Structure and Value in the Common Law
163 U. Pa. L. Rev. 1241 (2015)
Legal concepts are seen today as archaic relics of the past, and as representing a largely dispensable feature of the common law. This Article challenges the widely accepted view of legal concepts as remnants of formalist thinking, and argues that legal concepts play a crucial role in ensuring the vitality and subsistence of the common law over time, place, and context. Legal concepts embody what we term “a duality of meaning,” which effects a separation between a concept’s analytical and normative meanings. The analytical (or structural) meaning of a concept is, at its core, well-defined and remains stable over time, whereas the normative meaning of a concept, represented by the values it embodies, is subject to constant change and contestation.
The duality of meaning enables the common law to realize a delicate balance between stability and change. Through the analytical meaning of its conceptual devices, the common law retains a constant structural framework in its various doctrines, while simultaneously allowing the normative meaning of those very concepts to accommodate plural and often-conflicting values and ideals. This conceptual architecture in turn enables the common law to adapt to changing social needs and values. The Article offers a detailed analysis of the various mechanisms of normative change that common law courts routinely employ by relying on the duality of meaning embodied in legal concepts. Recognizing the crucial role of legal concepts in the common law is more than just of theoretical significance: it is essential to understanding how the common law operates in practice and how it maintains its relevance through time. The Article details the important payoffs that flow from reinvigorating the centrality of conceptual analysis in the common law. Specifically, it demonstrates that the common law’s reliance on concepts can bridge the gap between legal formalism and legal realism, foster competition among values and ideologies in society; and most importantly, is indispensable to normative reasoning in the law.