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.