Article   |   Volume 163, Issue 7

Doctrinal Categories, Legal Realism, and the Rule of Law

163 U. Pa. L. Rev. 1889 (2015).

June 2015

The claim in vogue is that Legal Realism stands for “the insignificance of doctrine” and its conceptualization as a “mere appearance[].” In particular, commentators associate Realism with a “nominalist impulse” that minimizes the significance of doctrinal categories. Against this conventional wisdom stands the resilience of doctrinal analysis in general and, in particular, the continued role of doctrinal categories in legal practice and discourse, which is puzzling given the substantial impact of Realism on legal education. This puzzle is the focus of our Symposium.

Realists argue that the availability of multiple potentially applicable doctrinal sources renders pure Doctrinalism impossible. Unlike many of its caricatures, true Legal Realism does not challenge the perceived stability of the doctrine or its categories at a given time and place. This stability, which rests on the convergence of lawyers' background understandings at a given time and place, is valuable for realists; it is crucial for complying with the rule of law by providing effective guidance to its addressees and constraining officials' ability to exercise unconstrained power.

This is why Realists find the law's use of categories, concepts, and rules not only unavoidable but also desirable, and, thus, why they reject nominalism. For Realists, doctrine is and should be part of the law. But because doctrine qua doctrine is indeterminate, Legal Realists insist that some legal actors—notably, legislators and appellate court judges—should occasionally use social developments and new cases as triggers for rethinking the doctrine's conventional understanding. That is, they should be used as opportunities to revisit a doctrine's normative viability and reexamine its categories' adequacy. This task of critical reflection is even more important for legal scholarship, a point I will address briefly in my concluding remarks.

Given this understanding of the law, it should not be surprising that Realists are not puzzled by the continued significance of doctrinal categories in legal discourse. Legal Realism definitively rejects the orthodox idea that doctrinal categories refine some eternal descriptive truths that transcend context and that doctrinal taxonomy aspires to produce a map of mutually exclusive categories. Rather, Realists insist that the main roles of doctrinal categories are to consolidate people's expectations and to express law's ideals with respect to distinct types of human interaction. Therefore, Realists reconstruct doctrinal taxonomy so as to incorporate their insights on the inherent dynamism of law and the important function of contextual normative analysis in the evolution of doctrinal categories. Recasting doctrinal categorization in these terms recognizes the dynamic dimension of the taxonomic enterprise. It also implies that doctrinal taxonomy should be sensitive to context and emphasizes the importance of relatively narrow doctrinal categories. Finally, a realist doctrinal taxonomy recognizes and accommodates substantial, although never overwhelming, overlaps among the various categories.

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