Essay 1

Definition and Theory in J u rispruden ce

In law as elsewhere, we can know and yet not understand.

Shadows often obscure our knowledge, which not only vary
in intensity but are c ast by different obstacles to light. These
cannot all be removed by the same methods, and till the
precise character o f our p erplexity is determined we cannot
tell what tools we shall need.
The perplexities I propose to discuss are voiced in those
questions of analytical j urisprudence which are usually
characterized as requests for definitions: What is law? What is
a State ? What is a right? What is possession? I choose this
topic because it seems to me that the common mode of
definition is ill adapted to the law and has complicated its
exposition ; its use has, I think, led at certain points to a
divorce between jurisprudence and the study of the law at
work, and has helped to create the impression that there are
certain fundamental concepts that the lawyer cannot hope to
elucidate without entering a forbidding jungle of philosophi­
cal argument. I wish to suggest that this is not s o ; that legal
notions however fundamental can be elucidated by methods
properly adapted to their special character. Such methods
were glimpsed by our predecessors but have only b een fully
understood and developed in our own day .
Questions such as those I have mentioned, 'What is a S tate ? ' ,
'What is law?', 'What i s a right? ', have great ambiguity. The
same form of words may be used to demand a definition or
the cause or the purpose or the justification or the origin o f a
legal or political institution. But if, in the effort to fre e them
from this risk of confusion with other questions, we rephrase
these requests for definitions as 'What is the meaning of the
word "State " ? ', 'What is the meaning of the word "right" ? ' ,
those who ask are apt t o feel uneasy , a s i f this had trivialize d
their question. For what they want cannot b e got ou t o f a
dictionary, and this transfonnation of their question suggests
22 GENERAL THEORY

it can. This uneasiness is the expression of an instinct which

deserves respect : it emphasizes the fact that those who ask
these questions are not asking to be taught how to use these
words in the correct way. This they know and yet are still
puzzled. Hence it is no answer to this typ e of question
merely to tender examples of what are correctly called rights,
laws, or corporate bodies, and to tell the questioner if he is
still puzzled that he is free to abandon the public convention
and use words as he pleases } For the puzzle arises from the
fact that though the common use of these words is known,
it is not understood; and it is not understood b ecause com­
pared with mo st ordinary words these legal words are in
different ways anomalous. Sometimes, as with the word 'law'
itself, one anomaly is that the range of cases to which it is
applied has a diversity which baffles the initial attempt to
extract any principle behind the application, yet we have
the conviction that even here there is some principle and not
an arbitrary convention underlying the surface differences ; so
that whereas it would be patently absurd to ask for elucidation
of the principle in accordance with which different men are
called Tom, it is not felt absurd to ask why, within municipal
law, the immense variety o f different typ es of rules are called
law, nor why municip al law and international law, in spite of
striking differences, are so called.

I Professor Glanville Williams in his beneficial article on 'International Law

and the Controversy concerning the word Law' (British Year Bo ok of International
Law, 1 945 , 1 48 ) advocates this short way with those who ask wheth er international
law is law. B ut the way is really too short; for the puzzle is not generated always
or only by the superstitions about words or e ssences, or the confusion of 'verbal'
with factual questions which he attacks. Perplexity here arises from three factors:
(i) the well founded belief that the word 'law' when used of municipal and
international law is not a mere homonym ; (ii) the mistaken belief (false no t only
of complex legal and political expressions like 'law', 'State', 'nation', but of
humbler one s like 'a game') that if a word is not a mere homonym then all the
instances to which it is applied must possess either a single quality or a single
set of qualities in common ; (iii) an exaggeration of the difference between municipal
and international law due to the failure to see that the ' command' of a sovereign
is only one particular form of a general feature which is no doubt logically neces­
sary in a legal system, viz. some general test or criterion whereby the rules of the
system are identified. Of course proper attention to these three factors will only
show (by revealing the complexity of the issue and exposing some prejUdices) that
to call international law ' law' in spite of its differences from municipal law is not
arbitrary - just as to call patience a 'gam e' is not arb it rar y in spite of its differences
from, say, polo. But there is no conclusive answer to give to those who are very
impressed by the differences in either case.
 DE FINITION AND THEORY IN JURISPRUDENCE 23

B u t in this and other cases, w e are puzzled by a different

and more troubling anomaly. The first efforts to define
words like ' c o rp o r at ion', ' r i gh t ' , or 'duty ' reveal that these
do not have the straightforward connection with counterp arts
in the world of fact which most ordinary words have and t o
which we appeal in our definition o f ordinary words. There is
nothing which simply 'corresponds' to these legal words, and
when we try to define them we find that the e xpre s s io n s we
tender in our definition specifying kinds of p ersons, things,
qualitie s, events, and pro cesses, material or psychological,
are never precisely the equivalent of these legal words,
though o ften connected with th em in some way . This is
most obvious in the case of expressions for corporate b o dies,
and is commonly put by saying that a corporation is not a
series or aggregate of persons. But it is true of other legal
words. Though one who has a right usually has some expec­
tation or power, the expression 'a right' is not synonymous
with words like 'expectation' or 'power' even if we add
'based on law' or 'guaranteed by law'. And so too, though
we speak of men having duties to do or abstain from certain
actions the word 'duty' does not stand for or describe any­
thing as o r dinary words do. It has an alt o ge ther different
function which m akes the stock form of d e finit io n , 'a duty is
a . . . ', seem quite inappropriate .
These are genuine difficulties and in part account for
something remarkable : that out of these innocent requests
for definitions of fundamental legal notions there should
have arisen vast and irreconcilable theories, so that not
merely whole books but whole schools of juristic thought
may b e characterize d by the typ e of answer t hey give to
questions like 'What is a right?', or 'What is a corp orate
b o dy ? ' . This alone, I th ink , suggests that something is wrong
with the approach to definition ; can we really not elucidate
the m e aning of words which every developed l e gal system
handles smoothly and alike without assuming this incUbus of
theory ? And the suspicion that something is amiss is con­
firmed by certain characteristics that many such th eorists
have. In the first p lace they fall disquietingly o ften into a
familiar t r i a d . 2 Thus the American Realists strivin g to give us
2 The general form of this recurrent triad may be summarily described as
follows. Theories of one type tell us that a word stands for some unexpected
24 GENE RAL THE O RY

