R’ stands for a relation and ‘R^C’ stands for its converse, xRy (e.g., Bob is shorter than Eve) and y R^C x (e.g., Eve is taller than Bob) express one and the same fact in two different ways.

Second, the proposal that legal correlatives are converse relations helps us understand why rights without counterparties also lack correlatives: rights without counterparties are monadic, and monadic predicates lack converses.

Third, an understanding of legal correlatives in terms of converse relations explains why some correlatives may lack proper denominations in ordinary language. While English and other languages provide lexical (e.g., taller/smaller) and syntactic (passive voice) ways of expressing converse relations, not all relational predicates have converses. Thus, dyadic predicates such as ‘being biased against’, ‘being infatuated with’, ‘being conscious of’, ‘being at the disposal of’, ‘having a reservation against’ lack converses. The only way to express their converses is to use periphrases, such as ‘being the object of the infatuation of’ or to introduce new terms (e.g., ‘Let us now say that when x is infatuated with y, y “fatuates” x’). ‘Having a liberty right relative to’ is arguably a predicate of this sort, which is why Hohfeld has to introduce the neologism ‘no-right’ to express its converse.

8.3 Correlatives of Liberties Are Not Duties of Noninterference

We are now able to address the question raised by Hohfeld: what are the logical correlatives of liberties? One natural proposal is that the correlative of Bob’s freedom to F is everyone else’s duty not to interfere with Bob’s F-ing. This proposal is rightly rejected by Hohfeld, albeit for two reasons that are not quite convincing. After presenting them, I shall advance two more straightforward reasons to reject the view that duties of noninterference are correlatives of liberties.

Hohfeld’s first argument is that there could be liberties without duties of noninterference, for positive law may not recognize such obligations.Footnote ²³ For example, it is conceivable that Eve has the freedom to use her bicycle, while Bob has no duty not to interfere with Eve’s use of her bicycle. Hence, Hohfeld concludes, duties of noninterference cannot be correlatives of liberties. But this argument is wanting. Admittedly, in such cases there are no correlative duties recognized by positive law. Nevertheless, it could be argued that there is a prelegal duty of noninterference. In order for this argument to be convincing, it must be assumed that there are no prelegal or natural rights. This is a debated assumption, and it would be best to avoid relying on it.

Hohfeld’s second argument does not rely on such an assumption. Suppose Eve allows Bob to use her bicycle, saying to him: ‘You can use it if you like, but I’m not obliged to let you use it: if I’m the first on it, too bad for you.’ In such a case, Hohfeld argues, Bob is free to use Eve’s bike, but Eve is under no obligation to let Bob use her bike. Thus, Bob’s freedom is not correlated with any duty of noninterference, legal or prelegal. However, proponents of the view that duties of noninterference are correlative with liberties are unlikely to be convinced. They might reply that sentences like ‘You can use it if you like, but I don’t commit to letting you use it’ (or Hohfeld’s ‘Eat the salad if you can; you have our license to do so, but we don’t commit to not interfering with you.’) are problematic: if you let someone use something, you thereby commit, or so they claim, not to interfere with his use of the thing.

Can we find more compelling reasons to reject the view that duties of noninterference are correlatives of liberties? Why is A’s liberty to F not equivalent to other people’s duties not to interfere with A’s F-ing? There is one reason to reject the left-to-right entailment, and two reasons to reject the right-to-left entailment.

The reason to reject the left-to-right entailment is that the content of duties of noninterference includes a notion of interference absent from the content of the corresponding liberty. This is problematic because, as we saw, legal correlatives must have the same content (otherwise, they cannot be converses of each other).

On the other hand, there are at least two reasons for rejecting the implication from duties of noninterference to liberties. First, the correlative of duties of noninterference (assuming such duties are relative) are not duties but claims. Consider Mary’s duty not to interfere with Bob’s singing. The correlative of this duty is not Bob’s freedom to sing, but Bob’s claim not to be prevented from singing by Mary (by the correlativity of claims and relative duties). Second, Mary’s duty not to prevent Bob from singing does not entail Bob’s freedom to sing, because we may be prohibited (morally, legally, positively) from interfering with someone’s action even if that person has no freedom to act in that way. Suppose I walk on the grass when it is forbidden to do so. The fact that you see me breaking this rule does not give you the license to prevent me from walking on the grass. So, the duty not to interfere with someone’s action does not automatically entail that the person has the right (liberty) to act as he does.

