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Duncan Kennedy, Utopian Rationalism in American Legal Thought: A Critique of the Hart & Sacks Legal Process Materials (Oct. 6, 2022).

Abstract: This paper works out the scheme of “institutional competences” that underlies the famous Hart and Sacks Legal Process Materials first distributed in final mimeographed form in1958. The Materials were not published during the life times of their authors but were nonetheless a major influence on American legal thought from their first distribution as course materials at Harvard Law School until their abrupt fall from prominence in the early 1970s. The Materials offer the scheme as a solution to the apparent anomaly in a democracy of the law making power in both public and private law of unelected judges serving long terms. The paper critiques the Hart and Sacks solution, called law making through “reasoned elaboration,” which they claimed was sharply distinct from legislative law making or administrative fiat. The paper argues that in both public and private law the materials the judge is to elaborate are characterized by contradictory internal logics. The judge has to choose between them without a meta-criterion. In cases with high stakes, extra-juristic normative orientations, whether moral theories or political ideologies, will come into play, regardless of the judge’s commitment to excluding them. The second part of the paper places Hart and Sacks in a larger historical and comparative context of efforts to solve the problem of social order by way of legal rationality. These two parts were preceded in the original paper by a long discussion, now lost but never very satisfying to me, of the Hart and Sacks theory of “private ordering” in relation to state regulatory power. I wrote the paper for extra credit in the spring of 1970 as a third year student at the Yale Law School. I’ve corrected a few typos but haven’t changed it in any other way. I never published it but it was circulated to a limited extent among Legal Process devotees. Eskridge and Frickey, editors of the Materials as published finally in 1994, credit it, along with another unpublished student paper by Roberto Unger, with hastening the demise of the Materials as a master text. The first part of this version of the paper was recently published in Droit et Philosophie, no. 13, p. 97-117 (2021).