|legal theory: legal process:core criticisms|
The Legal Process School: Core Criticisms of the Approach
Are the claims made on behalf of this approach,
or set of approaches, to the law, valid? What might be said against the use
of legal process reasoning?
The most intuitive counter-claim is the contention that legal process reasoning leaves out a central question--perhaps the central question--of the legal enterprise. It is all very well, it might be said, to allocate decisional authority to this institution or that, or to work out the appropriate interrelationships when more than one institution contributes to crafting the solution to a legal problem. But when all is said and done, there is still a need for a method of deciding what is right and what is wrong. To assume that mere functional requisites will determine that issue, even within a known social and political context, is to fail to appreciate the fundamental ideological, philosophical, and moral differences there are in the world, and correspondingly the need, often, to have a basis for taking sides. (On this view, it is no accident that The Legal Process is a product of the 1940's and 1950's, so often described as a period of consensus politics).
For many later students of the law, the legal process school of the immediate post-war years warranted this criticism particularly for its failure to contribute intellectually to the movement for desegregation. This was not a question of personal commitment; some, at least, of the legal process scholars were most certainly political liberals dedicated to racial justice. The problem was that the legal process approach did not seem to provide a useful basis for addressing the issue.
v. Board of Education, decided in 1954, is now such an accepted part
of our legal universe that it is hard to remember that it was a hotly contested
decision not just politically - that is obvious - but also jurisprudentially.
The view of Plessy
v. Ferguson that "separate but equal" was consistent with the "equal
protection of the laws" had been based on a substantial, albeit formal, conceptual
argument, and a substantial, albeit not irrefutable, analysis of historical
intent. And it had been the law since before the 20th century began. The Supreme
Court's opinion in Brown did not seem to provide the necessary counterweight.
Partly this was because it rested on a claimed growth in psychological knowledge
which was empirically doubtful and of uncertain jurisprudential importance.
But of more far-reaching significance, the opinion in Brown never seemed
to justify what the Supreme Court clearly took it to mean. The emphasis throughhout
the opinion was on the consequences of segregation for education. The Court's
announced holding was: "We conclude that in the field of public education the
doctrine of 'separate but equal' has no place. Separate educational facilities
are inherently unequal."
However, in a series of decisions rendered in the next few years on Brown's
authority, and without further reasoning, it turned out that segregated public
beaches, golf courses, buses and parks had all also been outlawed. No explanation
for doing away with "separate but equal" as a general theory had ever been presented.
Had the Supreme Court simply exerted its power without adequate reason?
Legal process analysis clearly had something to say about that part of Brown and its progeny that consisted of overruling Plessy v. Ferguson. Whether, once a court becomes convinced that one of its precedents was wrongly decided, it should proceed to overrule that precedent, or instead continue to operate under it until some other organ of government changes the law, depends (on the legal process view) in part on what processes for change exist in those other institutions. It could be said, and it had been said, that since a statutory amendment could be passed by Congress without great difficulty, the Supreme Court should continue to apply even those interpretations of statutes it now thought wrong; whereas since a constitutional amendment was extremely difficult to pass, the Court should itself revise its previous, now understood as erroneous, constitutional decisions. Statutory law might represent the ephemeral part of the legal order, and constitutional law the permanent, but from the standpoint of the doctrine of stare decisis the opposite was the case.
This was some help in thinking about Brown, but it hardly reached the core question of what constitutes social and legal equality in relations among the races. Could legal process reasoning offer nothing more? The Hart and Sacks materials, although issued in 1958, had no discussion of either Brown or Plessy. And thus matters stood when, in spring 1959, Prof. Herbert Wechsler (who had also been a collaborator with Hart, in their well-known casebook, The Federal Courts and The Federal System) delivered his much-noted Holmes Lecture at Harvard Law School: "Toward Neutral Principles of Constitutional Law." Wechsler, speaking against the background of nascent controversy about the "activism" of the Warren Court, began by asserting the right, indeed the duty, of the Supreme Court to review the work of other branches of government for constitutional validity. But in doing so, he said, it was obliged to act as a court, which for Wechsler meant it was obliged to ground its decisions not in power but in principle. Further, "[a] principled decision . . . is one that rests on reasons . . . that in their generality and neutrality transcend any immediate result that is involved. When no sufficient reasons of this kind can be assigned for overturning the value choices of the other branches of the Government or of a state, those choices must . . . survive."