To sum up, duties of noninterference are not logical correlatives of liberties because (i) the notion of interference is absent from the content of liberties; (ii) the correlatives of duties of noninterference are claims, not liberties; and (iii) everyone’s duty not to interfere with my action does not entail my liberty to take that action. One might turn to a looser notion of correlativity to claim that duties of noninterference are correlatives of liberties in a broader sense. Thus, Thomson argues that genuine liberties (which she distinguishes from mere privileges) must have duties of noninterference as correlatives.Footnote ²⁴ But if we stick to Hohfeld’s original program of mapping ‘logical’ correlatives, such a proposal must be rejected.

What, then, is the relation between liberties and duties of noninterference, if they are not correlatives? One possibility, touched upon by Hohfeld and made explicit by Reinach is this: Bob’s liberty to sing partly explains or grounds Bob’s claim not to be prevented from singing. It is partly because Bob has the liberty to sing that Mary has the duty not to prevent Bob from singing. Reinach develops the proposal as follows:

According to this proposal, the relation between Bob’s liberty to sing and Mary’s duty not to prevent Bob from singing is explanatory, and therefore asymmetrical, as opposed to the symmetrical relation between logical correlatives.

8.4 Hohfeld: Correlatives of Liberties Are No-Claims

So far, Hohfeld and Reinach agree: duties of noninterference are not correlatives of liberties (in the strict, logical sense of legal correlatives). Hohfeld however, maintains that logical correlatives of Bob’s liberty to sing are the ‘no-rights’ of third parties that Bob does not sing (a proposal that Reinach would reject). The term ‘right’ is meant here in the sense of a claim: a ‘no-right’ is indeed a ‘no-claim’. So, if Bob has the liberty to sing, relative to Mary, Mary does not have the claim that Bob does not sing, relative to Bob. Generalizing Hohfeld’s proposal, we get the following pairs of correlatives:

1. 3. X has a liberty relative to Y to the effect that X Fs.

2. 4. Y has a no-claim relative to X to the effect that X does not F.

Three objections to Hohfeld’s notion of ‘no-rights’ can be raised. Since I shall argue that some liberties have no-rights as correlatives, I need to answer them.

(Bad) Objection 1: ad hocery. Faced with the problem of finding correlatives for liberties, Hohfeld forges a neologism. This seems ad hoc. But note that Hohfeld readily concedes that ‘no-right’ is a term of art. The reason why Hohfeld is justifiably nonplussed becomes clear once correlatives are understood in terms of converse relations: as noted above we should not expect all converse relations to be readily expressible in ordinary language. Every relation has a converse, but not every converse has a morpheme in ordinary language. ‘Having a liberty relative to’ is one relation of this sort.

(Bad) Objection 2: reifying a negation. ‘No-right’ is a negation, indicating merely the absence of a right.Footnote ²⁶ Contrast correlative claims and duties: one party has a claim, and the counterparty a duty, such that there is clearly something – some normative position – that each party has relative to the other. But in the present case, one party has a liberty while the other, instead, lacks a claim. If some person lacks something (here, the normative position of holding a right), ascribing to her possession of a negative entity (‘no-right’) seems awkward. Lacking a hat is not having a no-hat; by parity, lacking a claim should not be equated with having a no-claim. The answer to this objection is quite straightforward once legal correlatives are conceived in terms of converse relations. Indeed, if, as proposed above, converse relations represent no addition of being, the sentences ‘Bob has the liberty to sing relative to Eve’ and ‘Eve has a no-claim that Bob does not sing’ express one and the same relational fact in two different ways. Despite the ‘no-claim’ nominalization it contains, the second sentence does not quantify over an absence of claim, but over the presence of a liberty. It just describes that liberty from the point of view of its counterparty, while the first sentence describes it from the point of view of its holder.

(Bad) Objection 3: violation of the requirement of same content. Recall that one central feature of legal correlatives is that they have identical contents. The correlative of Mary’s claim (that Bob sings) is Bob’s duty (that Bob sings). This same content requirement is crucial to understanding the logical equivalence between legal correlatives. The violation of this requirement was one of the reasons for rejecting the view that duties of noninterference are correlatives of liberties. However, so the third (bad) objection goes, the view that no-rights are correlatives of liberties also violates the same content requirement: the correlative of Bob’s liberty (that Bob sings) is Mary’s no-right (that Bob does not sing). One content is the negation of the other. To answer that important worry, I suggest a slight modification of Hohfeld’s original proposal. Instead of saying that no-claims are the correlatives of liberties, we should say that the correlative liberties are no-claim that not (or better: no-claim-that-not). That is, the correlative of Bob’s liberty (that Bob sings), would be Mary’s no-claim that is it not the case (that Bob sings). To satisfy the same content requirement, we have moved the negation outside the content of the correlative, so as to make it a constituent of the correlative itself. Thus, instead of having the two following correlatives, as per Hohfeld’s original proposal:

1. 5. X has a liberty relative to Y to the effect that (X Fs).

