The theorists considered in this section argue that law cannot be understood without regard for the realities of social life. Since the beginning of the twentieth century, scholars ofjurisprudence and of related disciplines on both sides of the Atlantic have reflected the influence of the social sciences in their analyses of legal development. The more prominent ones who are included in our discussion are Albert Venn Dicey, Justice Oliver Wendell Holmes, Jr., and Edward Adamson Hoebel.
Albert Venn Dicey (1835-1922)
Albert Venn Dicey, an English legal scholar, was born in Lutterworth, Northamptonshire. For several generations, his family owned and edited a newspaper, and over time, they became prosperous. Dicey was educated at Oxford, assisted in the founding of law schools in Manchester where he was elected the prestigious
Vinerian Chair, then he accepted a professorship and returned to Oxford where he would spend the rest of his life (Collins, 2000).
Dicey offered what has become a classic theory on the influence of public opinion on social and legal change in his lectures given at Harvard Law School in 1898. He traced the growth of statutory lawmaking and the legal system to the increasing articulateness and power of public opinion as societies modernized. He noted that the process begins with a new idea thought of by someone who was especially original or even a genius, such as the celebrated Adam Smith of economic theory and Charles Darwin of evolutionary theory. Next, supporters adopt the new idea and then promote it to others. As time passes, these “preachers of truth make an impression, either directly upon the general public or upon some person of eminence, say a leading statesman, who stands in a position to impress ordinary people and thus to win the support of the nation” (Dicey, 1905:23). As a result of these efforts, public opinion begins to change. Ideally, legislators should reflect and act upon any new public opinion, but judges (even more than legislators) lag behind public opinion. This is because “they are also guided by professional opinions and ways of thinking which are, to a certain extent, independent of and possibly opposed to the general tone of public opinion” (1905:364).
Dicey is also known for his famous doctrine of “the rule of law.” The doctrine has three aspects: First, no one is punishable except for a distinct breach of law, and therefore, the rule of law is not consistent with arbitrary or even wide discretionary authority on the part of the government. Second, the rule of law means total subjection of all classes to the law of the land, as administered by courts. Third, individual rights derive from court precedents rather than from constitutional codes.
From a sociological perspective, Dicey’s most crucial contribution to law and society is the recognition of the importance of public opinion in legal development. As Lord Tangley (1965:48) observed, “We are indebted to Professor Dicey for many things—he established for all time the relationship between public opinion and law reform and traced its course through the nineteenth century.”