The Turn to Process in Comparative Context

Guest Blogger

For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).

Amalia D. Kessler

Kunal Parker’s The Turn to Process is a sweeping intellectual history of great ambition. Spanning the period between 1870 and 1970, the book draws on a remarkable depth of erudition to argue that American thought leaders across the domains of law, politics, and economics responded to the challenges of modernism by embracing methods, procedures, and processes. By converting substantive truths into procedural techniques, these scholars were able to establish forms of disciplinary authority that were immune to the corrosive effects of the modernist predilection for subjecting truth to historical and psychological critique. Grand in scope, Parker’s book also shines in its illuminating close readings, which bring to light the surprising parallels between seemingly quite distinct textual traditions. In all these respects, the Turn to Process is an important contribution that promises significantly to reshape the boundaries of scholarly debate across a range of disciplines.

As with all excellent research, Parker’s book raises a host of rich questions that beg further exploration. Key among these is how we ought to situate the American turn to process within a broader comparative frame. Parker’s history focuses on legal, political, and economic scholars based in the United States. But should we read his account as the American variant of a more universal (at least Western) story? Or is the implication that the turn to process did not occur elsewhere (at least not to the same extent)? And if the latter is the case, what unique features of the American legal, political, and economic landscape might explain this divergence?

Parker himself never addresses these questions head-on. But there are reasons to suspect that there is indeed something distinctively American about the turn to process that he elaborates. Various aspects of American legal, political, and economic thought are without direct counterparts elsewhere, including in the European, civil-law world. And while Parker has written an intellectual history, these unique features of American thought are of course tied to important differences in practice. The legal process school that dominated American legal teaching and scholarship for decades arose exclusively within the United States. Likewise, the notion of substantive due process is a distinctively American one in that other countries directly constitutionalize substantive rights that we have extrapolated from a procedural entitlement. Americans are, moreover, unique in the emphasis that they place on the teaching of civil procedure. While law students in the United States are required to study civil procedure, typically in the first year of law school, other countries either do not require the course, or if they do, leave it to the end of the student’s training. So too, neoliberalism, as both a scholarly tradition and a field of practice—rooted in what Parker describes as the use of “homo economicus as a tool” (242)—has been an especially powerful force in the United States. While economic thinking has become central to regulation throughout the globe, there is reason to believe that the American regulatory state is especially beholden to economists and their procedural toolkit, as contrasted with Europe, where the precautionary principle enables substantive political values to serve as a counterweight to cost-benefit analysis.

But if Parker’s Turn to Process is, at least to some extent, a distinctively American phenomenon, then what explains this? Parker identifies modernism as the key causal factor that explains the American turn to process. In so arguing, he focuses, in particular, on the challenges posed by the rise of democracy, the emergence of historical and psychological perspectives that undermined established truths, and the birth of the modern administrative state. But these features of modernism were in no way unique to the United States and were instead very much a transatlantic phenomenon. Perhaps then the American turn to process should be understood as following from the way that largely universal modernist forces interacted with distinctive features of the inherited local landscape?

At times, Parker seems to point in this direction in that he notes how the thinkers he studies addressed the challenges of modernism by drawing on a deep-rooted reservoir of American ideas and discourses. For example, in arguing that late-nineteenth-century American political thinkers began to assert the central role of groups—and “group process”—in the structuring of the polity, he emphasizes that groups were “an old preoccupation of American political thinkers,” dating back to Federalist anxieties about factions (150). But of course, as he himself observes, “group-centered political pluralism” was highly influential in Europe, as well as the United States during this period (167). Indeed, there is good reason to conclude that contemporary Europe—with its centuries-old corporatist tradition of formally delegating state authority to group entities—was much more primed than the United States to think in group-based terms. For many Europeans writing about groups in the late nineteenth century, the question of how group processes ought to be incorporated into broader structures of political authority was one that followed from many centuries of legal and political practice, as refracted through the legacy of the French Revolution (itself framed in no small part as an attack on corporatism).

