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Jamieson, N --- "A Legal Logic for public and Private Rights" [2003] OtaLawRw 5; (2003) 10 Otago Law Review 371

A Legal Logic for Public and Private Rights

Nigel Jamieson[*]

1. Introduction

A new edition of Hohfeld’s famous Fundamental Legal Conceptions as Applied in Judicial Reasoning[1] has just been published. My review may be found in the New Zealand Universities Law Review.[2] The new edition is in the Classical Jurisprudence Series, but attempts, through its Introduction by Nigel Simmonds, to give a comprehensive update to Hohfeld^[’]s work. The result is unfortunately the reverse. On the face of this highly laudable aspiration, Hohfeld’s work is introduced as being frustratingly theoretical instead of intensely practical, as being ruminatively speculative instead of rigorously academic, and as being grotesquely static instead of excitingly dynamic. For as long as the classics remain the classics, however, they are never closed. What would Simmonds’ view be for jurisprudence were it to take account of so many advances in Hohfeldian analysis already going on outside analytic jurisprudence?

All these matters and more have been dealt with in the above review. The present paper is an attempt to reinstitute the dynamic forcefulness of Hohfeldian analysis within analytic jurisprudence. It does so by revealing a means of solution for several problems affecting public and private rights. These problems raise current issues. The first issue debates whether there is any logical basis for drawing a distinction between public and private rights. The second considers the legal consequences of drawing any such logical distinction. Both the issues raise short and long term questions. In the short term, is the distinction between public and private rights compatible with Hohfeldian analysis? In the long term can this distinction be substantiated by the further development of Hohfeldian analysis? Ultimately the reply to these questions reveals a new and more intimate logic for human relations in terms of public and private rights.

In the light of this ultimate objective, to reveal a more intimate but typologically legal logic for human relations, it might be best first to explicate both of the above short and long term questions more fully. What in the long term, we may ask, would be the effect on Hohfeldian analysis were the distinction between public and private rights to be more strongly upheld and reinforced by positive law than it is at present? Could the outcome realize, as it did for Hohfeld, a prescriptive legal logic for the analysis of already intuitively understood human relations? Insofar as a distinction already exists between public and private law, might not this logic of renewed legal relations encourage a theory of types[3] for jurisprudence, and a recognition of hierarchies of law[4] for any legal system? After all, ever since Justinian formally posed the question in his Institutes as to whether it is the law of persons or the law of property that takes precedence over the other in any legal system, the debate continues over hierarchies of law.

II. Public and Private Rights

Whatever difference may exist between public rights and private rights has long been debated, and this with immense consequences for divisions between public and private, and in turn between constitutional and administrative law. Aside from issues of nationalization, collectivization, and privatization, from which tidal ebb and flow the legal history of no single country is immune, Western conceptions differ from Eastern conceptions. Property law in the USA tends to be extremely entrepreneurial; in Britain, despite the Welfare State,[5] it tends to be only midway by reason of vestigially feudal land-law and continuing class divisions; whereas in the former USSR, the prevailing policy of collective control has been to outlaw real property and shrink even personal property to miniscule proportions. These are all concepts of comparative law beyond the ambit of this paper, except to recognize that where to draw the line in these jurisprudential matters will always remain debateable in terms of culture (the ontological argument) and in terms of legislative aspirations (the teleological argument) for custodial (or static) and reformative (dynamic) jurisprudence.

The so-called fundamental difference between private and public issues is most prone to arise in administrative law.[6] R v Somerset County Council ex parte Fewings[7] is usually cited[8] as the classic exposition of this dichotomy between private and public rights:

...[for] private persons the rule is that you may do anything you chose which the law does not prohibit... But for Public bodies the rule is opposite... that any action to be taken must be justified by positive law...

It must be borne firmly in mind that this particular exposition of the dichotomy is applicable only in the context of the Common Law. It will not work for most Civil Law systems, since these proceed from a vastly different grundnorm—such as the citizen being only free to do whatever is authorized and not prohibited. The more that New Zealand relies on a jurisprudence of so-called Bills of Rights to express particular facets of the fundamental freedom upheld for private persons by Laws J in R v Somerset County Council,[9] the more it is that the fundamental freedom for the individual under the Common Law is whittled away. As well known to both logic and the law, the result of this whittling away process is simply a consequence of expressio unius exclusio alterius.