2. 6. Y has a no-claim relative to X to the effect that (X does not F).

We now have two pairs with the same content:

1. 7. X has a liberty relative to Y to the effect that (X Fs).

2. 8. Y has, relative to X, a no-claim-that-not (X Fs).

This satisfies the same content requirement while preserving Hohfeld’s original insight. One might object that putting the negation on the side of the deontic connective rather than in its content is spurious. But such a move is far from unprecedented. It is endorsed, for instance, by those who think, following Reinach, that disbelieving that p and believing that not p, though logically equivalent, are distinct.Footnote ²⁷ Likewise, closer to our topic, it is endorsed by those who think that being obligatory that not p and it being impermissible that p are equivalent, but nonetheless distinct.

Kramer has recently argued along similar lines that legal correlatives must have the same content.Footnote ²⁸ How does the present proposal relate to his? According to Kramer, the correlative of X’s liberty to enter the land is ‘Y’s no-right concerning X’s entering the land’. But how exactly should this formulation be understood? Kramer insists that it should not be understood to mean that Y has no right that X does not enter the land. How is it to be read, then? In particular, what has happened to the negation in the rejected formulation? Has it been dropped altogether? Or has it been moved within the ‘no-right’ connective?Footnote ²⁹ In the first case, it is hard to see how there can be a necessary equivalence between no-rights and liberties: Bob’s liberty to dance, relative to Eve is not equivalent to Eve’s no-right that Bob dances, relative to Bob. In the second case, Kramer’s proposal and the present one are indeed one and the same. Let us assume that it is so.

Even so, there remains one point of divergence between Kramer’s picture and the present one. Kramer maintains that liberties and duties are not contradictories but ‘duals’ because they do not have the same content. Bob’s liberty to dance is opposed to Bob’s duty not to dance: the content of the one is the negation of the content of the other. I would like to suggest, following an early suggestion by Mullock,Footnote ³⁰ that once the idea of moving the negation from the content to the connective is taken on board, it is easy to apply the same content requirement to the whole Hohfeldian table (which Kramer rejects), in order to get a clearer picture of the logical relations between legal connectives:

By neutralizing variations in content, such a picture, I submit, better captures the logical relations between the legal concepts themselves. Admittedly, we then get unusual expressions for legal concepts: ‘duty-that-not’, ‘claim-that-not’, and ‘no-claim-that-not’. But note that Bob’s having a duty-that-not (Bob dances) amounts to Bob’s having a prohibition that (Bob dances). In other words, we usually allow a distinction between positive duties and negative duties (i.e., prohibitions). This is not a content-based distinction: the same content can be obligatory or impermissible. The proposal is to extend this distinction to claims (so that positive claims must be distinguished from negative claims, or claims-that-not), but also to no-claims and liberties. Thus, with liberties-that-not, we get the following square:

To be clear, none of this is meant to preclude the view that negative legal connectives can be reduced to positive connectives with negative contents, for example, that the liberty-to-not pay, can be reduced to the liberty not to pay; or that the prohibition to sing (i.e., the duty-to-not sing) can be reduced to the duty not to sing, just as, according to some, disbelieving that p amounts to believing that not p. But the point is that these are reductions, and that, insofar as we are interested in describing the logical connections between legal connectives, we should eschew any reductionist commitments.

In conclusion, Hohfeld’s view that ‘no-claims’ are correlatives of relative liberties, once interpreted in the light of the proposal that liberties and no-claims are converse relations, turns out to be neither ad hoc, nor committed to reifying absences, nor incompatible with the idea that legal correlatives must have the same content. I conclude that Hohfeld’s proposal is coherent.

8.5 Objections to Hohfeld: Property Rights

Why, then, should we not accept Hohfeld’s amended proposal that every liberty is correlated with a no-claim-that-not? The (Reinachian) view I will defend in this section is that property rights have no counterparties (and hence no correlatives). Such a possibility has been largely overlooked. Even those legal scholars who rightly emphasize the qualitative distinction between rights in personam and rights in rem (which include, first and foremost, property rights) take it for granted that both kinds of rights have counterparties.Footnote ³¹ Here are three objections to the view that all freedoms have counterparties.