One feature of the inherited American landscape on which Parker focuses particular attention—and that might therefore be a better candidate for explaining a distinctively American turn to process—is the tradition of the common law. An important throughline in Parker’s text, connecting developments across time and across distinctive disciplines, is what he describes as the common law’s unique “temporality,” enabling the simultaneous pursuit of both continuity and change. Since the common-law tradition is decidedly Anglo-American, this would seem to be a factor that might play some role in setting the United States apart from its continental European counterparts. In fact, the very notion of a common-law temporality appears to presume a sharp distinction between common-law and civil-law modes of conceiving the relationship between legal change and the passage of time. But this distinction is itself perhaps exaggerated. During the early modern period, continental European societies developed a common customary law that was in many ways comparable to the English common law, rooted in a backward look toward custom, but also allowing for considerable innovation. Of course, the European turn to codification in the nineteenth century marked a formal break in lawyers’ orientation toward the past—but even so, mechanisms were found for ensuring continuity, alongside change. That said, one more enduring distinction between common-law and civil-law systems (at least until relatively recently and still as a matter of degree) is that the former enable judicial review. To the extent that process has served as a bulwark against strong reforms of review (as evident in the legal process school itself), then perhaps it is the prevalence of judicial review that explains the United States’ distinctive preference for process. But even if we conclude that the common-law inheritance is unique, what would explain its powerful grip, not only on lawyers, but also on those trained in other disciplines?

The question of how, if at all, the United States is unique in ways that might explain its presumably distinctive turn to process also raises difficult questions of timing. Parker frames the turn to process as a product of modernism, suggesting that it dates from the late nineteenth century onward. But there are reasons to suspect that, at least in the legal and political contexts, the United States has always been uniquely process-oriented. Parker alludes to the mid-nineteenth-century transformation from writ to right, as a result of which the traditional forms of action were abandoned and substance and procedure were disaggregated. He suggests that this separating out of procedure from substance helped give rise to the idea of procedure as a tool, thus presaging the further development of law as process that would proceed apace later in the century (45-47). But from a comparative perspective, the initial fusing of procedure and substance—dating back to the medieval writ system—was a choice to prioritize procedure over substance, allowing procedural form to dictate substantive rights. This distinctively procedural orientation is also evident in the traditional Anglo-American model of law teaching. Rooted in the world of practice, rather than the university, this model focused on transmitting legal methods and processes (perhaps most importantly, pleading), rather than substantive concepts. Likewise, there is reason to suspect that American politics has long been especially attuned to matters of process. Ascribing to a largely Hobbesian view of human nature, the framers of the U.S. Constitution devoted themselves to constructing processes (including those associated with federalism and separation of powers) that would counter individuals’ tendencies toward self-aggrandizement and ensuing factionalism. In contrast, the French Revolutionaries trusted that once the corrupting institutions of the Old Regime were eradicated, a Rousseauian general will, ready and able to enact substantively good laws, would naturally emerge as the decisive factor in governance. Of course, to emphasize the earlier roots of the American predilection for process is in no way to challenge Parker’s finding that the period from 1870 to 1970 marked a particularly significant embrace of process. But it suggests that, from a comparative perspective, the United States was already primed to take this turn.

As noted, Parker identifies a tendency across the disciplines of law, politics, and economics to embrace what he describes as “the early modern temporalities of the common law” (28). He argues, more particularly, that these temporalities followed from the way that a broad range of thinkers appealed to reason-defying justifications (including, “feelings,” “moods,” “muddling through,” etc.) (28). By means of such justifications, he argues, these thinkers were able to press for a more conservative path forward, opposed to state intervention in service of greater racial and economic equality. But while Parker is persuasive in demonstrating a surprisingly widespread discourse of the irrational, the link between this discourse and temporality of any sort remains opaque. To my mind, the defining feature of the embrace of the irrational is to preserve and celebrate discretionary forms of authority in no way subject to the rationalizing logic of expertise. But such discretionary authority might be used in service of any political agenda—with various possible orientations toward time. Indeed, as Parker himself observes, there were important left-leaning exponents of the turn to process.

Ultimately, these reflections take us back to the question of American difference. Parker chooses to focus particular attention on conservative economic thinkers like Hayek and those of the Chicago School, because, he argues, they exemplify, much more than their left counterparts, “the extreme hypertrophy of the postwar turn to process” (262). But what precisely is the connection between right-leaning political and economic projects, on the one hand, and the embrace of process, on the other? Yes, focusing on process is a way of hindering change—but as the rise of a newly emboldened conservative majority on the U.S. Supreme Court serves to remind us, the push toward change can also come from the right. That said, to the extent that process and conservatism have tended to go hand in glove in the United States, perhaps we should see this as a reflection of a deeper comparative pattern—one evident in the fact that Europe has historically been both less enamored by process and more left-leaning.

Amalia D. Kessler is Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies at Stanford Law School. You can reach her by e-mail at akessler@law.stanford.edu.