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Whatever one may make of the important relation between law and religion, it is quite clear that Legal Realism represents the culmination of early-twentiethcentury assaults on legal fundamentalism and, in particular, on late-nineteenthcentury categorical thinking. 36 Not only did Realists follow Holmes in conceiving of ordinary legal questions as questions of degree requiring line drawing and balancing tests but, more fundamentally still, they insisted that legal classifications and categories were not natural but social constructs. The way to determine whether a legal classification was good or not depended on the purposes for which the category was created, not on some measure of whether it fit or reflected a preexisting natural category. Categories do not express pre-existing essences. Property, Holmes pointed out, is a "creation of law." Just as pragmatism had attacked the essentialist claims of philosophical idealism by insisting on a functionalist and consequentialist truth, so did the Realists treat the value of concepts and categories in terms of the results that they produced. This "cognitive relativism" of Realism has not been sufficiently appreciated; its "value relativism" has, by contrast, been exaggerated. 37
There has been some confusion between the Realist insistence on the socially constructed nature of legal categories (and the still broader assertion of the socially contingent character of all legal architecture) and the somewhat different anticonceptualism for which Legal Realism is also known.
Hostility to conceptualism was a hallmark of Legal Realist criticism. Deriving from the widely shared Realist view that orthodox legal thought had created an illusory sense of integration through a process of generalizing and abstracting concepts to cover an ever-widening range of legal relations, Legal Realists sought to explicate the famous aphorism from Holmes's Lochner dissent: "General propositions do not decide concrete cases.- 38
Realist anti-conceptualism developed into varieties of "rule skepticism," which denied that it was possible to reason downward in a non-discretionary and apolitical manner from very general concepts to more particular rules or doctrines and then, finally, to specific applications of these rules to concrete sets of facts. The demonstration that deductive logic could not provide a self-executing way to move from the general to the particular was among the most important contributions of Felix Cohen and the great philosopher John Dewey to the Realist critique. 39 It was the most influential source of Realist anti-conceptualism and the insistence on greater particularity and contextualism in legal thinking.
The Realist hostility to general concepts like "liberty," "will," "fault," and "property" led them to attempt to deconstruct what Felix Cohen derisively called the "heaven of legal concepts."40 Indeed, their hostile attitude toward abstraction represents one of the most significant differences between Realism and earlier Progressive legal thought.
Until the Realists, critical thought about law had generally tended toward the abstract and the systematic. The brilliant system building of Bentham inspired almost a century of efforts of utilitarians to go behind the dense and unsystematic common law system in order to find more fundamental truths derived from utility.41 The gradual collapse of the forms of action after mid-century unleashed a surge of efforts to discover underlying general principles of law, a perspective that had been virtually unknown among common lawyers for 500 years. For much of the nineteenth century, therefore, efforts at systematization and generalization carried the deeply subversive message that the existing common law system was at best incoherent and at worst irrational and illegitimate. A thin line, however, has always separated the apologists, who believed, like Blackstone, that a more abstract and systematic jurisprudence would reveal the deeper rationality of the common law, from the critics like Hohfeld, whose efforts at systematic jurisprudence were inspired by the belief that only a more abstract system of legal thought could expose the irrationality of common law modes of legal classification. 42
The appeal of Austin's jurisprudence to Holmes, for example, was the appeal of the analytical system builder to the young, critically minded legal theorist. But the most important American example of abstraction and systematization in the service of reform was Hohfeld's 1913 and 1917 articles on fundamental legal conceptions.43
I attempted earlier to explain the critical and deconstructive strategy behind Hohfeld's work, which was clearly understood by his contemporaries at Yale, Arthur Corbin and Walter Wheeler Cook.44 Less than a generation later, however, the method behind Hohfeld's categories was lost and his system of legal classification had become "a sack of dried beans" delighted in only by apolitical pedants. 45
The most important reason for this turn is that the Realist generation after Hohfeld arrived at a virtually unanimous conviction that the old order had attained an undeserved legitimacy through abstraction, generalization, and systematization of legal categories, which (in the language of a later day) they believed "reified" reality and produced a false sense of order and security through suppression of anomalies.46 "The present wave of nominalism in juristic science," Morris Cohen wrote in 1931, "is a reaction by younger men against the abuse of abstract principles by an older generation that neglected the adequate factual analysis necessary to make principles properly applicable." 47
It is at this point that we need to pause and realize the full significance of the Realist assault on the abstraction and systematization of orthodox legal thought. The assault occurred at the very moment at which, after a century of development, the treatise tradition was finally able to confer legitimacy on systematic legal thought. For the first time in 500 years, Anglo-American legal thought had begun to move away from the common law's proceduralism and particularism to resemble more closely the flights of system building associated with the Continental pandectists.
The Realists charged the systematizers not only with distorting reality but also with using abstraction and generalization to cover up the conservative nature of their politics. They insisted, therefore, that only more specific, more concrete, and more contextual legal rules could actually fit reality. The Realists' rule skepticism 48 thus represented a protest against what today we would call the overand under-inclusiveness of rules and doctrines in orthodox legal thought."