Objection 1: from number of property rights. The liberty rights that attend owning something (whether such rights are grounded in ownership, as per Reinach, or constitutive of ownership, as per Hohfeld) are, under Hohfeld’s proposal, liberties that are relative to every other person, ceteris paribus. If Bob owns a car, he has, ceteris paribus, the liberty to use it as he sees fit, and that liberty is relative to Eve, Max, you, me, and every other person. (The ceteris paribus clause is needed, for Bob may have, for instance, promised to Eve not to use his car.) As a result, we all have a no-claim that Bob does not use his car as he wants. Let us now ask what happens to Bob’s liberty to use his car when other persons come into being or pass away. There are two equally unappealing options.

The first option, arguably endorsed by Hohfeld, is to claim that Bob has as many liberties as there are other persons: one liberty to use his car for each counterparty.Footnote ³² This implies that when Eve dies, Bob loses one such liberty. To make the situation more vivid, suppose Bob knows nothing at all about Eve, who lives in another region. How could Eve’s dying be relevant to Bob’s right(s) to use his car? Suppose, likewise, that a new person is born, whom Bob will never meet. This would mean that Bob gains a new right to use his car. Again, this seems odd: it does not seem appropriate to suggest that Bob gains or loses liberties to use his car with every variation in human population.

According to the second option, Bob has just a single liberty to use his car, but that this liberty is relative to all other persons in the world (or in the legal system at stake), independently of any variation in the number of those other persons. This need not be read as entailing the liberty relation has as many places as they are counterparties (i.e., that liberty is sometimes dyadic, sometimes triadic, sometimes n-adic, according to the number of counterparties); more plausibly, the liberty could be seen as a constantly dyadic relation between its holder, on the one hand, and the plurality of its counterparties, on the other hand. That proposal, contrary to the previous one, does not imply that when the population increases, Bob’s liberties to use his car increase proportionately. But it does imply that when a population increases, Bob’s single liberty to use his car in a way becomes greater. But this is implausible. On this view, Robinson on his island would not be free at all to use a tool he built until the arrival of Friday. When Friday arrives, Robinson would gain the liberty to use that tool, although that liberty would be of the lowest possible level – Friday being but one person. Robinson would have a greater degree of liberty to use the tool when returning to a populous England. This all sounds rather counterintuitive: Robinson, Reinach would have it, has always been free to use his tools; changes in his social environment have never altered his freedom (although they have certainly affected the likelihood of his freedom being interfered with).

Objection 2: from the transfer of property rights. To introduce the second objection let us briefly return to claim rights. Eve promises Bob that she will eat. As a result, Bob has a claim right against Eve that she eats. Now, Bob cannot unilaterally transfer that claim to Ralf: to transfer the claim, he needs Eve’s consent. This is because Bob’s claim is relative to Eve: both must consent to change it. Now consider Bob’s liberty right to use his car. That right, on Hohfeld’s proposal, is relative to all other persons who, correspondingly, have no-claims that Bob refrain from the use of his car. Suppose now that Bob decides to transfer his right to use his car to Eve, by lending his car to her for one week. As a result, Eve has the liberty right to use Bob’s car for one week. Eve’s newly gained liberty right is, according to Hohfeld’s proposal, correlated to all other persons’ no-claims that Eve does not use Bob’s car. Hence the no-claims of all the other persons have been changed from no-claims that Bob refrains from the use of his car, to no-claims that Eve refrains from the use of Bob’s car. Shouldn’t all these people have a say on Bob’s transfer? After all, this transfer affects their deontic status. If the addressees of claim rights have to give their consent to the holder’s transfer of these rights, why mustn’t the addressees of liberty rights consent to the holder’s transfer of such rights as well? That consequence of the view that all liberty rights are relative rights, and therefore have correlatives, is very odd: surely, we are not violating any obligation when we lend our bike to a friend without asking for the authorization of everyone. One possible answer is that claims require the consent of third parties, but liberties do not. But such an answer seems ad hoc: why should it be the case that claims relative to Bob should require Bob’s consent to be transferred, but not liberties relative to Bob? It is hard to think of any relevant difference between the two cases that would justify such an asymmetry. Such a difference would perhaps appeal to the fact that Bob tends to be more prejudiced in the first case than in the second, but it is far from obvious that this has to be the case in general.

Objection 3: from absolute obligations. The third objection does not appeal to property rights but challenges the idea that the absence of counterparties’ claims implies the party’s liberty (which should be the case, since correlatives are equivalent). Consider for simplicity a world with only two people, Bob and Ida. Can we conclude from the fact that Ida does not have a claim to the effect that Bob does not sing, that Bob has the liberty to sing? Not necessarily. For this to hold, one must assume that absolute obligations – obligations lacking any counterparty, that is, obligations which are not obligations to someone – are impossible. But that assumption is quite controversial.Footnote ³³ Bob may be under some absolute duty not to sing. For this objection to work, it is enough to show that absolute obligations are possible, since no-claims are meant to entail liberties in all possible cases. Hohfeld, therefore, must deny the possibility of absolute obligations. But doing so undermines the appeal of his proposal.

