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Structure and value in the common law.

INTRODUCTION
  I. LEGAL CONCEPTS AND THE DUALITY OF MEANING
     A. Legal Concepts in the Common Law
     B. The Duality of Meaning
        1. Jural Meaning
        2. Normative Meaning
 II. STABILITY AND CHANGE IN THE COMMON LAW
     A. The Static-Dynamic Equilibrium in the Common Law
     B. Normative Change in the Common Law
        1. Interpretive Change
        2. Interconceptual Change
        3. Additive Change
III. IMPLICATIONS
     A. Conceptualism, Formalism, and Realism
     B. Facilitating Normative Pluralism
     C. Legal Concepts as Anchors in Normative Legal Reasoning
CONCLUSION


INTRODUCTION

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. (1) The founding fathers of the movement viewed the core concepts of the common law as devoid of any independent meaning or functional significance. (2) They considered the common law's conceptual edifice indeterminate and manipulable so as to render it altogether contingent on the working of the system. (3) 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. (4) In this view, legal concepts exist in the common law to further its economic goals, or are otherwise completely redundant. (5) 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. (6) With the general move towards instrumentalism in American legal analysis and thinking, (7) the net result has been that common law concepts are seen today as largely vestigial artifacts.

In this Article, we mount a defense of the common law's architecture. We argue that the criticisms leveled by legal theorists at the common law's extensive use of legal concepts are misguided. In treating the common law's conceptual architecture as a contingent feature of the system, these criticisms fail to account for how the common law has endured over time and context, and in the face of changing social values and preferences. The persistence of the common law and its continuing vitality is in large measure attributable to the subtle balance that it achieves between stability and change, a balance for which it relies almost entirely on its conceptual structure. Our core thesis is that the common law's commitment to its conceptual structure is in many ways the key to understanding not just how the common law works but, in addition, what the common law itself is.

For the purposes of this Article, we define common law concepts as the operational legal devices that the common law uses in doctrine to understand and compartmentalize aspects of a legal issue or dispute. Concepts are in effect the building blocks of common law doctrine, its language of analysis, so to speak. It is through its concepts that the common law strikes a balance between stability and change, both of which are essential to the effective operation of a legal system. A legal system needs to be sufficiently stable in order to guide the behavior of its subjects. An ever-changing legal system would vitiate the expectations of its subjects and force them to constantly adjust to the oscillations of legal opinion, undermining its own legitimacy in the process. (8) At the same time, however, a legal system that remains frozen in time would fail to respond to the changing needs of the citizenry and would invariably run afoul of its subjects' ideals, values, and preferences. (9) Such a system too, much like the one that remains in a perpetual state of change, is likely to lose its claim to legitimacy and prove to be ineffective. As Justice Holmes famously said, it would be "revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV." (10) Stability and change in the law, while seemingly at odds with each other, are thus both central to a legal system's claim to legitimacy--a concern that the common law takes very seriously.

Common law concepts are uniquely designed to accommodate the seemingly conflicting demands of stability and change. They perform this task by virtue of what we term their "duality of meaning." Common law concepts have, at once, a jural meaning and a normative meaning. The jural meaning refers to the structural core undergirding a legal concept that enables its use by participants in legal discourse. This jural meaning is indeed what Wesley Hohfeld described as the "intrinsic meaning" of a legal concept in his famous taxonomy of jural conceptions and relations. (11) While the jural meaning forms the core of the concept, it is usually incapable of being applied to all situations and contexts by itself, owing to its intrinsic "open-endedness." It is the normative meaning of the concept that renders it applicable to a context. The normative meaning refers to the meaning that a legal concept and its jural meaning come to be cloaked in as a result of external interpretive influences, which may in turn be drawn from a variety of situational goals. The normative meaning does not displace the jural meaning of the concept but instead works in tandem with it to collectively enable the concept to be applied during adjudication. Over time, the two meanings work together, with the jural meaning producing the common law's stability effect while the normative meaning allows the common law to accommodate changes in its values and goals. The jural meaning remains stable and operates as an anchor, enabling actors to build their expectations and plan their activities. At the same time, the open-ended nature of legal concepts renders them capable of accommodating different normative values and ideals. It is for this reason that most common law concepts are structured as legal standards (as opposed to rules). (12)

Examples are legion. Consider, first, the concept of "duty of care" in tort law. The core jural meaning of the concept is that an actor is under an obligation to avoid causing harm; this obligation is deemed significant enough to constrain his or her behavior. While scholars disagree on the scope and reach of this obligation--that is, on whether it is general or relative (13)--they generally agree on the actual structure of the duty as an obligation, which forms the jural correlative of a claim-right. (14) Despite this common jural understanding of the concept, over the years scholars of tort law have continued to debate what exactly it is that a duty of care connotes as a normative matter. Some have argued that the obligation is a moral one, imposed on individuals in society to take care (and precautions) against causing harm to others that emanates from basic moral principles; (15) others contend that it is nothing more than a device through which the law imposes liability on the cheapest cost avoider, (16) or the party best positioned to bear the loss. (17)

Consider, next, the concept of "touch and concern" in property law. The concept of "touch and concern" is the litmus test used by courts to determine whether a covenant binds third parties who did not directly agree to its existence. (18) As an analytical matter, the jural meaning of "touch and concern" as a legal concept is indisputable: to bind third parties, the covenant must be related to the realty itself (i.e., to the res). As a normative matter, however, the concept of "touch and concern" has come to be imbued with different normative understandings. Some argue that it is little more than a mechanism allowing courts to police the contracting parties' mutual intent and to determine the extent to which a third party's autonomy can be permissibly impaired. (19) Others contend that the concept in reality works (and ought to work) as a mechanism of efficient resource allocation, allowing courts to weed out obligations that might be inefficient when imposed on third parties. (20) Still others point out that the concept of "touch and concern" could have been used to undo racially restrictive covenants and that it thus promotes the values of justice and equality. (21) Importantly, the different normative constructions accept the jural meaning of the concept. Indeed, despite their disagreement, all these accounts take the jural meaning of the concept as a given. The competition among them is over the right set of values that should animate the concept and determine how it should be operationalized by courts.

A third example is the concept of "good faith" in contract law. The common law of contracts has long been thought to impose an obligation of good faith on parties in the performance and enforcement of the contract. (22) While courts and scholars have maligned the concept for being too open-ended and uncertain, (23) this criticism ignores the reality that there remains a jural core to the concept that explains its persistence over time. Doctrinally, good faith connotes an obligation imposed on one contracting party, and inuring to the benefit of the other, to behave in an honest and commercially fair manner in its contractual dealings. On account of its open-endedness, the concept of good faith is capable of accommodating various normative constructions. Hence, it is not surprising that, to some, good faith partakes of the idea of commercial morality and fairness, implicating the ideals of horizontal equality and fairness between the parties, (24) while to others, it is used as a proxy for the law's realization of its intrinsic efficiency goals relating to the regulation of contract making and enforcement. (25) It is crucial to understand, though, that the disagreement revolves around the normative content of the concept, not its jural meaning.

As we will show, other common law concepts, including the "reasonable person," share the same design. (26) All these concepts embody a core jural meaning that leaves sufficient elbow room for normative, value-driven/based constructions. It is precisely because of this reality that these concepts have endured the test of time and remain an integral part of the common law's vocabulary and functioning to this day. For the same reason, common law concepts continue to inform and play a key role in statutory reforms. (27)

While concepts in the common law have a relatively stable jural meaning embedded in them, their normative meaning certainly changes over time and context, allowing the common law as a whole to accommodate a plurality of normative values. It is precisely through the interaction between the two meanings that the common law itself changes. As is well known, substantive doctrinal change in the common law (i.e., the wholesale replacement of common law rules) is somewhat rare. The doctrinal content of the common law thus remains relatively static. (28) The elements of "trespass," "nuisance," "repudiation," "adverse possession," and the like have remained largely the same for ages (and in some cases centuries) now. All the same, in its actual functioning, the common law has had no problem accommodating changing social preferences, values, and ideals. We argue that it is entirely because of its reliance on its conceptual architecture that the common law is able to achieve such normative change while leaving its doctrinal content largely intact. Change in the common law is thus in a sense chameleonic, insofar as it comes about with minimal structural disruption. As we argue, common law concepts contribute to this process of normative change in three possible ways.