an answer in terms of plain fact tell us that a righ t is a term

by which we d escribe the prophecies we make of the probable
behaviour of courts or officials ; 3 the Scandinavian j urists,
after dealing the Realist theory blows that might well be
thought fatal (if these matters were strictly judged) , say that
a right is nothing real at all but an ideal or fictitious or
imaginary p ower,4 and then j o in with their opponents to
denigrate the older type of theory that a right is an 'obj ective
reality' - an invisible entity existing apart from the b ehaviour
of me n. These theories are in form similar to the three great
theories of co rp orate personality, each of which has dealt
deadly blows to the o ther. There too we have been told by
turn that the name of a cop orate body like a limited company
or an organization like the State is really just a collective
name or abbreviation for some complex but still plain facts
about ordinary persons, or alternatively that it is the name
of a fictitious person, or that on the contrary it is the name
of a real person existing with a real will and life, but not a
b ody o f its own. And this same triad of th eories has haunted
the jurist even when concerned with relatively minor notions.
Look for example at Austin's discussion of status S and you

variant of the familiar a complex fact where we expect something unified and
simple, a future fact where we expect something present, a psychological fact
where we expect something external; theories of the second type tell us that a
word stands for what is in some sense a fiction; theories of a third (now un·
fashionable ) type tell us the word stands for something different from other
things just in that we cannot touch it, hear it, see it, feel it.
3 W. W. Cook, The Logical and Legal Basis o/ the Co nflict of Laws ( Cambridge,
MaSs., 1 949), 3 0 : ' '' Right'' "duty" are not names of objects or entities which
. • .

have an existence apart from the behaviour of officials but terms by means of
which we describe to each other the prophecies we make as to the probable
occurence of a certain sequence of events the behaviour of officials . • •we
must therefore constantly resist the tendency . .to reify rights .
• . • '

4 Karl Olivecrona, Law as Fa ct ( London, 1 9 39 ) , 9 0 : 'We hit the mark when we

define a right as a power of some kind but this power does not exist in the real
world • • •it is not identical with the actual control . . . exercised by the owner
nor with his actual ability to set the legal machinery in motion. It is a fictitious
power, an ideal or imaginary power.' See also A. Hilgerstrom, Inquiries into the
Na ture of Law and Morals (ed. Broad, Stockholm, 1 9 5 3), 4: 'The insuperable
d ifficulty in finding the facts which correspond to our ideas of rights forces us
to suppose that there are no such facts and that we are here concerned w ith ideas
that have nothing to do with reality. ' On p. 6: 'Thus it is shown that the notions
we question cannot be reduced to anything in reality. The reason is that they have
their roots in traditional ideas of mystical forces or bonds. '
s Lectures on Jurisprudence ( 5 th edn., London, 1 8 8 1 ), ii. 609-700.
 DEFIN ITION AND THEORY IN J URISPRUD E NCE 25

will find that the choice lies for him between saying that it
is a mere collective name for a set of special rights and duties,
or that it is an 'ideal' or 'fictitious' basis for these rights and
duties, or that it is an 'occult quality' in the p erson who has
the status, distinguishable both from the rights and dutie s
and from the facts engendering them.
Secondly, though these theories spring from the effort to
define notions actually involved in the practice of a legal
system, they rarely throw light on the precise work they do
there. They seem to the lawyer to stand apart with their
heads at least in the clouds; and hence it is that very often
the use of such terms in a legal system is neutral between
competing theories. For that use 'can be reconciled with any
theory, but is authority for none ' . 6
Thirdly, i n many o f these theories there is often a n amalgam
of issues that should be distinguished. It is of course clear
that the assertion that corporate bodies are real p ersons and
the counter-assertion that they are fictions of the law were
often not the battIe-cries of analytical jurists. They were
ways of asserting or denying the claims of organized groups
to recognition by the State. But such claims have always been
confused with the baffling analytical question, 'What is a
corporate body?', so that the classification of such theories
as Fi ction or Realist or Concessionist is a criss-cross between
logical and political criteria. So too the American Realist
theories have much to tell us of value about the j udicial
process and how small a part deduction from predetermined
premises may play in it, but the lesson is blurred when it is
presented as a matter of definition of 'law' or 'a right' ; not
only analytical jurisprudence b ut every sort of jurispru dence
suffers by this confusion of aim.
Hence, though theory is to be welcomed, the growth of
theory on the back of definitio n is not. Theories so grown,
indeed, represent valuable efforts to account for many
puzzling things in law; and amo ng these is the great anomaly
of legal language - our inability to define its crucial words
in terms of ordinary factual counterparts. 7 But here I think
6 P. w. Duff, Personality in Roman Private Law (Cambridge, 1 9 38), 2 1 5.
7 See Olivecrona, op. cit. n. 4 supra, 88-9 . 'It is impossible to find any facts
that correspond to the idea of a right. The right eludes every attempt to pin it
d own and place it among the facts of social life. Though connected with the
facts• .the righ t is in essence something different from all facts . '
.
26 GENERAL THEORY

they largely fail because their method of attack commits

them al, in spite of their mutual hostility, to a form of
answer that can only distort the distinctive characteristics of
legal language.

II

Long ago B entham issued a warning that legal words d emanded

a special method of elucidation, and he enunciated a princip le
that is the beginning of wisdom in this matter, though it is
not the end. He said we must never take these words alone,
but consider whole sentences in which th ey p lay their charac­
teristic role. We mu st take not the word 'right' but the
sentence 'You have a right', not the word 'State', but the
sentence 'He is a memb er or an official of the State . '8 His
warning has largely b een disregarded and jurists have continued
to hamme r away at single words. This may b e because he hid
the produ ct o f his logical insight behind technical terms of
his own invention 'Archetypation', 'Phraseoplerosis ', and the
rest ; it may also be because his further suggestions were not
well adapted to the peculiarities of legal language which as
part of the works of 'J udge & Co .' was perhap s distasteful
to him. But in fact the language involved in the enunciation
and application of rule s constitutes a special segment of
human discourse with special features which lead to con­
fusion if neglected. Of this type of discourse the law is one
very complex example, and sometime s to see its features we
need to look away from the law to simpler cases which in
spite of many differences share these features . The economist
or the scientist often uses a simple model with which to

