The Legal Process: Basic Problems in the Making and Application of Law.

• Date: 01 May 1996
• Author: Sebok, Anthony J.
• Published date: 01 May 1996
• Author: Sebok, Anthony J.

1. DEFINING THE LEGAL PROCESS

   I saw my first copy of The Legal Process during law school when a professor lent me his dogeared photocopy of Henry Hart(1) and Albert Sacks's(2) manuscript. Even though I knew that the manuscript had been copied freely for many years, and that hundreds, maybe thousands, of versions sat in offices and libraries around the world, I still experienced a slight thrill as I held a copy of the famous book that never became a book -- as if I had in my hands a samizdat or an artifact. Now that Foundation Press has "Officially" published The Legal Process thirty-six years after Hart and Sacks last edited it, it is worth asking whether the act of publication changes the meaning of The Legal Process in any way.

   There is great irony in thinking of The Legal Process as a samizdat. The Legal Process was never suppressed, and as William N. Eskridge, Jr. and Philip P. Frickey suggest in their elegant and thoughtful introduction, the reasons for the failure to publish are most likely prosaic.(3) Furthermore, while samizdats may become influential through subversion, The Legal Process exercised its influence as a pillar, if not the pillar, of the established legal community throughout the late 1950s and 1960s.(4) The extraordinary influence of The Legal Process in both practice and the academy probably resulted from the fact that Hart and Sacks addressed themselves directly to students, and not to a more self-selecting audience in the law reviews. The Legal Process formed the foundation of a course taught at Harvard for thirty years, as well as at many other law schools that Hart and Sacks's friends, admirers, former colleagues, and students populated (pp. ci-civ). It is important to realize that Hart and Sacks could reach students who would not only become the legal scholars of the future, but also partners in law firms, elected and unelected members of government, and judges.(5) One might even think that, unlike the authors of samizdats, who cannot publish because of censorship and other threats, Hart and Sacks never published The Legal Process because, given its success, they did not really need to.

   There is a bit more truth in comparing The Legal Process to an artifact. Like a reconstructed object from an archaeological dig, one might wonder what the 1958 edition of The Legal Process lacks, and what additions would be necessary to complete it. Despite Eskridge and Frickey's careful explanation of the evolution of The Legal Process -- tracing its descent from Lloyd Garrison and Willard Hurst's materials for their course "Law and Society" in the late 1930s, to Hart, Abe Feller, and Walter Gellhorn's materials for a course on legislation in the early 1940s, to Hart's postwar materials for his legislation course, to the four versions of the book produced by Hart and Sacks between 1995 and 1958 -- there is no way to know how the book would have ultimately looked had it been allowed to continue to evolve. On the one hand, then, to ask whether the book was ever finished is a trivial question; the authors themselves in word and deed declared it to be unfinished.(6) They never sent the book to its publisher, and they called it -- and, presumably, thought it important that others do so too -- a "tentative edition." In setting out to themselves their own map of the book, they repeatedly included in the table of contents chapters that had not yet been written.(7)

   On the other hand, as with other texts, other factors may overwhelm the intentions of the original authors, even on matters as critical as content and closure. Thus, on a very nontrivial level The Legal Process is a completed text. This is not because Foundation Press put it between hard covers, but because over the past thirty-six years the 1958 tentative edition has acquired a canonical status in the relevant interpretive communities. By the 1970s lawyers were treating The Legal Process as not only an influential set of teaching materials, but as the foundational text of the legal theory known as "legal process." Regardless of whether Hart and Sacks intended it to serve as an exposition and defense of a legal theory, that is precisely how The Legal Process is now viewed, and, in a very real sense, that is precisely what The Legal Process now is. The Legal Process, in its artifactual form, now states Hart and Sacks's legal theory, from which scholars have drawn three themes in legal process.

