legal process (jurisprudence)
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The legal process school (sometimes "legal process theory") was a movement within American law that attempted to chart a third way between
legal formalism Legal formalism is both a descriptive theory and a normative theory of how judges should decide cases. In its descriptive sense, formalists maintain that judges reach their decisions by applying uncontroversial principles to the facts; formalis ...
and
legal realism Legal realism is a naturalistic approach to law. It is the view that jurisprudence should emulate the methods of natural science, i.e., rely on empirical evidence. Hypotheses must be tested against observations of the world. Legal realists be ...
.Donald A. Dripps, ''Justice Harlan on Criminal Procedure: Two Cheers for the Legal Process School''
3 Ohio St. J. Crim. L. 125
, 126 (2005).
Drawing its name from Hart & Sacks' textbook ''The Legal Process'' (along with Hart & Wechsler's textbook ''The Federal Courts and the Federal System'', considered a primary canonical text of the school), it is associated with scholars such as
Herbert Wechsler Herbert Wechsler (December 4, 1913 – April 26, 2004) was an American legal scholar and former director of the American Law Institute (ALI). He is most widely known for his constitutional law scholarship and for the creation of the Model Penal ...
, Henry Hart,
Albert Sacks Albert Martin Sacks (August 15, 1920 – March 22, 1991) was an American lawyer and former Dean of Harvard Law School. Born in New York City to Jewish immigrants from Russia, he attended City College of New York graduating in 1940. After serving ...
and
Lon Fuller Lon Luvois Fuller (June 15, 1902 – April 8, 1978) was an American legal philosopher, who criticized legal positivism and defended a secular and procedural form of natural law theory. Fuller was a professor of Law at Harvard University for many ...
, and their students such as
John Hart Ely John Hart Ely ( ; December 3, 1938 – October 25, 2003) was an American legal scholar. He was a professor of law at Yale Law School from 1968 to 1973, Harvard Law School from 1973 to 1982, Stanford Law School from 1982 to 1996, and at the Uni ...
and
Alexander Bickel Alexander Mordecai Bickel (1924–1974) was an American legal scholar and expert on the United States Constitution. One of the most influential constitutional commentators of the twentieth century, his writings emphasize judicial restraint. Life ...
. The school grew in the 1950s and 1960s. To this day, the school's influence remains broad.