8 See A Fragment o n Go vernment, ch. V, notes to section vi: § (5) 'For

expounding the words duty, right, title, and those other terms of the same stamp
that abound so much in e thics and jurisprudence either I am much deceived or the
only method by which any instruction can be conveyed is that which is here
exemplified. An exposition framed after this method I would term paraphrase.
§ (6) A word may be said to be expounded by paraphrases when not that word
alone is translated into other words but some whole sentence of which it forms
part is translated into another sentence. § ( 7 ) The common method of defining
the method per genus et differentiam as logicians calls it, wil in many cases not
at aU answer the purpose.' Cf. also Bentham, An Intro duction to the Principles
of Morals and Legislation, ch. XVI, para 2 5 ; Of Laws in General, Appendix C,
para. 1 7 ; Chresto mathia in Works, viii. 1 2 6 n. (Bowring edn., 1 838- 43) ; Essay on
Logic in Works, viii. 246-8 1 .
 D E F INITION AND THE O RY IN J URISP RUD ENCE 27

understand the comp lex ; and this can b e done for the law.
So in what follows I shall use as a s imp le analogy the rules of
a game which at many vital points have the same puzzling
logical structure as ru les of law. And I shall describe four
distinctive features which show, I think, the me th od of
elucidation we should apply to the law and why the common
mode of definition fails.
1 . First, let us take words like 'right' or 'duty ' or the
names of corporations, not alone but in examples of typ ical
contexts where these words are at work. Consider them when
used in statements made on a p articular o ccasion by a judge
or an ordinary lawyer. They will b e statements su ch as 'A has
a right to be p aid £1 0 by B . '; 'A is under a duty to fence off
his machinery. ' ; 'A & Comp any, Ltd. have a contract with B . '
I t i s obvious that the use o f these sentences silently assumes a
special and very comp licated setting, namely the existence of
a legal system with all that this implies by way of general
obedience, the operation of the sanctions of the system, and
the general likelihood that this will continue. But though this
complex situation is assumed in the use of these statements
of rights or duties they do not state that it exists. There is a
parallel situation in a game. 'He is out' said in the course of
a game of cricket has as its proper context the pla y in g of the
game, with all that this imp lies by way of general compliance
by both the players an d the officials of the game in the past,
present, and future. Yet one who says 'He is out' d oes not
state that a game is being played or that the players and
officials will comply with the rules. 'He is out' is an expression
used to appeal to rules, to make claims, or give decisions
under them; it is not a statement ab out the rules to the e ffect
that they will be enforced or acted on in a given case, nor
any other kind of statement about them. The analysis of
statements of rights and duties as predictions ignores this
distinction, yet it is just as erroneous to say that 'A has a
right' is a prediction that a court or official will treat A in a
certain way as to say that 'He is out' is a prediction that the
umpire is likely to order the batsman off the field or the
scorer to mark him out. No doubt, when someone has a legal
right a corresp onding prediction will normally be justified,
but this should not lead us to identify two qu it e different
forms of statement.
28 G E N E RA L THEORY

2 . If we take 'A has a right to be p aid £1 0 by B ' as an

example, we can see what the distinctive function of this
form of statement is. F o r it is clear that as well as presupp os­
ing the existence of a legal sy stem, the use of this statement
has also a spe cial connection with a p articular rule o f the
sy stem. This would be made explicit if we asked 'Why h as A
this righ t ? ' F or the appropriate answer could only consist
of two things : first, the statement of some rule or rules of
law ( say those of Contract) , under which given certain facts
certain legal consequences follow; and secondly , a statement
that these facts were here the case. But again it is imp ortant
to see that one who say s that 'A has a right' does not state
the relevant rule of law; and that though, given certain facts,
it i s correct to say 'A has a right', one who say s this does not
state �r describe those facts. He has done something different
from either of these two things : he has drawn a conclu sion
from the relevant but unstated rule, and from the relevant
but unstated facts of the case . 'A h as a right', like 'He is out',
is therefore the tail-end o f a simple legal calculation : it
records a re sult and may be well called a conclusion o f law.
It is not therefore used to p re dic t the fu ture , as the American
Realists say ; it re fers to the present, as their opp onents claim,
but unlike ordinary statements does not do this by describ ing
present or continuing facts. This it is - this matter of principle
- and not the existence of stray excep tions for lunatics or
infants - that fru strate s the definition o f a righ t in factual
term s such as expectations or p owers. A p aralysed mart
watching the thie f's hand clo se over h is gold watch is p roperly
said to have a righ t to retain it as against the thief, th ough
he has neither e x p ectation nor power in any ordinary sense
of these words. This is p o s sible just because the expre ssion
'a right' in this case does not describ e or stand for any
exp ectation, or p ower, or indee d anything else, but has
m e aning only as p art of a sentence th e function of which
as a whole is to draw a conclusion of law from a specific
kind of legal rule .
3 . A third pe culiarity is this : the assertion 'Smith has a
right to be p aid £ 1 0 ' said by a judge in deciding the case has
a different statu s from th e utterance of it out of court, where
it may be u sed to make a claim, or an admission and in many
o ther ways . The ju dge 's u tterance is official, au thoritative ,
 D E F INITION AND THEORY IN J URISPRUDENCE 29

and, let u s assume , final ; the o th er is none o f these things, yet

in sp ite o f these differences the sentences are o f the same
sort : they are both conclusio n s of law. We can comp are this
similarity in sp ite of difference with 'He i s out' said b y th e
ump ire in giving his decision and said by a player to make a
claim. Now of course the uno fficial u tterance may have to be
withdrawn in the ligh t o f a later official utterance , but this is
not a sufficient reason for tre ating the first as a pr ophecy of
the last, for plainly not all mi stakes are mistaken pre dictions.
Nor surely need the finality of a j u dge 's decision e ither be
c onfused with infallib ility or temp t u s to define laws in terms
o f what courts do, even though there are m any laws which
the courts mu st first in terpret b e fore they can ap ply them.
We can acknowledge that what the scorer say s is final ; yet we
can still ab stain from defining the notion of a score as what
the scorer says. And we can admit that the ump ire may be
wrong in his decision th ough the rules give us n o remedy
if he is and though there may b e doubtful cases which he has
to decide with but little help from the rule s.
4 . In any system, legal or not, rule s may for excellent
practical reasons attach identical consequences t o any one of
a set of very different facts. The rule o f cri cket attach e s the
same con sequence to the b atsman's b e ing b owle d, stump ed,
or caught. And the word 'out' i s used in giving decisio n s or
making claims under the rule , and in o ther verb al ap p lications
o f it. It is e asy to see h ere that no one o f these different ways
o f being out is more e ssentially what the word m e an s than
the others, and that there need be nothing common to all
the se way s of b e ing out other than their falling under the
sam e rule , though there may be some similarity or analogy
b e tween them . 9 B u t it is less easy to see this in those imp ortant

