Noga Morag-Levine (Michigan State University - College of Law) has posted Sociological Jurisprudence and the Spirit of the Common Law (Forthcoming, Oxford Handbook of Historical Legal Research, edited by Markus D. Dubber and Christopher Tomlins) on SSRN. Here is the abstract:
Roscoe Pound’s Sociological Jurisprudence has long been understood to bear the mark of continental, primarily German writers. Notwithstanding this influence, the project represented, in large measure, an effort to stem transatlantic-inspired threats to the future of the common law. Most directly at issue was the rise of social science as an alternative, civil-law-based, 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, as it ultimately evolved, consisted of two primary proposals for reform, one focused on the universities, the other on the courts.
Late 19th-century German social science and attendant theories of the state aspired to an integrated field linking legal, political, social, and economic theories. Within this model the social science disciplines, rather than the law, would emerge as the proper academic homes for research on constitutional, legislative, administrative, and related public law subjects. Through the injection of social-scientific content into legal pedagogy and research, sociological jurisprudence countered with 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 contemporary pressures for radical curtailment of judicial review with a narrow construction of the deficiency at the core of the Lochner Court’s reasoning as mechanical, or formalist. It was a problem definition that successfully served to deflect direct attacks on judicial supremacy by shifting the conversation away from the very authority of courts to scrutinize the facts justifying social legislation to the methods they ought to employ in this regard. Obscured in the process was 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. The ease with which formalist constructions of the Lochner Court took hold—even as the Lochner justices themselves insisted on reviewing the underlying legislative facts—is difficult to explain, other than through the widely shared common-law sensibilities of progressive-era lawyers, well beyond Pound. In this, sociological jurisprudence seemingly offers legal historians one more lesson on the ways in which historical narratives that are consonant with the values of legal elites are liable to gain purchase.