What this requirement of "neutral principles" meant was illustrated by several examples, none more important or striking than desegregation. Wechsler brought out the frailities of the opinions themselves, and then turned to the need to supply the principle the Court had failed to articulate. Brown, he said, "must have rested on the view that racial segregation is, in principle, a denial of equality to the minority against whom it is directed; that is, the group that is not dominant politically and, therefore, does not make the choice involved." But, assuming facilities equal in fact, this principle was not, for Wechsler, an adequately neutral principle on which to ground judicial action, because it amounted to accepting the interpretation of "separate but equal" suggested by one group rather than another, in the face of a contrary determination made by the state legislature. Viewed without this interpretive gloss - viewed truly "neutrally" - the question of integration was more accurately stated in terms of association than of discrimination. "Given a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail?" As to that question, Wechsler said, "I should like to think there is, but I confess that I have not yet written the opinion."
Wechsler's article drew many responses, none more pungent that Professor Charles Black's "The Lawfulness of the Segregation Decisions." "Simplicity is out of fashion," wrote Black, but "the basic scheme of reasoning on which these cases can be justified is awkwardly simple. First, the equal protection clause of the fourteenth amendment should be read as saying that the Negro race, as such, is not to be significantly disadvantaged by the laws of the states. Secondly, segregation is a massive intentional disadvantaging of the Negro race, as such, by state law." That, of course, was a contextual judgment, not an abstract one - but for Black, that was its strength, not its weakness. "The issue is seen [by others] in terms of what might be called the metaphysics of sociology: 'Must Segregation Amount to Discrimination?' That is an interesting question; someday the methods of sociology may be adequate to answering it. But it is not our question. Our question is whether discrimination inheres in that segregation which is imposed by law in the twentieth century in certain specific states in the American Union. And that question has meaning and can find an answer only on the ground of history and of common knowledge about the facts of life in the times and places aforesaid."As to the methodological complaint, that courts do not have a method for discovering what the true social meaning of a practice is - or, at least, do not have a method that can stack up against a declaration of a different meaning made by a legislature - Black pronounced that the opposite was the real methodological task: finding ways to make it legitimate for "the Court to use what it knows; any other counsel is of despair."
Now surely Black was not saying something about society that Wechsler did not know. Nor was Black speaking from a markedly different political point of view. Wechsler had introduced his own discussion of the desegregation decisions by saying that, taken as a group, they "have the best chance of making an enduring contribution to the quality of our society of any that I know in recent years." What prevented Wechsler from endorsing the decision with Black's simplicity, was his jurisprudence - his assumption that as one institution interacting with others, courts (or at least courts deciding constitutional issues) should only interfere with decisions made by the legislature based on certain types of very abstract arguments. A contextual sense of justice in the actual society was for other institutions to pursue.
Whether a legal process analysis of Brown had to assume this form, is, for present purposes, not the central issue. Surely the competence of southern legislatures of that era to speak reasonably on racial issues could have been called into question on legal process grounds. Indeed, Sacks had made a suggestion in that direction in a short piece praising Brown, which had been published a few months after the decision. But for many at the time, and later, the inability of Wechsler's address to "solve" Brown, compared to straight-talking articles like Black's, showed that legal process thinking was not robust enough to be an overall approach. Whatever contribution process thinking might make to legal theory, it had to be at least supplemented - if not replaced - by a theory which dealt more directly with substantive right and wrongs. And this point held, even if a different legal process thinker allowed the courts to deal in different sorts of principles. It would still be true that the theory could at most supply some formal criteria that substantive standards would have to meet, rather than supplying the substantive standards themselves.
A quite different critique of legal process thinking attacked its claim that analysis of legal institutions could give interesting, useful, and determinate results. What, beyond the catch-phrases that administrative agencies were "expert" or legislative bodies were "democratic," was really being offered?
