Legal Theory Lexicon 082: Reasoned Elaboration by Lawrence B. Solum

Introduction

In many ways, the “Legal Process” approach to positive and normative legal theory dominated American legal thought in the second half of the twentieth century. There was more than one version of “legal process” theorizing, but this entry in the Legal Theory Lexicon will focus on the idea of “reasoned elaboration” that is associated with with the Legal Process materials authored by Henry Hart and Albert Sacks and exemplified by the The Federal Courts and the Federal System, a casebook authored by Hart and Herbert Wechsler. Other figures that are associated with this version of the legal process approach include Lon Fuller, Alexander Bickel, and John Hart Ely. Among contemporary theorists, William Eskridge Jr. is strongly identified with an evolving version of legal process theory.

It is difficult to capture the content of legal process theory in an explicit set of propositions. The Legal Process teaching materials do not amount to a programmatic exposition of a theory, and much of the development of legal process was done via example. There is no canonical monograph or article that precisely states the theoretical content of legal process theory.

Nonetheless, one of the key ideas of the legal process school, “reasoned elaboration,” remains influential, both implicitly and explicitly, in both legal scholarship and legal practice. The basic idea is that judicial decisionmaking should include reference to normative propositions (values, purposes, goals, principles, and policies) that are immanent in the legal materials, broadly understood to include constitutions, statutes, rules, regulations, and judicial decisions, and including commitments to policy goals and principles of fairness that can be inferred from these materials or which are explicitly stated by policymakers.

As always, this entry in the Legal Theory Lexicon is aimed at law students with an interest in legal theory. As with every Lexicon entry, the exposition is basic. In the case of this Lexicon entry, readers should be aware that because of the lack of definitive theoretical texts, there can different and competing understandings of the legal process approach in general and the idea of reasoned elaboration in particular.

Between Realism and Formalism

One way to approach the idea of reasoned elaboration is by situating it in the great debate between legal realists and legal formalists. The critique of legal formalism by the American legal realists is too complex and diverse to summarize, but a very simple version of that critique could be stated as follows: legal texts (e.g., constitutions, statues, and judicial decisions) do not and should not fully determine the outcome of legal disputes. The legal process school accepted the realist idea that judicial decisions are not the outcome of a mechanical jurisprudence that simply applies the authority (e.g., constitutional or statutory provision) to the case, but instead includes considerations of policy and principle. But unlike the more radical versions of legal realism (and later, the critical legal studies movement), the legal process school did not believe that judging was pure politics or simply legislation by judges. The value choices made by judges could be guided and constrained by reasoned elaboration of the policy goals and principles of fairness that were imminent in the preexisting materials.

Viewed in this way, the point of the idea of reasoned elaboration was to provide a middle ground. Avoiding the Scylla of realist nihlism and the Charybdis of mechanical jurisprudence, reasoned elaboration provided a distinctive role for judges that was both responsive to values and constrained by the existing legal materials. Judges discover the law, but the process of discovery is not mechanical. Judges make policy choices, but reasoned elaboration makes judges subordinate to democratic policymaking. The choices that judges make are supposed to be interstitial and guided by value choices that have already been made by legislatures, regulators, or constitutional conventions.

Relationship to Dworkin’s Theory

Although the key figures in the early legal process school did not write programmatic theoretical statements, Ronald Dworkin’s theory, Law as Integrity, was elaborated in a variety of articles and in his major theoretical monograph, Law’s Empire. Viewed from one angle, Dworkin’s theory can be seen as a refinement and explicit theorization of ideas advanced by legal process theorists. Dworkin’s idealized judge, Hercules, decides cases on the basis of the moral theory that best fits and justifies the legal materials as a whole. This method of decisionmaking bears clear affinities with the method of reasoned elaboration.

