This area does not yet contain any content.
This area does not yet contain any content.
This area does not yet contain any content.
« June 15-20: Father Visits Daughter for Five Days | Main | Holmes, Realism and Positivism »
Monday
Jun222009

Holmes, Policy Science and Sociological Jurisprudence

(sent to conlawprof)
 
David:

1. Holmes does not have to sign on to the program of sociological jurisprudence for him to believe that the ultimate foundation and legitimacy in law comes from the new "policy science." The issue here is twofold: (a) what judges are supposed to do; and (b) what are the grounds of law. Holmes' rejection of sociological jurisprudence as a program concerns (a), not (b). That should come as no surprise. Neither judges nor the judiciary as an institution could perform it (even if the science could -- which we all know it can't). Indeed, the actual program of sociological jurisprudence performed by judges would have offend Holmes' strong sense of pragmatism.

2.  But that does not mean that Holmes rejected "policy science" for (b). In fact, he did subscribe to the philosophic view that law's ultimate foundation could be had in "correct policy," (which, after all, is the intellectual event which created sociological jurisprudence in the first place).  As to Holmes general endorsement of the idea that (1) law is policy; and (2) policy can be an empirically correct science, see G. Edward White, Justice Oliver Wendell Holmes, Law and the Inner Self, (New York: Oxford University Press, 1993), 148-155, 168-171, 181, 192.

PrintView Printer Friendly Version

EmailEmail Article to Friend

Reader Comments

There are no comments for this journal entry. To create a new comment, use the form below.

PostPost a New Comment

Enter your information below to add a new comment.

My response is on my own website »
Author Email (optional):
Author URL (optional):
Post:
 
Some HTML allowed: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <code> <em> <i> <strike> <strong>