An example of what could be attempted by way of a more elaborate functional analysis, was Lon Fuller's article "The Forms and Limits of Adjudication," written in the late 1950's (although not published in full until after Fuller's death). The most famous claim of this work was that the process of adjudication is inherently ill-suited to solving what Fuller called "polycentric" problems. By this term he meant problems in which many points of decision were interlocked, so that the correct solution of any one issue depended on the solution for all the others. Perhaps the most important example of what he had in mind was the system of wages and prices, but he suggested that even deciding who should play what position on a football team raised much the same issue. "It is not merely a matter of eleven different men being possibly affected; each shift of any one player might have a different set of repercussions on the remaining players: putting Jones in as quarterback would have one set of carryover effects, putting him in as left end, another. Here, again, we are dealing with a situation of interacting points of influence and therefore with a polycentric problem beyond the proper limits of adjudication."
How did Fuller determine that adjudication could not handle problems like these? He was not merely describing what does happen, for part of his point was that in fact polycentric problems were being tackled through adjudicatory processes - especially in administrative agencies - when they ought to be handled by one of the two processes appropriate to these types of problems, managerial direction or contract (that is, private ordering). Nor did he have empirical evidence of the ill results of this supposed bad fit. Rather, he thought that a rationalized analysis of institutional form and purpose was possible.
Social institutions, Fuller said, should be seen as rational efforts to pursue social purposes. Adjudication therefore should pursue those purposes that can be sensibly achieved through its particular institutional process. The defining characteristic of adjudication, he continued, is participation by the affected parties through the presentation of proofs and reasoned arguments. From this starting point, many of the commonly noted characteristics of adjudication could be derived. The centrality of principles in adjudication is based on the parties' need to know which arguments are sound, which proofs relevant. The role of the judge in adjudication is to be an official who bases his or her decision on these kinds of consideration. The tendency of adjudication to enunciate "rights" is in turn derived from this need for principled decision. And so, too, could be derived the limits of adjudication. "Adjudication is not a proper form of social ordering in those areas where the effectiveness of human association would be destroyed if it were organized about formally defined "rights" and "wrongs." In particular, adjudication is not suited to polycentric problems, where the interactive give-and-take cannot be sensibly organized in this way because there is no identifiable standard for the parties' arguments and proofs to focus on.
"The Role of the Judge in Public Law Litigation," written by Professor Abram Chayes in the mid-1970's, was a response both to this conclusion and to this approach. Chayes set forth two models of civil litigation, a "traditional" conception (typified, say, by a claim for damages for breach of contract) and a "public law" one (such as a claim for school desegregation or prison reform based on statutory or constitutional grounds.). In the traditional model, he said, the lawsuit is bi-polar, is closely controlled by the parties, revolves around a single transaction or occurrence that is alleged to have happened in the past, and yields a remedy derived rather straightforwardly as compensation for the violation. In the public law model, there is a sprawling group of parties, the focus is not only on the facts of the past but predictions of how institutions will operate for the future, and the remedy, although based on a finding of a "wrong," is directed toward the future governance of the institution rather than directly measurable redress. Judges necessarily exert more control. Especially in the remedial phase, they may become mediators between contending forces, legislators filling out the details of broad constitutional or statutory commands, and even managers of the structure of vital social institutions. In short, in the institutional reform cases Chayes emphasizes, judges are inherently addressing polycentric problems. "Professor Lon Fuller," Chayes wrote, "has argued that when such functions are given to the judiciary they are parasitic, in the sense that they can be effectively carried out only by drawing on the legitimacy and moral force that courts have developed through the performance of their inherent function, adjudication according to the traditional conception." But Chayes had a different view. "I am inclined," he said, ". . . to urge a hospitable reception for the developments I have described and a willingness to accept a good deal of disorderly, pragmatic institutional overlap."
Partly, Chayes's argument was historical: the kinds of things modern federal trial judges were doing in institutional reform cases had a considerable pedigree if one looked to older equity jurisprudence developed, for example, in the reorganization of over 1,000 railroads beginning in the 19th century. Partly, it was based on particular, perhaps ad hoc features of adjudication as it had developed in the United States: for example, the ability of judges to address specific, local problems without having to work through an administrative bureaucracy. Partly, it asserted the importance of a pragmatic assessment of results: let us see where this type of judicial action solves important problems and where it does not, rather than deciding the matter on an abstract basis. And partly it was a political argument: the traditional conception may have solved the social problems of the 19th century, but the active role given to government in general in the 20th century required a correspondingly active judiciary.
