Legal Theory Lexicon 057: Realist Deconstruction of Formal Legal Categories

Lawrence B. Solum

Georgetown University Law Center

September 21, 2011

This entry in the "Legal Theory Lexicon" series examines a powerful move associated with the American legal realists. The move can be called the "realist deconstruction of formal legal categories." This move might be schematized as containing three steps: Step One: Categorization. A given fact situation, F, is categorized as falling into some formal legal category, C. Step Two: Rule Identification. A legal rule that incorporates the category is identified and stated. The simplest rules have the following form: If the fact situaation, F, falls under category, C, then legal rule R, requires outcome, O. Step Three: Rule Application: In the instant case, F is C, therefore O. In other words, in the case before the court, the fact situation does fall under the relevant legal category and so the rule requires a particular outcome.

This form or style of reasoning suggests that the legal work is really done in step two - where we identify the legal rule that produces the outcome. Step one looks like it is just factfinding, we are just describing the facts in terms of a legal category. The legal realists were famous for showing that step one frequently concealed something that was not factfinding at all. When the facts were categorized, what was really going on was an instrumentalist or policy-driven process, where the judge was deciding which legal category to apply on the basis of the judge's decision about which outcome was best. This insight deconstructs the process of legal reasoning - showing that the apparent form of the legal argument conceals the real process of legal decisionmaking. Let's do an example and then we can come back to the theory.

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Date posted: September 21, 2011  

Suggested Citation

Solum, Lawrence B., Legal Theory Lexicon 057: Realist Deconstruction of Formal Legal Categories (September 21, 2011). Available at SSRN: https://ssrn.com/abstract=1931608 or http://dx.doi.org/10.2139/ssrn.1931608

Contact Information

Lawrence B. Solum (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
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