9 Yet neglect of just these features of the language of rules has complicated
the exposition of the concept of possession. Here the word is, of course, ambiguous
as between (i) certain legal consequences attached to certain kinds of fact and
(ii) those kinds of fact. But when we come to define the word in the second of
these uses we are liable to assume that there is something which really or essentially
is 'possession in fact' independent of any legal system, and that there is something
illogica l in the terminology of a legal system if it does not confine its use of the
word 'po ssession' to this (see Paton, Jurisprudence, 2nd e d n., 46 1 ) . But the only
meaning of 'possession' which is independent of the rules of a legal system is the
vague meaning in common non legal usage, and there is no logical vice in dis­
regarding this. Or aga in we may assume that there must be some single factor
common to all the diverse cases which are treated alike by the rules. This will
30 GENERAL THEORY

case s where rules treat a se q uence of different actions or

states of affairs in a way which unifies them. In a game a rule
may simply attach a single consequence to the successive
actions of a set of different men - as when a team is said
to have won a game. A more comp lex rule may prescribe
that what is to be done at one point in a sequence shall
depend on what was done or occurred earlier; and it may be
indifferent to the identity of the persons concerned in the
sequence so long as they fall under certain defining conditions.
An e xamp le of this is when a team permitted by the rules of
a tournament to have a varying memb ership is penalized
only in the third round - when the membership has changed
- for what was done in the first round. In all such cases a
sequence of action or states of affairs is unified simply by
falling under certain rules ; they may be otherwise as different
as you please. Here can be seen the essential elements of the
language of legal corp orations. For in law, the lives of ten
men that overlap but do not coincide may fall under separate
rules under which they have separate rights and duties, and
then they are a colleCtion of individuals for the law; but their
actions may fall under rule s of a different kind which make
what is to be done by any one or more of them depend in
complex ways on what was done or occurre d earlier. And then
we may speak in appropriately unified ways of the sequence
so unified, using a terminology like that of corporation law
which will show that it is this sort of rule we are applying to
the facts. But here the unity of the rule may mislead us when
we come to define this terminology. It may cast a shadow:
we may look for an identical continuing thing or person or
quality in the sequence. We may find it - in 'corporate
spirit '. This is real enough ; but it is a secret of success not a
criterion of identity .

lead us either, as the classical theories do, to select one predominant case as a
paradigm and to degrade the rest to the level of 'exceptions', or to obscure the
real diversity of the facts with expository devices ( 'constructive' or 'fictitious'
possession ) . Preo ccupation with the search for some common feature is apt in
either case to divert us from the important inquiries, which are ( 1 ) what for any
given legal system are the conditions under which possessory rights are acquired
and lost; ( 2 ) what general features of the given system and what practical reasons
lead to diverse cases being treated alike in this respect. Cf. Kocourek, Jural
Relations ( Indianapolis, 1 9 2 7 ), ch. XX, passim , on 'continuing possession' and
'legal posse ssion'.
 D E F INITION AND THEORY IN J URISPRUDENCE 31

III

These four general characteristics of legal language e x p lain

bo th why definition of words like 'right', 'du ty ', and 'corp o r­
ation ' is baffled b y the ab sence of some counterp art to
'corre sp ond' to the se words, and also why the unobviou s
counterparts which have b e en so ingeniously contrived - th e
future facts, the comp lex facts, or the psychological facts �

tum out not to b e something in .terms of which we can define

these words, although- to be connected with the m in co mplex
or indirect way s. The fundamental point is that the primary
function of these words 1 o is not to stand for or describe
anything but a distinct fun ction ; this makes it vital to att end
to B en tham 's warning th at we should not, as does the tra­
ditional me thod o f definition, ab stract words like 'right! and
'duty ', 'State ', or 'c orp oration' from the sentences in which
alone their full fun ction can be seen, and then demand of
them so ab stracte d their genus and differentia.
Let us see wh at the use of this traditional meth o d of
definition presuppo ses and what the limits of its e fficacy are ,
and why it may be mi sleading. It is of course the simple st
form of definition, and also a peculiarly satisfying form
because it give s us a set of words which can always be substi­
tuted for the word d e fined whenever it is u s e d ; it giv e s us a
comprehensible synonym or translation for the word which
puzzle s us. It is p eculiarly . ap propriate where the words have
the straightforward function of standing for some kind of
thing, or quality , p erson, process, or event, for here we are
not my stified or p uzzled ab out the general characteristics
of our subj e ct-matter, but we ask for a definition simply to
lo cate within this familiar general k,ind or class some special
subordinate kind or clas s Y Thus since we are not puzzled

10
Lawyers m ight best understand the distinctive function o f such expres sions
as 'He has a right ' and o ther s which I discuss here , by co mpaIing them to the
operative words of a conve y ance as distinct from th e descriptive w o rd s o f the
re citals. The point of similarity i s that 'He has a righ t ', like 'X hereby c onvey s ',
is u se d to operate w ith legal rules and not t o state or describe facts. Of course
the re are gre at differehces: o ne who says 'He has a righ t ' o perate s with a ru le by
drawing a conclusion fr o m it, where a s one who uses operative w ord s in a convey­
ance does sOlnething to which the rule a t t a c he s legal consequen ce s.
I I B e nth am' s reason for rejecting the common method o f de fining legal w or ds
was that 'among such abstract te rms we soon come to such as h ave no s upe r i or
genus. A definition per genus et differentiam when app lie d to these it is manifest
32 GENE RAL THEORY