In the first method, which we characterize as the process of interpretive change, courts bring about change in the normative content of the common law by altering the relative importance of the jural and normative meanings of a legal concept. At any point in time, a legal concept embodies an equilibrium between its normative meaning and its commonly understood jural meaning. When a court seeks to change the normative meaning of a concept, it shifts the emphasis of the concept away from the more specific normative meaning and towards the more general jural meaning, which then allows it to imbue the concept with new or different normative content. A good example of such intraconceptual change is seen in the concept of "unreasonable interference," which has long been a part of private nuisance. (29) In developing nuisance doctrine, courts initially used the idea merely to examine the objective nature of the defendant's interference, that is, whether it was material. (30) In due course, however, they began interpreting "unreasonable interference" as requiring a balancing of the plaintiff's harm against the importance of the defendant's activity. (31) Courts that achieved this change did so by emphasizing the concept's jural meaning--of requiring a holistic balancing exercise--over its normative meaning, thereby altering the salience of the jural meaning in order to imbue it with new content.

The second method of normative change is best described as interconceptual change. Here, the common law working through its substantive doctrines comes to emphasize one concept over others within a particular doctrine, thereby enabling it to affirm the normative values and ideas that are associated with that specific concept over others within the relevant doctrinal framework. And over time, the concept that the common law doctrine emphasizes evolves to determine the normative orientation of the doctrine as a whole. This phenomenon is seen in the doctrine of "adverse possession" in property law, which has long been known to consist of five conceptual elements: hostility, continuity, openness, actual possession, and exclusivity. (32) At different times, the law has emphasized one of these elements over the others, in effect altering the normative orientation of the doctrine. At one point, the common law emphasized the element of hostility, using it as a mechanism by which to scrutinize the motives of a party in an effort to emphasize fairness. (33) Over time, adverse possession in many jurisdictions moved away from this concept and instead came to emphasize actual possession, which can be seen as an effort to imbue the doctrine with an emphasis on efficient resource use rather than subjective fairness. (34) Thus, by increasing (or decreasing) the relative weight of hostility and actual possession in adverse possession, the common law oriented the doctrine towards (or away from) fairness at different times. Another good example of such salience alteration is to be found in the law of negligence, in the early battle between the concepts of "duty of care" and "proximate cause." (35) Courts have used the terms in different contexts to modulate the scope of liability in the pursuit of different normative goals. (36)

A third method of normative change in the common law that we describe here is the process of additive change, which involves the common law adding an altogether new concept into its repertoire, principally in order to introduce a new normative dimension (or objective) to an existing area of law. This method of change is fairly common. A familiar example is the inclusion of the "implied warranty of habitability," which concretized the goal of consumer (i.e., tenant) welfare into the law of leases, an area of substantive law that historically treated the parties' interactions as an arm's length transaction. (37) It has since become a staple of the common law of landlord-tenant relations. An additional example of this phenomenon is the concept of "quasi-property," which the common law developed to connote a basis for liability that flowed from an obligation analogous to property's right to exclude, but which would not attach to the physical boundaries of a resource. (38) We see this concept emerging in the context of burial rights (39) and in the context of informational resources of fleeting economic value. (40)

In addition to giving the common law an element of jural determinacy over time and normative determinacy on a contextual basis, legal concepts thus operationalize the common law's basic mechanism of change: one that scholars have routinely characterized as "incrementalism" (41) without explicating the nuance through which this actually comes about in practice. Examining the common law's conceptual structure and the dual nature of meaning that these concepts embody reveals in somewhat granular detail precisely how common law incrementalism works in practice.

Our analysis and defense of the common law's basic conceptual architecture in this Article yields three key contributions. Our first contribution is theoretical. By introducing the distinction between jural meaning and normative meaning, we bring into light the deep architecture of the common law that holds the key to the system's vitality and longevity. It is through this unique combination that the common law has been able to provide legal actors with a solid foundation on which to build their legal expectations, while leaving the door open to normative infusions of meaning, which produces a process of constant updating. As a result of the latter effect, common law doctrine has managed to remain relevant even in the face of radical changes in social preferences.

Second, and relatedly, we show that the unique design of the common law system underwrites a constant competition in the marketplace for ideas. By keeping the normative meaning open to competing value-based interpretations, the common law metaphorically extends an open invitation to champions of particular philosophies and ideologies to reshape the normative meaning of common law concepts. In our vision, common law doctrines are never fully dominated by one value at any given time, as theorists like Judge Richard Posner and Professor Ernest Weinrib have suggested, (42) but rather always embody a plurality of values even when it appears that a single value such as efficiency or fairness predominates. As a descriptive matter, it is therefore our view that the common law is impervious by its very structure to value monism.

Third, we posit, as a normative matter, that it would be highly undesirable--indeed, impractical--to endorse the calls of some legal theorists to engage in free-floating policy analysis that is not pegged to concrete legal concepts. (43) In our view, legal concepts provide an essential framework for policy analysis and debate. General calls of the type to "maximize economic efficiency" or "do what is just" cannot on their own form a basis for the operation of a legal system. They are too abstract and general to serve a useful function. Legal concepts, by contrast, allow policymakers to take account of value-based theories that inform the law and apply them in a contextualized and nuanced fashion, such that they better fit our social preferences at any given time.

The Article unfolds in three parts. Part I begins with a discussion of the common law's conceptual architecture. It unpacks the idea of legal "concepts" and differentiates it from other analogous (but distinct) terms such as principles and doctrines. It also discusses the two types of meaning that legal concepts in the common law can and do embody--jural and normative--and provides an overview of how the two operate symbiotically. Part II builds on the framework set out in Part I to argue that it is through the common law's architecture of concepts that it is able to maintain an operational equilibrium between stability and change over time and across contexts. Part II explains the precise mechanism by which the common law's normative goals can change over time, while the jural meaning remains static, and how this interaction contributes to the "growth," "evolution," and flexibility of the common law over time. Part III addresses the payoffs that flow from our account of the common law's architecture, especially in the face of a barrage of criticism that has been leveled at the common law and legal concepts over the last several decades. A short conclusion ensues.

I. LEGAL CONCEPTS AND THE DUALITY OF MEANING

Ever since the advent of Legal Realism as the dominant approach to common law analysis in the United States, legal concepts and conceptual analysis in the common law have come to be regarded with undue suspicion. Perhaps the most dramatic criticism of such conceptual analysis was seen in Felix Cohen's account of the "heaven of legal concepts" that contained "all the logical instruments needed to manipulate and transform these legal concepts and thus to create and to solve the most beautiful of legal problems," a process that was in the end of little value since it was "freed from all entangling alliances with human life." (44) The study of legal concepts and their role in legal reasoning was, to Cohen, mere "transcendental nonsense." (45) While conceptual analysis in the law has seen a resurgence in the years since, it has taken place largely within the domain of the philosophical analysis of the concept of law and only rarely ever beyond. (46) Theorization about the common law, in particular, has tended to underemphasize the role of legal concepts. (47)

A large part of the reason why conceptual analysis tends to be disfavored in the common law today is because it is commonly associated with a belief in the autonomy of law and legal reasoning. In other words, admitting a role for legal concepts is taken to be incompatible with a scrutiny of the common law's underlying normative goals. This need not be the case. (48) Legal concepts can coexist with a normative account of the common law. Indeed, they facilitate such an account because they are capable of accommodating and affirming multiple and different normative goals at different points in time. This Part provides an overview of what legal concepts are and how their duality of meaning renders them compatible with the normative analysis of the common law.