Many of the above problems concerning where to draw the line between private and public rights are nonetheless political – and not only political, but systemic to the culture on which the legal system for that culture is based. In the context of law reform, Baragwanath’s paper[10] deals with many of those problems as matters of purely administrative or adjectival law, but, as with one of the cases he mentions, Finnigan v NZRFU,[11] for as long as such cases remain alive and kicking, they are all politically imbued. Law Commissions are intimately more political than parliaments—if only in being the legal tail that wags the political head of the parliamentary dog the hardest.

For as long as any issue of public or private rights remains affected by political considerations or cultural content, the role of logic cannot be absolute. The rest of this paper accordingly restricts itself to advancing a formal logic for the basic dichotomy between public and private rights.

III. Fundamentals

Hohfeld postulated the legal concepts of right-duty, privilege-inability, power-liability, and immunity-disability as being fundamental. The foregoing discussion of law in context demonstrates how far the distinction between public and private rights is not fundamental. It may be basic, but because there are one or more meta-logics of analytic jurisprudence to support the distinction and place it in context it cannot be fundamental.

The difficulty in defining fundamental ideas[12] is itself a fundamental one. It arises simply from the fact of their being fundamental. This is only to be expected. Were they less fundamental there would exist at least some if not lots of underlying ideas with which to define them.

It is this difficulty of defining fundamental ideas that causes Hohfeldian relations to remain relatively overlooked in Anglo-American legal theory. Nevertheless, there are other legal systems that preoccupy themselves with first principles. First principles typically remain the preoccupation of the European jurist. Duns Scotus, with his metaphysics of haecceitas, is the foremost philosopher of first principles or fundamentals. The search for autochthony which perplexes the resurrection of indigenous legal systems, especially by their equation of essence with existence, attempts to pinpoint their haecceitas for law.

Only Scots jurisprudence, still sharing continental aspirations towards the science of law, continues to employ the English language as an enthusiastic vehicle for first principles with which to establish a logic of legal relations.[13] By this strange linguistic paradox—the proverbial exception to the rule—the Anglo-American jurist[14] remains reminded of his need to find a legal logic with which to establish certainty in the law.

If only Hohfeld were alive today, what would he say of all our talk of human rights, natural rights, civil rights and equal rights, not to mention the way we contradict ourselves, whenever it suits us, by regarding them as liberties.[15] This is the context of legal terminology in which our discourse becomes most disputatious. Caught in the context of contemporary dispute over all sorts of different rights and liberties, need we be forgiven for harkening back to earlier and now almost obsolete modes of thought that pre-date even the Hohfeldian? The medieval all-encompassing dichotomy once drawn between divine and civil rights then begins to promise more than our present babbled discourse. Perhaps even Hohfeld’s sophisticated scholarship of subtle distinctions merely reveals our failure to grasp what is really fundamental in theological jurisprudence.

If this is so then a renewed significance is called for by way of integrating today’s more subtle (unless only more devious) values with the eternal verities. This renewed significance required to obtain objectivity of legal argument foretells a renaissance of concern for divine right. No less than physics requires metaphysics to explain the why and wherefore of the universe,[16] so too an abstract logic of legal rights requires, for both its formulation and enforcement, constant reference to an underlying jurisprudence of righteousness. Our ultimate aim is thus already identifiable, but a much lower level of aspiration must confine this paper to more mundane techniques of established jurisprudence.

Kocourek integrated Hohfeld’s fundamental legal conceptions into a single scheme of jural relations. Hohfeld had relied on semantic entailment[17] to explain his conceptions. Thus what he meant by a right (stricto sensu) revealed what he meant by a duty and vice versa. The same semantic entailment that worked to reveal correlatives also worked to reveal opposites. Thus what he meant by a right (stricto sensu) also revealed what he meant by a no-right and vice versa.