ab out the general notion s of furniture or animals we can take

a word like 'ch air ' or ' cat ' and give the principle of its use by
first sp ecifying the general class to which what it is used to
de scribe b elongs, and then going on to define the sp ecific
difference s that mark it o ff from o ther specie s o f the same
general kind. And ' o f c ourse if we are not puzzled ab out the
general n o tion o f a corp o rate b ody, but only wish to know
how one sp ecies ( say a college) differs from ano ther ( say a
limi ted comp any ) , we can use th is fonn o f de finition of
single words p erfectly well. But j ust b ecause the method is
ap propriate at th is level o f inquiry, it cannot help u s when
our p erp le xitie s are deeper. For if our question arises, as it
does with fundamental legal notions, b e cau se we are puzzle d
ab out the gene ral category to which something belongs and
ho w some gen eral typ e of expression relates to fact, an d not
merely ab out the p lace within that category , then until the
puzzle is cleared up this fonn of definition is at the b est
un illuminating and at the worst profoundly misleading. It is
unilluminating because a mode o f definition designed to
lo cate some sub ordinate species within some familiar category
canno t e lucidate the characteristics of some anomalou s
category ; and it is mi sleading because it will sugge st th at what
is in fact an anomalo us category is after all s ome species of
the familiar. Hence applie d to legal words like 'righ t ', 'duty ',
'S tate ', or the common mode o f definition
suggests that the se words, like ordinary words, s tan d for or
d e scrib e some thing, p erson, quality , pro cess, or event ;
when the difficulty of finding the se becomes apparent,
different contrivances varying with taste s are u se d to exp lain
or exp lain away the anomaly. Some say the differen ce is that
th e things for which these legal words stand are real but not
sensory ; o thers that they are fictitious entitie s ; o th ers that
th e se words stand for p lain fact but of a complex, future , or
p sychological variety. So this standard mo d e of definition
force s our familiar triad of theories into existence as a
confused way of accounting for the anomalous character of
legal words.

can make no advance •As well in short were it to define in this manner a
. •

preposition or a conj unction a through is a

• • . a b ecause is a
• • . and so go on • • •

defining them.' A Fragment on Go vernment, ch. V, n. 6, § § 7-8.

 DEFINITION AND THEOR Y IN J URISPRUDENCE 33

How then shall we define such words? If definition is the

provision of a synonym which will not equ ally puzzle us,
these words cannot b e defined. But I think there i s a m ethod
of elucidation of quite general app lication and which we can
call definition, if we wish. B en tham and others p ractised it,
though they did not pre ach it. But before applying it to the
highly complex legal case s, I sh all illustrate it from the simple
case o f a game . Take the no tion of a trick in "a game of cards.
Somebody says 'What is a trick ? ' , and you rep ly 'I will
explain : when you have a game and among its rules is one
providing that when each of our p layers has play ed a card
then the p layer wh o has put down the highest card scores
a p o int, in th ese circums tances that p lay er is said to have
"taken a trick" . ' This natural explanation h as not taken the
form of a definition of the single word 'trick ' : no synonym
h as been o ffere d for it. Instead we h ave taken a sentence in
which the word 'trick ' play s its characteristic role an d ex­
p lained it first b y specifying the conditions under which the
whole sentence is true, and se condly by sh owing how it is
used in drawing a conclusion from the rule s in a p articular
case. Supp ose now that after such an exp lanation y our
questioner pre sse s on : 'That is al very well, that e xplains
"taking a trick " ; but I still want to know what the word
" trick " means just by itself. I want a definition of " trick " ;
I want someth ing which can b e sub stitu ted fo r i t whenever
it is used. ' If we yield to this demand for a single·word
de finition we might reply : 'The trick is j ust a collective
name for the four cards. ' But someone may obj e c t : 'The
trick is not j ust a name for the four cards because these
four cards will not always constitute a trick . It must th ere­
fore be some entity to which the four cards belong. ' A th ird
might say : 'No , the trick is a fictitious entity which the
players pre tend e xis ts and to which by a fic ti on which is p art
of the game they ascrib e the card s. ' But in so s im p le a case
we would not tolerate the se theories , fraught as th ey are
with m y stery and empty .of any guidance as to the use made
of the word within the game : we would stand by the original
two-fold explanation ; for this surely gave us all we needed
when it explained the conditions under which the statem ent
'He has taken a trick ' is true and showed us how it w a s u sed
in drawing a conclusion from the rule s in a p articular case .
34 GENERAL THEORY

If we turn b ack to B e nth am we shall find that when his

·
explanation o f legal notions is illuminating, as it very oft e n
is, it conforms t o th i s me th od , though only lo osely . Yet
curiously what he tells us to do is something different : it is
to t ak e a word like 'right' or 'duty ' or 'State ' ; to emb ody it
in a se n te n ce su ch as 'you have a ri gh t ' where it plays a
characteristic role, and then to find a translation o f it into
what we sh ould call factual termsY Thi s he calle d the
method of paraphrase - giving phrase · for p hrase , not word
for word. Now this meth o d is applicable t o many cases and
has shed much light; but it distorts many legal words like
'right ' or 'duty ' whose characteristic role is not played in
statements of fact but in conclusions of law. A paraphrase
o f these in factual terms is not possible , and wh en B entham
pro ffers such a paraphrase it turns out not to be one at all.
But more o ft e n and much to our profit he does not claim
t o paraphrase : but he makes a different kind of remark, in
order to elucidate these words - remarks such as these :
'What you hav e a right to have me made do, is that which I
am liable according to law upon a requisition made on your
behalf to be punished for not doing', 1 3 or 'To know how to
expound a right carry your eye to the act which in the
circu ms tances in question would be a violation of that righ t ;
the law cre ates the right b y fo rb id din g that act , . 1 4 These,
thou gh defective, are on the right lines. T h e y are not para­
phrases but they specify some of the conditions necessary
for the truth of a sentence of the form 'You have a right'.
B entham shows us how these conditions in clu d e the existence
of a law imp o sing a duty on some o ther p erson ; and more­
over, that it must be a l aw which provides th at the bre ach
of the duty shall be visited with a sanction if you or someone
on y our behalf so choose . This has m any v ir t ue s. B y refUSing
to i d e n ti fy the meaning o f the word 'right' with any p sycho­
logical or p h ysi c al fact it correctly leaves o p en the questi o n
whe ther on any giv en o ccasion a person who h as a right has
12 A ctually he made the more stringent requirement that the translations
should be in terms calculated to raise images of 'sub stances ' or 'perceptions'. This
was in accord with Bentham's form of empiricism, but the utility o f the method
with the modern ' definition in �') is indepen­
of paraphrase s ( which is identical
dent of th is requirement.
1 3 A Fragm ent on Go vernment, ubi sup •
• 4 Introdu ction to the Principles of Morals and Legislation, ch. XVI, para. 25.
 D E F INITION AND THEORY IN J URISPRUDENCE 35