A. Legal Concepts in the Common Law

Since legal concepts are often used to define ideas in the law, it is somewhat artificial to attempt to define a legal concept. All the same, such a definition is of practical utility insofar as it enables us to understand legal concepts as distinct functional entities in the law. Legal concepts are ubiquitous in law and legal analysis, despite the influence of Legal Realism. They often serve to simplify complex social realities, thereby allowing the law to attach specific consequences to such realities. In the common law, legal concepts are thus best understood as the operational legal devices that the common law uses in doctrine to understand and compartmentalize aspects of a legal issue or dispute. This understanding of a legal concept embodies two important and perhaps related dimensions: (1) it must be operational and (2) it must be interpretive. Each of these deserves elucidation.

In insisting that a legal concept embody an operational dimension, the understanding above limits legal concepts to those that are actively employed in legal doctrine and analyses, when applied to the facts of a particular case. It thereby excludes concepts that are purely academic or abstract and never directly employed as part of a court's legal reasoning when deciding a case. An example of the latter would be the idea of "reciprocal" causation made famous by Ronald Coase. (49) Very importantly, this operational dimension also helps distinguish between a legal concept and a legal doctrine. Legal doctrines in the common law usually depend on individual constituent elements, each of which in turn embodies one or more legal concepts that the doctrine uses to interact with the facts in question. On rare occasion, a doctrine may itself operate as a concept, in which case the operational dimension is satisfied. The doctrine of "unclean hands" in equity provides a good example. (50) It relies on the concept of the exact same name for its working. Legal concepts, in our understanding, must therefore have a practical orientation and interact directly with facts in individual disputes.

It is for the same reason that legal concepts generally remain distinct from what Ronald Dworkin described as "principles." (51) Principles generally operate as background jural statements that merely provide a reason for a legal decisionmaker to decide one way or another, without necessitating a particular decision, as would be the case with a legal rule. (52) In other words, a principle may be altogether disregarded by the decisionmaker, or come to be outweighed by a rule. As a general matter, then, principles are usually of indirect operational significance in doctrine, insofar as they are used to shape the application of doctrine without directly interacting with the facts of a case, rendering them distinct from legal concepts as defined here. (53) When, however, a legal principle comes to be directly embedded into a legal rule, such that it starts interacting directly with facts during the legal analysis, the principle becomes a legal concept in our understanding. (54)

In addition, and perhaps somewhat more importantly, legal concepts are usually interpretive in nature. The idea of interpretive concepts was also made famous by Dworkin, who argued that the interpretive nature implies that these concepts have more than just a descriptive element to them. (55) They are instead understood by participants as serving some purpose or interest that has an existence quite independent of the concept itself. This interpretive nature also ensures that application of the concept to individual circumstances involves a distinct element of sensitivity to that purpose or value in question, such that the concept can be interpreted to be "modified or qualified" by the relevant purpose. (56) Legal concepts therefore do more than just describe factual reality. The purposive and normative nature of legal reasoning imbues them with an evaluative dimension--wherein they (i.e., the concepts) are used to evaluate and understand reality, and at the same time are themselves influenced by criteria and values that are seen as important to such reasoning. Or as Dworkin puts it, in such interpretive concepts "[v]alue and content have become entangled." (57) This point, as we shall see, is crucial to the role that such concepts play in facilitating normative change in the common law.

Both of these conditions are characteristic of innumerable legal concepts in the common law. Even a cursory examination of common law doctrine will reveal that legal concepts, as captured in the definition above, dominate the actual content of the common law in a variety of areas. "Good faith," "privity," "duty of care," "proximate cause," "foreseeability," "reasonableness," "commercial fairness," "unreasonable risk," "offensive," "substantial harm," "wanton disregard," "intentional," and a host of others readily qualify.

B. The Duality of Meaning

Legal concepts are usually terms of ordinary linguistic usage. All the same, as a result of their use within legal reasoning, such terms can come to acquire an understanding that is different--in varying degrees--from their ordinary linguistic one. Yet this specialized (i.e., legal) understanding itself embodies two distinct dimensions. We describe these two dimensions as the "jural meaning" and the "normative meaning" of legal concepts.

Scholars have previously noted the idea that legal concepts can have two meanings. Some legal theorists refer to it as the distinction between the "descriptive" and "prescriptive" meanings of legal terms, as the distinction between the "definition[al]" content of legal concepts and their "justificatory theory," or as the difference between the legal concept as a mere "conceptual marker" and the foundational theory in the service of which it is employed in a particular context. (58) What varies in these accounts is the precise source of each type of meaning, the contingent-permanent nature of the meaning, and the way in which the two meanings interact within legal reasoning. It is in these important respects--and not just terminological--that our account is distinct, since the common law's conceptual architecture--as we argue--is intrinsically designed to accommodate the process of incremental normative change over time.

1. Jural Meaning

The jural meaning of a legal concept refers to its core structural understanding, which derives from both (1) the concept's semantic content and (2) its use within the legal community (i.e., its pragmatic content). Our account of the jural meaning does not take the semantic (or plain) meaning of the concept to exhaust its entire jural domain. It also recognizes that the concept's use within a certain community builds on the semantic content to give it a meaning that goes beyond its purely literal meaning--what is often referred to as the pragmatic content of the concept. (59) The two (i.e., the semantic and pragmatic content of the concept) together give a concept its jural meaning. It begins with the semantic meaning of the concept but then situates that semantic meaning within the context of how the concept is actually used--jurally--within the relevant legal community. (60)

Consider the concept of "proximate cause" in tort law. (61) In its plain, linguistic sense, the concept simply denotes a close-enough antecedent event that can be causally attributed to a subsequent event. (62) This constitutes the semantic content of the term and might seem almost entirely factual or descriptive. As used by the community of tort lawyers and courts, we see the semantic content coming to be refined such that the purely factual dimension is instead replaced with a distinctively evaluative one. When the semantic content is now understood together with the context of its usage (i.e., the pragmatic content), "proximate cause" now comes to mean the judgment that a certain antecedent event should be deemed by the law as close enough to be treated as legally responsible for the subsequent event based not just on fact but on independent evaluative criteria as well. (63) This represents the jural meaning of the concept of proximate cause. Open-ended, abstract, and amenable to the exercise of judicial discretion as it may be, the jural meaning nonetheless gives the concept of proximate cause its basic structural content as a legal concept that in turn enables it to be used as a part of the common vocabulary of tort law.

Perhaps the best-known effort to discern the jural meaning of legal concepts along the lines just described is seen in the work of Wesley Hohfeld. (64) Hohfeld is well known for having created an elaborate taxonomy of jural relations in the law in an effort to render legal usage clear. (65) In so doing, however, Hohfeld's approach was at once sensitive to both semantics and to usage within the legal community, both of which he sought to balance. While he of course did not seek to ground his analysis in a purely empirical investigation of how terms were actually used within the legal community, he at the same time allowed the jural content of the various concepts under analysis to be influenced by this reality. Describing his motivations and constraints in this regard, Hohfeld's colleague Arthur Corbin characterized his approach as follows:
   Hohfeld effected this compromise at a convenient and serviceable
   point. He followed "inveterate usage" closely enough to be
   understood by the average lawyer. He accepted fundamental concepts
   "as used in judicial reasoning." ... All that was necessary was for
   him to see jural relations with their eyes, and to identify the
   several fundamental varieties of factual situations and to describe
   them in ordinary human words. (66)


In thus trying to discern the jural meaning and content of different legal concepts as used in legal reasoning, Hohfeld's approach was sensitive to both ordinary semantic meaning and the specialized usages within the relevant community. Very importantly, Hohfeld's work was transsubstantive and looked to a host of different substantive areas for support. Surely, as Hohfeld himself recognized, each of these areas remains wedded to different goals and purposes. Yet what allowed his project to retain its trans-substantive dimension was its recognition that the structural meaning of a concept could be discerned independent of an area's commitment to specific goals. A "right" and a "duty" in this analysis meant something specific, and indeed the same thing, regardless of whether one was using the term in the context of contract law or constitutional law. It denoted an affirmative claim that an individual or entity had, which placed another person or entity under an obligation of a certain kind. This is indeed what we mean by the jural meaning of a legal concept.

