General and Particular Jural Relations Emily Sherwin Hohfeld set out to precissify jural relations in a series of articles culminating in a book.1 His basic scheme of rights, privileges, powers, and immunities and their correlatives and opposites is hard to dispute and helps bring clarity to law. The project, however, was not complete at the time of this death and leaves several important questions unanswered. One problem Hohfeld mentioned in his final article was the problem of “common (or general) and specific (or particular) relations.” In this essay, I will speculate about what he might have said about these subcategories of relations and what difficulties they might have raised for his overall scheme. A. General Rules and Particular Cases Before turning to Hohfeld’s picture of law, I will briefly summarize a problem that affects any mature system of law: the problem of general rules. For this purpose, the term “rules” refers to rules that are general in application and determinate enough to be understood in most cases. The rules under discussion in this essay are also good rules, meaning rules that, if always 1Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913)(hereinafter Hohfeld, FLC 1); Wesley Newcomb Hohfeld, The Relations Between Law and Equity, 11 Mich. L. Rev. 537 (1913)(hereinafter Hohfeld, Equity); Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale L.J. 710 (1917)(hereinafter Hohfeld, FLC 2). An informal precis of topics to be covered appears in Hohfeld, FLC 2, supra, at 712. 1 followed, produce a better sum of results than individual actors otherwise would achieve by following their own best unregulated judgment about what to do in each case.2 Of course, not all legal rules meet this test, but my discussion focuses on those that do. Rules, so defined, have significant value. Assuming that they are good rules, they reduce error when regularly followed. Most importantly, they w reduce the type of error that results from lack of coordination. Actors can plan much more effectively if they know what other actors will do. There is no way to look into other peoples’ minds, but when a rule has a reasonably clear meaning and is widely followed there is good reason to think that most people will do as it requires. The problem of rules arises because all general, determinate rules, including good rules, will prescribe some results that are or appear to be wrong, all things considered. A general rule must be announced in advance of conduct, and so will cover some cases the rulemaker did not anticipate. Due to the imperfections of language, a rule that is determinate enough to govern conduct will also be overbroad, sweeping in cases to which the rule ought not apply. Nevertheless, if the rule is a good rule, the sum of outcomes will be best if individual actors follow the rule unreflectively. Not only is human reasoning imperfect, but a common form of cognitive bias makes salient facts appear more significant than background probabilities such as the long-term impact of a rule violation on the coordination value of the rule.3 Consequently, 2I leave open what counts as a good result. Raz, in his “service conception” of authority, proposes that rule-making authority is justified to the extent that individual actors will better conform to reasons for action applicable to them if they follow the rules. Joseph Raz, The Morality of Freedom 129-131 (Oxford: OUP 1986). 3See generally Daniel Kahneman, Paul Slovic, & Amos Tversky (eds), Judgment Under Uncertainty: Heuristics and Biases 163)(CUP 1982); Daniel Kahneman, Paul Slovic, & Amos 2 individual actors exercising particularized judgment about whether to follow a rule will tend both to err and to err systematically against following the rule. The result of this dilemma is a gap between the perspective of the rule-making authority and those who must follow or apply the rules.4 From the authority’s point of view, it will appear that all those subject to the rule should follow it in all cases. From the point of view of an individual actor called on to follow the rule, it will sometimes be, or seem, clear that following the rule is a mistake. Judges are often rule-makers, but in their role as appliers of rules in individual cases, their perspective will resemble that of actors. Strict enforcement of the rule may appear to be at odds with the rule’s purpose or simply unfair in the circumstances of the case. Accordingly, it may appear from this point of view that the best course of action is to follow the rule in all cases except this one. The gap just described never completely closes. Particularistic decision-making does not close the gap because, as noted, human decision-makers are not omniscient and so cannot judge accurately when it is best to follow the rule. Rule-sensitive particularism, meaning particularistic decision-making that takes into account the effect of a rule violation on the rule’s coordination value, fails to close the gap for the same reason.5 Sanctions do not close the gap because Tversky, (eds) Heuristics & Biases: The Psychology of Intuitive Judgment (CUP 2002) 4Further discussion can be found in Larry Alexander and Emily Sherwin, The Rule of Rules: Morality, Rules, and the Dilemmas of Law 11-36 (Durham: Duke 2001), Joseph Raz, The Morality of Freedom (Oxford: OUP 1986) 49-50; Frederick Schauer, Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and Life 1-121, 149-55 (Oxford: Clarendon 1991). 