i n fact any expe ctation or p ower ; and s o i t leaves u s free to

tre at men 's expectations or p owers as what in general men
will have if there is a system o f rights, and as p art of wh at
a system of r i gh t s is generally intended to secure. Some o f
the improvements whi ch should b e made o n B enth am 's
efforts are obvious. Instead o f characteriz ing a right in terms
of punishment many would do so in terms of the remedy.
But I would p re fer to show the sp ecial p o sition of one who
has a righ t by me ntioning not the remedy but the choice
which is op en to one wh o has a right as to whether the
corre sp onding duty shall be p erform e d or not. For it is , I
think, characteristic of th o se laws th at confer righ ts ( as
di stinguished from those that only imp ose obligation s ) that
the obligation to p erform th e corre sp onding du ty is made
by law to depend on the choice of the individual who is said
to have the right or the ch o ice of some p erson authorized
to a c t on h i s behalf.
I would, there fore , tender the following as an elu cidation
of the expression 'a legal righ t ' : ( 1 ) A s tatement of the form
'X has a righ t ' is true if th e following conditions are satisfie d :
(a ) There i s i n existen ce a legal system.
( b ) Under a rule or rule s of the system some o ther p erson
Y i s , in the events whi ch have hap p ened, oblige d to do or
ab stain from some action .
(c) This obligation is made by law dep endent on the cho i ce
either of X or some other p erson auth orize d to act on his
behalf so that e ither Y is b ound to do or ab stain from some
action only if X ( or some auth orized p erson) so ch o o se s or
alternatively only until X (or su ch p erson) cho o ses o therwise.
(2) A s tatement o f the form 'X has a right' is used to draw
a conclusion of law in a p articular case which falls un der
su ch rules . l s

1 5 This deals only with a right in the first sense (correlative to d uty) distinguished
by H ohfeld. B ut the same form of elucidation can b e used fo r the cases of 'liberty',
'power', and ' i m m un i ty ' , and will I think show what is usually left unexplained,
viz. why these four varieties in sp i t e of differences are referred to a s 'rights'. The
unifying element seems to be this: in all four case s the law specifically recognizes
the choice of an individual e ither negatively by not im p ed ing or obstructing it
(liberty and immunity) or affirmatively by giving legal e ffe ct to it ( claim and
power ). In the negative cases th ere is no law to interfere if the individual cho o se s
to do or abstain from s o m e action (lib er ty) or to retain h i s legal position unchanged
(immunity) ; in the affirmative case s the law gives legal effect to the choice o f an
individual that some other person shall do or shall ab stain from some action
36 GENERAL THEORY

IV

It is said b y many that th� j uristic controversy over the

n ature of c orporate p ersonality is dead. If so we have a
c orp se , and the opportunity to le arn from its anatomy . Let
us imagine an intelligent lawyer inno cent of theories of
corporate p ersonality becau se h e w a s educate d in a legal
Arcadia wh ere rights and duties were ascribed only to
individuals and all legal theory is b anned. He is th en intro­
duced to o ur own and other sy stems and le arns how in
practice rights and duties are ascrib e d to bodies like the
University o f O xford, to the S tate, to idols, to the hereditas
jacens and also to the one-man tax-d odging company. He
would learn with us that forms of statement were in daily
u se by which rights were ascribed to Smith & Co. Ltd. in
circu ms tance s and with consequen ce s p artly similar and
partly different from th o se in which they were ascribed
to S mith . H e would s e e that t h e analogy w as o ften thin,
but that, given th e circumstances sp ecified in the Companies
Acts and the general law, 'Smith & Co. Ltd. owes White £1 0 '
applie d a s directly t o the facts after its own fashion as
'Smi th owes White £10.' Gradually he would discover that
many ordinary words when u se d of a l imited company were
use d in a sp ecial manner. For he would early learn that even
if all the memb ers and servants o f the comp any are dead
th ere are yet conditions under which it is true t o say that the
comp any still exist s ; if he was here in 1 9 36 he would have
learnt that it can be corre ctly said o f a foreign corp oration
th at though dissolved it s till exists ; and if he stayed till
1 944 he would have learned that given certain circumstances
it i s tru e that a comp any has intended to dece ive. On his
return to Arcadia he would tell of the extension to corp orate
bodies of rule s worked out for individuals and of the analogie s
followed and the adjustment of ordinary words involved in
thi s exten sion. All this he would h av e to do and could do
without mentioning fiction , colle ctive names, abbreviations,

or that the legal position of some other person shall b e altered. Of course when
we say in any of these four senses that a person has a right we are not referring to
any actual choice that he has made, but either the relevant rules of law are such
that if he chooses certain consequences follow, or there are no rules to impede
his choice if he makes it. If there are legal rights which cannot be waived these
would need special treatment.
 D E FINITION AND THEORY IN J URISPRUDENCE 37

o r brackets, or the Gesammtperson and the Gesammtwille of

Realist theory. Would he not have said all there was to say
about the legal personality of corporation? At what point
then would the need be felt for a theory ? Would it n ot b e
when someone asked 'When it is true that Smith owes Black
£1 0, here is the name "Smith " and there is the man Smith,
but when Smith & Co . Ltd. owes £1 0 to Black what is there
that corresponds to "Smith & Co. Ltd." as the man Smith
corre sponds to the name "Smith " ? What is Smith & Co. L t d. ?
What is it, which has the right? Surely it can only be a
collection of individuals or a real individual or a fictitious
individual.' In other words we could make the simple Arcadian
feel the theorists' agonies only by inducing him to ask 'What
is Smith & Co. Ltd. ?', and not to admit in answer a descrip­
tion o f how, and under what conditions, the names of
corporate bodies are used in practice, but instead to start
the search for what it is that the name taken alone describes,
for what it stands, for what it means . l 6
That the presentation o f the question in this way has been
crucial in the growth of theory could be proved from many
famous passages in the literature. Let me take one example .
Maitland in his greatness indeed sensed that the choice did
not nec«: ssarily lie , as it seemed, between the traditional
theories, · and that ultimately some mode of analysis might
supply a different answer. I do not understand why he is
called a Realis tl 7 o r thought to h ave accepted the doctrine
of Gierke that he expounded, for though he was certain
that fiction and collective-name theories 'denatured the
facts', he left the matter with a final question to which he
then saw no answer. But observe the significant form that
question took: he imagined a sovereign State and, inventing
the Latin for Never-never land, called it Nusquamia. O f this
he said:
Like many other sovereign States, it o w e s money, and I w ill suppose
that you are one of its creditors . . .

