The Legal Process: Basic Problems in the Making and Application of Law Notes

Hart and Sacks - The Legal Process

Introduction to the Nature and Function of Law

• The study focuses on understanding law through two examples, emphasizing the principle of institutional settlement.

Basic Conditions of Human Existence

• In 1789, the global population was around 800 million; today, it's approximately 2,500 million and increasing.
• Humans have diverse wants, from basic necessities to complex desires for purpose.
• Satisfying wants requires prioritizing and expending time and effort.
• Interdependence: People rely on each other for want satisfaction i.e. division of labor.
• Society faces challenges of balancing diverse wants and encouraging positive change.
• These challenges are addressed through social science, including law.

The Recognition of a Community of Interest

• Humans recognize interdependence and form groups to protect common interests.
• Special groups (families, clubs, unions) partly address this but do not substitute a general-purpose group.
• A general-purpose group is needed to protect basic, shared interests for survival and prosperity.
• These groups vary in size, adaptation, and acknowledgement of common interests.
• The essence is the recognition of interdependence and shared interests beyond differences.
• Studying human wants involves understanding people in general-interest groups or communities.
• Critical questions about the terms upon which interdependent communities can function at all.
• Interdependent living is cooperative living requiring understandings about conduct i.e. what to avoid and what is required.

Institutionalization of Procedures

• Interdependent people need understandings about terms of cooperation.
• Abstract understandings require clarification due to indeterminacy and disputes.
• Mechanisms are needed to resolve uncertainties, determine violations, and address demands for change.
• Arrangements are needed for settling questions related to substantive agreements.
• These arrangements establish institutionalized procedures for group concerns.
• These constitutive arrangements are more fundamental than substantive ones, serving as their source and means of effective operation.
• Complex societies differentiate questions and decision modes (courts for judicial, legislatures for legislative).
• Every organized society requires an interconnected system of procedures to address internal and external relations.

The Principle Implicit in the Procedures

• Implicit in procedural systems is the idea of law, described as the principle of institutional settlement.
• This principle builds on interdependence and common concerns which necessitate settlement for the enterprise to serve the purposes for which it exist.
• The alternative to violence is establishing regular methods of decision which makes such decisions binding.
• Decisions duly arrived at through established procedures should be accepted as binding unless duly changed.
• Understanding this principle demystifies the nature of law and legal concepts.
• Law involves elements of both “is” (facts) and “ought” (moral considerations).
• The