Hohfeld's analytical work, its trans-substantive dimension, and its endurance for a full century highlight a fairly important reality for our analysis; namely, that almost all legal concepts in the common law do indeed contain a discernible structural logic that undergirds their ability to remain a part of the common vocabulary within the broader legal community. This structural component may originate in the pure semantics of the concept, in its structural relationship to other concepts within a given domain, and in the way in which the relevant interpretive community comes to understand it.

An important caveat is in order here. Merely because the jural meaning of a concept--as we describe it--can derive some of its content from the way in which the concept is used by the relevant legal actors, we should not be taken to suggest that such use alone, when taken from an external point of view, can on its own constitute the concept's jural meaning. (67) In other words, the allowance for usage to play a role in determining the jural meaning does not imply that jural meaning now becomes a purely, or even principally, empirical inquiry. While the inquiry may indeed look to what the relevant legal actors see as the relevant legal concept, the inquiry is an attempt to understand the meaning of the concept through their eyes (i.e., from a principally internal point of view). It therefore is not an effort to understand how they modify their behavior in light of such concepts, or an effort to predict the consequences that flow from the use of a legal concept. To adopt the latter approach would in effect be to deny legal concepts their own internal meaning, in the suggestion that such concepts are metaphysical placeholders that are "meaningless" in their own right, an idea famously advanced by the Scandinavian Realists. (68)

In looking to the relevant interpretive community to understand the jural meaning of a concept, the examination is therefore of that community's understanding of the concept's structural prerequisites. And to achieve this, one must look to the semantic and linguistic content of the legal concept in order to appreciate how the community's understanding builds on, and interfaces with, that understanding. Indeed, this is precisely what we understand Hohfeld to have been attempting to do as well, in looking into how courts and judges understood and applied the various jural relations that he identified. The precise balance between semantic content and actual usage will of course vary from one context to another, but the task of discerning a concept's jural meaning must not lose sight of the fact that both remain equally relevant to the exercise.

Consider the example of "originality" in the federal common law of copyright. (69) As understood by copyright lawyers and courts today, and in the wake of recent jurisprudence in the United States, originality is equated with "creativity" and understood to require that a work of authorship exhibit a modicum of creativity for it to qualify for copyright protection. (70) If one were to simply look to what judges say about originality in cases, one might be tempted to treat originality and creativity as synonyms, and nothing more. Yet this would miss an important jural reality behind the meaning of originality; namely, that it is not sufficient if the work in question is objectively creative, but that such creativity must originate (i.e., have its origins) in the creator seeking protection. (71) Courts rarely ever address this question given how basic it is; and most take it as embedded within the semantic meaning of originality as requiring the origination of the creative content by the claimant. It is only when one recognizes that there is indeed an internal logic to such concepts and that usage can help glean that logic rather than replace it altogether, that looking to usage can be helpful. In the example of originality, the usage by the community builds on the semantic content and adds the objective requirement of creative evaluation onto the semantic one of origination. Both work together to produce the jural meaning.

Most concepts in the common law thus have a jural meaning that is discernible through the semantic meaning of the concept and its common usage within the interpretive community, when viewed from an internal point of view. In addition, since it is oftentimes impossible to distinguish between decision rules and conduct rules in the common law, (72) many of the common law's legal concepts also embody a distinctive evaluative dimension and come to partake of what Bernard Williams famously described as "thick concepts." (73) Thick concepts, as philosophers have since come to understand the term, refer to evaluative concepts where the evaluative content comes with an identifiable descriptive content that influences and directs such evaluation. (74) A common example is the distinction between the concepts of "good" and "beautiful." Both involve an evaluation; yet the former (good) is open-ended and specifies no descriptive criteria for the evaluation, whereas the latter (beautiful) conveys additional descriptive content--that of requiring the evaluation to focus on aesthetically pleasing dimensions--in carrying out the evaluation. Thick concepts contain implicit semantic direction to the evaluator about the appropriate criteria that may be used whereas thin concepts leave this open-ended. Once again, we see how the semantic content of the concept itself contributes to the jural meaning of the concept. As a normative enterprise, the law contains innumerable thick concepts. Examples are legion: "good faith," "reasonableness," "best interests," "business judgment," "fair use," etc. The precise descriptive content is of course different for each of these concepts, which is why thickness is understood as a continuum rather than as a binary. (75) All the same, these concepts require actors to carry out their evaluations using different criteria. One may of course complain that such criteria are too open-ended, or that they give judges too much discretion and so on, but one cannot accuse the concepts of lacking meaning and analytical content.

It is this underlying structural logic to legal concepts--which we term as the concept's jural meaning--that contributes to what Jeremy Waldron has previously described as the "systematicity" of the law. (76) In his rejoinder to Felix Cohen, Waldron argues that legal concepts play a crucial role in enabling the legal system and decisionmakers therein to see its various rules as necessarily interrelated. As he puts it:
   [T]he technical language of the law ... must be able to express the
   actual interrelationships of legal provisions, laid down by diverse
   and competing lawmakers. The conceptual terminology of legal
   doctrine must be able to accommodate policy initiatives inspired by
   different moralities, ideologies, and programs, while resisting
   theoretical identification with any one of them. It must be
   understood as a sort of neutral matrix on which their interlocking
   relations can be laid out without any assumption that the various
   elements were, so to speak, made for one another. (77)


It is the jural meaning of the concept that in our view contributes to this ideal of systematicity, by forming the elements that go into the construction of the "neutral matrix" of interlocking ideals and propositions in the law.

In short, the jural meaning of a legal concept refers to the structural core that gives the concept its logical basis as a term of usage. It originates in the semantic content of the concept, which may include both structural and descriptive criteria that are relevant and often interfaces with usage within the community that sharpens or modifies the semantic content in question.

2. Normative Meaning

While the jural meaning of legal concepts gives them a common structural understanding within the relevant interpretive community and contributes to the overall systematicity of the legal system, the jural meaning on its own is oftentimes insufficient to apply the concept to individual scenarios and arrive at distinct conclusions. For instance, knowing the jural meaning of "proximate cause" as a device for evaluating the causal connection between two events for the purposes of legal responsibility does not on its own tell a court whether a particular defendant's actions should--in a particular case--be treated as the proximate cause of the plaintiff's injuries, for example, whether the railroad company's actions should be treated as a proximate cause of Mrs. Palsgraf's injuries. (78)

Legal concepts, despite being endowed with jural meaning, exhibit a characteristic that has been variously described as the phenomenon of "open texture," (79) "pervasive vagueness," (80) or "furry edges." (81) Applying them to any particular context requires the decisionmaker or interpreter to rely on additional factors beyond the domain of the standard jural meaning, since the jural content of the concept has in effect run out. (82) This reliance on additional factors is discretionary on the part of the interpreter but is of course to a large extent constrained by the jural meaning of the concept itself. Yet it works in tandem with the jural meaning to now generate meaning for the term that allows it to be applied to a given context. The choice of additional factors is an indelibly normative one, and the meaning that is so produced constitutes the normative meaning of the concept. In our example before, if the decisionmaker were to decide that the question of whether to find a cause to be close enough for legal responsibility ought to track his or her understanding of morality (in ascribing responsibility), the jural understanding of proximate cause now combines with this additional, non-structural (i.e., moral) understanding to generate the normative meaning of the concept: as representing sufficient closeness between the events such that it is morally acceptable to consider one as the cause of the other for the purposes of legal responsibility. (83)

The normative meaning of a legal concept thus involves the superimposition of a normative consideration on the jural meaning of the concept when applying it to a particular context or dispute. A few things therefore flow from this. First, the normative meaning of a legal concept is oftentimes a highly contested issue among courts, scholars, and lawyers. Since the additional variable chosen is not dictated by the concept itself, actors invariably tend to choose different normative values based on their own preferences. This contestation, however, is also the site and basis of legal change in the common law, as we show in Part II below. Second, the jural meaning of the concept is itself constitutive of the normative meaning, such that the normative meaning has no existence independent of the former. Part of what the normative meaning of a legal concept is depends on its taking the jural meaning and infusing it with non-structural normative considerations. Understanding this overlay is important because disagreement over the normative meaning tends to be couched as disagreement over the very jural meaning of the legal concept. Relatedly, such disagreement over normative meaning is also used by some to suggest that the concept is altogether meaning/esr, since there remains no common understanding about the concept itself. (84) It is only when the superimposition of the two is appreciated that such claims can be seen to be exaggerated.