Consider general duties not to kill, not to damage works of art or not to destroy landscapes in the absence of strong countervailing reasons. To many, such duties are not only possible, but also actual. One answer would be that we owe it to the person not to kill him or her; that we owe it to the landscape not to destroy it. But, as Reinach ‘emphatically stresses’, we should not confuse the addressee of the content of a duty with the addressee of that duty (if there is one).Footnote ³⁴ Hence his assertion that such duties are not directed to persons. The proponent of the view that all duties are relative certainly has several maneuvers at his disposal to counter this claim. He can argue, for example, that we owe it to actual or potential beneficiaries of the landscape (which may include future humans) not to destroy it; that we owe it to the artist (who may be dead) not to destroy his work; that we owe it to any other human or to God not to kill any human, etc. The present argument, however, is not premised on the idea that there are absolute duties; it only makes the weaker claim that, since absolute duties make sense, they should not be made impossible by our taxonomy of rights. Yet they are made impossible by Hohfeld’s view that liberties and no-claims are equivalent.

These problems disappear if one agrees that some liberties, such as property rights, are absolute instead of relative, as Reinach argues. So, let us now turn to his account.

8.6 Reinach: Liberties Have No Correlatives

So far, we have argued that duties of noninterference cannot be the correlative of liberties, and that in some cases at least, no-rights are not correlatives of liberties either. What then are the correlatives of liberties? Reinach maintains that there are none: liberties are absolute rights, by which he means that liberties lack any correlative. Hohfeld assumes from the outset that all rights are relations between two parties: the holder of the right and a counterparty. Such an assumption is rejected by Reinach, who stresses that both rights and obligations come in two types, relative and absolute:

Reinach’s absolute rights correspond to Hohfeld’s liberties. An absolute right (or obligation), Reinach stresses, is not a universal right (or obligation), in the sense of a right (or obligation) relative to every other person. To have the absolute right to F does not mean to have the right to F relative to everybody. Quite the contrary, absolute rights (and obligations) are absolute in the sense of having one bearer but lacking any opposite party (Gegnerschaft):

Because absolute rights lack counterparties, they lack correlatives: the claim that Eve has against Bob is equivalent to a duty of Bob towards Eve; but Eve’s absolute right to F, because it is not a relation to another person, cannot be equivalent to a deontic property of someone else. The core essential feature of absolute rights, Reinach maintains,Footnote ³⁷ is their reference to one’s own action. Relative rights, by contrast, always refer to another’s action. One can have the freedom to express one’s opinion, but one cannot have the freedom that somebody else express his opinion. By contrast, relative rights never bear on one’s own action (that would be ‘contradictory’ according to Reinach):Footnote ³⁸

That absolute rights always refer to the actions of their holders allows Reinach to distinguish between at least three kinds of absolute rights. The first are the rights over things or property rights, which are the rights to use things. All rights over things arise ultimately, Reinach contends, from ownership.Footnote ⁴⁰ The second kind of absolute rights are the rights to perform certain actions which do not consist in using things: these are actions such as moving, expressing one’s opinion, or the moral right ‘of the free development of one’s personality’.Footnote ⁴¹ These absolute rights are not grounded in a relation of ownership, but in the person as such. The third kind of absolute rights mentioned by Reinach are rights over rights, that is, the right to perform actions which modify rights. These come in two sub-kinds:Footnote ⁴² the rights over one’s own rights, such as the right to waive one’s claims, and the right over somebody else’s right, such as the right to revoke another’s right.

Note that the way Reinach describes rights over rights is strikingly close from the way he characterizes legal powers a few pages later.Footnote ⁴⁴ One question is whether he intends to draw a distinction, and another is whether he could draw it in a convincing way. There is reason for doubt on both questions. What would distinguish them is unclear: both have content directed to the action of their holder which produces an immediate effect in the world of rights, both are absolute.Footnote ⁴⁵ Reinach writes, besides ‘This power or right to transfer is a power or right over one’s own right’ (italics mine).Footnote ⁴⁶ If Reinach indeed equates powers with (absolute) rights over rights, then a further divergence between Reinach’s and Hohfeld’s typologies of rights appears. While Hohfeld sees legal powers as a new kind of legal phenomenon on top of claims and liberties, Reinach equates legal powers with a sub-kind of liberties.Footnote ⁴⁷ I shall not explore this important difference further here.

