The Forgotten Foundations of Hart and Sacks

Article — Volume 99, Issue 1

99 Va. L. Rev. 1
Download PDF

The set of teaching materials known as The Legal Process continues to exert tremendous influence over mainstream public-law scholarship. Developed by Harvard Law Professors Henry M. Hart, Jr. and Albert M. Sacks in the late 1950s, those materials formed the cornerstone of the legal education of generations of lawyers, judges, and legal scholars. In part for that reason, the methods of legal interpretation and institutional analysis they articulated arguably still constitute the reigning paradigm of scholarship in the areas of statutory interpretation, federal courts, and administrative law. 

Despite their pervasive influence, however, the philosophical and jurisprudential foundations of The Legal Process are poorly understood. The standard historical account of the text denies any such foundations exist, characterizing it instead as an effort by its editors to respond to the skeptical threat of Legal Realism by advancing an “instrumentalist” or “neutral” theory of law that denied the need for, or value of, any deeper philosophical justification.

Though originally offered as a critique of the approach embodied in the teaching
materials, that account has been accepted even by those working within the Legal Process framework. That acceptance is surprising and troubling, because the standard historical account is deeply mistaken. In the first chapter of The Legal Process, the editors consciously advance controversial positions on the nature of morality, law, and legal knowledge. And if one looks carefully at those positions and the sources the editors rely on in staking them out, one can see that they were trying to construct a model of legal practice and scholarship based on the metaphysical and epistemological doctrines of one strand of philosophical pragmatism. Understanding such philosophical commitments not only enables us to better explain how Hart and Sacks took themselves to be responding to Legal Realism, but also forces us to consider how more recent efforts to ground legal practice fare in comparison.

  Volume 99 / Issue 1  

The Forgotten Foundations of Hart and Sacks

By Charles Barzun
99 Va. L. Rev. 1

Persuasion Treaties

By Melissa J. Durkee
99 Va. L. Rev. 63

Clean Air Act Preemption of State Common Law: Greenhouse Gas Nuisance Claims After AEP v. Connecticut

By Scott Gallisdorfer
99 Va. L. Rev. 131

Through the Antitrust Looking Glass: A New Vision of Delaware’s Takeover Defense Jurisprudence

By R. Wai Wong
99 Va. L. Rev. 169