Balganesh and Parchomovsky, ‘Structure and Value in the Common Law’

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. The founding fathers of the movement viewed the core concepts of the common law as devoid of any independent meaning or functional significance. They considered the common law’s conceptual edifice indeterminate and manipulable so as to render it altogether contingent on the working of the system. 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. In this view, legal concepts exist in the common law to further its economic goals, or are otherwise completely redundant. 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. With the general move towards instrumentalism in American legal analysis and thinking, the net result has been that common law concepts are seen today as largely vestigial artifacts … (more)

Shyamkrishna Balganesh and Gideon Parchomovsky, ‘Structure and Value in the Common Law’, 163 University of Pennsylvania Law Review 1241 (2015).

First posted 2015-06-03 06:54:04

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