Reinach’s typology of rights can be represented thus:Footnote ⁴⁸

We have mentioned so far three essential differences, according to Reinach, between relative rights (that is, claims) and absolute rights (that is, liberties):

1. (1) Relative rights are directed towards another person, whereas absolute rights are not.

2. (2) Relative rights have correlatives, whereas absolute rights have no correlatives.

3. (3) Relative rights concern the action of another person, whereas absolute rights concern one’s own action.

Reinach advances six other, related, essential differences between claims and absolute rights:

1. (1) While a claim can be fulfilled an absolute right can only be exercised. It is impossible to exercise a claim, or to fulfill an absolute right.

2. (2) Relatedly, a claim is awaiting or ‘aiming at’ its fulfillment, while an absolute right ‘is something definite, something resting in itself’.Footnote ⁴⁹ This may be compared to active and passive dispositions: active dispositions, such as the force exerted by a magnet, tend to bring about their effect unless prevented from doing so; passive dispositions, such as the fragility of a piece of glass, remain latent unless triggered.

3. (3) While a claim, in virtue of its nature, ceases to exist when fulfilled,Footnote ⁵⁰ an absolute right typically survives its exercise.

4. (4) While any claim may be waived,Footnote ⁵¹ absolute rights can only be waived in special cases. The owner of a thing, for instance, cannot waive his right to use it. He may at best transfer or grant that right to another person or transfer his ownership altogether. One may, however, waive one’s absolute right to use the things owned by another person (when that person lends them to us for instance).

5. (5) Relatedly, while claims cease to exist when they are waived, waiving one’s right to use a thing owned by another person does not destroy that absolute right, but returns it to the owner.Footnote ⁵²

6. (6) While absolute rights can sometimes be transferred by their holder without further condition (the owner of a thing may lend it, that is, transfer or grant the right to use to another person),Footnote ⁵³ claims can only be transferred with the agreement of a counterparty.Footnote ⁵⁴ If Eve has as a claim against Bob to the effect that Bob sing, Eve cannot transfer that claim to Dan without Bob’s consent.

These nine essential differences between absolute and relative rights, according to Reinach, are recapped in the following table:

Reinach does not just provide an alternative to Hohfeld’s account of liberties. He also explains why we are tempted to mistakenly believe that liberties are directed towards others.

First, absolute rights may have their source in another person.Footnote ⁵⁵ Thus the owner of a thing may grant to another person the absolute right to use that thing.Footnote ⁵⁶ Bob may grant to Mary the right to use his bike. In such a case, the right (liberty) which Mary gets is not relative to Bob.Footnote ⁵⁷ Likewise, the social act of allowing somebody to do something results, Reinach contends, in that person having the absolute right to do it.Footnote ⁵⁸ The destinee of the act gets that right thanks to the author of the act, but his right is not directed to the author.

Second, as pointed out above, the fact that absolute rights may refer to another person in their content does not mean that they are directed towards that person. The right to make promises to other people (by contrast to rights generated by promises themselves) is not directed towards anybody.

Third, absolute rights and relative rights may be related in different ways (by essential or positive laws) which may lead to confusion. Thus, if an absolute right is related to a relative right, it is easy to confuse the third party of the relative right with a supposed third party of the absolute right. A first example stems from cases in which the positive law provides for a claim of compensation when an absolute right is violated.Footnote ⁵⁹ In such cases, it is the compensatory claim that is directed, not the underlying absolute right. A second example is the right of lien. A lien is an absolute right on a thing that is used to secure a claim.Footnote ⁶⁰ If Eve does not fulfill Bob’s claim by not giving his money back, Bob becomes entitled to use Eve’s car (an absolute right). Bob’s claim is directed, but the absolute right it secures is not directed. In the first example, a violation of an absolute right gives rise to a claim; in the second example, an absolute right secures a claim. In none of these examples is the absolute right a directed right, although it is easy to mistake the direction of the claim for a direction of the connected absolute right.

8.7 Objections to Reinach: Allowing

For all its acuity, Reinach’s account of absolute rights overlooks the distinction between absolute and relative liberties. By maintaining that all liberties are relative, Hohfeld, we saw, cannot properly accommodate absolute liberties that arise from ownership. Analogously, I shall now argue, by maintaining that all liberties are absolute, Reinach encounters difficulties when it comes to social acts such as allowing, which arguably give rise to relative liberties.

