EconlibThe LibraryOther Sites |
Front Page  Titles (by Subject) Evolving Jurisprudence - Literature of Liberty, January/March 1979, vol. 2, No. 1
Return to Title Page for Literature of Liberty, January/March 1979, vol. 2, No. 1The Online Library of LibertyA project of Liberty Fund, Inc.Search this Title:Also in the Library:
Evolving Jurisprudence - Leonard P. Liggio, Literature of Liberty, January/March 1979, vol. 2, No. 1 [1979]Edition used:Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982
About Liberty Fund:Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals. Copyright information:This work is copyrighted by the Institute for Humane Studies, George Mason University, Fairfax, Virginia, and is put online with their permission. Fair use statement:This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Evolving Jurisprudence
“Adaptive Jurisprudence: Some Dimensions of Early Twentieth Century American Legal Culture.” Historian 40 (November 1977): 16–35. Johnson attempts to synthesize what was happening to American law and legal culture between 1908 and 1940. He contrasts this period with the “age of creativity” in American law, that is, the first half of the nineteenth century. In the earlier period judges, attorneys, and legal scholars used law to promote social change. But in the years studied, law was more reactive, what he calls an “adaptive jurisprudence.” It reacted to interest groups, nonlegal disciplines, the general temper of the time. It was a time of accommodation rather than originality. 1908 is indeed an important date in the history of American law, as that was the year of the “Brandeis brief,” itself a manifestation of the new adaptive jurisprudence. In the progressive period, lawyers (like other professionals) were attempting to bring more exacting standards to legal education, admission to the bar, and to utilize “new sources” which began to rationalize legal doctrines. Examples included the Corpus Juris (1913), the American Law Reports (1919), and the American Law Institute's Restatement (orginally conceived of in 1914). Then there was the Brandeis brief and the “Brandeis opinion;” these views in Mullery-Oregon brought extralegal materials to the attention of the courts (medical reports, psychological treatises, and factory inspector reports). In the meantime, the judicial mind responded in the legal profession itself: common law was looked at less closely; statutory law more intensively (including legislative history). The “case method” (which had really been launched in the 1870s) seemed to undergo drastic changes—one book on criminal law contained citations from Catherine II of Russia; an article from the Nation; newspaper accounts of trials and vigilante activities; reports from various investigatory committees; psychoanalytical literature; excerpts from books; and book reviews on criminology. Finally, there emerged in the 1920s a concept known as legal realism: legal professors and lawyers began being quite skeptical about traditional legal maxims and traditional legal institutions. These forces and others combined to issue in a new view of the law. |
