Sociological Jurisprudence and The Spirit of The Common Law

Abstract

Abstract This chapter explores the work and influence of Roscoe Pound who offered sociological jurisprudence in response to transatlantic-inspired threats to the future of the common law. At issue was the rise of social science as an alternative, civil-law-affiliated, administrative paradigm that simultaneously threatened the academic interests of the law schools, the professional concerns of the bar, and the core constitutional principles of judicial supremacy. Within this context, Pound selectively drew on European social legal theory with the goal of saving the common law from itself. The project consisted of two primary proposals for reform, one focused on the universities, the other on the courts. Through the injection of social-scientific content into legal pedagogy and research, sociological jurisprudence forged a socio-legal paradigm that together with lowering the barriers separating law from society also ensured that law would continue to exist as a distinct field of inquiry in the universities and beyond. Where the courts were concerned, sociological jurisprudence answered pressures for radical curtailment of judicial review with a narrow, formalist, construction of the deficiency at the core of the Lochner Court’s reasoning. It was a problem definition that successfully served to deflect direct attacks on judicial supremacy. Largely hidden going forward has been the extent to which the constitutional battle lines of the early twentieth century were drawn between rival, common law- and civil-law-based paradigms of administrative governance.