Judicial Social Theorizing and Its Relation to Sociology

Abstract

The scope and structure of social theory are often analyzed as part of or preamble to theorizing proper. This paper takes an indirect approach to the metatheoretical question, “what does social theory look like in terms of scope and structure?” by analyzing a form of social theory that sociologists tend not to think of as social theory: namely, judge-made law produced in Federal appellate courts. We argue that judges engage in social theorizing on a routine basis, and that they arrive at some of their theoretical claims through a process of theorizing that has features in common with sociological theorizing. The social theorizing of judges holds up a mirror to our own. By recognizing and examining judicial social theorizing as a form of structured, social theorizing, we aim to facilitate a clearer understanding of the social conditions enabling (and constraining) the production of social theory within sociology.