American legal realism and sociological jurisprudence: The methodological roots of a science of law

Abstract

There remains a good deal of confusion concerning the respective roles legal realism and sociological jurisprudence played in the movement to demythologize the study of law in the United States. It is asserted that this confusion is the result of a failure to recognize that American legal realism was part of the intellectual tradition of the thennew behavioral sciences–in particular, adopting as its methodological premise the ideal of a divorce between the study of fact and value. In contrast, sociological jurisprudence under the influence of Roscoe Pound, relied upon the tradition of pragmatic philosophy, ultimately denying that the realist's separation was either possible or desirable. As such, American legal realism should be seen as the true precursor of more modern attempts to engage in the study of judicial behavioralism and to attempt more scientific studies of the judicial process.

Empirical Legal Research: Fad, Feud or Fellowship?

“…The law may contain ideals to strive for, but research on the social practice of law has made clear that the law is fooling itself, because it contains a lot of mechanisms that make sure those ideals remain ideals. 1 Danielle Chevalier shows in her contribution to this special issue that the prevailing distinction between 'law in books and law in action' does not do justice to the relationship between the way in which the law is formalised, perceived and lived. Though the mutual constitution between law and practice is nowadays commonly professed, the reflex remains to use law in books as starting point.…”