Let us first get clear on the social act of allowing. Reinach maintains that allowing is a distinct kind of social act that not only needs to be heard by another person, but that is also addressed to another person, in virtue of which that other person gains the absolute liberty to perform a certain kind of action.Footnote ⁶¹ This characterization, I believe, is nearly correct: its only flaw is to assume that the liberty given to the addressee is absolute. Here are two objections that show that the liberties generated by that act of allowing are relative.

First objection: allowing and transferring. Max is the owner of a piece of land and hence has, ceteris paribus, the liberty right to use that land. The right to use what is ours, Reinach correctly argues (pace Hohfeld), is absolute. Suppose that Max allows Eve to use his land. As a result, Eve also has the liberty right to use the land. Max’s and Eve’s liberties are numerically distinct, because though they have the same content, they have different holders. But these liberties also appear to be distinct in kind: while Max is entitled, tout court, to use the land, Eve is entitled to use the land only relative to Max.

One way to bring out this distinction is to consider the conditions under which liberties can be transferred. As Reinach points out, Max, the owner of the land, can transfer the right to use that land without third-party consent, while Eve, who has been granted that right by Max, cannot do the same: she needs Max’s green light to do so. Why? On Reinach’s view, the nature of these liberties is ex hypothesi the same and hence cannot explain the difference. We must refer instead to the origin of the liberties: while Max’s liberty to use his land stems from his ownership of the land, Eve’s liberty to use Max’s land stems from Max having allowed her to do so. But it is unclear why a right’s history should make any difference to how it now ‘behaves’. Under the present proposal, by contrast, there is no need to investigate the genesis of liberties to understand why some are transferable and others not. This difference in transferability is due to an essential difference between these liberties: absolute liberties can be transferred without the consent of third parties (because they have none), whereas relative liberties require the consent of their third parties in order to be transferred.

Second objection: allowing and forbidding. Ann’s father has allowed her to go to the party, but Ann’s mother has forbidden her to do so. The straightforward thing to say, in such cases, is that Ann has the liberty, relative to her father, to go to the party, while she has the interdiction, relative to her mother, to do so. This answer is, of course, not open to Reinach. How else could he treat cases like this? He seems to have two equally unappealing options.

First, Reinach could maintain that Ann at once has an absolute liberty to go to the party and an absolute obligation not to go to the party. Contradictory rights and obligation are not a problem per se for Reinach: he allows for incompatible pro tanto rights and duties. However, this case is special because the liberty and interdiction are directly and completely contradictory: they have contradictory contents, and the same holder. But they also have the same counterparty if they are absolute (none, ex hypothesi), and are of the same kind: nonmoral obligations and rights stemming from similar social acts (allowing and forbidding). It is one thing to maintain that contradictory rights are possible so long as they are of different kinds or have different counterparties. It is quite another to maintain that one can be at once entitled and forbidden, absolutely and in the very same sense, to perform the same action at the same time. Under the standard hypothesis, having the permission to F is logically equivalent to not having the obligation to non-F.Footnote ⁶² If so, the present proposal leads to a contradiction.

The second option is to maintain that Ann has the absolute liberty to go to the party, but the obligation relative to her mother, not to go to the party. This is likely the strategy Reinach would adopt. The reasons for this are twofold. First, he maintains that allowing generates absolute obligation.Footnote ⁶³ Second, while he never explicitly considers the act of forbidding, he considers in detail the close act of commanding (forbidding to F, one may think, is equivalent and perhaps identical to commanding not to F). Reinach maintains that like promising, commanding essentially generates relative claims and obligations.Footnote ⁶⁴ Third, this strategy presents the advantage of putting the former worry of contradiction to rest, for Ann now has an absolute liberty conflicting with a relative obligation, this being a noncontradictory form of deontic conflict.

However, this strategy comes at a high cost. It assumes that the social act of allowing generates absolute liberties, while the social act of forbidding generates relative obligations. This seems ad hoc: if forbidding generates relative obligations, then allowing should generate relative liberties. Indeed, forbidding and allowing belong to a common kind (together with obliging/commanding): both are other-directed, both bring about deontic status in their addressees (respectively, interdiction and permission); both require that the persons performing them have some legal power over their addressees. Finally, the logical relations between allowing and forbidding closely map the logical relations between permission and obligation. In the same way as not being permitted to F is equivalent to being obligated to not-F; not allowing S to F seems to have the same correctness conditions as forbidding S to F. Also, in the same way that being permitted and forbidden to F is contradictory, allowing and forbidding S to F is contradictory. One way to bring out that worry is to compare the deontic status of Ann in the present example with her deontic status had her father instead commanded her to go to the party. In such a case, Reinach would say (correctly) that Ann is under two incompatible relative obligations: the obligation, relative to her father, to go to the party; and the obligation, relative to her mother, not to go to the party. Why, when her father simply allows her to go to the party, should we treat the deontic conflict she finds herself in differently? Why shouldn’t we see it as a conflict between two relative deontic states?