On the other hand, there are major differences between Dworkin’s theory and the legal process approach. Dworkin affirms the Right Answer Thesis–there is one and only one legally corrected outcome to each and every case that might be presented to a judge. The legal process theorists (as I understand them) are not committed to this Dworkinian claim: there may be better and worse reasoned elaborations of the law, but they do not explicitly commit to the idea of a unique right answer to every legal question. Dworkin draws a sharp distinction between considerations of policy (consequentialist concerns) and those of principle (fairness concerns). Dworkin believes that judicial decisions must be based solely on principle and cannot take policy into account, but the legal process theorists seem to allow for judicial consideration of policy and hence of consequentialist arguments–so long as the policy goal is found in the legal materials rather than imposed by the judge. Dworkin’s approach is more philosophical than the legal process approach: where Dworkin engages in conceptual assent to general theories of equality or freedom of expression, the legal process approach emphasizes policies and principles at a lower level of abstraction.

Criticisms of the Method of Reasoned Elaboration

The method of reasoned elaboration has been subject to so many criticisms that it is impossible to summarize them in a short Lexicon entry. Here are a few of the arguments that have been made against reasoned elaboration:

Reasoned elaboration assumes that there are values (goals, policies, principles) that are immanent in the legal materials, but it is not clear that this idea is coherent. Although the legal materials sometimes include value statements (e.g. in the preamble of a statute or constitution), operative legal materials cannot themselves have goals, only persons have the kind of mental states that constitute goals or purposes.
Reasoned elaboration in practice may not be significantly different from judicial legislation. Different judges are likely to see different values imminent in the law, and those differences are themselves likely to reflect the policy preferences or ideologies held by the judges.
Assuming that the process of judging should be value driven, it is not clear why the values imminent in the law should trump the set of values supported by the best moral theory. Legal process theory seems to require adherence to second-best values except in the rare case where the legal materials just happen to reflect the best moral theory.
The existing set of legal materials is the outcome of political struggles and not idealized policymaking. Statutes represent comprises between competing sets of values and political ideologies. For this reason, the process of reasoned elaboration may itself be indeterminate, and hence the attempt to define a middle way between formalism and realism may be doomed to failure.

The Continued Influence of Reasoned Elaboration

Explicit invocation of the idea of reasoned elaboration may be less frequent than it once was, but many legal scholars use a legal process approach–even if they are not consciously aware of that fact. Every reader of contemporary legal scholarship will see a reflection of reasoned elaboration in what continues to be the most popular genre of legal scholarship–the law review article that makes a normative recommendation for future judicial decisions based on policies or principles that the author argues are to be found in the existing legal materials. This method is so common that many of its practitioners do not even recognize that they are relying on a controversial set of theoretical assumptions.

Conclusion

Every legal scholar needs to understand the legal process school and its central idea of reasoned elaboration. Some scholars may decide after reflection to self-consciously employ a refined version of the idea of reasoned elaboration. Others will reject this approach, opting instead for rival views, including contemporary versions of legal formalism (such as plain meaning textualism or public meaning originalism) or a first-best normative theory (whether it be a form of consequentialism such as welfarism or some version of deontological theory such as Rawls’s justice as fairness). And their are many other views as well, including Posner’s legal pragmatism and critical theories including feminist jurisprudence and critical race theory. The aim of this entry in the Legal Theory Lexicon has been to equip the reader with a basic understanding of the idea of reasoned elaboration and enable further investigation and reflection.

Related Lexicon Entries

Bibliography

Donald A. Dripps, Justice Harlan on Criminal Procedure: Two Cheers for the Legal Process School, 3 Ohio St. J. Crim. L. 125, 126 (2005).
Neil Duxbury, Faith in Reason: The Process Tradition in American Jurisprudence, 15 Cardozo L. Rev. 601 (1993)
Richard H. Fallon, Jr., Reflections on the Hart and Wechsler Paradigm, 47 Vand. L. Rev. 953, 964-6 (1994).
Henry M. Hart & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (1958).
Henry M. Hart, Jr. and Herbert Wechsler, The Federal Courts and the Federal System (1953).
Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L Rev. 1 (1959).

Related Lexicon Entries

Permanent Version

Legal Theory Lexicon 082: Reasoned Elaboration

(Last revised on October 15, 2025.)