November 2--Legal Process II
Professor William R. Long
Dewey's Democracy and Hart's The Concept of Law
Feldman emphasizes that the problem addressed by Dewey was how to make the dominant relativism of the culture the theoretical foundation for democracy (p. 117). Feldman stresses that the most important formulation of this relativist theory was "pluralism"--viewing the political process as a legitimate battle among competing interest groups. By engaging in the political process truth might not win out (because no one knew if there really any such thing as ultimate truth) but democracy would. And what were the basic principles of democracy? Democratic process--which included "consultation, persuasion, negotiation, and communication" and social consensus--fostered through television, coercion and postwar prosperity.
Moving to the Legal Realm
Because Feldman approaches law within the context of American intellectual life generally, he only treats legal developments after introducing the general intellectual current of the times. When he does so he stresses that the "legal theorists, again like the political theoriests, focused primarily on process, supported by an assumed social consensus about the acceptability of the American legal system (p. 119)." What did this process entail? Hart and Sacks' quotation on p. 120 and the discussion on p. 121 says the important things: process consists in "institutional settlement" expressing the consensus of lots of "duly's" (p.120) as well as the importance of "reasoned judicial elaboration"--i.e., opinions that lay out reasons for their results. Search as I might, I think these things are the major contributions of legal process. It doesn't seem to amount to much, but it is an attempt to carve out a role for the courts in the complex postwar world.*
[*I think Feldman misses the boat by not "proving" his point by reviewing the history and text of the federal Administrative Procedures Act in 5 USC 500 et seq. This act, which helped to create "the Administrative State," was passed just after WWII and serves as the basic means by which some 55 federal agencies adopt rules (and conduct hearings) to implement Congressional statutes. If there is any place where process is spelled out most fully in American law, it is through the cases interpreting the federal APA].
Fourth Stage Modernism--Crisis
Feldman seems to have a liking for the notion of crisis, and he sees it developing in the 1950s-1960s in the Warren Court. He focuses on the 1953 Brown v. Board of Education (the popular wisdom is that this was a completely positive decision in American life) and suggests that its mode of legal argumentation belied the central principle of reasoned elaboration of the legal process school. I don't know if you noted, in his discussion leading up to Brown, how he puts Stone's fn. 4 in Carolene Products into historical context (p. 124). It was not until I read Feldman's treatment of fn. 4 that I really understood its meaning in the context of providing an "exception" to the newly-developed deference of the Court (after 1937) toward FDR and the New Deal programs.
In any case, Feldman argues that Brown provoked considerable debate about whether there were or ought to be "neutral principles" of law underlying Supreme Court decisions. I think it was around this time that legal scholars/judges started throwing around the notion of the importance of making "principled" decisions. "Principled" decisions were those that had "reasoned elaboration." This kind of language is still omni-present in law. Witness Justice Antonin Scalia's attempt to wriggle out of the apparent conflict of interest he had in taking hunting trips with Vice-President Cheney when the Vice-President has a case or two before the Court. The Justice said that there was no "principled" reason for him not to do so. Whatever that means.
Moving to HLA Hart
HLA Hart is the name of a scholar, not a ship in the Royal Navy. He is credited with bringing jurisprudence from a rather arcane study only for a few law students to an important realm of discourse in law schools and universities alike. His book The Concept of Law (1960) contains not simply a criticism of legal positivism (of the Austin variety) but an attempt to articulate an "inclusive legal positivism" for the mid 20th century. I think that the best way to try to approach Hart in class is to take about 20 minutes to do "internet study" on him and then come back to share our results. There are five topics I would like you to research on Hart.
1. Tell me about his biography, significant writings, positions held, etc. As you know, I think it is absolutely crucial to try to understand a person's "location" in order to understand his or her work.
2. One of the purposes of the book is to criticize the legal positivism of John Austin (the rather dull but prolific disciple of Jeremy Bentham). How does he do so?
3. One of Hart's central concepts is the "rule of recognition" which all legal systems have or must have to be a legal system. What is the "rule of recognition?"
4. What is the "internal point of view" and how does it function in Hart's jurisprudence?
5. Compare and contrast Exclusive and Inclusive Legal Positivism.
In addition, I am always open to your finding interesting things about Hart (or anyone we study, for that matter) that may shape his perspective.
Copyright © 2004-2007 William R. Long