Basic precepts

*"Institutional Settlement." As the name suggests, the legal process school was deeply interested in the processes by which law is made, and particularly in a federal system, how authority to answer various questions is distributed vertically (as between state and federal governments) and horizontally (as between branches of government) and how this impacts on the legitimacy of decisions. The principle of institutional settlement looks at how society decided: "that law should allocate decisionmaking to the institutions best suited to decide particular questions, and that the decisions arrived at by those institutions must then be respected by other actors in the system, even if those actors would have reached a different conclusion"Ernest Young, ''Institutional Settlement in a Globalizing Judicial System'', 54 Duke L. J. 1143, 1150 (2005). *The Rule of Law. Although courts should be aware and respectful of this institutional settlement, courts have an important role to play, and the rule of law "requires the availability of judicial remedies sufficient to vindicate fundamental legal principles."Richard H. Fallon, Jr., ''Reflections on the Hart and Wechsler Paradigm'', 47 Vand. L. Rev. 953, 964-6 (1994). "The role of courts in the Legal Process tradition is often similar to that of a point guard on a basketball team: the court takes provisional responsibility for a dispute, but may well decide to pass it off to other actors in the system *"Reasoned Elaboration." The legal process school recognized the claims of legal realists that judges do, in fact, make law, and that adjudication is not merely the mechanical deduction from precedent and statutory texts claimed by formalists. Unlike the realists, however, legal process claims that, as Fallon puts it, "while the judicial role is irreducibly creative in some respects, it is limited to the reasoned elaboration of principles and policies that are ultimately traceable to more democratically legitimate decisionmakers." Judges should reason from the totality of the legal materials at issue to reach their conclusions, and while "raw judicial will" sometimes happens, as a matter of observable reality, it is deprecated. *"What ''are'' legal materials? The 'anti-positivist' principle." Legal process generally, but Hart & Sacks particularly, suggest that the legal materials from which the aforementioned reasoned elaboration must take place are not limited to precedent and statutory text. Rather, as Wells puts it, legal process "permit " and may even "require" that legal materials include "general ethical principles and widely shared social goals ... ecause'the law rests upon a body of hard-won and deeply-embedded principles and policies.'"Michael Wells, ''Behind the Parity Debate: the Decline of the Legal Process Tradition in the Law of Federal Courts'', 71 B.U.L. Rev. 609 (1991). Hart & Sacks stressed that this did not mean that judges were authorized to impute their own preferences into law, but rather, that there are broad legal authorities embedded in and assumed by narrower texts. This leads legal process to look at purpose and structure as well as text (for example, "federalism," "separation of powers" nor "judicial review" are not explicitly stated in the Constitution, but are eminently clear from the general structure of government delineated therein). "Any particular legal directive must be seen and interpreted in light of the whole body of law." *Neutral principles. Courts must reason from legal materials using principles that "in their generality and their neutrality transcend any immediate result that is involved."Herbert Wechsler, ''Toward Neutral Principles of Constitutional Law'', 73 Harv. L Rev. 1 (1959). A judge must decide a case on reasoning "that he would be willing to follow in other situations to which it applies," which is to say that a principled decision must announce that the case being decided is "an instance of a more inclusive class of cases" and is being "treated in a certain manner because it is held to be proper to treat cases of its type in a certain manner."Kent Greenawalt, ''The Enduring Significance of Neutral Principles'', 78 Colum. L. Rev. 982 (1978). When a case or class of cases present questions that cannot be adjudicated through application of neutral principles, courts should refuse to decide such questions: " ey should decline to impose substantive judicial judgments on disputes not capable of resolution through the application of neutral principles to sharply defined sets of facts." In the legal process concept, "the integrity of the judicial process may be compromised if ... ases are decided onarguments that extend no further than the case at hand. ... Only by insisting on a level of generality, some distance between the reasons and the facts of the case at hand, can one be certain that judges are actually reasoning from legal materials rather than indulging their own preferences." When a judge "adopt a general rule, and say 'This is the basis of our decision,'
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not only constrain lower courts,
hey Hey or Hey! may refer to: Music * Hey (band), a Polish rock band Albums * ''Hey'' (Andreas Bourani album) or the title song (see below), 2014 * ''Hey!'' (Julio Iglesias album) or the title song, 1980 * ''Hey!'' (Jullie album) or the title s ...
constrain hemselvesas well. If the next case should have such different facts that
heir Inheritance is the practice of receiving private property, titles, debts, entitlements, privileges, rights, and obligations upon the death of an individual. The rules of inheritance differ among societies and have changed over time. Officiall ...
political or policy preferences regarding the outcome are quite the opposite,
hey Hey or Hey! may refer to: Music * Hey (band), a Polish rock band Albums * ''Hey'' (Andreas Bourani album) or the title song (see below), 2014 * ''Hey!'' (Julio Iglesias album) or the title song, 1980 * ''Hey!'' (Jullie album) or the title s ...
will be unable to indulge those preferences ... hav ngcommitted hemselvesto the governing principle."
Antonin Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
, ''The Rule of Law as a Law of Rules'', 56 U. Chi. L. Rev. 1175 (1989).
*Traditional dispute resolution. Similar to the directive that courts should not hear disputes that cannot be resolved through neutral principles (i.e. political questions) is the notion that courts in the American system of government are institutionally limited to resolving the kinds of disputes courts traditionally resolved: "'bipolar' disputes in which each of two contending parties introduces arguments making a claim of right or an accusation of guilt, and in which the judge's task is to choose between them on a reasoned basis." Although legal process is no longer popular by name, particularly in the academy, it can be seen as harmonizing with both major modern schools of judicial thought,
textualism Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, the ...
and
purposivism The purposive approach (sometimes referred to as purposivism, purposive construction, purposive interpretation, or the modern principle in construction) is an approach to statutory and constitutional interpretation under which common law courts i ...
, depending on which of the foregoing assumptions are emphasized.


See also

*
International legal theory International legal theory comprises a variety of theoretical and methodological approaches used to explain and analyse the content, formation and effectiveness of public international law and institutions and to suggest improvements. Some approach ...


References

{{DEFAULTSORT:Legal Process (Jurisprudence) Philosophy of law