8.8 A Reconciled Ontology of Rights

Let us take stock. Hohfeld maintains that all liberties are relative and have no-rights as correlatives. He faces objection stemming from cases such as property rights, in which liberties appear to be absolute. Reinach, for his part, maintains that all liberties are absolute and therefore lack correlatives. He faces objection from cases in which liberties appear to be relative, such as the liberties that arise from allowing. At this juncture, the way out seems obvious: a complete ontology of liberties should include both absolute and relative liberties.

However, this proposal raises an immediate worry: how should we distinguish liberties from claims? Hohfeld holds that they are distinct in virtue of having distinct correlatives (respectively, no-rights and relative obligations); Reinach holds that they are distinct in virtue of being respectively relative and absolute. If we welcome both absolute and relative liberties, we cannot distinguish them from claims based on either of these two criteria. Reinach, fortunately, provides us with another criterion: the key difference between claims and liberties is not to be found in their correlatives, but in their content. Liberties bear on the action of their holder, claims bear on the action of their addressees. We can thus retain most of Reinach’s detailed account of the contrast between claims and liberties:

On top of avoiding all the worries raised above, this proposal reveals why absolute claims are impossible: since claims bear not on one’s own action, but on the action of another, they necessarily must have a counterparty. The following figures contrast the proposed ontology of rights with that of Hohfeld and Reinach:

Based on this ontology, two Reinachian ‘essential laws’ can be formulated. To introduce the first, recall the distinction made by Reinach between social acts that are other-directed, and those that are not.Footnote ⁶⁵ All speech acts need to be heard, and hence have an addressee, yet not all of them are other-directed. The acts of promising, commanding, or granting a right are other-directed, by contrast to the acts of enacting or waiving.Footnote ⁶⁶ Based on this distinction, the first essential law states:

1. (1) Other-directed social acts cannot generate absolute rights and obligations.

Promising, commanding, and granting only generate relative rights and obligations. (Likewise, submitting, another other-directed act, generates in its addressee the relative legal power to bring about legal effect in the person who submitted.Footnote ⁶⁷) Absolute rights and obligations, on the other hand, arise from the nature of ownership, of persons, or from social acts like that of enacting, which is not other-directed. It is indeed possible to transfer an absolute right, and transferring a right is other-directed, according to Reinach, but this is no exception to the present law since transferring does not generate any right.

The second essential law concerns the condition of transfer. The owner of a thing, we saw, can transfer his liberty to use that thing without any further ado, while the person that has been granted the right to use a thing cannot transfer that liberty without the consent of the owner. This suggests the following essential law:

1. (2) All relative rights (be they relative claims or relative liberties) require the consent of their counterparty in order to be transferred by their holder, in contrast to absolute rights.

In the absence of countervailing factors, absolute liberties can be transferred without the consent of anybody. The transfer of relative liberties, by contrast, always requires the consent of the counterparty.

8.9 Conclusion

I have compared Reinach’s and Hohfeld’s contemporaneous ontologies of rights and argued that their main disagreement lies in their understanding of liberties. While Hohfeld sees liberties as relative, correlated with no-rights, Reinach claims that liberties are absolute, lacking any counterparties. I then argued that both start from a correct insight, but that they each then overgeneralize this insight to all liberties. This led me to propose an ontology of rights that makes room for both relative and absolute liberties.

Among the other points of disagreement between Hohfeld and Reinach that deserve further investigation, the nature of legal power is perhaps the most interesting. While Hohfeld argues that legal powers constitute a sui generis kind of legal relation, on top of duties, claims, and liberties, Reinach sees legal powers as a subspecies of liberties, namely liberties to perform actions that modify rights. A strong reason to follow Reinach here is that powers bear on their holder’s action, which is the mark of liberties. A strong reason to follow Hohfeld, though, is that the view that powers and liabilities are correlatives is highly plausible (and must be rejected by Reinach since powers, qua liberties, must lack correlatives). Here again, I surmise, the Reinachian framework could accommodate Hohfeldian liabilities, disabilities, and immunities, provided that it abandons the problematic assumption that liberties are always absolute. More precisely, the hypothesis would be that legal powers come in two kinds, absolute and relative, that relative powers have liabilities as correlatives, and, that liabilities are a kind of no-claims.Footnote ⁶⁸