H. L. A. Hart's Lost Essay: 'Discretion' and the Legal Process Dchool

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A few weeks before Thanksgiving, in 1956, H. L. A. Hart quietly gathered his thoughts as he watched "the most important public law thinkers" (1) of the Legal Process School take their seats at a new Harvard faculty seminar, unsure of what to expect. Hart was nervous. The exacting Oxford philosopher, at ease in logic tutorials and language games, was a stranger to the confident world of "busy ... proud ... vocational" (2) American law professors. Though highly regarded as a brilliant legal theorist, he was far from uncontroversial. And that evening, just two months into his year as a visiting professor at Harvard, Hart was going to lecture his new colleagues on a family of issues they cared deeply about: discretion, its place in the legal system, and the relationship between legal indeterminacy and the rule of law.

For Hart, still getting his bearings at Harvard, giving a lecture on such a charged topic was a daunting prospect--especially given the "potentates" (3) in his audience, which included Henry Hart, (4) Albert Sacks, Herbert Wechsler, Paul Freund, and Lon Fuller--but also an opportunity to demystify his approach to legal scholarship. The analytical jurisprudence Hart had developed at Oxford--which prized conceptual clarity, logical rigor, and the careful study of language in legal analysis--aroused suspicion among his new colleagues, who wondered whether he was a "radical positivist," as one American scholar had suggested just months before. (5) What could Hart's new jurisprudence offer legal scholars in the United States, for whom the study of law often hinged not on precise formulations of abstract concepts, but on insights into judicial behavior, institutional design, and social reality?

Exceptionally well versed in the history of American legal thought, Hart understood the persistent significance of the issues he had been asked to address. (6) In the nineteenth century, legal formalists had argued that legal questions have determinate answers that skilled lawyers can reach by reasoning from a finite set of legal sources. (7) By contrast, the realists of the early twentieth century had argued that judges and officials in fact exercise tremendous power of choice. (8) While realists hoped that this power of choice could be deployed progressively to improve social conditions, they never developed a theory to direct or constrain choice in law. Rule by arbitrary choice is not rule by law, and thus the lasting legacy of legal realism became a challenge: explain how legal in determinacy can be reconciled with the rule of law.

The problem of discretion became more pressing after the New Deal. Increased complexity in law meant more decisions, more indeterminacy, and greater need for a theory of what to do when indeterminacy arose. As they tried to figure out "how to have a dynamic, problem-solving government that [was] also lawlike and legitimate," (9) a group of post-New Deal professors, many of whom sat in Hart's audience, developed a tentative solution to the realists' challenge: discretion is acceptable in the legal system if it is sufficiently constrained and responsibly exercised. These "process theorists" accepted the realist idea that law is sometimes indeterminate, but pushed beyond realism, searching for a theory of how legal indeterminacy could be consistent with the rule of law. For process theorists, discretion and the rule of law could coexist symbiotically if responsible judges decided cases rationally, observing their institutional position with respect to the other branches of government, and explained their reasoning in writing, reflecting the judiciary's professional craft, rationality, and wisdom--things in which the public could place its trust. Just two years before Hart's arrival, the problem of discretion took on renewed, political urgency as Brown v. Board of Education (10) posed the sharper "counter-majoritarian difficulty." (11)

When his audience settled, Hart delivered a plainspoken analysis of discretion as a phenomenon in life and law--conversational yet uncompromising in philosophical precision. …