By emphasising the nexus of jural relations, Kocourek moved from a semantic to a syntactic concern and so advanced Hohfeldian relations further into logic and away from linguistics. His nexus of jural relations provided the key by which to release Hohfeldian relations from that positivist habituation[18] which masquerades as commonsense convention. This release from the legal ritual of habituation enabled the legal theorist to engage in a new level of abstraction which would eventually realise a symbolic logic suited to professional argument.[19]

The fact remains that in both textbook and schoolroom, Montrose’s work of using symbolic logic to explain ratio decidendi still lies undiscovered.[20] Outside law school, however, the task of applying symbolic logic to legal argument has made great progress. In Hohfeldian relations this is largely the work of Pörn.[21] “There is,” wrote Ingmar Pörn in his Logic of Power

no reason why the Hohfeldian framework, or a consistent reconstruction, should not be applicable to rights other than those of citizens and to relations induced by the exercise of normative power by agents other than the state. There is for example no reason for thinking that it does not apply to the rights of the members of a club.[22]

Pörn has proved that very point of extending individual to collective rights by virtue of his Logic of Power but English-speaking legal analysts have paid very little attention to his proof.

This paper contents itself with preparing the way for Pörn’s proof in legal discourse. His work demonstrates to logicians at large that the Hohfeldian framework underlies rather than overlies the conventional structure of our legal system. Seen from beneath, the law can provide a logic for all sorts of human relations. This need for understudying the law does not prohibit viewing the law from above. On the contrary, our ultimate need for an overview requires a jurisprudence of righteousness even though this goes far beyond the scope of current concern.

What we now attempt by way of revealing the underlying Hohfeldian framework demonstrates merely legal relations. Nevertheless the key concept of status (with its emphasis on civic responsibility) and of freedom (with its emphasis on personal capacity) are suggestive both of a much wider vista of human relations as well as the cardinal dichotomy between public and private law on which these key concepts hinge.

IV. Status and Freedom

Freedom has become a much used and abused term since Sir Henry Maine coined his famous formula of social progress hitherto having been from status to freedom.[23] For this reason we substitute the less politically loaded and more legally objective term of capacity.

Drawing up a table by which to account for status and capacity provides a new picture by which many problems of legal relations can be visually depicted and so imbued with renewed originality of expression. Most of these legal problems have a very persistent if not perennial history. Our aim is not necessarily to resolve but to reveal them. We can do so by re-orientating them around different axes. These establish different pivotal points and consequently shift the emphasis from old to new cardinal relations. Thus we provide, in accordance with the traditions of visual representation established by Hohfeld,[24] and followed by Kocourek[25] and Williams,[26] a new series of mandala which will release a holistic world-view for legal relations.[27] For those unfamiliar with such schematic representations of legal relations it may be helpful to refer to them now, rather than later as they appear in this paper. For the purpose of explaining the close continuity of such schema and their strongly sequential development, however, it is thought best to postpone their consideration. This will allow for a closer comparison of all three eventually with the proposed fourth in a way that will help to reveal the dichotomy between public and private rights.

If we are drawn now to anticipate our conclusions it is only to explain the criteria by which the integrity of the Hohfeldian scheme may be judged. The various diagramatic representations disclose an emerging but sometimes perplexing pattern. Hohfeld began with a dichotomy drawn between two tables of jural correlatives and opposites. The dichotomy between them was bound to be exaggerated by Hohfeld’s choice of setting out the opposites before the correlatives. Kocourek drew all eight fundamental conceptions together into a single diagram emphasising the nexal correlative at the expense of the opposite. Williams defined a new dichotomy between the right-privilege and the power-immunity squares of opposition. Each of these representations reveals a new truth, as it is yet bound to hide an earlier one, according to the conflicting aspirations of unitarian and pluralist (in this case dualist) thought.^{[ 28]}

What we now attempt by way of advancing the evolutionary history of the Hohfeldian scheme depends on exploring the dead end apparently posed by the dichotomy between Williams’ different squares of opposition. What are the consequences of refusing to accept the anti-climax entailed by this apparent cul-de-sac of analytic jurisprudence?

At the very least, the paradoxes of legal theory[29] resulting from attempts to apply analytic to other schools of jurisprudence evoke a very fertile suggestiveness. We are drawn to wonder whether the key to integrating the conflicting closed circuits drawn by Williams across the Hohfeldian scheme that underlies the law is not the same logical foundation shared by law as well as by society at large. This is often the way by which apparently small questions remain unanswerable until reinterpreted as the largest of all possible questions requiring commensurate answers.