As Dworkin noted, actors engaged in legal reasoning invariably approach concepts with an interpretive attitude--characterized by the recognition of a purpose underlying a concept and the ability of that purpose to qualify or modify the meaning of that concept. (85) It is indeed this interpretive attitude that generates the normative meaning of legal concepts. As a result of the recognition that concepts in the law serve important purposes--defined by distinctively normative considerations--the very process of interpreting a concept involves infusing it with those pre-identified purposes, a process that while generally couched in positive language (e.g., concept x means y) in reality involves a normative judgment (i.e., concept x should meany). The process of elucidating the normative meaning of a concept is therefore a distinctively "justificatory" exercise, even if it is framed as a purely "explanatory" one. (86)

In characterizing this second meaning of legal concepts as "normative," we should not be understood as claiming that the jural meaning of the concept is in some ways purely descriptive, or as embodying a truth-value that renders it altogether value neutral. (87) We thus are in no way attempting to resurrect the analytic-synthetic and fact-value distinctions that philosophers have famously come to reject. (88) Indeed, some have criticized efforts to derive separate meanings for legal concepts as requiring just such a distinction and, in addition, a purely positivist approach to law, that is, the belief that legal rules and ideas are altogether immune from morality and other similar considerations. (89) Our claim here is quite different.

The distinction between the jural and normative meanings that we draw here would work perfectly well as long as one takes the difference between structural and substantive concerns underlying the concept to be our central concern. Whereas the jural meaning is a reference to structural concerns, the normative meaning relates to substantive concerns. It is very well possible that these structural concerns themselves derive from predispositions as to certain values within the relevant legal community. Going back to the example of proximate cause in tort law, it might well be argued (as some have) that the very idea underlying the proximate cause concept and requirement exhibits a judgment that there is an outer bound to the causal chain that the law will recognize in order to impose liability. Even so, this judgment call is very different from the additional judgment call of whether, accepting the need for such an outer bound, we then ought to draw that boundary based on considerations of morality, as opposed to, say, pure efficiency. It is this intuition that our distinction between the jural and normative meanings of legal concepts hopes to capture.

The distinction above is perhaps best captured in the distinction between epistemic values and moral values that Brian Leiter has made, in defense of what he calls "descriptive jurisprudence." (90) The epistemic value refers to "truth-conducive desiderata we aspire to in theory construction," whereas the moral value relates directly to "practical reasonableness." (91) The former focuses on the significance and importance of the phenomenon in question being captured by the concept, while the latter directly engages the "ought" question. (92)

This distinction leads us to another important insight about the normative meaning of a legal concept. Since it derives from the open-textured nature of the concept, and such open texture becomes obvious primarily when the concept is sought to be applied to a given situation, the normative meaning of a concept is generally formulated during the concept's direct application to a scenario. It is therefore rare to see the concept of proximate cause being understood in moral and ethical terms while in the abstract; though it is routinely associated with values of morality or efficiency when applied to individual cases or circumstances. The normative meaning of a concept is thus principally application-driven. Constitutional law scholars have captured a largely analogous idea in the distinction between the "interpretation" and "construction" of texts or rules. (93) The former focuses on linguistic and semantic meaning, while the latter is concerned principally with the legal effect of the text when applied, which is an entirely normative exercise and looks to considerations external to the text itself. (94)

An important caveat is in order here. In characterizing the "normative" factors that go into generating a legal concept's normative meaning from its jural meaning, we remain indifferent to the question of whether these factors constitute "legal" or "extra-legal" factors. In Hart's positivist account, these factors, which he saw as central to the exercise of judicial discretion, were extra-legal, in transcending the traditional domains of legal reasoning. (95) To Dworkin on the other hand, these normative considerations were emblematic of "principles" that courts use as part of legal rules thereby rendering them legitimate sources of law. (96) Our account here remains perfectly compatible with either view, since nothing in our identification of a concept's normative meaning turns on its characterization as legal or extra-legal.

In summary then, the normative meaning of a legal concept refers to the meaning that the structural idea behind the concept comes to acquire when sought to be applied to individual scenarios, necessitating a decisionmaker's reliance on values and considerations external to the concept itself. In so doing, the decisionmaker is making a direct normative judgment about what values ought to be driving that concept, when applying it as part of common law doctrine.

The duality of meaning that we defend here might be contrasted with accounts which argue that legal concepts contain a single meaning at any given point in time. In recent work, Jody Kraus offers a single meaning account of concepts in the common law and suggests that this single meaning can undergo a radical transformation over time, in order to accommodate competing normative values. (97) An account of legal concepts that is wedded to the idea of a singularity--as opposed to duality--in their meaning, is then compelled to identify "the" meaning of a concept, as used and applied by courts across a substantive area. (98) Failing this identification, a singularity-based account risks the argument that the inability to identify a consistently accepted meaning suggests that a concept is in the end altogether meaningless. The "duality of meaning" account, by contrast, provides a coherent explanation for the seeming "inconsistencies" in courts' usage of the term.

II. STABILITY AND CHANGE IN THE COMMON LAW

In Part I, we examined how concepts work in the common law and the difference between the jural and normative meanings that legal concepts embody. In this Part, we proceed to show how the interaction between the two is responsible for maintaining an adequate level of stability necessary for the successful operation of the common law, while at the same time allowing for change at the normative level.

A. The Static-Dynamic Equilibrium in the Common Law

One of the core functions of the law is to guide behavior. (99) For this reason, the law must remain relatively stable, so that law-abiding citizens can plan their actions in accordance with the law and develop reasonable expectations about the legitimacy of their decisions. (100) This logic is central to the idea of the rule of law and is often captured by the simplistic observation that "the rule of law lies in a law of rules." (101) An ever-changing legal system would impose an impossible cost on its subjects, forcing them to constantly re-educate themselves about the content of the law or live in fear of breaking it. And if laws were routinely broken and violated, even without actual enforcement, the overall legitimacy and credibility of the legal system would as a direct result come to be undermined. (102) Therefore, lawmakers cannot change the law haphazardly.

At the same time, no one seriously argues that the legal system should remain frozen in time--especially insofar as the system's values and ideals go. The law must reflect the normative values of the people who enacted it and as they change over time; the law must adapt to ensure a good fit between its normative underpinnings and the content of its rules. In fact, when the law falls behind the times, it fails to serve the society that adopted it, thereby undermining its own legitimacy.

Striking the right balance between the demands of stability and change is therefore a challenge that every legal system must overcome. Jurists have long identified this challenge and have argued that the best way to reconcile the conflicting demands of stability and change is through a mechanism of incremental or accretive evolution, often characterized as "incrementalism" (103) or "minimalism." (104) In their descriptive accounts of the common law, Atiyah, (105) Cardozo (106) and Holmes (107) masterfully explain how common law doctrine has evolved over centuries through incremental doctrinal changes. By avoiding abrupt and sweeping reform (unless absolutely crucial), common law judges were able to secure continuity in the law without unduly disrupting actors' expectations. This task was facilitated by their reliance on the "declaratory theory" of the common law, according to which incremental (judicial) changes in the common law were seen as merely restating the "correct" version of the common law that had always been so, rather than as actively altering the law to create altogether new rules. (108) While almost everyone understood that judges were in effect creating new rules, the declaratory theory provided the process of incremental change with a rhetorical alibi that legitimized the process. At the heart of this theory lies the idea that the law comes to be modified through a process of small and gradual changes.

