jim baker & Hart & Sacks

[Philip Frickey]

It was a bizarre coincidence that my class was scheduled to discuss an
introduction to legal process theory this morning.  It was not a coincidence that
we ended up focusing on the cornerstone of Hart & Sacks' approach, the principle
of institutional settlement, on which they wrote:

"The alternative to distintegrating resort to violence is the establishment of
regularized and peaceable methods of decision.  The principle of institutional
settlement expresses the judgment that decisions which are the duly arrived at
result of duly established procedures [for making decisions] of this kind ought
to be accepted as binding upon the whole society unless and until they are
changed. * * *

"* * * When the principle of institutional settlement is plainly applicable, we
say that the law 'is' thus and so, and brush aside further discussion of what
'ought' to be.  Yet the 'is' is not really an an 'is' but a special kind of
'ought'--a statement that, for the reasons just reviewed, a decision which is the
duly arrived at result of a duly established procedure for making decisions of
that kind 'ought' to be accepted as binding upon the whole society unless and
until it has been duly changed."

Phil Frickey