The common foundation of law and society, at whose interface the paradoxes of legal theory provoke the most perplexity, seems to provide the key. This is more particularly the case with grand paradoxes such as the liar paradox of Epimenides—especially in the legal context given to it by Protagoras,[30] and Maine’s more modern paradox of social progress hitherto having been from status to contract. Perhaps this suggestiveness of where to find success arises from trying to integrate so extreme a scholastic disassociation as that which is usually drawn between analytic jurisprudence on the one hand, and historical, anthropological, and sociological jurisprudence on the other. By breaking down positivist habituation one needs to flaunt the most obvious conventions to reveal the least obvious truths.

V. Integrative Jurisprudence – the Key to Closing the Gap

In one sense we are engaged in synthetic, or as Jerome Hall[31] calls it, integrative jurisprudence. We aspire to close the dichotomy drawn by Williams between two fundamentally different sorts of legal conceptions, namely those of right-privilege and those of power-immunity. Integrative jurisprudence provides the key to closing this gap. To do so, however, means opening new dichotomies. Dias[32] has already done this with his static-dynamic and posterior-anterior relations of temporal jurisprudence. But to anticipate our ultimate end and so elucidate our present aim towards achieving integrity and our criteria for recognising it, we must admit eventually to opening far wider dichotomies. In one way these are merely dichotomies between individual and corporate motivation and civic and personal relations. The first is the dichotomy of will and the second is the dichotomy of right. But the greatest dichotomy of all eventually required to integrate all the divisions mentioned is that between the legal system as seen from beneath and the same system as viewed from above. We shall never begin to understand where we are now without foretelling how we expect to end our travelling. The need for a teleological world-view, an apocalyptic vision of righteousness, to integrate more mundane dichotomies of right and will, and all correlative as well as wider legal relations, becomes progressively more apparent. Whether we start off with a secular understudy by way of legal positivism or a theological overview by way of natural law will not in the end make the slightest difference. The need for some principle of complementarity in law and society corresponding to that of Niels Bohr[33] in physics most probably brings us to one and the same conclusion.

These are the underlying criteria by which we judge Kocourek to have integrated Hohfeld’s fundamental conceptions into one fundamental scheme.[34] These criteria express a vista that far transcends this paper even though they help us to appreciate an increasing need for integrity in expressing the most mundane of legal relations. We can see this integrity emerging from the various visual representations. Its first beginnings reveal themselves by comparing Hohfeld’s representation for legal relations (Fig 1) with Kocourek’s wider and more closely integrated world-view (Fig 2) .

Figure 1

Hohfield’s diagrammatic representation of fundamental legal conceptions

Figure 2

Kocourek’s diagrammatic representation of fundamental legal conceptions

As elsewhere said[35]—“by drawing attention to the nexus of these relations [Kocourek] made it possible to express the totality of fundamental legal conceptions by means of a single scheme”.

It was Glanville Williams[36] who exploded Kocourek’s representation of the Hohfeldian scheme by showing its integrity to be more apparent than real. This came out of Williams’ concern for contradictories which could be expressed by drawing up the eight fundamental legal conceptions according to a dichotomy of discourse between two tables of Hohfeldian relationships. The twin world-view representing this dichotomy is reproduced in Figure 3.

Figure 3

Jural Relations

(Correlatives connected vertically, opposites diagonally and contradictions horizontally)

(image) (image)

The consequences of this dichotomy of discourse in Hohfeldian relations (Figure 3) were first delineated by Dias.[37] He drew attention to what followed from there being two separate tables of discourse by describing the dichotomy between Williams’ first and second squares of Hohfeldian relations in terms of temporal jurisprudence. The first square of the Hohfeldian scheme—

Concerns jural relations at rest, the second with changing jural relations.... A point of significance is the relationship between the squares ... [This] requires a temporal perspective ... [Concerning] the relationship between a duty and a power where the duty has been created by the power, [i]f one focuses on the power, the claim-duty relation is in the future; if one focuses on the claim-duty relation, the power which created it is in the past.... [I]n order to see the working of the Hohfeldian table a temporal perspective is essential.

