Alexander Bickel and the Demise of Legal Process Jurisprudence

59 Pages Posted: 8 Mar 2020

See all articles by David Wolitz

David Wolitz

University of Tennessee College of Law

Date Written: November 23, 2019

Abstract

This article provides an intellectual history of the displacement of Legal Process theory as the predominant jurisprudential approach in American law.

The Legal Process approach to law embedded a strict norm of principled adjudication within a larger pragmatic theory of law. Alexander Bickel understood that the Legal Process theory of adjudication clashed with its commitment to pragmatic governance. The country, Bickel believed, could tolerate only so much principled decisionmaking — “No good society can be unprincipled, and no viable society can be principle-ridden.” Bickel convinced himself that the judiciary could promote pragmatic governance while maintaining its own integrity as an institution of principle through the implementation of various justiciability and abstention doctrines, the so-called “passive virtues.” Prudent invocation of the passive virtues, Bickel argued, would keep the core judicial function — rendering decisions on the merits — free from merely expedient considerations while granting the political branches the space and time they need to work out pragmatic compromises.

But once Bickel starkly drew out the tension between principled decisionmaking and pragmatic governance, the Legal Process consensus began to fracture. Why allow for unprincipled judicial decisionmaking with respect to certain justiciability and abstention questions, but not in other areas of doctrine? As Gerald Gunther put it, Bickel was effectively advocating “100% principle, 80% of the time.” Bickel’s passive virtues solution found no favor among his Legal Process peers and drew even greater criticism from Warren Court-defending legal liberals. Bickel’s penetrating insights into the tensions between principled decisionmaking and pragmatic governance had exposed an always latent divide in Legal Process thought, one Bickel himself could not successfully reconcile. After Bickel, normative jurisprudence has become ever more polarized between consequentialist-pragmatic approaches on the one hand and principled-rationalist approaches on the other.

Keywords: Alexander Bickel, Legal Process, Gerald Gunther, prudence, passive virtues, jurisprudence

Suggested Citation

Wolitz, David, Alexander Bickel and the Demise of Legal Process Jurisprudence (November 23, 2019). Cornell Journal of Law and Public Policy, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3531249

David Wolitz (Contact Author)

University of Tennessee College of Law ( email )

1505 West Cumberland Avenue
Knoxville, TN 37996
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
80
Abstract Views
230
rank
322,949
PlumX Metrics