Doctrinal categories, legal realism, and the rule of law.

• Author: Dagan, Hanoch
• Position: The Constraint of Legal Doctrine

Introduction I. The Realist Conception of Law II. The Role of Doctrine and The Rule of Law III. Doctrinal Categories, Realistically Reconstructed IV. A Case Study: On Property and Property Institutions Conclusion INTRODUCTION

The claim in vogue is that Legal Realism stands for "the insignificance of doctrine" (1) and its conceptualization as a "mere appearance[]." (2) In particular, commentators associate Realism with a "nominalist impulse" (3) 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.

I argue that this puzzle is solved by discarding these conventional readings of Legal Realism and adopting, in their stead, a more accurate understanding of the realist legacy. (4) Charitably interpreted, Legal Realism stands for the conception of law as a going institution (or set of institutions) distinguished by the difficult accommodation of three constitutive yet irresolvable tensions: power and reason, science and craft, and tradition and progress. This interpretation of Legal Realism, I contend, explains both why doctrinal categories (like other aspects of Doctrinalism) typify the daily life of the practice of law, and why they do not--and, neither can nor should--exhaust our understanding of law. Thus, rather than ignoring doctrine and doctrinal categories, Realism refines and delimits their proper functions and modes of helpful operation.

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.

1. THE REALIST CONCEPTION OF LAW

   The starting point of the realist account of law is its critique of a purely doctrinalist understanding of law. Law, in the doctrinal understanding, is perceived as a comprehensive and rigorously structured science, which can generate determinate and internally valid right answers; it need not resort to any social goals or human values and is thus strictly independent of the social sciences and the humanities. (5) But equating law with doctrine is wrong, Realists argue, because the doctrine qua doctrine is radically indeterminate. Admittedly, as H.L.A. Hart claimed, the indeterminacy of discrete doctrinal sources is limited: the gap between language and reality does not mean that there are no easy cases for the application of a given legal rule. (6) Realism views legal doctrine as hopelessly indeterminate, although not because of the indeterminacy of discrete doctrinal sources. Rather, the indeterminacy of legal doctrine derives primarily from the multiplicity of doctrinal materials potentially applicable at each juncture in any given case. (7) Since legal norms are "in the habit of hunting in pairs" (8)--because legal doctrine always offers at least "two buttons" between which a choice must be made--none of the doctrine's answers to problems is preordained or inevitable. (9)

   Thus, Karl Llewellyn claims that legal doctrines are patchworks of contradictory premises covered by "ill-disguised inconsistency," because, in all of them, "a variety of strands, only partly consistent with one another, exist side by side." (10) Any given legal doctrine--including the one guiding the lawyers' interpretative activity (the canons of interpretation (11)--suggests "at least two opposite tendencies" at every point. (12) For (almost) every case there are opposite doctrinal sources that need to be accommodated: a rule and a frequently vague exception, or a seemingly precise rule and a vague standard that is also potentially applicable (such as "good faith" or "reasonableness"). The availability of multiple doctrinal sources on any given legal question, all of which can be either contracted or expanded, results in profound and irreducible doctrinal indeterminacy. (13) Similarly, the idea of inevitable answers to legal questions is also untenable, because the elaboration of any legal concept can choose from a broad menu of possible alternatives. (14) The multitude of contemporary understandings regarding any given legal concept (such as property or contract), both within and outside any given jurisdiction, as well as the wealth of additional alternatives that legal history offers, defies the doctrinalist quest to find a single answer for any given legal issue. (15)

   The realist claim about an inevitable gap between doctrinal materials and judicial outcomes evokes two major concerns. First, what can explain past judicial behavior and predict its future course? Second, and more significantly, how can law constrain judgments made by unelected judges? How, in other words, can the distinction between law and politics be maintained despite the collapse of law's autonomy in its doctrinalist rendition? The legitimacy prong of the realist challenge is particularly formidable because, as Legal Realists show, it is bolstered by the insidious tendency of legal Doctrinalism to obscure contestable value judgments made by judges (or other legal actors) and to entrench lawyers' claim to an impenetrable professionalism, improperly shielded from critique by nonlawyers. (16)

   Legal Realists answer this challenge by advancing the view that law is a going institution (or set of institutions) distinguished by the difficult accommodation of the three constitutive yet irresolvable tensions mentioned above--the tensions between power and reason, science and craft, and tradition and progress. (17)

   The realist conception of law finds room for both power and reason, although it recognizes the difficulties of their coexistence. The Realists' preoccupation with coercion is justified because, unlike other judgments, those prescribed by law's carriers can recruit the state's monopoly of power to back up their enforcement as well as institutional and discursive means that tend to downplay some dimensions of law's power. These built-in features of law--notably the institutional division of labor between "interpretation specialists" and the actual executors of their judgments, together with our tendency to "thingify" legal constructs and accord them an aura of correctness and acceptability--render the danger of obscuring law's coerciveness particularly troubling. (18) They justify the Realists' wariness of the trap created by the romanticization of law.

   But Realists reject as equally reductive the mirror image of law, which portrays it as sheer power, interest, or politics. (19) They insist that law is also a forum of reason, and that reason imposes real--albeit elusive--constraints on the choices of legal decisionmakers, and thus on the subsequent implementation of state power. (20) Law is never only about interest or power politics; it is also an exercise in reason-giving. (21) Furthermore, because so much is at stake when reasoning about law, legal reasoning becomes particularly urgent and rich, attentive, careful, and serious. (22) Law's coercive power can only be justified if it is properly grounded in human values. (23) Realists are thus impatient with attempts to equate normative reasoning with parochial interests or arbitrary power. (24) They also find such exercises morally irresponsible because they undermine both the possibility of criticizing state power and the option of marshaling the law for morally required social change. (25)

   Yet, Realists are also wary of the...