What Dias discovered by way of his temporal account of Hohfeldian relations was a new mapping function for jurisprudence. This can be used to integrate the analytic jurisprudence of Hohfeld with the historical jurisprudence of Maine.[38] It also brings Hohfeldian insight to the legal positivism of H.L.A. Hart and the foundations of jurisprudence as seen by Jerome Hall.[39] As one would require of every touchstone for general theories of law it also affords renewed insight into specific legal problems. One of these, the crisis of communication over consimilii casu[40] goes back to the thirteenth century. Another, the distinction between private and public law, is not just medieval but antediluvian in its ability to reveal the essence of conflict in our concept of law. It does this by drawing a distinction between civic and individual responsibility. This requires a dichotomy of right, a bifurcation of Hohfeldian analysis to serve two different sorts of legal obligation. Without the resultant reciprocity between two complementary accounts of legal reasoning we have no real means of explaining the distinction between public and private law.

VI. Integrating a Schema for Public and and Private Rights Into Hohfeldian Logic

What we need first is a revised and more complete schema for legal relations. This will reintegrate the dynamic and static aspects of justice that Williams drove apart with two separate squares of opposition. Dias provided a temporal perspective by which to reintegrate the Hohfeldian scheme. So far this can be expressed only verbally. The visual integrity which Kocourek achieved for the Hohfeldian scheme has never been reinstituted. Figuratively speaking the scheme might be said to have lost its cosmic consciousness. What this means for the decision problem in symbolic logic is that the scheme can no longer be so readily appreciated as being complete, consistent, and independent.[41] The following mandala (fig 4) remedies that failure to satisfy the decision problem.

Figure 4

Mandala by which to demonstrate the division between public and private rights by reintegrating Williams’ dichotomy of legal relations.

(image)

Key to Figure 4

Reintegrating Williams’ dichotomy of legal relations brings together the two squares of right-privilege and power-immunity opposition. It does so by subsuming both provinces of discourse within a single universe of Hohfeldian relations. This is still a secular universe of discourse although pertaining ultimately to a theological one of righteousness. This partial reintegration allows for the legal analysis of human relations at large. In so doing it depends on drawing and exaggerating a number of different distinctions. These include distinguishing—

(i) posterior and static from anterior and dynamic legal relations;
(ii) the authoritative status accorded to right-duty and immunity-disability from the functional freedom of privilege-inability and power-liability;
(iii) The civic responsibility of those subject to duties and disabilities from the civic authority of those invested with rights and immunities;
(iv) The individual responsibility of those subject to inabilities and liabilities from the individual freedom of those invested with powers and privileges;

It is also helpful to point out—

(i) a gross distinction drawn between freedom and status (the dichotomy of will or motive power);
(ii) a gross distinction drawn between individual and civic relations (the dichotomy of secular right);
(iii) a gross distinction drawn between civic authority and civic responsibility;
(iv) a gross distinction drawn between individual freedom and individual responsibility;
(v) a gross distinction is one which need not coincide with other distinctions—as for example when civic authority is vested in an individual, or when an individual freedom is vested in a group.

By emphasising the interface between the two separate squares of opposition, that is to say between privilege-inability and power-liability, as being a real one, we now have an opportunity to regroup, identify, and define according to their context of operation, anterior as opposed to posterior, and dynamic as opposed to static legal relations. This enables a new distinction to be drawn. The old worry of how to distinguish between status and capacity[42] can be immediately resolved by differentiating between dynamic and static legal relations. This is just the first move towards extending the Hohfeldian scheme to deal in legal terms with the widest aspect of human relations. It depends first on establishing our own legal integrity. Our revised mandala for legal rights does this by reintegrating anterior and posterior with dynamic and static legal relations.

Some consequences of the suggested reconfiguration in figure 4, whether that be taken for real or only hypothetical, will appear rather strange; and this especially for those who deny the existence of public rights. Under the reconfiguration, all rights stricto sensu are public, just as all powers are private. This reconfiguration nevertheless accounts first for the way in which powers require the exercise of individual initiative in order to be operative, and secondly for the way in which those rights, hitherto regarded as private, may either be individually waived (in terms essentially of privilege) or else require for their enforcement, some public decree at a civic level. This reconfiguration may also fit in with ongoing changes in the concept of right, such as under the New Zealand Bill of Rights Act 1990, where rights are more and more expressed at a strongly societal or quasi-constitutional level.[43] The same goes for those rights increasingly safeguarded by Ombudsmen and Commissioners. Whether the suggested reconfiguration is real or only hypothetical thus requires a detailed analysis of ongoing changes, mostly legislative, in the concept of rights.