But the Realist critique of categories was developed still further into what has been called "anti-conceptualism." As Lon Fuller pointed out in an extraordinarily perceptive 1934 article, many Realists seemed to accept the view that since all concepts inevitably distorted reality, the task of a Realist jurisprudence was somehow to root out concepts altogether and return to the raw material of reality. 50 They thus seemed to merge the critique of abstraction as over-inclusive and under-inclusive with a more antinomian hostility to all forms of categorization and classification. The question is whether this did not eventually produce an untheoretical and uncritical form of legal discourse. 51
One can best see the practical consequences of the Realist critique of concepts by comparing its arguments against deductive reasoning-the vertical dimension-with those that criticized analogical reasoning-the horizontal dimension. We have seen that the Realist attack on the formalism of the old order denied the claim that legal reasoning could imitate syllogistic or geometrical forms of argument. General propositions could not decide concrete cases because, in reasoning downward from a concept to its application, there were multiple inferences to be made and thus multiple conclusions to be drawn. Depending on which major premise was deployed or which intermediate minor premise was assumed, there were an :infinite number of potential conclusions that could be drawn. Hence deductive reasoning suppressed the inevitable moral or political choice among possible inferences. The more general the starting premise, the more indeterminate its particular applications.
Yet it should be emphasized that this critique of deductive reasoning does not question the necessity of using concepts to bring order to experience. Rather, it is critical of concepts only to the extent that they are so general as to be inherently random in their application. Otherwise, the critique simply denies the formalis
t assertion that it is possible to avoid some indeterminacy in the application of concepts, which was the point of the discussion of deductive reasoning in the first place. However, it was in the horizontal dimension of analogical reasoning that the true anti-conceptualism of some Legal Realists was revealed most clearly.
The capacious claims by Classical legal thinkers for the power of analogical reasoning were perhaps more important than any other in legitimizing the old order. Analogical reasoning-the ability to say that one case was like anotherwas central to all theories that distinguished legal reasoning from political reasoning or sought to show that judging was a function of reason, not will. All of the "discovery" and "finding" metaphors, developed to distinguish courts from legislatures, were heavily dependent on developing a conception of common law reasoning that would exemplify a government of laws, not of men. All theories of precedent designed to portray the judge as bound by prior rulings were similarly based on the ability to determine whether one case was like another.52 Indeed, the most typical nineteenth-century defense of the common law against the charge of the codifiers that "judge made law . . . from its nature, must always be ex post facto" 51 was the reply that there really was no common law "case of first impres sion" because analogical reasoning from similar cases or principles provided a selfexecuting process of discovery, at least for those learned in the law.54
Because analogical reasoning carried such a heavy burden of justification under the common law system, it became a tempting target for those who wished to challenge the apolitical premises of Classical Legal Thought. One of the best examples of this challenge appears in the case of International News Service v. Associated Press, decided by the U. S. Supreme Court in 1918. The case involved the question of whether news was property and whether the Associated Press, the established news service, could enjoin a newly organized competitor from "stealing" news.
At one level, we saw earlier, 55 the case is a significant example of judicial efforts to come to terms with the de-physicalization of property and the implications for legal thought of a shift away from landed property to more highly abstract-and physically unbounded-forms of commercial property. Here I wish to emphasize the close relationship between the de-physicalization of property and the decline in the power of concepts deriving from property to generate a field of analogical discourse.
There were three opinions in the INS case. For the majority, justice Mahlon Pitney seemed to believe that the case was an easy one for the plaintiff, who had put labor, money, and time into creating value. Appealing to a Lockean labor theory of value, he upheld the issuance of an injunction. His only apparent doubt was conveyed by the qualified reference to news as "quasi property," though that qualification was never explained.56
Justice Holmes concurred but issued his terse positivist proclamation about the nature of property: "Property, a creation of law, does not arise from value, although exchangable-a matter of fact." 57 This statement was designed to challenge the pre-political natural rights basis for property that underlay the majority opinion. For Holmes, there was no essence called property that existed prior to law. Instead, law defined whether something should be treated as property, which turned on questions of social policy.
Before we go further, we need to see how the positivist attack on natural rights theories of property was not only an attack on essentialism but, ultimately, a challenge to the power of analogical reasoning as well. Justice Pitney's majority opinion proceeded from the principle that anything that had market value was property, and that it was the task of the law to ratify what would have been true even in a state of nature. It was therefore also possible to reason at a very high level of abstraction about the nature of property. For Justice Holmes, by contrast, something may be called property to advance social purposes, not because it is endowed with some pre-existing essence of propertyness. If the judge is to look to precedent to decide whether news is property, he must analogize at a more concrete level of abstraction.