   The first theme emphasizes that legal process theory grapples with institutional competence.(8) This perspective stresses that Hart and Sacks "believed that it was possible to distinguish legitimate and illegitimate exercises of official power while simultaneously transcending the centuries-old debate between . . . the `is' and the `ought'."(9) The Legal Process demonstrated that lawyers did not have to engage in substantive moral or political reasoning, since "there could be a kind of natural, functional correlation between different kinds of disputes and different kinds of institutions, so that the categories of dispute could be matched up with the kinds of institutional procedures corresponding to them."(10) Thus, by adopting the value pluralism of pragmatists like John Dewey, legal process was able to argue -- contra the realists -- that the analysis of legal validity is not reducible to political ideology.(11)

   The second theme emphasizes the connection between legal process and the problem of statutory interpretation.(12) This perspective stresses Hart and Sacks's interest in proving that statutes exemplified "reasonable persons pursuing reasonable purposes reasonably."(13) In a manner similar to the substance/procedure distinction implicit in the idea of institutional competence, Hart and Sacks's theory of statutory interpretation rests on the conviction that competing political interest groups could, if governed by the right sort of procedure, produce rational public policy.(14) This view of statutes depended critically on the presumption that procedures existed that could identify the purposes selected by the legislature without actually substantively evaluating those purposes.(15)

   The third theme emphasizes the primacy of reason in legal process.(16) This perspective stresses that legal process was "premised, in every instance, on the belief that those who respect and exercise the faculty of reason will be rewarded with the discovery of a priori criteria that gives sense and legitimacy to their legal activities."(17) Like many in their generation, Hart and Sacks believed that the standard of rationality, independent from any given context or result, could be used to judge the "soundness" of a process.(18) Thus, The Legal Process represents a significant episode in the postwar liberal project associated with Robert Dahl and John Rawls.(19)

   This essay endorses the idea that reading The Legal Process is a reconstructive project in which one must treat the book as a finished whole. In that spirit, I will suggest that a fourth and somewhat different theme lies at the heart of the book. I will argue that the structure of The Legal Process reveals an extraordinary concern with the problem of adjudication and that the book adopts and defends Lon Fuller's conception of adjudication. My interpretation of Hart and Sacks's argument is inconsistent, in varying degrees, with the three themes identified above, and I hope my analysis will raise some questions about our contemporary view of Hart and Sacks's understanding of their own project.

2. THE STRUCTURE OF THE LEGAL PROCESS AND ITS LEGAL THEORY

   A. The Two Faces of The Legal Process

   1. The Subject of The Legal Process

      The Legal Process operates on two levels: pedagogical and jurisprudential. Most immediately it seeks to serve as a casebook for a course that had none. To serve this end, it adopts a casebook's structure, with appellate decisions, commentary, and illustrative selections from law reviews and other secondary sources. The Legal Process qua casebook possesses a slightly experimental format, in that its seven chapters revolve around fifty-five problems. The problems ask the student to take the role of a legal actor in a wide range of roles -- drafting a lease, giving advice to a legislator, or, most often, deciding a case. Frequently Hart and Sacks follow a problem with an extensive discussion of how real lawyers, legislators, or judges approach the problem, and then ask a series of open-ended questions about the conventional solutions to the problem.

      The subject of The Legal Process is the subset of valid institutional decisions that involve the making or applying of law.(20) Hart and Sacks understand that a large share of society's institutional decisions do not involve the creation or application of law; they simply have little or nothing to say about nonlegal institutional decisions.(21) According to Hart and Sacks, the difference between institutional decisions that focus, in some way, on law, and other institutional decisions, is that institutional decisions about law are "general, directive, and authoritative" (p. 114). So the decisions taken by Citizen Smith to rent her house at price x and by Governor Jones to appoint a political ally to job y may be directive -- Smith and Jones speak "from one point of time to another" (p. 113) -- and may be authoritative -- Smith and Jones claim that their decisions "be entitled to observance and acceptance by all members of the society" (p. 114) -- but they are not general. Such "specific" institutional decisions derive from law but they are not law: "Individualized arrangements of this kind are almost invariably derivative. They depend for their authority upon the fact that they have been made in compliance with some much broader, underlying arrangement" (p. 114). Conversely, as long as an institutional decision is "general, directive, and authoritative," it must involve either the creation or application of law, whether issued by a court, an...