As already indicated this revised mandala has significant consequences for legal theory at large. Analytic jurisprudence provides a key by which to integrate and reduce conflict between the various schools of jurisprudence. Sociological and psychoanalytic, no less than anthropological and historical jurists, acquire closer and more intimate working relationships. The issue between static and progressive societies in an empirical sense is now, as world communication improves and cultural diversities decline, likely to be mistaken for a matter of historical jurisprudence were it not that the issue has been transformed and transcended by the infraspecific conflict between individual and corporate power and interspecific conflict between evolutionary and revolutionary societies. The old argument between status and freedom has only resurrected itself into a renewed protean form.

VII. Conclusions

The result of explicitly recognising the dichotomy of right is something we already subconsciously express by drawing distinctions between civic and individual responsibility, between status and contract, and between public and private law. This brings us face to face with some of the most persistent paradoxes in legal reasoning.^{[ 44]} Hicks accounted for renvoi, precedent, and parliamentary sovereignty in the context of the liar paradox. The self-contradictoriness of constitutionalism,[45] the TRIM paradox,[46] and the paradox of statutory commencement[47] have likewise been considered. As Guest[48] remarks in his essay on Logic in the Law:

... even if we conceive that a judge’s functions are somewhat wider than [‘to rationalise the law of England’] it is clear that the law is not a logically monistic system in fact, being full of paradoxes and contradictions.

Indeed as a matter of technique the discipline of law can be expected to abound in issues, problems and paradoxes, dilemmas and controversies. The law could not do its job as a social touchstone if the law were otherwise.

If this logical ambivalence truly affects legal techniques then we may expect that the nature of this ambivalence will likewise be accorded divided recognition. There are those who see legal paradoxes as problems for solution. This tends to be the scientific and predominantly secular approach to legal problems. On the other hand there are those who see legal paradoxes as perennial and not just persistent problems. They regard the essence of law as a continuing mystery served by priests and prophets whose task it is to commune with, rather than merely communicate the mystery.

In so far as the scientific branch of this dichotomy over legal reasoning recognises the existence of paradoxes whose nature, although eventually explicable, cannot for reasons of our present lack of knowledge be adequately explained, this scientific branch of the dichotomy may be termed agnostic. In so far as the other school of thought claims to know that legal paradoxes can never be resolved but instead share in some eternal and other-worldly mystery, then the followers of this school may be termed gnostic. Of course the proponents of each school will fight over this terminology of gnostic-agnostic no less than over the nature of legal paradoxes. After all, how could legal terminology be unequivocal when the law itself is inherently equivocal?

In turn the same conflict evokes a compromise. It is suggested that some apparent paradoxes are capable of resolution but real paradoxes express perennial problems. As we may expect, those who communicate this compromise according to a nomenclature of real and apparent paradox are often attacked with greater intensity from both sides of the original debate. After all, if the problems of paradox arise from dichotomy, it is hardly likely that those who draw the initial dichotomy will accept a homeopathic solution.

The most fertile area for exploring jurisprudence in our search for justice is, as always, the conflict between status and freedom in law and society. Ever since Maine identified the evolutionary history of society with the adaptation of law from status to contract, the dynamic forces of individual freedom have waged an unremitting assault against the static authority of civic status. What this has meant for progressive societies is disagreement over the extent and degree of their change. Resolving this disagreement entails measuring and meting out the dynamics of social progress by way of a temporal jurisprudence. Without this, the dichotomy Maine drew between static and progressive societies becomes an arena of conflict between evolutionary and revolutionary societies. Thus status and freedom have become identified—some would say mis-identified—with evolution and revolution.

Equating the dichotomy between status and freedom with that between evolution and revolution has given rise to some surprisingly different kinds of political paradoxes. Comparing the results of revolution in France, the United States, Puerto Rico, Cuba, and the Soviet Union is thus the province of a political philosophy whose objectivity depends on the analytic jurisprudence of status and freedom. And if the analytic jurisprudence of status and freedom can be used to explain the distinction between static and progressive, evolutionary and revolutionary societies, as well as the vastly different results of the evolutionary and revolutionary processes in differing social contexts, then clearly the same analytic jurisprudence can be prescriptively applied as a logic of human relations to restrain revolution, or to extend evolution, no less than it operates as a valid vehicle of descriptive analysis. Indeed it is already used for prescriptive purposes, but now so unwittingly and confusedly that what it achieves in many cases of legislation and judicial decision is the opposite of what would objectively result from an applied logic of status and freedom.