More recently, Professor Cass Sunstein has elevated incrementalism (or "minimalism," as he calls it) to the level of a normative theory, advocating that all important legal changes, not only those of traditional common law areas, should be effected gradually. (109) In addition to unfairly disrupting expectations, Sunstein argues that minimalism, which he associates with the political theorist Edmund Burke, is premised on the idea that "established traditions are generally just, adaptive to social needs, or at least acceptable." (110) Burke who considered the common law "the pride of the human intellect," (111) lauded the common law for closely tracking actual practices.

While these accounts of incrementalism in the common law are both accurate and persuasive, they miss an important insight about incrementalism itself. In focusing on the gradual nature of the change at the doctrinal level, these accounts of incrementalism ignore the intrinsically adaptive role that the actual content of the static doctrine plays, which in turn enables common law doctrine to remain by and large unchanging while, at the same time, responsive to shifting social values and preferences. In other words, although common law doctrine may itself change infrequently and only over extended periods of time, it is able to nonetheless remain relevant as a social institution because its underlying devices (i.e., its legal concepts) are capable of accommodating and advancing the "felt necessities of the time." (112) The common law's conceptual framework thus forms the very backbone of its commitment to incrementalism as a process of growth. Yet extant accounts of common law incrementalism tend to ignore this reality, which contributes to the characterization of the common law as an institution that is traditional, conservative, and archaic in multiple respects, which is indeed far from being true in practice. It is this omission in discussions of incrementalism that our account addresses. Our claim is that the common law's ability to adapt to changes without unduly disrupting actors' expectations is embedded in the unique design and role of common law concepts.

As an example, consider a recent account of common law incrementalism offered by Justice Breyer of the U.S. Supreme Court in a dissenting opinion involving the overruling of a common law precedent. (113) In describing the process, he notes that "[c]ommon-law courts rarely overruled well-established earlier rules outright. Rather, they would over time issue decisions that gradually eroded the scope and effect of the rule in question, which might eventually lead the courts to put the rule to rest." (114) Clearly unhappy with the majority opinion in the case, he goes on to note that "[t]he reader should compare today's common-law' decision with Justice Cardozo's decision in Allegheny College ... and note a gradualism that does not characterize today's decision." (115) These observations about the common law's process of gradual change emphasize the restraint that common law courts are believed to exhibit, even when they see pre-existing law as worthy of being changed. What this account altogether ignores, though, is the all-important role that legal concepts played in enabling this--especially in the very decision that Justice Breyer extolls as the archetype of common law incrementalism!

Allegheny College v. National Chautauqua County Bank (116) has long been understood as a case involving the doctrine of promissory estoppel and its relationship to the requirement of consideration in contract law. (117) In the short opinion, then-Chief Judge Cardozo is taken to have successfully allowed a claim of promissory estoppel by the plaintiff notwithstanding the existing understanding of consideration. (118) While the opinion may be a perfect example of common law incrementalism, Cardozo succeeds in adopting an incremental strategy by working closely with the legal concept of consideration. As one scholar aptly puts it, in Cardozo's hands, consideration "is a more open and flexible concept than is usually appreciated." (119) The opinion showcases the role that legal concepts play in underwriting the process of incremental doctrinal change, with some even using it to characterize Cardozo as a "pragmatic conceptualist." (120) In the opinion itself, Cardozo offers an interesting account of legal concepts in the common law, (121) which scholars have in the years since spent significant time interpreting. He thus notes:
   Decisions which have stood so long, and which are supported by so
   many considerations of public policy and reason, will not be
   overruled to save the symmetry of a concept which itself came into
   our law, not so much from any reasoned conviction of its justice,
   as from historical accidents of practice and procedure. The concept
   survives as one of the distinctive features of our legal system. We
   have no thought to suggest that it is obsolete or on the way to be
   abandoned. As in the case of other concepts, however, the pressure
   of exceptions has led to irregularities of form. (122)


In this somewhat obscure language, Cardozo is in effect extolling the malleability of legal concepts in the common law--which enables them to take new meaning and content--while remaining "distinctive" within the doctrinal apparatus of the law. (123) The incrementalism of the common law then, even to Cardozo, was a direct result of the law's conceptual structure that in turn allowed for the common law as a whole to balance stability and change. To Cardozo, common law concepts were forged and refined by the contextual needs of individual cases (i.e., what we refer to as "values"), and yet--perhaps most importantly--they were not to be treated as altogether dispensable elements of the law. (124)

As noted previously, common law concepts have a core jural meaning that remains constant through time and a normative meaning that is adaptable. (125) It is through the interaction between these two meanings, both embodied in legal concepts that the common law's process of incremental change is enabled. The jural meaning of legal concepts gives the common law its requisite stability. Whenever the common law is used by courts and litigants, it invariably relies on doctrines to resolve individual disputes. These doctrines, in turn, employ legal concepts. Consequently, when actors go about their daily affairs, they rely on those concepts as guideposts. For example, professionals know that they must act reasonably. Similarly, in a contractual setting, parties understand that they must negotiate in good faith. The same is true when a dispute arises. In the standard common law case, the litigants agree on the particular doctrine that applies to their dispute and the key concepts that inform it. What they tend to disagree about, then, is the question of how that doctrine applies to the agreed upon facts and circumstances of the case, or how to construe the relevant concepts.

The jural meaning of concepts, in our account, stabilizes the common law edifice, providing an important focal point for actors, judges, and even scholars. The jural meaning can be thought of as the anchor of the common law, the component that operationalizes stare decisis. (126) Without this anchor, courts would be unable to find common ground in prior decisions in order to treat them as binding and applicable. It is thus concepts, by virtue of their jural meaning, that provide a common denominator that ensures continuity in the common law.

Take, for example, the concept of "good faith" in the common law of contracts. (127) Under the common law of most jurisdictions, contracting parties are under an obligation to negotiate and perform contracts in good faith. This rule is taken to be a fairly well-established and immutable one that has persisted for at least two centuries now. (128) And yet the law speaks of the content of this obligation in largely open-ended terms. The Uniform Commercial Code, for instance, which largely codifies the common law standard, (129) defines good faith as "honesty in fact and the observance of reasonable commercial standards of fair dealing." (130) While the particular list of behaviors that violate the obligation of good faith have no doubt changed over time and with context--for example, the obligation in relation to banks is different from that in relation to merchants--the core jural meaning of the concept has remained the same. (131) Courts, judges, legislatures, and practitioners all have a shared understanding or common knowledge of the concept and the obligation that it connotes as a structural matter, even if not in its application to an individual case.

The idea described here is also captured in the distinction that some legal philosophers make between the notions of indeterminacy and contestability in the language of the law. (132) While legal indeterminacy can originate in a variety of reasons, in many situations legal terms (i.e., concepts) are often "contestable" rather than ambiguous or vague. In these situations, as Jeremy Waldron explains, it is not that the terms in question lack meaning or that the determinacy of their meaning is compromised. (133) Instead, as he clarifies, "it is part of the meaning of these words to indicate that a value judgment is required, a function which the words perform quite precisely." (134) This captures rather well our point about the jural meaning of legal concepts. The jural meaning grounds legal actors' common understanding of a concept; and yet the concept preserves significant room for the actor's own value judgment, embodied in the normative meaning that the concept carries. From the fact that the normative meaning of a concept can change over time and context, and that it can generate disagreement among actors, one cannot (indeed, should not) draw the inference that the concept lacks all meaning. Indeed, Waldron makes the point somewhat sharper when he further notes that in eliciting some kind of value judgment from actors, such concepts embody a "clear meaning." (135)

The open nature of legal concepts therefore does not imply that such concepts lack meaning, or indeed that such meaning can originate in and perhaps define a shared understanding among actors. The reason for this is rather straightforward: it is because linguistic vagueness, which derives from natural language, need not correspond to jural certainty or uncertainty in legal usage. (136) In other words, a term that is otherwise palpably unclear (or even meaningless) can obtain jural content within a particular discourse (such as legal discourse), if actors converge around a common understanding over time. Indeed, this is the entire idea behind so-called "terms of art" or "legal fictions." It informs how the jural meaning of concepts ensures a modicum of stability and operates as an anchor.

