Henry M. Hart, Jr.



Henry Melvin Hart Jr. (19041969) was an American
legal Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vari ...
scholar. He was an influential member of the
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faculty from 1932 until his death in 1969.

Early life and career

Born in Butte, Montana, Hart received his A.B. from
Harvard College Harvard College is the undergraduate college of Harvard University, an Ivy League research university in Cambridge, Massachusetts. Founded in 1636, Harvard College is the original school of Harvard University, the oldest institution of higher lea ...
in 1926 and attended
Harvard Law School Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States. Each class i ...
, where he was president of the ''
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'' and received an LL.M. in 1930 and an S.J.D. in 1931. Following work for then-Professor
Felix Frankfurter Felix Frankfurter (November 15, 1882 – February 22, 1965) was an Austrian-American jurist who served as an Associate Justice of the Supreme Court of the United States from 1939 until 1962, during which period he was a noted advocate of judici ...
, Hart clerked for Supreme Court Justice
Louis Brandeis Louis Dembitz Brandeis (; November 13, 1856 – October 5, 1941) was an American lawyer and associate justice on the Supreme Court of the United States from 1916 to 1939. Starting in 1890, he helped develop the " right to privacy" concept ...
and then returned to Harvard Law School, where he was a fixture until his death at 64. An "ardent supporter of the
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" and of President
Franklin D. Roosevelt Franklin Delano Roosevelt (; ; January 30, 1882April 12, 1945), often referred to by his initials FDR, was an American politician and attorney who served as the 32nd president of the United States from 1933 until his death in 1945. As th ...
, World War II and the
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led Hart to evolve "from a dedicated progressive into a theorist of social stability, cultural consensus, and institutional balance." That evolution led Hart to seek institutional solutions to protect the rule of law from overreaching by Congress and the executive. That approach became the inspiration for the new "Legal Process" school of American jurisprudence.

Important works and key principles

The legal process

The legal process school was first given definition by Hart's manuscript of the same name, co-authored with Albert M. Sacks. Originally planned for publication by Foundation Press in 1956, the manuscript was organized into seven chapters, with 55 "problems" which guided the student through Hart and Sacks proposed approach to important American law cases. Despite being widely circulated in manuscript form, which itself went through four major editions, th
Legal Process
was not published in book form by Foundation Press until 1994. The manuscript editions, however, were widely circulated and very influential among the professoriate, many of whom used it as the foundation for courses at Harvard Law and other institutions. Together with ''The Federal Courts'', discussed below, The Legal Process within twenty years came to be viewed as "the foundation text of the legal theory known as 'legal process.'" An exploration of law made both by courts and outside the courtroom, scholars have identified three key themes from the work itself: (1) Institutional competence, (2) Statutory interpretation, and (3) principled decisionmaking.

Institutional competence

"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'.' 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.' 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."

Statutory interpretation

Hart and Sacks argued for a shift away from the application of substantive, precedential rules, critiqued by the realists, in favor of application of rules of precedential process. "Granting that substantive fairness is a matter of ideology, the doctrinal approach holds that fairness will result, regardless or even in spite of the judges' biases, if methods of judging which all concede to be fair are followed scrupulously." Hart and Sacks "believed that judges should use various tools of construction -- including the overall policy evinced by the statutory text, the legislative history, and public knowledge . . . -- to determine what 'purpose ought to be attributed to the statute' and to interpret the words 'to carry out the purpose as best it can.'" These procedural rules become a way to distinguish between adjudication and ad hoc legislation, the first of which is the role of the courts. "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." In their famous phrase, judges "should assume, unless the contrary unmistakably appears, that the legislature was made up of reasonable persons pursuing reasonable purposes reasonably."

Principled decisionmaking

One of the key tenets of Hart's thought was "principled decisionmaking," or the idea that "decisions
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be based on premises of general applicability, otherwise they would be ad hoc or 'legislative'" and that the adjudication must be neutral, "thereby claiming the allegiance of litigants through a tacit arrangement of reciprocity...." Heavily influenced by Justice Benjamin Cardozo's approach to adjudication, "principled" decisionmaking thus transcends the immediate outcome of the case at the bar, and through appeal to neutral adjudication principles, "thereby claim the allegiance of litigants through a tacit arrangement of reciprocity." Principled decisionmaking as an idea would later be fleshed out more fully by Wechsler, in Judge
Learned Hand Billings Learned Hand ( ; January 27, 1872 – August 18, 1961) was an American jurist, lawyer, and judicial philosopher. He served as a federal trial judge on the U.S. District Court for the Southern District of New York from 1909 to 1924 a ...
's criticism of the activist Warren Court, and which remains an important and debated concept in modern jurisprudence. Other scholars have tied Hart's requirement of principled reasoning to the wider "postwar liberal project associated with
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John Rawls John Bordley Rawls (; February 21, 1921 – November 24, 2002) was an American moral, legal and political philosopher in the liberal tradition. Rawls received both the Schock Prize for Logic and Philosophy and the National Humanities Medal in 1 ...
" as well as with the work of
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 Un ...
Ronald Dworkin Ronald Myles Dworkin (; December 11, 1931 – February 14, 2013) was an American philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New Yo ...