1 6 'It is highly improbable that they [ early Roman lawyers ] ever asked or were
asked the question.' Duff, op. cit. n. 6 supra , 1 34. But the question is mistaken
with regard to the form of answer that it sugge sts, and it is important to see this.
1 7 Cf. Duff, op. cit., 209 and 2 1 6 n. 3. See, for a discussion of the precise point
where Maitland diverged from Gierke's Genossenschafttheorie J . A. Mack, 'Group
Personality : Footnote to Maitland', Philosophical Q;tarterly , ii ( 1 9 5 2 ) , 249.
38 GENERAL THEORY

Now the que stion that I want to raise is this : Who is it that really
owes you mo ne y ? Nusquamia? Gr an t e d , but can you convert the
propo sition that Nusquamia owes you money into a serie s of propositions
imposing duties on certain human beings that are now in existence ?
The t as k wil n o t be e asy . Clearly you do not think th at every Nus
quamian owe s you some aliquot share of the debt. No one thinks in
t h at way . The debt of Vene zuela is not owed by Fu l an o y Zutano and
the re st o f them. Nor, I think , sh al we get much good out of the word
' colle ctively ' , which is the smudgiest word in the English language, for
the largest 'co lle ction' of zeros is o nly zero . I do not wish to say that I
have sugge st ed an impo ssible task, and that the right-and-duty-bearing
group m ust be for the philosopher an ultimate and unanalysable moral
unit . . Only if that task can be performed, I think that in the intere sts
.

of jurisprudence and of moral philosophy it is eminently worthy of

circumspe ct performance. is
Such was Maitland's question: when Nusquamia owes you
money who owes you this? How should it be answered?
Surely only by ceasing to b atter our heads against the single
word 'Nusquamia'. Pressing the que stion 'Who or what when
Nusquamia owes you £1 ,000 is it which owes you this? ' is
like demanding desperately : 'When you lost that game what
was it that y ou lost?' To the question so pressed the only
answer is to repeat 'a game ', as to the other the only answer
is to repeat 'Nusquamia'. This, of course, tells us precisely
nothing, but is at least neither mystifying nor false. T o
elucidate i t w e must obey Bentham 's first injunction: we
must take the whole statement 'Nusquamia owes you £ 1 , 0 0 0 '
and de scribe i t s u s e perhap s a s follows :
1 . Here · in the territory of Nusquamia there is a legal
system in forc e ; under the laws of this system certain pers ons
on comp lying with certain conditions are authorized for
certain purpo ses to receive sums o f money and to do other
actions analogous to those required to make a contract of
loan between private individuals.
2. When such persons do such acts certain consequences,
analogous to those attached to the similar action s of private
individuals, follow, including the liability of p ersons defined
by law t o repay the sums o f money out of funds defined
by law.
3 . The expression 'Nusquamia owes you £ 1 ,000' does not
state the existence of these rules nor o f these circumstances,
18
'Moral Personality and Legal Personality', Co llected Papers (Cambridge,
1 9 1 1 ), iii. 3 1 8 1 9 .
 D E F INITION AND THEORY IN J URISPRUDENCE 39

but is true in a particular case when they exist, and is used

in drawing a conclusion of law from these rules in a particular
case.
How mu ch detail should b e given dep ends on the degree to
which the questioner is p u zzled. If all that he is p uzzle d by is
his inability to say who or what Nusquamia is an d the inade­
quacies of theories to explain this, he may be content with
what has been done. But of course he may b e puzzled by th e
notion of one and the same legal system existing throughout
the lives of different men in terms of which this elucidation
of 'Nusquamia' has been offered. 1 9 If so, this in its turn
must be elucidated, as it can be in the same manner.
There is of course nothing in this method to prevent its
application to the ephemeral technical one-man company
which Realists regarded as a difficulty for their theory . 2 0
To explain what a limited company is we must refer to the
relevant legal rules, which determine the c onditions under
which a characteristic sentence like 'Smith & Co. owes
White £ 1 0 ' is true. Then we must show how the name of a
limited company functions as part of a conclusion of law
which is used to apply both special c ompany rules and
also rules such as those of contract which were originally
worked out for individuals . It will, of course, be necessary
to stress that under the special condi tions defined by the
special rules, other rules are applied to the conduct of indi­
viduals in a manner radically different from though still
analogous to that in which such rules apply to individuals
apart from such special c onditions. This we could express
by restating the familiar principle of our c ompany law,
'A comp any is a distinct entity from its members', as
'The name of a limited company is used in conclusions o f law
which apply legal rules in special circumstances in a m ann e r
distinct from though analogous to those in which such rules
are applied to individuals apart from su ch circum stances. '
This restatement would show that w e have t o d o not with
anomalous or fictiti o u s entities, but with a new and extended
19 elucidate t h e expression ' t h e same legal system' by showing
That i s , we must
what are conditions sufficient for the tru t h of statemen ts on the form. 'The sam e
legal system is in force in England n o w as i n 1 900'. The fundamental question
here is the elucidation o f the expression ' the same rule' •
•• See Wo lff, 'On the Nature of Legal Persons', 54 Law Quarterly Reuiew, 494
at 504 ; Duff, o p . cit. n. 6 supra, 2 1 8.
40 G E N E RAL THE O RY

though analogous use of legal rules and of the expressions

involved in them.