Another way of understanding the working of a concept's jural meaning is therefore as a form of shared understanding among actors. Recall that a vast majority of legal concepts are evaluative, in the sense that they require actors to make value judgments when applying the concept to specific contexts and disputes. (137) In so requiring actors to make value judgments, the jural meaning of the concept does not, however, give its interpreter complete carte blanche. Instead, it grounds and directs that value judgment in a particular direction. It takes certain kinds of normative considerations off the table and renders certain other ones more relevant and salient to the judgment itself. We noted previously that this is precisely how "thick" concepts work. Drawing on the linguistic philosopher R.M. Hare, Waldron characterizes this idea as the strict or specific "evaluative meaning" that the concept carries. (138) Each legal concept, in other words, despite its normative open-endedness when applied to specific situations, signals to judges and actors that the disagreement (if any) in application is to be limited to certain specific criteria. The identification of such criteria enables the jural meaning of the legal concept to feed into a community's shared understandings and linguistic conventions, despite the overall ethical and evaluative nature of the legal concept. A concepts thickness, in other words, contributes directly to the stability of the concept's meaning, even in the face of differential application.

Indeed, a careful perusal of common law cases reveals that judges have a shared understanding of the jural meaning of the common law concepts. The core jural meaning of the concept of good faith in contracts is understood or defined in the same way by all judges. It requires judges to evaluate the contracting parties' behavior and motives contextually, using certain normative criteria. The normative criteria can vary, but the central evaluative obligation that the concept requires does not. Additionally, the evaluative dimension is hardly unspecified. The legal concept also indicates the general character that the evaluation is to take. For example, it excludes aesthetic judgments, character assessments, political considerations, and criteria relating to legal status. Furthermore, good faith in contract law is understood to connote something quite different from the legal concept of reasonableness in torts. Contract law does not simply say that parties have an obligation to behave reasonably. Instead, it says that they need to act in good faith. The definition in turn focuses on the elements of honesty and fairness, suggesting that the evaluation has as much to do with a party's motives and intentions as its outward manifestation.

The combination of the stable jural meaning and the flexible normative meaning with which common law concepts can be imbued creates an important equilibrium. This equilibrium allows the common law to guide behavior, promote reliance, and ground decisionmaking, while at the same time remaining open and receptive to competing normative theories and values. The equilibrium is relatively robust, which explains the endurance of the common law's core architecture of concepts for centuries. It has enabled the common law to respond to changing social preferences and conditions without abolishing its core concepts.

Of course, to introduce the requisite degree of adaptiveness to varying preferences and criteria, judges have over the years employed several legal techniques to vary the meaning of individual concepts without altogether destabilizing the core jural understanding and function of those concepts within common law doctrine. It is to the analysis of these techniques--which together reflect the dynamic side of the equilibrium just described--that we next turn.

B. Normative Change in the Common Law

The success of the common law--both as a body of law and as a method of lawmaking--can be attributed in large measure to its ability to keep up with changing social values and preferences over extended periods of time. The common law, in other words, is susceptible to change. Yet change can come about in two distinct forms, and it is important to differentiate between them. On the one hand, change in the law can be at the level of legal rules (i.e., doctrinal). (139) This form of change involves the process of modifying the jural content of individual rules, by making alterations at the margins, adding altogether new rules, or at times eliminating old rules. While this form of change is certainly present in the common law, it is somewhat less commonly seen, since extensive recourse to it runs the risk of undermining the very working of the common law, which in turn depends on the ideals of tradition and consistency at the level of doctrine. More frequently seen is the process of change at the normative level--best described as "normative change."

Unlike doctrinal change, normative change entails change occurring not in the actual content or structure of the common law's individual doctrinal mechanisms but instead at the level of normative meaning, embodied in the common law's conceptual structure. (140) Normative change, in other words, operates through the interaction between the jural and normative meanings of the common law's different concepts, which in turn enables common law doctrine to accommodate and affirm changing social values, and ideals without having to alter the actual doctrinal content of the law. Change of this kind is critical to the functioning and legitimacy of the common law insofar as it allows the law to keep up with the needs of society, and at the same time remain firmly anchored (as a doctrinal matter) in relatively stable practice. And it is once again the common law's conceptual edifice that enables such normative change.

One might, of course, object that the distinction we are drawing, between doctrinal and normative change, is less clear in practice than we make it out to be and that in many situations the two do in fact go hand in hand. A doctrinal change--involving, say, an alteration in an individual rule--might indeed be motivated by a change in normative ideal or value. (141) We fully accept this possibility. Yet our simple point is that, at multiple points in its development, the common law goes through a process of change without exhibiting any overt or patent alterations to its form and jural structure. On the face of things, one might thus think that the law has remained altogether static, since no actual doctrinal modification has occurred. Our claim is merely that this need not be always true and that even when the common law does not exhibit variation in form and structure, it can nonetheless undergo important changes at the normative level, which can obviate the need for alterations at the doctrinal level.

The process of normative change allows the common law to be overtly pluralist in its functioning. This form of "functional pluralism" stands in stark contrast to structural pluralism, a form of pluralism that is associated with the common law. (142) Structural pluralism posits that the diversity of legal institutions and doctrines in the common law allows it to embrace a diversity of values, insofar as individuals are allowed to choose among these various institutions (and therefore values). (143) Premised on the overarching value of autonomy, structural pluralism situates the common law's pluralism in its doctrinal structure. (144) In so doing, it is forced to rely entirely on doctrinal change in order to realize any alterations in social values and ideals. By contrast, functional pluralism--of the kind that we offer and defend here--situates the common law's commitment to pluralism in its actual functioning rather than in its structure. It explains how the common law's process of normative change, modulated through its conceptual architecture, allows individual doctrinal areas to affirm and embrace different normative values over time and context.

We identify three principal ways in which normative change occurs in the common law through the use of legal concepts: interpretive change, interconceptual change, and additive change. Each of these methods of normative change relies fundamentally on the relationship between the jural and normative meanings of legal concepts, a relationship that judges effectively deploy to stabilize the content of the law while altering its contextual meaning. This Section describes and illustrates each of these mechanisms.

1. Interpretive Change

Interpretive change is perhaps the most common mechanism through which normative change comes about in the common law. At its simplest, it entails a court imbuing a legal concept with new normative meaning while keeping the jural meaning of the concept static. All the same, the process involves a subtlety that is often ignored.

As described previously, the jural and normative meanings of a legal concept are in equilibrium with one another at any given point in time. (145) There thus exists a shared understanding of the jural meaning of the concept among most legal actors. In addition, concepts often have a dominant normative meaning that emerges from authoritative judicial pronouncements. The process of interpretive change involves altering the equilibrium between the concept's jural meaning and normative meaning. In essence, the process can be broken down into two steps. In the first step, a court interprets the prevailing normative meaning of the legal concept in a way that brings it into close (if not complete) alignment with the concept's jural meaning. In so doing, the open-textured nature of the legal concept renders it indeterminate or vague insofar as its application to the specific context in question goes. This in turn produces the second step, which involves the court infusing the jural meaning of the concept with a new normative orientation. Almost always, the two steps occur contemporaneously even though they remain jurally distinct.

The process of interpretive change is in many ways just as much a rhetorical strategy as it is a process of common law interpretation. In addition, since the focus is entirely on the internal dynamics of the legal concept (i.e., its duality of meaning), it is in essence a form of intraconceptual normative change. Thus, if a is the jural meaning of the concept, and w, its prevailing normative meaning at time [T.sub.1]; at time [T.sub.2] when the court seeks to introduce the normative change, the steps are: first, [n.sub.1] is interpreted to be as close as possible to a (i.e., [n.sub.1][right arrow]a), as a result of which it is rendered indeterminate in application, requiring a second step, that a is in turn interpreted in terms of [n.sub.2] in order to render it applicable to the particular context in question. The process is best illustrated through a few examples.