Hart's dialogue

In 1953, Hart addressed the question of Congress's power over federal jurisdiction in his very influential article, "The Power of Congress to Limit the Jurisdiction of the Federal Courts." Included in his ''Federal Courts'', which was published later the same year, this article has come to be known as "Hart's Dialogue" and argues for the proposition ("Hart’s postulate") that one always has access to a constitutional court to rule on: 1) claims of entitlement to/ sufficiency of judicial process; and 2) claims that rights are violated and not vindicated. While this is not a right to any particular remedy, or any particular court, it is a right to some remedy, somewhere, even if that requires the federal courts to fall back on their general Constitutional grants of power, or for recourse by the individual to the state courts.

''Federal Courts and the Federal System''

Hart was a frequent collaborator with Herbert Wechsler, with whom he authored ''Federal Courts and the Federal System,'' "the most influential casebook in Constitutional law" and also "the book most frequently cited by the Supreme Court both generally and in constitutional opinions." ''Federal Courts'' "define what has come to be one of the most important schools of legal thought in late twentieth-century America, typically described as 'the
legal process Legal process (sometimes simply process) is any formal notice or writ by a court obtaining jurisdiction over a person or property. Common forms of process include a summons, subpoena, mandate, and warrant. Process normally takes effect by ...
school.'" In broad brushstrokes, the school "focuses primary attention on who is, or ought, to make a given legal decision, and how that decision is, or ought to be made.... The question what is or ought to be the substantive law governing citizen behavior in a given area is no longer the sole, or even the dominant, object of legal analysis. Rather, the legal process analysis illuminates how substantive norms governing primary conduct shape, and are in turn shaped by, organizational structure and procedural rules." In response to the
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 ...
critique that judges invariably make law, Hart and Wechsler focused the attention of the emerging legal process school on the question of "what kinds of law could udgeslegitimately make, and when?" Hart and Wechsler's initial response was that, if there may be widespread disagreement on what the substantive law is, or ought to be, in a given field, there may at least be agreement as to where institutionally those decisions should be made, and under what conditions or set of rules (such as jurisdiction, procedure, etc.). The role of the courts, particularly with respect to the Constitution, "is essentially a common law function, arising from the court's common law process respecting litigants." Thus, " paying strict attention to second-order rules allocating power between federal courts and other institutions, the legal process theorists sought to specify with precision the boundaries and purposes of federal judicial power. Once these boundaries were specified, federal judicial decisionmaking could be both legitimated and restrained." Among innovations introduced by ''The Federal Courts'' was the idea of a federal "protective jurisdiction," or the idea that Congress could extend federal jurisdiction to cases implicating a federal interest, "even in the absence of both diversity jurisdiction and a claim based on federal law."


Hart's influence on the courts, the academy and the bar is notable both for its depth and longevity.

Influence on the courts

Hart's relationship with Justice Frankfurter both before and following the latter's elevation to the Supreme Court was well known. Indeed, the first edition of ''Federal Courts'' was dedicated to Frankfurter. And, on more than one occasion, Justice Frankfurter noted his appreciation for insights provided by his former pupil. Perhaps through the intermediation of his one-time professor, Hart's work, and particularly The Federal Courts, quickly became a standard reference for the Supreme Court. Lower courts were also impacted by Hart's thinking, particularly on the topic of federal jurisprudence. Hart's construction divided the judiciary into two parts, which he dubbed the "logic of federalism." "The federal courts should serve as the authoritative voice of federal law and national interests, and state courts should serve as the authoritative voices of state law and local interests." This construction would impress later members of the bar, including the very influential Judge
Henry Friendly Henry Jacob Friendly (July 3, 1903 – March 11, 1986) was an American lawyer and jurist who served as a circuit judge on the United States Court of Appeals for the Second Circuit from 1959 until his death in 1986. Friendly was one of the most p ...

