A Hohfeldian conception of normative powers

Abstract

In this article, I examine Hohfeld’s concept of legal power, and what I take to be the main contributions made over the past century to refine that concept, in an effort to develop a broader notion: the concept of normative power. In Section 1, I introduce the topic and present an initial definition based on Hohfeld’s work. In Sections 2 through 5, I offer successive refinements of that initial definition, incorporating at each stage what I consider to be the valid insights raised by the four major questions that have shaped the discussion of Hohfeld’s concept of legal power over the last hundred years, namely: (1) How can we distinguish legal (and normative) powers from other types of power (Section 2)?; (2) In what ways do legal (and normative) powers resemble or differ from privileges (Section 3)?; (3) What kind of volitional control is implied in the exercise of a legal (and normative) power (Section 4)?; And (4) should we be concerned that the definition includes unjust exercises of power, and if so, how might we revise it to exclude them (Section 5)?