Sociological JURISPRUDENCE is one of the most important schools of legal thought in the twentieth century. Its major proponent in the United States was ROSCOE POUND (1870–1964), a prolific writer who was dean of the Harvard Law School from 1916 to 1936. A number of other legal educators and judges also contributed in varying degrees to the theory or practice of sociological jurisprudence. They included five former members of the Supreme Court—OLIVER WENDELL HOLMES, LOUIS D. BRANDEIS, Harlan Fiske Stone, BENJAMIN N. CARDOZO, and FELIX FRANKFURTER. Even though the doctrines of these jurists were anything but uniform, they shared a number of important attitudes and ideas.
The movement for a sociological jurisprudence emerged during the Progressive era. Pound interpreted it as the "movement for pragmatism as a philosophy of law," the purpose of which was to facilitate legal reform and social progress. Although legal change should take place under the leadership of lawyers, the agenda of sociological jurisprudence did not focus on changes in legal institutions. Rather, it stressed reform of prevailing conceptions of the study, interpretation, and application of law.
This emphasis reflected a particular diagnosis of the ills of the American legal system at the outset of the twentieth century. These problems included judicial hostility to laws designed to protect workers, which courts often construed narrowly or held unconstitutional. Decisions of the Supreme Court applying the doctrine of SUBSTANTIVE DUE PROCESS are a classic example of the tendency. The advocates of sociological jurisprudence assailed this judicial response to social legislation, which they attributed to several factors. One was the isolation of the study of law from the social sciences. This condition allegedly fostered an ignorance of social realities and needs that contributed to unjust decisions. "Unless we know the facts on which legislators may have acted," Justice Brandeis pointed out in BURNS BAKING CO. V. BRYAN (1924), "we cannot properly decide whether they were unreasonable, arbitrary, or capricious. Knowledge is essential to understanding; and understanding should precede judging."
Pound maintained that another factor contributing to
These criticisms were the basis of the characteristic reform objectives of sociological jurisprudence. A fundamental goal was the development of a better factual understanding of the practical effects of legal precepts and institutions. Cardozo proposed a Ministry of Justice which would study and observe the "law in action." In "The Living Law" Brandeis recommended "broader education continued by lawyer and judge throughout life: study of economics and sociology and politics which embody the facts and present the problems of today." This idea strongly conditioned the unorthodox BRANDEIS BRIEF in MULLER V. OREGON (1908), an approach that Brandeis and other lawyers such as Felix Frankfurter used in a number of subsequent cases. Only two of the 113 pages of this brief presented the traditional kind of legal argument, while the rest consisted largely of factual evidence of the bad effects on women of excessive hours of work. Brandeis argued that these data showed that the Oregon law, which limited women's working hours to ten per day, was a reasonable limitation of freedom of contract. His argument favorably impressed the Justices, who unanimously upheld the law.
The prescription for abandoning "mechanical jurisprudence" was a more pragmatic approach to judicial decision making. No one expressed this idea better than Cardozo, who insisted that law is a means to the end of "social welfare" or "social justice." He argued that judges should interpret general constitutional limitations to serve this end. The changing meaning of the word "liberty" in the due process clauses of the Fifth and FOURTEENTH AMENDMENTS is an example. (See INCORPORATION DOCTRINE.) Similar beliefs conditioned Frankfurter's suggestion that constitutional law "in its relation to social legislation, is but applied politics, using the word in its noble sense."
These ideas reflected a justifiable dissatisfaction with the content of American constitutional law earlier in this century. The adequacy of the sociological jurists' diagnosis of and reforms for these evils is another matter. To begin with, they tended to exaggerate the causal significance of "mechanical jurisprudence" and judicial ignorance of social needs. Neither of these factors ordinarily influence the actual decisions of the Justices or their choice of premises as much as their policy preferences or attitudes. Furthermore, conservative Justices might (and did) use Cardozo's "method of sociology" for their own purposes. "Social welfare" and "social justice" are subject, after all, to a multitude of interpretations. In some cases a majority of the Justices invalidated laws defended by a "Brandeis brief." The extent to which that technique influenced them to uphold other laws is uncertain, but its impact may have been corroborative rather than decisive. The use of social science evidence in BROWN V. BOARD OF EDUCATION (1954) illustrates this tendency. Finally, social scientists often disagree about the interpretation of the facts or their implications for public policy.
To say this is not to imply that the value of sociological jurisprudence was negligible. Its greatest contribution to constitutional law was that it served as a positive force for upholding social legislation. If its efficacy in this regard was limited, at least it provided support for judges inclined to hold such legislation constitutional. Moreover, knowledge of the actual effects of legal precepts and institutions is essential for informed evaluations of them. The call of sociological jurisprudence for studies of these effects was, thus, a step in the right direction.
WILFRID E. RUMBLE
BRANDEIS, LOUIS D. 1916 The Living Law. Address before the Chicago Bar Association, January 3, 1916.
CAHILL, FRED V. 1952 Judicial Legislation. New York: Ronald Press.
ROSEN, PAUL L. 1972 The Supreme Court and Social Science. Urbana: University of Illinois Press.
RUMBLE, WILFRID E. 1968 American Legal Realism. Ithaca, N.Y.: Cornell University Press.
WHITE, G. EDWARD 1978 Patterns of American Legal Thought. Indianapolis: Bobbs-Merrill.