Influence on the academy

Hart's impact on academia is equally important, particularly his impact on his contemporaries. One influential contemporary, Lon Fuller, as early as the 1940s acknowledged his indebtedness to the influence of Hart and was himself influential on Hart's thinking and work. Less well-known, yet equally important, is the connection between Hart's Legal Process work and the later work of his contemporary and sometime-fellow at Harvard, Professor H.L.A. Hart. Recently, however, Professor Michael C. Dorf has argued "that soft positivism, understood as a synthesis of the H.L.A. Hart/ onaldworkin debate, entails a view about the institutional allocation of power remarkably close to the one articulated by (Henry) Hart and Sacks in the Legal Process." Hart's impact continues to be felt. Among those influenced by Hart's "intellectual leadership" was Paul J. Mishkin, who "taught from, and was influenced by" and then would go on to edit the third edition of ''Federal Courts'', and who would in turn be very influential on the legal process movement. Similarly, Michael C. Dorf, Professor at Columbia Law School, has continued to argue for a "return to Hart and Sacks's commitment to a legal decisionmaking process that is deeply informed about the institutions with which legal actors interact...." Other modern academics influenced by Hart in the legal process school include Philip Bobbitt, Alexander Bickel and Robert Bork. Philip Bobbitt cites Hart's process approach to constitutional law as archetypal of one of two strands of the "doctrinal" mode of constitutional jurisprudence, the other being the substantive approach taken by the
American Law Institute The American Law Institute (ALI) is a research and advocacy group of judges, lawyers, and legal scholars established in 1923 to promote the clarification and simplification of United States common law and its adaptation to changing social needs. ...
's Restatements and Model Code efforts of the late 1950s-60s. Another analysis points to a separate split in the legal process school between the legal process approach outlined by Hart and Sacks and a later iteration, "defined by Herbert Wechsler, Alexander Bickel, and
Robert Bork Robert Heron Bork (March 1, 1927 – December 19, 2012) was an American jurist who served as the solicitor general of the United States from 1973 to 1977. A professor at Yale Law School by occupation, he later served as a judge on the U.S. Cour ...
" which changed "Hart and Sacks's theory of law into a conservative theory of adjudication. The later legal process scholars' interpretation of Hart and Sacks relied on a controversial form of moral skepticism that assumed that legal norms cannot command judges to enforce moral principles because moral principles did not have any cognizable existence."

Influence on the bar

Finally, Hart's influence has extended beyond the academy to the bar itself through the generation of lawyers trained by him at Harvard and those influenced by his casebook and other works. Amar points to the large number of articles published in the early 1950s at Columbia and Harvard on the topic of federal jurisprudence, as well as the large numbers of "student editors on the editorial boards t these schoolswho went on to become teachers of federal jurisdiction, legal process, and constitutional law" as an important indicia of the influence and "intellectual leadership" Hart and Wechsler had on their respective institutions and, by extension, on American jurisprudence.


Hart died in March 1969 after several years of declining health at age 64. "HENRY M HART JR., HARVARD TEACHER; Professor of Law, 64, Dead -- Authority on Judiciary,' The New York Times, MARCH 25, 1969

Selected bibliography

*H. Hart and A. Sacks. The Legal Process: Basic Problems in the Making and Application of Law. New York: Foundation Press, 1994. *H. Hart and H. Wechsler. The Federal Courts and the Federal System. New York: Foundation Press, 1953. *H. Hart. The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic. 66 Harv. L. Rev. 1362 (1953). *H. Hart. Professor Crosskey and Judicial Review (Book Review). 67 Harv. L. Rev. 1456 (1954) *H. Hart. The Relations Between State and Federal Law. 54 Colum. L. Rev. 489 (1954). *H. Hart. The Supreme Court, 1958 Term - Foreword: The Time Chart of the Justices, 73 Harv. L. Rev. 84 (1959).

See also

List of law clerks of the Supreme Court of the United States (Seat 4) Law clerks have assisted the justices of the United States Supreme Court in various capacities since the first one was hired by Justice Horace Gray in 1882. Each Associate Justice is permitted to employ four law clerks per Court term; the Chief ...



* * * * * * * * * * {{DEFAULTSORT:Hart, Henry M. Jr. Harvard Law School faculty Harvard Law School alumni 1904 births 1969 deaths 20th-century American lawyers American legal scholars American legal writers Law clerks of the Supreme Court of the United States Lawyers from Cambridge, Massachusetts Harvard College alumni