Legal Realism

Convinced that common-law principles can be manipulated by the judiciary, Cardozo was concerned that instability and chaos would result if every judge followed his or her own political convictions when deciding a case. To forestall the onset of such legal disarray, Cardozo and other realists argued that all judges must interpret the law to advance the welfare of society. In Posner's biography of Cardozo, he quotes him as saying, "Law ought to be guided by consideration of the effects [it will have] on social welfare." This theory of law is known as sociological jurisprudence, and represents the third major strand of thought in the U.S. legal realism movement. Proponents of sociological jurisprudence encouraged judges to consult communal mores, ethics, and religion, and their own sense of justice when attempting to resolve a lawsuit in accordance with the collective good.

Sociological jurisprudence was foreshadowed by English philosopher JEREMY BENTHAM, who argued that the law must serve the interests of the greatest number of people in society. Bentham, whose legal philosophy is known as utilitarian jurisprudence, defined the collective good in terms of pain and pleasure. Judges should decide cases, Bentham thought, to achieve results that will maximize the pleasure of the majority of the residents in a given community, without much concern for the pain that might be inflicted on the balance of society.

Some realists turned Bentham's philosophy on its head, arguing that the law should serve the interests of the most fragile members in society because they are the least represented in state and federal legislative assemblies. This group of realists was affiliated with the U.S. Progressive movement, which became popular during the first quarter of the twentieth century as it sought to reform society by enacting legislation to protect certain vulnerable classes of employees, particularly women and children, from harsh working conditions. These realists were among the most vocal detractors from the Supreme Court's decision in Lochner, which struck down a state law prescribing the maximum number of hours employees could work during a given week in the baking industry.