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The second half of our course has been concerned with American jurisprudence from the Civil War to the present. Of course, not much real justice can be done to this aim, since most jurisprudence courses themselves only deal with the last forty or fifty years of American thought. Nevertheless, I think that if you understand the "flow" of American legal thought since the Civil War, you are in a much better position to understand our current situation than if you just plunged in with the Hart/Fuller debates of the late 1950s/early 1960s.

I posit that the period from the American involvement in WWII until the maturing of the Warren Court be known as the period of process jurisprudence. I am not alone, of course, in so designating the period. One of the finest sections in Feldman's book on American Legal Thought is his treatment of this period (115-123), which he designates as "Legal Process." The outline below shows my commitment to understanding legal themes in the context of major currents in American intellectual life at this time. In my judgment, the most significant thinker in American life during this era was John Dewey (1859-1952), and it was his development of the concept of democracy in response to communist and totalitarian threats of the 1930s that influenced legal thinking in the 1950s and 1960s considerably. Here is the outline for class discussion:

I. Challenges Facing America in the 1930s

A. The Ethical Exhaustion of Legal Realism

B. The New Realities of National Socialism and Totalitarianism

C. John Dewey and the Development of Democratic Theory

1. From Republicanism to Democracy

2. Democratic Process and Consensus

II. Developments in the Legal Sphere

A. The Creation of the Administrative State--The APA
What are the most imporant features of the APA?

B. Procedural Due Process of Lon Fuller.
His larger theme is what he calls the "Inner Morality of Law."

C. Legal Process and Reasoned Elaboration of Judicial Decisions

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For a brief summary of some of Dewey's thoughts on Democracy, you should combine this with Feldman's discussion. Taken from here.

Dewey and Democracy

The key to understanding Dewey on democracy is that he sees it not just as a form of government. It is surely that, but it is simultaneously a way of life, an ethical ideal, and a personal commitment. Specifically, it is a way of life in which individuals are presumed to be self directing and able to pursue their own goals and projects. No society which maintains order through constant supervision and/or coercion can be rightly called democratic. Further, individual benefit and the common good are mutually enhancing in a democracy.

He also reminds us, though this is hardly original with Dewey, that citizenship in a democratic state is not just a condition; it is an office. We, therefore, not only have rights, but also responsibilities. These latter appear to be in conflict with the pursuit of our individual interests only if we misapprehend the true nature of our interests. An article of faith for Dewey is that we are each best served by a democracy that is so constituted as to maximize the common good.9 The key to this compatibility between public and private goods is their democratic reciprocity: social membership entails certain responsibilities; in return, the society has the responsibility to take those actions and pursue those policies that remove obstacles to the realization of any individuals’ full membership and participation. This is the nature of “rights.” That there is this public responsibility commits the individuals who constitute the public to its pursuit.

Further, there is no form of social life that can allow for greater human development than democracy. An entailment of this view is that true human good is maximized for every individual in a democracy just to the extent that the society maximizes the common good. This aspect of Dewey’s argument is teleological; it trades on the notion that there is a best and most human life made possible by a best and most human social form. It is also, in keeping with Dewey’s pragmatism, offered as an hypothesis to be tested, not a dogma to be followed."

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Lon Fuller on procedural natural law or the inner morality of law. His 1969 book, The Morality of Law, presented ideas that had long brewed in his mind. He was the inventor of interesting legal hypotheticals, the most famous of which came from the late 1940s and was known as "The Case of the Speluncean Explorers"--which I used in earlier iterations of my jurisprudence class. However, for purposes of procedural natural law, he tells the story in The Morality of Law of a ruler, called Rex, who tries to implement law and discovers that it is a much harder process than he anticipates. Here are two of Fuller's paragraphs, introducing us to Rex and then summarizing what Rex ultimately learned.

"This is an allegory of the unhappy reign of a monarch who bore the convenient, but not very imaginative and not even very real sounding name of Rex. Rex came to the throne filled with the zeal of a reformer. He considered that the greatest failure of his predecessors had been in the field of law. For generations the legal system had known nothing like a basic reform. Procedures of trial were cumbersome, the rules of law spoke in the archaic tongue of another age, justice was expensive, the judges were slovenly and sometimes corrupt. Rex was resolved to remedy all this and to make his name in history as a great lawgiver. It was his unhappy fate to fail in this ambition. Indeed, he failed spectacularly, since not only did he not succeed in introducing the needed reforms, but he never even succeeded in creating any law at all, good or bad."

There follows several paragraphs talking about the legal innovations that Rex pursued--most of which showed that he was an absolute monarch with no concern for rights of the people. He continues...

"Rex's bungling career as legislator and judge illustrates that the attempt to create and maintain a system of legal rules may miscarry in at least eight ways; there are in this enterprise, if you will, eight distinct routes to disaster. The first and most obvious lies in a failure to achieve rules at all, so that every issue must be decided on an ad hoc basis. The other routes are: (2) a failure to publicize, or at least to make available to the affected party, the rules he is expected to observe; (3) the abuse of retroactive legislation, which not only cannot itself guide action, but undercuts the integrity of rules prospective in effect, since it puts them under the threat of retrospective change; (4) a failure to make rules understandable; (5) the enactment of contradictory rules; or (6) rules that require conduct beyond the powers of the affected party; (7) introducing such frequent changes in the rules that the subject cannot orient his action by them; and finally, (8) a failure of congruence between the rules as announced and their actual administration."

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