Document Type

Article

Publication Date

6-1918

Abstract

It is not the purpose of this paper to essay a definition of either of the formidable words in the title. The object is rather to call attention away from the metaphysical question, what is law? to the sociological question, how may we best attain justice in the administration of law? and, by the aid of some examples from history and comparative law, to justify as legal and constitutional the sociological method of interpretation. That such justification is necessary is evident from the fact that although the dictum of Mr. Justice. HOLMES in the dissenting opinion in Lochner v. New York, cited supra, was practically adopted by the United States Supreme Court in Muller v. Oregon, in which Mr. Justice BREWER gave the apparently unanimous conclusion of the court, nevertheless, in the case of Bunting v. Oregon, on a similar state of facts, a dissent was expressed by Mr. Justice WHITE, who was on the bench when Muller v. Oregon was decided, and by Mr. Justice VAN DEVANTER and Mr. Justice McREYNOLDS, who were later added, while Mr. Justice BRANDEIS took no part in the consideration and decision of the case. It would therefore seem that only a bare majority of that court is of the same express opinion still. There has, too, been considerable discussion of the principle of these decisions in our legal periodicals, the most notable of which is perhaps that by Professor Kales in the last volume of the YALE LAW JOURNAL and some caustic criticisms of the method, offered by lawyers and judges.

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