To take a simplistic example, when more individual freedom is first claimed in any society, the usual civic response is to exert a rather repressive exercise of status. What this means is that civic status and individual freedom are seen as jural opposites instead of jural correlatives.[49] Eventually the freedom may be so grudgingly given as to indicate its affront to civic status. The effect of this grudge is greater than the giveaway. The claim to freedom remains psychologically unsatisfied. The grudge lingers on to become the basis of renewed and ever escalating conflict. Operating civic status and individual freedom as conflicting opposites rather than their operating in tandem produces the looked for conflict. It results eventually in revolution by evolution. Then the balance of power between civic status and individual freedom is reversed. Populist power deprives the civic authority of its status and so reverses the roles within society. This is the logic, or rather anti-logic, by which apparently progressive societies reap a repressive response.

These general theories require substantiation by reference to some anatomy of political power. The first step towards this is to define some abstractly academic and objective logic of human relations. The paradoxes between anterior and posterior, and static and dynamic legal relations provide the clues. These paradoxes must be at least further revealed if not resolved. Even if paradoxes prove perennial, a deeper insight is required into their inherent and persistent mystery. For any credible theory of secular rights, the concept of righteousness requires much more than a merely secular investigation – unless, of course, one would prefer to deny the mystique of the law.

[*] Senior Lecturer in Law, University of Otago.

[1] Ed., Campbell and Thomas, (Aldershot, 2001).

[2] (2002) NZULR 135-145.

[3] For a theory of types, as already applied to law, read “recursion theory”. Recursion theory is required for compiling and consolidating even Common Law statutes, but it never reaches the level required for Civil Law codification, nor does a theory of types (even of the simplest sort in deciding whether the law of persons has priority over the law of property, or whether public law has priority over private law) have the slightest appeal for Common lawyers who prefer to be jurisprudentially pragmatic rather than theoretically categorical. Compare, instead, the clearly delineated Civil Law hierarchies of Droit Public (subdivided into constitutional and administrative) and Droit Prive (subdivided into civil and penal) together with Droit de l’Economie and Droit Social. The way in which these categories of law are ordered has much to do with the differently perceived recognition and differently enforced system of rights. But, even in a legal system as open textured as the Common Law, you have only to create some new tertium quid such as a State-owned Enterprise or Crown Entity and you have not only created havoc with the legal system but have thrown all society into a tail-spin from which it may or may not completely recover.

[4] See Medawar P “A Geometric Model of Reduction and Emergence” in Studies in the Philosophy of Biology ed Ayala and Dobzhansky (London, 1974).

[5] See Tweedy J and Hunt A, “The Future of the Welfare State and Social Rights: Reflections on Habermas” (1974) 21 Journal of Law and Society, 288.

[6] Baragwanath, “Judicial Review: Tidying the Procedures” (1999) NZ Law Journal, 127.

[7] [1995] 1 ALL ER 521 at 524.

[8] As by Dawn Oliver in her “Underlying Values of Public and Private Law in The Province of Administrative Law ed. Taggart (Oxford, 1997) 217 at 228; where see also Michael Taggart’s paper “The Province of Administrative Law Determined” 1 at 5.

[9] Supra n. 7.

[10] supra n. 6.

[11] [1985] NZHC 102; [1985] 2 NZLR 159; 2 NZLR 181: see also N.J. Jamieson, “The Right to Leave New Zealand” (1990) NZLJ 143 in the context of declaring express rights.

[12] See Albert Kocourek, Jural Relations (Indianapolis, 1928), 30.

[13] See Massie 101 Great Scots (1987) 19 on John Dun or Duns Scotus.

[14] For a different view of fundamentals than that of Duns Scotus see Cooke, “Fundamentals” (1988) NZ Law Journal 158.

[15] See Eugene Kamenka, Human Rights (London, 1978), 44, 77.

[16] In the tradition of Pythagoras, Copernicus, Brahe, Kepler, Galileo, Descartes, Einstein and Bohr. See Michael Polanyi Personal Knowledge: Towards a Post-Critical Philosophy (London, 1958), and for an attempted application of this post-critical philosophy to law, N.J. Jamieson “The One and the Many” (1984) Otago L.R. 664.

