Structure and value in the common law.

AuthorBalganesh, Shyamkrishna
PositionIntroduction through II. Stability and Change in the Common Law B. Normative Change in the Common Law 1. Interpretive Change, p. 1241-1281

INTRODUCTION I. LEGAL CONCEPTS AND THE DUALITY OF MEANING A. Legal Concepts in the Common Law B. The Duality of Meaning 1. Jural Meaning 2. Normative Meaning II. STABILITY AND CHANGE IN THE COMMON LAW A. The Static-Dynamic Equilibrium in the Common Law B. Normative Change in the Common Law 1. Interpretive Change 2. Interconceptual Change 3. Additive Change III. IMPLICATIONS A. Conceptualism, Formalism, and Realism B. Facilitating Normative Pluralism C. Legal Concepts as Anchors in Normative Legal Reasoning CONCLUSION INTRODUCTION

Common law concepts have fallen into disrepute among legal theorists. The rise of Legal Realism in the early twentieth century marked a turning point in legal thought and analysis. One of the defining characteristics of the movement was complete disregard, not to say contempt, towards legal conceptualism. (1) The founding fathers of the movement viewed the core concepts of the common law as devoid of any independent meaning or functional significance. (2) They considered the common law's conceptual edifice indeterminate and manipulable so as to render it altogether contingent on the working of the system. (3) Walking along the same path, efficiency-minded scholars see the common law system as a collection of rules that are in reality motivated solely by the ideal of wealth maximization. (4) In this view, legal concepts exist in the common law to further its economic goals, or are otherwise completely redundant. (5) Legal philosophers, for their part, have chimed in as well, characterizing the common law's concepts as embodying their own autonomous commitment to reason, which they see as altogether independent from the instrumental goals of the law. (6) With the general move towards instrumentalism in American legal analysis and thinking, (7) the net result has been that common law concepts are seen today as largely vestigial artifacts.

In this Article, we mount a defense of the common law's architecture. We argue that the criticisms leveled by legal theorists at the common law's extensive use of legal concepts are misguided. In treating the common law's conceptual architecture as a contingent feature of the system, these criticisms fail to account for how the common law has endured over time and context, and in the face of changing social values and preferences. The persistence of the common law and its continuing vitality is in large measure attributable to the subtle balance that it achieves between stability and change, a balance for which it relies almost entirely on its conceptual structure. Our core thesis is that the common law's commitment to its conceptual structure is in many ways the key to understanding not just how the common law works but, in addition, what the common law itself is.

For the purposes of this Article, we define common law concepts as the operational legal devices that the common law uses in doctrine to understand and compartmentalize aspects of a legal issue or dispute. Concepts are in effect the building blocks of common law doctrine, its language of analysis, so to speak. It is through its concepts that the common law strikes a balance between stability and change, both of which are essential to the effective operation of a legal system. A legal system needs to be sufficiently stable in order to guide the behavior of its subjects. An ever-changing legal system would vitiate the expectations of its subjects and force them to constantly adjust to the oscillations of legal opinion, undermining its own legitimacy in the process. (8) At the same time, however, a legal system that remains frozen in time would fail to respond to the changing needs of the citizenry and would invariably run afoul of its subjects' ideals, values, and preferences. (9) Such a system too, much like the one that remains in a perpetual state of change, is likely to lose its claim to legitimacy and prove to be ineffective. As Justice Holmes famously said, it would be "revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV." (10) Stability and change in the law, while seemingly at odds with each other, are thus both central to a legal system's claim to legitimacy--a concern that the common law takes very seriously.