If we look now at the type of theory so attractive to common

sense which asserts that statements referring to corporations
ar e 'abbreviations' and so can be reduced or translated into
statements referring only to individuals, we can see now in
precisely what way they failed. Their mistake was that of
seeking a paraphrase or translation into other terms of
statements referring to corp orations instead of specifying
the conditions under which such statements are tru e and
the manner in which they are used. But in assessing these
common·sense theories it is important to notice one very
general feature of the language involved in the application of
le gal rules which the attempt to paraphrase always obscures.
If we take a very simple legal statement like 'Smith has made
a contract with Y', we must distinguish the meaning of this
conclusion of law from two things : from ( 1 ) a statement of
th e facts required for its truth, e.g. that the parties have
signe d a written agreement, and also from ( 2) the statement
of the legal consequences of it being true, e.g. that Y is
b ound to do certain things under the agreement. There is
here at first sight something puzzling; it seems as if there
is something intermediate between th e facts, which make
the conclusion of law true, and the legal consequences .
But i f we refer t o the simple case of a game w e can see what
this is. When 'He is out' is said of a batsman ( whether by a
player, or by the umpire) this neither makes the factual
statement that the ball has struck the wicket nor states that
h e is bound to leave the wicket; it is an utterance the function
o f which is to draw a conclusion from a sp ecific rule under
which, in circumstances such as these, consequences of this
sort arise, and we should obviou sly neglect something vital in
its meaning if, in the attemp t to give a p araphrase, we said
it meant the facts alone or the consequences alone or even
the comb ination of these two. The combined statement 'The
ball has struck the wicket and he must leave the wieket' fails
to give the whole meaning of 'He is out' because it does not
reproduce the distinctive manner in which the original
 D E F INITION AND THEORY IN J URISP RUDENCE 41

statement is used t o draw a conclu sion from a specific but

unstated rule under which su ch a consequence follows on
such conditions. And no p araphrase can both elucidate th e
original and repro duce this feature.
I dwell on this p oint becau se it is here that th e common­
sense theories of corporate personality fail . 2 1 The theory
that statements referring to corp o rations are disguised ab brevi­
ations for s tatements ab out th e rights and du tie s of individuals
was usually expounded with su ch crudity as not to deserve
consideratio n. It is easy to see th at a statement ab out th e
rights of a limited comp any is not equivalent to th e statement
that its memb ers h ave those same rights. A conveyance by
Smith & C o . Ltd. to the sole shareholder Smith i s o f course
not a conveyance by S mith to Smith . But a few theorist s ,
among them Hohfeld, have stated this typ e o f th eory with a
requisite degree of subtlety. Hohfeld saw th at to say that
Smith & Co. Ltd. has a contract with Y was , of course, not
to say the same thing about the members o f the co mp any :
he thought it was to say some thing different and v ery compli­
cated about the way in which the cap acitie s, righ ts, p owers ,
privileges , and liab ilities of the natural p ersons concerned
in the comp any had b een affe cte d . Though m o re formidable
in this guise , the th eory fails becau se , alth ough it give s us th e
legal c onse quences upon th e individuals of the original
statement, it does not give us th e force and meaning of that
statement itse lf. The alleged p arap hrase is less than th e
original statement 'S mith & C o . Ltd. h as a contract with Y'
b e cause it gives no hint of what th e original statement i s
u sed to d o , namely , to draw a conclu sion o f law from special
rules relating to comp anie s and from rules extended by
analogy from th e case of individuals. So the p araphrase ,
comp lex and ingenious as it is, gives us t o o little ; b u t it als o
give s us too mu ch . It dissipates the unity o f th e simple
statement 'Smith & Co. has a contract w ith Y' , an d sub sti­
g
tutes a statement of the myriad legal ri h ts, duties, p owers ,
etc. , of numerous individuals o f whom we never have though t
21
It is also the explanation of the sense of a tertium quid between the 'facts'
and the 'legal consequences' which trouble s the analysis of many legal notions,
e.g. status. The status of a slave is not (pace Austin ) just a collective name for his
special rights and duties: there is a sense in which these are the 'consequences'
of his status; it is the sense in which the obligation to leave the wicket is a conse
quence of being 'out'.
42 GENERAL THEORY

n or could have thought in making the original statement . 22

Hence it is that those who are attracted to this common-sense
form of analysis feel cheated when they look at it more
closely. And they are cheated ; only they should not in
despair clutch at the Realist or Fiction theories. For the
elements which they miss in the translation, the analogy
with individuals, the unity of the original statement, and its
direct application to fact cannot be given them in these
theories nor in any translation of the original ; it can only b e
given i n a detailed description of the conditions under which
a statement of this form is true and of the distinctive manner
in which it is used to draw a conclusion from specific rules in
a particular case.
I have of course dealt only with the legal personality of
corporations. I have argued that if we characterize adequately
the distinctive manner in which expressions for corporate
bodies are used in a legal system, then there is no residual
ques tion of the form 'What is a corp oration? '. There only
seems to be one if we insist on a form of definition or eluci­
dation which is inappropriate. Theories of the traditional
form can only give a distorted account of the meaning of
expressions for corporate bodies because they all, in spite
of their mutual hostility, make the common assumption that
these expressions must stand for or describe something, and
then give separate and incomp atible accounts of its peculiarity
as a complex or recondite or a fictitious entity ; whereas the
pe culiarity lies not here but in the distinctive characteristics
of expressions used in the enunciation and application of
rules. But of course it is not the legal p ersonality but the
22
See Rohfeld, Fundamental Legal Conceptions (New Haven, 1 9 23), 1 98 200,
2 20 ff. Though Rohfeld writes at times as if his complex statements of rights,
duties, capacities, etc., were synonymous with the original statement about
companies ['we mean nothing more than what can be explained by describing
the capacities etc . • of the natural persons concerned' ) I think he also saw
• .

that statements concerning companies cannot be 'reduced' to statements con­

cerning individuals, but are as he says ' sui generis' ( 1 98), and that this is why
fictionist, realist, and collective name theories all distort the concept of a corporate
b ody. What he does not see is that in using these special forms of expressions we
are not (my italics) 'describing the peculiar process by which the burdens and
• . .

benefits of the corp orate members are worked out' ( 1 99), but drawing a conclu
sion of law fro m special rules. What is ignored here is the distinction (see 27,
supra ) , between the statement about a legal rule an d a statement which applies a
legal rule by drawing a conclusion from it. To ignore this obscures the analysis
of the notion of a c orporate body as much as that of a right.