What Color is the Number Seven? Category Mistake Analysis and the 'Legislative/Non-Legislative' Distinction

What color is the number seven? What is the street address of the “average American family,” which consists of exactly 2.75 people? Each of these is an example of “category mistakes,” whereby concepts are sought to be applied in categories to which they do not belong. Category mistakes are logically wrong because when two concepts are in different categories, we cannot measure the second, “target domain,” by methods that are appropriate only to the first, “source domain,” or vice-versa. The risk of category mistakes is ever-present in law because the same terms often carry dramatically different meanings in different contexts. The “legislative/non-legislative” distinction, used to differentiate legislative governmental conduct from non-legislative governmental conduct, has been particularly prone to category mistakes. Thus, standards used in one setting for distinguishing legislative from non-legislative governmental conduct are uncritically applied in settings in which they do not belong. This results in category mistakes, akin to using colors to measure numbers. This article proposes “category mistake analysis” as a methodology for uncovering category mistakes in law. Category mistake analysis reveals the underlying interests and policies in the source domains, from which the legislative/non-legislative distinctions are derived, in contrast to the underlying interests and policies in the target domains, to which the distinctions have been uncritically applied. Part I describes category mistake analysis by distinguishing it from the more conventional use of metaphors and analogies in legal reasoning. Part II examines the category mistake in the use of the legislative/non-legislative distinction to import the separation of powers concept into the popular democracy referendum setting. Part III considers the category mistake of using the legislative/non-legislative distinction to import the rule-making versus rule-enforcement concept into the exactions setting involving takings of property by the government. Part IV analyzes the category mistake of applying law-enactment concepts to determine whether administrative agency action should be subject to deferential judicial review.