Hanoch Dagan, ‘Doctrinal Categories, Legal Realism, And The Rule Of Law’

Introduction:
The claim in vogue is that Legal Realism stands for ‘the insignificance of doctrine’ and its conceptualization as a ‘mere appearance’. In particular, commentators associate Realism with a ‘nominalist impulse’ that minimizes the significance of doctrinal categories. Against this conventional wisdom stands the resilience of doctrinal analysis in general and, in particular, the continued role of doctrinal categories in legal practice and discourse, which is puzzling given the substantial impact of Realism on legal education. This puzzle is the focus of our Symposium.

Realists argue that the availability of multiple potentially applicable doctrinal sources renders pure Doctrinalism impossible. Unlike many of its caricatures, true Legal Realism does not challenge the perceived stability of the doctrine or its categories at a given time and place. This stability, which rests on the convergence of lawyers’ background understandings at a given time and place, is valuable for realists; it is crucial for complying with the rule of law by providing effective guidance to its addressees and constraining officials’ ability to exercise unconstrained power … (more)

Hanoch Dagan, ‘Doctrinal Categories, Legal Realism, And The Rule Of Law’. 163 University of Pennsylvania Law Review 1889 (2015).

First posted 2015-09-17 15:07:47

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