legal theory: legal process: narrative essay

The Legal Process School: Introduction


When the person-in-the-street thinks of "The Law," she (or he) tends to think of a body of standards of conduct - rules or authoritative precedents - that prohibit this and permit that. When a lawyer thinks of "The Law," however, she (or he) thinks not only of a body of standards of conduct but also of a collection of processes through which  those standards are created and applied. These processes are defined in the same way as the rules governing conduct: by legislation, by rule makers acting under delegated authority, by court decisions, and sometimes by constitutions. Some of these stipulated processes consist of details - which court, among all those that have  jurisdiction, is the one with proper venue for this particular case? - and some of them embrace very large issues - do the courts as a whole have power over this particular subject, or is it a matter that belongs instead to the legislature? 

Given that the law consists both of standards of conduct and of the processes through which such standards are created and applied, which of these sounds the dominant note and which the subordinate? Many kinds of legal argument assume that the rules of conduct are primary, legal processes secondary. The law should protect members of society against fraud; therefore the processes of the jury should be set up so that frauds are, as well as may be, accurately detected. But it is quite possible to frame arguments based on the contrary structural supposition. Juries can only accurately determine certain kinds of issues; therefore the rules protecting members of society against fraud should be written in a way that will send to juries the kinds of questions they will be good at answering. 

Often, perhaps usually, the authoritative legal sources will not specify which of these points of view is the correct one. For example, here is one of the most familiar texts in all of American law, the second sentence of the Fourteenth Amendment of the federal Constitution:  

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 

Now one possible reading of this text is primarily as a guarantee of equal substantive legal rights, whatever they may be. If that is so, then the due process clause can be seen as stating a subordinate assurance of fair procedure for determining the presence or absence of legally established rights. At times the Supreme Court has read it in just that way (Board of Regents v. Roth, 408 U.S. 564 (1972)). But another possible reading is to view the whole passage as protecting the various processes of a procedurally fair society: the first clause as a protection of national rights in a federal society and the second as a guarantee of fair adjudicative procedures. On that view, the third clause, the equal protection clause, can be seen not as a guarantee of formal equality, but rather as authorizing judicial intervention against legislative (or other) governmental action in which a majority unfairly gangs up on a minority unable to protect itself through normal political processes. And at times the Supreme Court has said just that (U.S. v. Carolene Products Co., 304 U.S. 144, 152-53 n. 4 (1938)). 

The fundamental proposition of adherents of what came to be called "the legal process school" of American jurisprudence is that the legal system of the United States is best understood as being predominantly a structure of decision-making processes, and only secondarily a collection of particular substantive rights. This, it is claimed, is true as a descriptive matter: many apparently substantive rules will, on close analysis, prove to embody, or at least to have been profoundly shaped by, the requirements of process. More broadly, the structural elements of the system will prove to be rules allocating authority to make decisions among lawmaking institutions rather than rules defining substantive rights and duties. It is also, it is claimed, desirable as a prescriptive matter: because the American legal system most fundamentally consists of procedural, rather than substantive, norms, it can at one and the same time embody the great traditions of the law and yet be neutral among the plurality of visions of the good life that are legitimate in a liberal society and that change with shifting political tides. Viewed in this way, the legal process approach can legitimately claim to be the modern heir of the traditional claim that all of American law is ultimately conditioned by the structural features of the federal Constitution. 

As used in modern legal discourse, the term "legal process school" refers to a group of thinkers who began their work a bit before, or in most cases just after, the Second World War. In that historical context, legal process analysis can also be understood as in part a response to the claim of some of the scholars of the 1920s and 30s - the legal realists - that in law there is "no there, there"; that legal questions present nothing more than the clash of social interests or at best the application of social engineering. The "there" that is "there," says the legal process adherent, is the "there" of legal institutions which, in their ordinary workings and interactions, serve to tame the clash of interests and to bring justice to what would otherwise be only a quest for political dominance. 

Finally, by emphasizing the importance of institutional arrangements, the legal process school reduced the apparent gap between what sociologists and political scientists said about the law and what lawyers themselves said.  What seemed to others to be “outside” of “the law” – because the law was conceived as a body of substantive rules – was in fact “inside” – because the law was both deeply influenced by, and helped structure, the actual social and political workings of major institutions. Moreover, the connection between these institutional forces and the decision of particular matters was a subject as to which lawyers, by their training and experience, could rightly claim superior knowledge and expertise.