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Law as a Social Science

Published online by Cambridge University Press:  14 March 2022

Huntington Cairns
Huntington Cairns*
Affiliation:
Baltimore Trust Building, Baltimore, Md.
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Extract

It is the contemporary belief, in American legal circles at all events, that law or jurisprudence, whatever it may have been in the past, has now the status of a social science. This is an assumption easier to make than to substantiate, and in view of the increasing insistence upon this point, it is now appropriate to inquire whether or not it possesses a tangible foundation. This requires a consideration of the distinctive characteristics of social science, the determination whether or not jurisprudence exhibits these characteristics, and, if not, if it is possible for it to assume them. It will be convenient to begin, briefly and concisely, with an examination of the characteristics of modern legal thought.

Type
Research Article
Information
Philosophy of Science , Volume 2 , Issue 4 , October 1935 , pp. 484 - 498
Copyright
Copyright © Philosophy of Science Association 1935

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References

1 Ancient Law (World's Classics ed. 1931) 18; Popular Government (1886) 75, 134, 143, 152–54, and passim.

2 Centralization and the Law (1906) 63–4; The Modern Conception of Animus (1907) 19 Green Bag 12.

3 Pound, Interpretations of Legal History (1923) 151–165; idem, Criminal Justice in America (1930) 211–12; idem, The Spirit of the Common Law (1921) 212–16; idem, art. Jurisprudence in Gee (ed) Research in the Social Sciences (1929) 181.

4 Llewellyn, The Conditions for and the Aims and Methods of Legal Research, American Law School Review, March, 1930, 672.

5 Beutel, Some Implications of Experimental Jurisprudence (1934) 48 Harv. L. R. 169.

6 Outlines of Lectures on Jurisprudence (4th ed. 1928) 16–18.

7 Op. cit. supra note 4 at 674; cf. idem, A Realistic Jurisprudence—The Next Step (1930) 30 Col. Law Rev. 431.

8 Op. cit. supra note 5. Cf. Robinson, Law—An Unscientific Science (1934) 44 Yale Law Journal 235, for a statement by an eminent psychologist of a legal programme from a psychological point of view.

9 Legal Science and Reform (1934) 34 Col. L. R. 207.

10 Culture was defined by Tylor as “that complex whole which includes knowledge, belief, art, morals, law, custom, and any other capabilities and habits acquired by man as a member of society.” 1 Primitive Culture (1903) 1, A modern definition has been put forward by Malinowski which stresses the fact that artifacts are a part of culture, a point not emphasized by Tylor: “Culture comprises inherited artifacts, goods, technical processes, ideas, habits and values.” 4 Ency. Social Sciences, s. v. Culture 621 (1931).

11 Reason and Nature (1931) 349.

12 Psychology: Science or Technology (1914) 84 The Popular Science Monthly 39.

13 The Possibilities of Social Study as a Science (1931) in Essays on Research in the Social Sciences (1931) 27.

14 Textbook of Logic (1924) 247. Quoted Cook op. cit. supra note 13 at 32.

15 Politics, vii, 7. (Jowett's Translation 1885).

16 Contemporary Sociological Theories (1927) 100.

17 Human Geography (1920) 46–51.

18 Op. cit. supra note 17 at c. viii.

19 Op. cit. supra note 17 at 593.

20 It is interesting to note that in geography as well as in law there has been a separation of “pure” and “applied” science. “For centuries two conceptions of geography have been opposed to each other,” Brunhes writes (op. cit. supra note 17 at 29); “by generalizing and perhaps stretching the facts a bit, one might be called the Greek conception, the other the Roman conception. The Greek conception was loftier and truer. The Greek geographers, Thales of Miletus, Eratosthenes, Hippocrates, and Aristotle, were philosophers. They had a general, philosophic conception of the physical universe and they sought before everything else to work out the natural succession of phenomena and how these phenomena were subordinated to each other. Then came the Romans with their utilitarian spirit; their geography was practical. They established itineraries, and composed topographical dictionaries; they were especially dominated by commercial interests, by administrative problems, or by ambitions of conquest. From that time general and speculative geography was neglected; the spirit of geographical science and the taste for it were lost. Only a few men, as rare as they were farseeing, strove to preserve the scientific point of view in geography. (Author's italics.)

21 The Spirit of Laws (Bohn. ed., 1909) Bk I, c. iii.

22 1 History of Civilization (World's classics ed. 1925) c. ii.

23 Law and Geography (1918) 3 Evolution of Law 198. See also Wigmore 3 A Panorama of the World's Legal Systems (1928) 1133; idem, A Map of the World's Law, 19 Geographical Review (1929) 114; Dubbs, The Unfolding of Law in the Mountain Region (1926) 3 Colorado Magazine 113.

24 Quoted Semple, Influences of Geographic Environment (1927) 40.

25 The Spirit of the Common Law (1921) c. v.

26 Our Social Heritage (1921) 14 et seq.

27 1 The Mothers (1927) 23 et seq.

28 Mysticism and Logic (1925) 180.

29 Quoted Weyl, The Open World (1932) 36.

30 Ibid.

31 A Treatise of Human Nature (1920) Pt. III.

32 The Analysis of Mind (1921) c. v. A valuable discussion of the present difficulties is contained in Stebbing, A Modern Introduction to Logic (1930) c. xv.

33 Stebbing op. cit. supra note 32 at 283; Broad, The Mind and its Place in Nature (1925) 455.

34 A Treatise on Probability (1921) 277.

35 The Protestant Ethic and the Spirit of Capitalism (1930).

36 Op. cit. supra note 11 at 361.

37 The most satisfactory discussion of this question from the sociological position is contained in MacIver, Society, Its Structure and Changes (1931) 248, et seq.