Sociological Jurisprudence

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THEINFLUENCEOFSOCIOLOGYONAMERICANJURISPRUDENCE: FROMOLIVERWENDELLHOLMES TOCRITICAL LEGALSTUDIESA. Javier TrevinoMarquette UniversityMid-AmericanReview ofSociology, 1994, Vol XVIII, No. I & 2: 23-46This paper analyzes the distinctive influence that sociology has had on legalscholarshipduring the past century. II examines someofIhe moresignificantcontributionsthat sociologyhasmadeto four of themajorjurisprudential "movements" of thetwentieth-century: Holmesian legalscience, soci%gical jurisprudence. legal Realism. andCritical LegalStudies. In essence, this paper shows how sociology has: (1) contributed tothelanguage of thelaw some of itsmoreimportant concepts, (2) givenjurisprudence penetratinginsight inlo thesocial dynamics of the law, (3)revealed the close relationship which exists between lawand the other socialinstitutions, (4) provided jurisprudence withapositivistic. structuralmethodology by which to study the law.and (5) inspired a legal approachthaI is perspectival and hermeneutical in orientation.IntroductionSeveral scholars (Geis 1964; Hunt ] 978; Hall, Wiecek, andFinkelman1991 :456457;Horwitz]992; Vago1994)havenotedthetremendousimpactthat socialscience hasmade onAmerican jurisprudence. Myintentioninthispaper isto engage in amore detailed. extended, andupdated analysis thanthatpreviously rendered by these scholars, of the distinctive influence that sociologyhas hadon legal scholarshipduringthe last onehundredyearsorso. Therationale fOf analysis-is toclarifyandaccentuate thecontours of the ongoing discourse between theoretical sociology andjurisprudential thought.Inthispaper Iwill examine some of the contributionsthat sociologyhasmade tofour inteJlectual legal traditionsor "movements" ofthe twentiethcentury: (I)Holmesianlegal science, (2) sociological jurisprudence,(3)legalRealism, and (4) Critical Legal Studies.2Holmesian Legal ScienceIt may well be that Oliver Wendell Holmes, Jr. is indeed "the mostimportant and innuentiallegalthinker America has had" (Horwitz1992: 109). Itis an acknowledgedfact. however, that he did not develop anaxiomatic socialtheory. Nor didhe ever relywholly or evenpartially onanywell-formulated232425Icannot refrainfromwritingawordof appreciation of thetwobookstoyou. They are so civilized, so enlightenedbyside knowledge, oftenindicatedbyasinglekeyword, soskeptical yet soappreciativeevenofillusion, so abundantininsight, and often so crowded with felicities, that itmakes me happy to think that they come from America and notfrom Europe.They hitmewhere Ilive ... (Ross1936:99).Sometime in 1920 Holmes purchased a copyof Ross' Principles ofSociology. Not longthereafter ina lettertoLaski. Holmeswrote, ". wish[Ross'] teachinginits substance were moretakento heart"(Howe1953:272).Finally, having heard that the works ofAlbion Small had made a greatimpression onRoscoe Pound. Holmes took it upon himself torCild Small's TheMeaning of Social Scienceat theendof 1919. TheJusticefelt inclinedtocompareSmall totheYalesociologist WimamGrahamSumner. It appears,however, that Holmes, remained forever unimpressed with Small's work.Whether helookeduponthe aforementionedthinkers andtheir ideasin afavorableorunfavorablelight Holmeswas, at least latenlly, affectedbythesociologyofhis time. Nevertheless, withor without thesociologists, the.. _. ''' __ ......'., ". -. "- .... -.IS. -. _ ;'l. ._-.;. , ., _ .The Influence of SociologyHolmes referred to the Gennan sociologist as "a dull maker of categories" (Howe1953:653). Regarding Gustave Le Bon's Les opinions etles croyances (1911),Holmes wrote that the book is "not the flash of lightning that [Le Bon] seems tothink it but with enough goodsense to make me wish that alleducated personsmight readit" (Howe1953:377). The Justice was obviously well read in generalsociology.Inthearea of thesociology of law, Holmesknewtheworks of GeorgesGurvitch and Eugen Ehrlich. Harold Laski described to Holmes Gurvitch's L'ideedu droit social (1932), as ..... monumental. Full of learning, pointed, suggestive,it gives you a sense of legal philosophy changing to fit new needs which I foundreallyexhilarating"(Howe1953: 1364).About Ehrlich, Holmes wrote: "I havejust finishedreading." Ehrlich, Die Juristische Logik -- which'might call anelaborate proof of myoid thesis that the life of the law has not been logic; it hasbeen experience.... I thought his Grundelung der Soziologie des Rechts the bestbook onlegalsubjectsbyanyliving continental jurist that I knew of' (Howe1941:34).Lester F. Ward,Edward A. Ross, and Albion Small were among the earlyAmericansociologiststhe Justicehadaddedtohisreadinglist. Holmeswasfamiliarwiththefirst'sOutlines of Sociology(1898) andDynamicSociology(1883). He wrote to a friend in1906: "Having heard that Lester Ward -- author of"Dynamic Sociology" and patriarch of the theme in this country --was about toleave Washington, I called, simply to express my homage" (Novick1989:285).Holmes had also read Ross'Social Control and Foundations of Sociology. andbeingextremely impressedby these two volumes, recommended themtoPresident Theodore Roosevelt. In aletter dated May 6, 1906 Holmes wrotetoRoss:Mid-American Review of Sociologysociologicalapproach. Nevertheless,the ideas of certainsociological thinkersvery likely did infonn and impact upon Holmes' work.Unlike most of his nineteenth-century contemporarieswho considered thelawtobealogical andautonomous systemof axioms frozen for all time,Holmes saw the law as flexible and responsive to the changing needs of society.Eventhoughhewaveredfromit throughout hislife, thissociogenicpremiseguided Holmes' jurisprudence and made him a model for subsequent generations.of legal scholars who favored a"realistic" approach to the law.As I will showpresently, there is strong evidence indicating that several sociologists did indeedhave a notable effect on Holmes' thinking andthat Holmeswas well versed inthe sociological imagination.Holmes and the SociologistsAvoracious reader all hislife, JusticeHolmeswasalsoverycritical ofmuch of what he read. But, regardless of whether he felt positively or negativelyabout sociological writersandtheir conceptions, it is clearthatHolmeswasinfluenced by them.While a student at Harvard Law School between1864 and1866, the youngHolmes augmented his assigned readings on the law with the works of AugusteComle, JohnStuart Mill, andHerbert Spencer. Allhoughambivalent aboutSpencer's ideas, Holmes never ceased making reference to him. Just prior to itspublication, HolmesreviewedfavorablySpencer'sTheStudyof Sociologyremarkingthat"[e]very page of Mr. Spencer'swriting is illuminatedbythoseside lights which onlya great scholar inbooks, or nature, or both, can throwupon the subject with which he is dealing" (1873 a:587).The Justice also read Spencer's Principles of Sociology, calling itswriter"dull." Holmes stated: "[Spencer] writes an ugly uncharming style, his ideals arethose of a lower middle class British Philistine. And yet after allabatements Idoubt if anywriter of English except Darwinhas donesomuchto affect ourwholewayofthinkingabout the universe" (Howe 1941:58). Holmesalsoinvoked the social theorists' name and one of his most important works when, in.' woting hisdissentto'the"1905U.S. SupremeC'oiiri"caseL.'OChner' v. New York, .he declared his now famous aphorism that the "Fourteenth Amendment does not