5Frederick Schauer coined the term “rule-sensitive particularism.” Schauer, supra note 3, at 94-100; Frederick Schauer, Rules and the Rule of Law, 14 Harv. J. L. & Pub. Pol’y 645, 676 & n. 66 (1991). His own position, at least at the time, was “presumptive positivism,” which adds a 3 sanctions are imposed by judges who are likely to view strict enforcement as irrational and unjust. B. Equity Our legal system historically was divided between law and equity. Procedural merger ended the system of separate courts but did not eliminate judicial consciousness of distinctive doctrines, remedies, and principles traceable to the equity side of legal history. Although general and determinate rules can be found in both legal and equitable doctrine, one feature that is often associated with the equity doctrine is equity in the Aristotelian sense, meaning correction of the errors that sometimes result from strict application of rules.6 Some commentators have characterized this softening of legal rules through equity as a supplemental function that does not bring equity into conflict with the law.7 Others, including Hohfeld, have viewed it as an override. Either way, the effect is to alter the outcomes of legal rules when they appear too harsh. The association between equity and correction of rules survived the merger. In post- presumption in favor of rule-following to rule-sensitive particularism. See Schauer, Rules and the Rule of Law, supra, at 691-94. 6Aristotle, Nicomachean Ethics ¶1138b25 (Hackett Pub., Terence Irwin, ed. & trans., 1985) (“And this is the nature of what is decent - rectification of law in so far as the universality of law makes it deficient.”). 7For views on the relation between law and equity, see, e.g., III William Blackstone, Commentaries *430 [1769]; Henry Home, Lord Kames, Principles of Equity, Introduction p. vii (Alexander Kincaid, 1760); F.W. Maitland, Equity and also the Forms of Action at Common Law 2-11 (CUP, J.H. Chaytor & J. Whittaker, eds., 1929); I Joseph Story, Commentaries on Equity Jurisprudence §§ 5, 8, 12, 13, 33 (4th ed. 1846). 4 merger law, the corrective function of equity sometimes carried out directly, by means of indeterminate exceptions to rules. For example, courts may give relief against contractual forfeiture provisions in mortgage contracts when an accident or mistake makes enforcement unconscionable.8 Equitable correction also may take the form of special, relatively indeterminate defenses to equitable remedies, such as unclean hands, disproportionate hardship, and unilateral mistake resulting in unconscionability. Equitable defenses theoretically do not affect the claimant’s ability to obtain a legal damage remedy, but because damages often are inadequate to provide full relief, equitable defenses place significant limits on enforcement of claims.9 Equitable correction of the outcomes of rules does not eliminate the gap between the long-term benefits of enforcing determinate legal rules and the desire for just results in individual cases. Assuming the rule in question is a good rule in the sense described earlier, overall results will be best if judges refuse to engage in equitable correction and instead enforce the rules according to their terms. Moreover, in any legal system in which legal decisions are fully available to the public, corrective equity will tend over time to reduce the effectiveness of legal rules. Each instance of equitable correction undermines the apparent reliability of the applicable rule and so reduces the rule’s capacity to coordinate future conduct. Thus, equitable correction in particular cases satisfies the desire to do justice when good rules produce bad results, but only at the cost of long-term harm to the value of rules. 8See, e.g., Graf v. Hope Bldg. Corp., 171 N.E. 884 (N.Y. 1930)(Cardozo, C.J., dissenting)(discussed below at notes XX-XX). 9For a full discussion of equitable defenses to contract claims and citation to many cases, see Edward Yorio, Contract Enforcement: Specific Performance and Injunctions 73-126 (1989 & Supp. 2010). 5 At least for a time in our legal history, the relative obscurity of the equitable remedies and doctrines through which correction of general rules took place may have limited the harm done to rules.