Consider first the common law of nuisance in England at the turn of the nineteenth century. (146) At the turn of the century, nuisance law placed great emphasis on the concept of a "reasonable use" which operated as the lynchpin of the action in individual disputes. (147) The concept invariably entailed a reasonableness-based balancing exercise. Yet, by the mid-1800s, most courts had come to interpret the concept as weighing the plaintiffs alleged harm against the "general and minimal standards of comfort." (148) The basic requirements of living were thus deemed to be the appropriate baseline against which the defendant's actions were to be measured. Altogether missing in this analysis was any consideration of the potential benefits that the defendant's actions might entail and the feasibility of its being performed or undertaken at an alternative location. (149) Such an approach would obviously involve infusing the common law of nuisance with a distinctively utilitarian overtone insofar as it now measured the actual benefits of the defendant's actions, regardless of the unfairness of the plaintiffs harm, the primary concern under the pre-existing formulation of an "unreasonable interference."

The old approach--of focusing on the plaintiff's harm and measuring it against the minimal standards of comfort--looked entirely to the fairness of the plaintiff's claim, and operated under the basic recognition that the plaintiff had a pre-existing right to comfortably enjoy his property, with the only question remaining being whether such enjoyment was indeed possible in light of the defendant's actions. (150) This standard altogether disregarded any independent value that the defendant's actions might produce, despite its causing the plaintiff actual harm. In the mid-nineteenth century, an important (but short-lived) English decision sought to alter this standard.

In Hole v. Barlow, the court was motivated by utilitarian considerations, which it saw as altogether absent under the prior standard. (151) The court thus observed that under the existing standard the "great manufacturing towns of England would be full of persons bringing actions for nuisances arising from the carrying on of noxious or offensive trades in their vicinity, to the great injury of the manufacturing and social interests of the community." (152) Instead of overtly claiming to then change the law to address this concern, the court thereafter looked to the concept of "reasonable use," which courts had utilized in conjunction with the concept of the "unreasonable interference" in prior cases. (153) It concluded that in situations of a "reasonable use, of a lawful trade in a convenient and proper place, even though some one may suffer annoyance from its being so carried on," no claim for nuisance would lie. (154)

Scholars have described Hole as a "radical departure from previous law" and have observed that "under the guise of semantic continuity, an actual change in the law itself did occur." (155) This is precisely the normative change that the court brought about. On the face of things, no overt change in the jural structure of nuisance doctrine occurred. The concept of "reasonable use" formed the focus of the court's analysis. What the court in effect did was to treat the prevailing normative meaning of the concept (of reasonable use) as sufficiently indeterminate (i.e., as being no different from its jural meaning), which required no more than a balancing exercise that scrutinized the use against a baseline. It then proceeded to eliminate (or solve) that indeterminacy by infusing the concept with a new normative meaning, which would satisfy the minimal requirements of the concept's jural meaning. "General and minimal" standards of comfort, which formed the pre-existing normative meaning, was first equated with the sufficiently vague idea of "reasonable use," which the court then replaced with "convenient and proper place" as the new normative standard that would enable the doctrine to now accommodate avowedly utilitarian considerations. (156) Later courts, to be sure, came to disagree with the court's decision in Hole, preferring instead to emphasize fairness-- rather than utilitarian--considerations in the working of nuisance law. (157) Interestingly enough, their reasoning too relied on the ideas of "reasonable use" and "unreasonable interference," thereby effectively preserving the doctrinal content of nuisance law and the jural meaning of the legal concept in question while nonetheless effecting an important normative change. (158)

A second example is seen in the law of riparian rights as it evolved in nineteenth-century America. By the early nineteenth century, riparian rights in the United States generally followed what scholars describe as the "natural right theory" or the idea of a "natural flow." (159) According to this approach, courts allowed riparian owners to use a stream at will, as long as they did not interfere with the natural flow of the stream beyond minimal levels needed for their domestic use, agriculture, or animal husbandry. (160) In essence, this approach emphasized the riparian property owners' exclusive dominion and the normative ideal of owner-autonomy. Considerations of efficiency, optimal social use, and the like found little place under this approach.

A few early courts had sought to deviate from the natural flow approach and introduce in its stead a balancing test that examined the relative efficiencies of the owner's use and the neighbor's use. (161) These deviations were met with immense criticism from scholars at the time. (162) They were seen as abrupt transformations--and therefore outliers--in the development of the law. All the same, they rendered salient the importance of moving the law in the direction of affirming utilitarian, efficiency-based considerations, by balancing a riparian owner's entitlement against the needs of downstream uses and economic development that might maximize overall social welfare (i.e., utilitarianism over autonomy). It was not until Justice Story's famous opinion in Tyler v. Wilkinson, delivered in 1827, that these normative considerations were made an actual part of the formal law of riparian ownership, unlike the prior efforts that had sought to change the doctrine altogether. (163) Morton Horwitz describes Justice Story's opinion as reflecting the reality that "[c]ommon lawyers are more comfortable with a process of gradually giving new meanings to old formulas than with explicitly casting the old doctrines aside." (164) This was in essence a process of interpretive normative change.

Justice Story begins his opinion by affirming the natural flow approach as the default position on riparian ownership. (165) He then goes on to make the following observation, which has since been credited with effecting an important alteration in the law:
   When I speak of this common right, I do not mean to be understood
   as holding the doctrine, that there can be no diminution
   whatsoever, and no obstruction or impediment whatsoever, by a
   riparian proprietor, in the use of the water as it flows; for that
   would be to deny any valuable use of it. There may be, and there
   must be allowed of that, which is common to all, a reasonable use.
   The true test of the principle and extent of the use is, whether it
   is to the injury of the other proprietors or not.... The
   diminution, retardation, or acceleration, not positively and
   sensibly injurious by diminishing the value of the common right, is
   an implied element in the right of using the stream at all. The law
   here, as in many other cases, acts with a reasonable reference to
   public convenience and general good, and it is not betrayed into a
   narrow strictness, subversive of common sense, nor into an
   extravagant looseness, which would destroy private rights. (166)


In this paragraph, Justice Story is credited with introducing the idea of a reasonable riparian use into the analysis of riparian rights and with moving the law in the direction of recognizing efficiency and social welfare considerations as part of the doctrine. (167) The genius of his approach lies in the simple fact that overtly, he effected no change whatsoever in the doctrine or applicable concepts themselves. Horwitz describes it as the "classically transitional judicial opinion." (168)

On closer analysis, we see how exactly the opinion introduces its desired normative change interpretively. The prior law had emphasized the existence of a riparian owners "right" and the need to protect it against interferences, which were characterized as "injuries." Relying on the idea that every infraction of a right (e.g., the right to exclude) was an injury at law, the natural flow theory rendered such injuries actionable. (169) The jural meaning of the concept thus entailed the idea of an actionable interference (e.g., "injuria sine damno"), (170) and the pre-existing normative meaning situated that concept in the notion of natural rights and the value of owner autonomy. In Tyler, Justice Story played on the legal concept of "injury" by admitting that its basic jural meaning rendered it contextually indeterminate, thereby allowing him to infuse it with the idea of actual harm (i.e., damage and compensable loss). In this vein, the leading historical account of water rights at common law argues that the opinion successfully "transforms strict natural rights into reasonable rights by playing on the ambiguity of the notion of 'injury', both at law and in common speech." (171) In essence, then, Justice Story's reasoning accepts the injury-based rationale of the test but proceeds to treat the idea of an injury as an empirical question, based on the "value" of the use and the right at issue. (172) In so doing, it successfully infused the doctrine with distinctively utilitarian considerations through the process of interpretive normative change.

Interpretive normative change is thus a fairly well-known method of infusing the common law with new normative ideas and content, without actually altering the doctrinal content and jural structure of the rules themselves. As we saw, it relies very heavily on the common law's conceptual structure and works with the jural indeterminacy of legal concepts to take them in new normative directions as circumstances demand.
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Title Annotation:Introduction through II. Stability and Change in the Common Law B. Normative Change in the Common Law 1. Interpretive Change, p. 1241-1281
Author:Balganesh, Shyamkrishna; Parchomovsky, Gideon
Publication:University of Pennsylvania Law Review
Date:Apr 1, 2015
Words:13846
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