Common law concepts are uniquely designed to accommodate the seemingly conflicting demands of stability and change. They perform this task by virtue of what we term their "duality of meaning." Common law concepts have, at once, a jural meaning and a normative meaning. The jural meaning refers to the structural core undergirding a legal concept that enables its use by participants in legal discourse. This jural meaning is indeed what Wesley Hohfeld described as the "intrinsic meaning" of a legal concept in his famous taxonomy of jural conceptions and relations. (11) While the jural meaning forms the core of the concept, it is usually incapable of being applied to all situations and contexts by itself, owing to its intrinsic "open-endedness." It is the normative meaning of the concept that renders it applicable to a context. The normative meaning refers to the meaning that a legal concept and its jural meaning come to be cloaked in as a result of external interpretive influences, which may in turn be drawn from a variety of situational goals. The normative meaning does not displace the jural meaning of the concept but instead works in tandem with it to collectively enable the concept to be applied during adjudication. Over time, the two meanings work together, with the jural meaning producing the common law's stability effect while the normative meaning allows the common law to accommodate changes in its values and goals. The jural meaning remains stable and operates as an anchor, enabling actors to build their expectations and plan their activities. At the same time, the open-ended nature of legal concepts renders them capable of accommodating different normative values and ideals. It is for this reason that most common law concepts are structured as legal standards (as opposed to rules). (12)

Examples are legion. Consider, first, the concept of "duty of care" in tort law. The core jural meaning of the concept is that an actor is under an obligation to avoid causing harm; this obligation is deemed significant enough to constrain his or her behavior. While scholars disagree on the scope and reach of this obligation--that is, on whether it is general or relative (13)--they generally agree on the actual structure of the duty as an obligation, which forms the jural correlative of a claim-right. (14) Despite this common jural understanding of the concept, over the years scholars of tort law have continued to debate what exactly it is that a duty of care connotes as a normative matter. Some have argued that the obligation is a moral one, imposed on individuals in society to take care (and precautions) against causing harm to others that emanates from basic moral principles; (15) others contend that it is nothing more than a device through which the law imposes liability on the cheapest cost avoider, (16) or the party best positioned to bear the loss. (17)

Consider, next, the concept of "touch and concern" in property law. The concept of "touch and concern" is the litmus test used by courts to determine whether a covenant binds third parties who did not directly agree to its existence. (18) As an analytical matter, the jural meaning of "touch and concern" as a legal concept is indisputable: to bind third parties, the covenant must be related to the realty itself (i.e., to the res). As a normative matter, however, the concept of "touch and concern" has come to be imbued with different normative understandings. Some argue that it is little more than a mechanism allowing courts to police the contracting parties' mutual intent and to determine the extent to which a third party's autonomy can be permissibly impaired. (19) Others contend that the concept in reality works (and ought to work) as a mechanism of efficient resource allocation, allowing courts to weed out obligations that might be inefficient when imposed on third parties. (20) Still others point out that the concept of "touch and concern" could have been used to undo racially restrictive covenants and that it thus promotes the values of justice and equality. (21) Importantly, the different normative constructions accept the jural meaning of the concept. Indeed, despite their disagreement, all these accounts take the jural meaning of the concept as a given. The competition among them is over the right set of values that should animate the concept and determine how it should be operationalized by courts.

A third example is the concept of "good faith" in contract law. The common law of contracts has long been thought to impose an obligation of good faith on parties in the performance and enforcement of the contract. (22) While courts and scholars have maligned the concept for being too open-ended and uncertain, (23) this criticism ignores the reality that there remains a jural core to the concept that explains its persistence over time. Doctrinally, good faith connotes an obligation imposed on one contracting party, and inuring to the benefit of the other, to behave in an honest and commercially fair manner in its contractual dealings. On account of its open-endedness, the concept of good faith is capable of accommodating various normative constructions. Hence, it is not surprising that, to some, good faith partakes of the idea of commercial morality and fairness, implicating the ideals of horizontal equality and fairness between the parties, (24) while to others, it is used as a proxy for the law's realization of its intrinsic efficiency goals relating to the regulation of contract making and enforcement. (25) It is crucial to understand, though, that the disagreement revolves around the normative content of the concept, not its jural meaning.

As we will show...

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