Legal Realism and the Taxonomy of Private Law

Abstract

Legal taxonomy is frequently portrayed as a necessarily formalist (or doctrinalist) endeavor, which realists are likely to dismiss. This common wisdom is both mistaken and unfortunate. It is mistaken because realists should have a keen interest in the enterprise of legal categorization. Realists need not, to be sure, subscribe to the doctrinalist idea that the purpose of taxonomy is to organize the given terrain of legal rules. Rather, they can, and indeed should, reconstruct the role of 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 legal categories. This reconstruction implies that the main goals of legal categories are to consolidate expectations and to express the law's ideals with respect to distinct types of human interaction.

Recasting legal categorization in these terms dramatically changes the nature of the taxonomic enterprise. Rather than aiming to refine some eternal descriptive truths, legal taxonomy in its realist rendition is an ongoing enterprise that is constantly reinventing itself. Rather than seeking to transcend context, realist taxonomies are sensitive to context and seek to generate relatively narrow legal categories. Finally, rather than aspiring to produce a map of mutually exclusive legal categories, a realist legal taxonomy recognizes and accommodates substantial (although never overwhelming) overlaps between the various legal categories.