Chayes's article has been widely cited, but its particular conclusions need not detain us. What is significant here are two methodological differences between Chayes and Fuller. First, they had very different approaches to characterizing the institution of adjudication. For Fuller, institutions were to be known by a defining characteristic or purpose. By so proceeding, "we can distinguish adjudication as an existent institution from other social institutions and procedures by which decisions may be reached." For Chayes, what institutions were at any particular time was the result both of a plurality of purposes and of a mass of historical accretion. As a result, they were much more plastic; it made sense to say that courts could legitimately operate according to both the traditional model and the public law model, as circumstances directed.
Second, the two authors had very different approaches to the sources of legitimacy in institutions. For Fuller, the moral force of legal institutions came from their procedural imprimatur, from the carrying out of their defining purpose. For Chayes, the moral ground was ultimately substantive: "judicial action only achieves such legitimacy by responding to, indeed by stirring, the deep and durable demand for justice in our society."
Chayes was quite clear that by attacking the contention that courts should be confined exclusively to the traditional conception of adjudication he was opposing Hart and Sacks, Fuller, and Wechsler. It was not that he was saying that only substance, not process, mattered; self-evidently he thought that the roles that judges played did matter. But if Chayes's approach was right, there could not be a theory of legal institutions that had the kind of resolving power the legal process school claimed. Legal institutions could not be sharply defined in terms of a limited set of functions. Which of the particular institutional clusters of historical accretions and scattered purposes was best suited to addressing a particular problem would always be a contestable issue of better and worse, more or less. Moreover, the choice among them would ultimately be validated (or not) by the substantive outcomes that were produced, so that procedural choices could not be made without some conception of substantive justice. The claim that what was fundamental was process, not substance, was upside down. Even if Chayes was only partly right, the consequence was substantial. For even if there was only "some truth" in his approach, the claim that legal process thinking could by itself solve legal problems was gone.
A critique of the use of the idea of purpose by the legal process school might follow an analogous path. This can be seen by thinking about the core example of "purpose" as presented in the Hart and Sacks materials: the attribution of purpose to a statute. As an empirical matter, it seems to be an inadequate description of the legislative institution to view legislation as embodying coherent public purposes. There is no need for a sophisticated political science to recognize that different legislators pursue different goals, so that a statute as a whole is more likely to represent a compromise than a consistently developed approach. Indeed, it is apparent that at least some legislators some of the time are pursuing other than public purposes altogether. The Legal Process materials escaped from this difficulty by adopting a special conception of the "purpose" at issue. "Purpose" was not to be found in, but rather attributed to, the statute. The proposition that "the legislature was made up of reasonable persons pursuing reasonable purposes reasonably" was a stance to be adopted in construing the statute rather than an empirical fact. But if purpose was to be attributed rather than inherent in the statute, some additional criterion was needed by which to decide which of the many purposes in fact in play were to be chosen for attribution to the reasonable legislators and thereby to the statute. Hart and Sacks suggested a functional approach (that, incidentally, dates back to Lord Coke): "a close look at the `mischief' thought to inhere in the old law and at `the true reason of the remedy' provided by the statute for it." But that formulation seems to assume that all statutes are merely interstitial--incremental improvements in a system that was on the whole functioning well. This Panglossian view of the status quo, while perhaps appropriate to the comfortable 1950s, could not withstand the fundamental social critique posed by the civil rights movement, the war on poverty and the anti-Viet Nam war agitation of the 1960s and `70s.
Most law professors today think there is a lot of truth in Black's response to Wechsler and Chayes's response to Fuller. They think that Brown v. Board of Education was rightly decided and not hard to justify in substantive terms; that legal institutions do not have a single defining purpose but rather are multifarious cultural and historical constructs; that sometimes the law must deal with serious conflicts of value. They conclude that it will not suffice to have a purely procedural theory of justice and institutional legitimacy