We can see all of this most clearly by comparing Holmes's solution to that of Justice Brandeis, who dissented in INS. "[T]he fact that a product of the mind has cost its producer money and labor, and has a value for which others are willing to pay," Brandeis wrote, "is not sufficient to ensure to it this legal attribute of property." How should a court decide whether or not to call news property? Proposing a radical analysis, Brandeis wrote:
The great development of agencies now furnishing country-wide distribution of news, the vastness of our territory, and improvements in the means of transmitting intelligence, have made it possible for a news agency or newspapers to obtain, without paying compensation, the fruit of another's efforts and to use news so obtained gainfully in competition with the original collector. The injustice of such action is obvious. But to give relief against it would involve more than the application of existing rules of law to new facts. It would require the making of a new rule in analogy to existing ones. The unwritten law possesses capacity for growth; and has often satisfied new demands for justice by invoking analogies or by expanding a rule or principle. This process has been in the main wisely applied and should not be discontinued. Where the problem is relatively simple, as it is apt to be when private interests only are involved, it generally proves adequate. But with the increasing complexity of society, the public interest tends to become omnipresent; and the problems presented by new demands for justice cease to be simple. Then the creation or recognition by courts of a new private right may work serious injury to the general public, unless the boundaries of the right are definitely established and wisely guarded. In order to reconcile the new private right with the public interest, it may be necessary to prescribe limitations and rules for its enjoyment; and also to provide administrative machinery for enforcing the rules. It is largely for this reason that, in the effort to meet the many new demands for justice incident to a rapidly changing civilization, resort to legislation has latterly been had with increasing frequency.
The rule for which the plaintiff contends would effect an important extension of property rights and a corresponding curtailment of the free use of knowledge and of ideas; and the facts of this case admonish us of the danger involved in recognizing such a property right in news, without imposing upon news-gatherers corresponding obligations. . . .
Courts are ill-equipped to make the investigations which should precede a determination of the limitations which should be set upon any property right in news or of the circumstances under which news gathered by a private agency should be deemed affected with a public interest. Courts would be powerless to prescribe the detailed regulations essential to full enjoyment of the rights conferred or to introduce the machinery required for enforcement of such regulations. Considerations such as these should lead us to decline to establish a new rule of law in the effort to redress a newly-disclosed wrong, although the propriety of some remedy appears to be clear.58
Brandeis's opinion was one of the most important Progressive statements of the changing status of common law analogical reasoning. First, we see the influence of the Progressive attack on natural rights essentialism, so that "unless the boundaries of the right are definitively established and wisely guarded . . . recognition by courts of a new private right may work serious injury to the general pub lic . . ." Once the concept of property is acknowledged to be a social creation whose boundaries are inevitably fluid and contingent, analogies also become more problematic. Second, Brandeis reflects the Progressive view that property law is not private but public law, since "with the increasing complexity of society, the public interest tends to become omnipresent. . . ." When contests over landed property were bipolar,59 common law decision was satisfactory. "When the problem is relatively simple, as it is apt to be when private interests only are involved," analogical reasoning "generally proves adequate." But where recognition of a property right in a complex and interdependent society affects many different interests, resort to legislation or administrative regulation becomes increas
ingly necessary. At this point, analogical reasoning by common law courts has become plainly inadequate.
Brandeis's dramatic refusal to apply common law analogical reasoning to a dispute over property rights between private parties illustrates the extent to which the process of analogy itself had been drawn into question as fundamentally political. Compared to Brandeis, Holmes was willing to engage in some modest analogical reasoning about the nature of property on the basis of common law precedents. Holmes thus turned to the law of unfair competition, which was designed to protect consumers from having a product made by another "palmed off" as the seller's own. "[I]n my view," Holmes wrote, "the only ground of complaint that can be recognized without legislation is [an] implied misstatement," a form of common law misrepresentation.60
So, unlike Brandeis, who condemned all analogy as inherently political in this case, and unlike justice Pitney, who confidently believed that common law analogy could operate at a very high level of generality to deal with virtually all contradictions, gaps, and ambiguities in the legal system, justice Holmes turned to concrete and contextualized common law precedent to do the job of analogy. This more particularized inquiry, he thought, was capable of generalizing limited principles whose field of radiation would be inevitably quite narrow. Beyond that, he agreed with Brandeis that analogy was, in effect, judicial legislation.
We can best capture the change in the status of analogical reasoning by looking back to an earlier Brandeis, still comfortably acting within the world of Classical Legal Thought. In 189o, Brandeis became famous when, together with Samuel Warren, he published an influential Harvard Law Review article arguing for common law recognition of the right to privacy.61 There is no better example of faith in the incredible power of analogical reasoning, no more perfect illustration of the legitimacy within Classical Legal Thought of argument from extremely abstract propositions about the supposed underlying principles contained within particular cases. Within two decades, however, the steady assault on conceptualism by Progressives drew into question the claims of analogical reasoning to be neutral and apolitical. Whether it is true, as most Realists came to believe, that abstraction necessarily tended toward reified concepts that inevitably lost touch with the complex currents of life continues to be a central question of social and legal theory. But whether it is possible to avoid such consequences without be coming untheoretical and anti-critical is an equally important question that Realism, by and large, did not address.62