The Relations between the Courts and the Law
Grant Gilmore called Corbin on Contracts the greatest law book ever written. Henry Hart and Albert Sacks together produced the greatest American law book never finished, The Legal Process. Hart by himself contributed two articles that remain central to American constitutional law, one of which is my choice for a favourite law review article (in fact, it is my favourite): 'The Relations Between State and Federal Law'.
Both The Legal Process and 'Relations' have two great virtues, on top of those that come simply from Hart's penetrating intellect and intimate knowledge of law. They see law, and American law in particular, as systems, as wholes composed of parts that work together. Second, they develop and use legal concepts that are both sufficiently abstract to describe phenomena that recur from one substantive area of law to another and sufficiently concrete to be readily applicable to those phenomena. They are applied legal theory, and models of successful legal scholarship.
This contribution seeks to apply Hart's method to three questions that fit on his agenda. All concern the ways in which courts and the law interact. The first concerns the ways in which courts and executive officials fit into the complex American legal system in which a single body of substantive law is administered by institutions of two different levels of government. The next two, closely related to one another, extend Hart's inquiry into the interactions between legal rules and government institutions by probing the standard short hand according to which courts make law in common-law systems and unmake law when they find unconstitutionality in systems that have American-style judicial review.
Although Hart's analytical concepts are general, his specific focus was on the American legal and constitutional system. For Henry Hart, that may have been more because of his readers' limitations than his own. In my case, that much parochialism results from the sound advice to all authors, write what you know about. Henry Hart knew about law in general, but most of us must be more narrowly focused.