[17] See E.W. Beth “Semantic Entailment and Formal Derivability” in Jaakko Hintikka,

The Philosophy of Mathematics (Oxford, 1969) 9.

[18] See H.L.A. Hart The Concept of Law for the positivist lawyer’s concept of habituation.

[19] J.L. Montrose “The Language of, and a Notation for, the Doctrine of Precedent” (1952) 2 University of Western Australia Law Review 301-29 and 504-25.

[20] Eg the leading English text on precedent, Rupert Cross Precedent in English Law (Oxford 1961) makes no mention of Montrose’s work on a symbolic notation for precedent, and barely mentions (1977, 76) his concern for defining the terms used in its discussion.

[21] Ingmar Pörn The Logic of Power (Oxford, 1970).

[22] Ibid 46; see also N.J. Jamieson “A Case Study in Hohfeldian Analysis: (1983) JR 103 for an example of legal relations created by a club.

[23] See N.J. Jamieson “Status to Contract – Refuted or Refined” [1980] Cambridge LJ 333 for an analysis of this formula.

[24] Figure 1 post.

[25] Figure 2, post.

[26] Figure 3, post.

[27] Figure 4, post.

[28] See “The One and the Many” n16 ante.

[29] See Hicks, n30 post; Jamieson, nn46, 47 post.

[30] J.C. Hicks, “The Liar Paradox in Legal Reasoning” (1971) 29 CLJ275; Laurence Goldstein “Four Alleged Paradoxes in Legal Reasoning” (1979) 38 CLJ 373; and op cit nn27, 29-31 post.

[31] J. Hall, Foundations of Jurisprudence (Indianapolis, 1973) Ch VI Towards an Integrative Jurisprudence pp142-177.

[32] Dias, Jurisprudence (Longdon, 1976) pp 64-65 and “Temporal Approach Towards a New Natural Law” [1970] Cambridge LJ 75.

[33] See op cit., ante n. 16.

[34] This must be construed in the still more extensive world-view of Kocourek’s Jural Relations (op. cit. n. 12 supra) at large.

[35] Op. cit. n. 23 supra.

[36] G. Williams, “The Concept of Legal Liberty” (1956) 56 Columbia LR 1129, 1135, 1138; see R.W.M. Dias, Jurisprudence (London, 1976) pp 24-26, 64-65.

[37] Dias, op. cit. see n. 32 supra.

[38] Op. cit. n. 23 ante.

[39] Op. cit. n. 23 ante.

[40] See Plucknett “Case and the Statute of Westminister II” (1931) 31 Columbia LR 778

[41] See op. cit. n. 23 supra

[42] C.K. Allen op. cit. n. 45 post.

[44] ^{[ ]}An example of one such radically reconfigured right arguably arises in Simpson v Attorney General (Baigent’s Case) [1994] 3NZLR667. J. A. Smillie quite properly questions this novel if not highly heretical reconstruction of quasi-constitutional or supra-common-law rights in “Fundamental Rights, Parliamentary Supremacy and the New Zealand Court of Appeal” [1995] 111 LQR209. Despite Adrian Hunt’s support (contra Smillie) of Baigent’s Case in “Fundamental Rights and the New Zealand Bill of Rights Act” [1995] 111 LQR565, any continued extension or intensified legitimation of quasi-constitutional rights requires, in reducing the anomalousness of Baigent’s Case, a reconfigured analytic jurisprudence, as in Figure 4, by which to account for this judicial revolution in rights.

[44] Op. cit. n. 27 ante.

[45] C.K. Allen, Legal Duties and Other Essays in Jurisprudence (Oxford, 1931); see, too, more recently, Geoffrey MacCormack, “Status : Problems of Definition and Use” (1984) CLJ 361

[46] N.J. Jamieson, “The Trim Paradox” (1983) Otago LR 426.

[47] N.J.Jamieson, “The Dilemma of Statutory Commencement” (1980) New Zealand LJ 180, and “Commencement Orders” (1981) New Zealand LJ 56.

[48] A.G. Guest, “Logic in the Law” Oxford Essays in Jurisprudence (Oxford, 1961) pp178, 196, 197.

[49] See op. cit. “The One and the Many” n. 16 supra.