Social Jurisprudence

Social Jurisprudence

DOI: 10.4018/978-1-5225-7961-8.ch001


This chapter provides a brief history of law and the role of social science in courtroom battles, further reviewing the use of social science in marriage equality cases. One of the more striking features in marriage equality litigation was the prominent role of social science in addressing issues germane to the legal arguments on both sides. The chapter concludes by discussing how social science may have influenced litigation and whether such influence was appropriate.
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To understand the concept of jurisprudence, you must begin with an understanding of what courts do. The simplest answer is that courts hear lawsuits. They decide cases in which individuals, organizations, or government officials argue about their rights, obligations, and responsibilities under the law. A lawsuit is a type of dispute. Thus, what courts do is to try to decide between or among those who have some sort of disagreement, and in doing so the court produces a decision. Unless overruled by a higher court, this decision is binding on the parties to the dispute.

The authoritative character of these judicial decisions results because judges make policy. Policymaking involves choosing among alternative courses of action, in which the choice binds the behavior of those subject to the policymaker’s action (Segal & Spaeth, 1993). These decisions allocate resources among the parties to a lawsuit, but at the Supreme Court level, these decisions affect persons other than the litigants. These decisions are supported by opinions that apprise others of the reasoning and the fate that may befall them if they engage in similar actions.

Because judges’ decisions adjudicate the legality of contested matters, by necessity judges make both policy and law. Only those who believe in fairy tales think otherwise. Even so, Americans find it unsettling at times to admit that judges make policy except, of course, when there is disagreement about a decision. However, the essence of the fairy tale is that the judges and their decisions are objective, impartial, and dispassionate.

Actions or decisions of courts do not fully terminate the social problems brought before them, because the conflicts that come before a court are rarely simple (Yngvesson & Hennessey, 1975). To initiate a court case requires a substantial investment of time and money, an investment that ensures that people whose disputes are decided have an intense commitment to their cause that will not easily dissipate once the decision has been rendered. These decisions represent the legal termination of a dispute but not the end of the underlying cause of the problem.

Disagreement is the case with many of the Supreme Court rulings. It is not a stretch to draw a straight line from the most recent marriage equality decision, in which the Supreme Court decided marriage is a fundamental right (Obergefell v. Hodges, 2015), to the election results of 2016, which left Republicans in control of most of the nation’s governorships and state legislatures.

Key Terms in this Chapter

Social Framework: This is off-the-rack research used to help the trier of fact reach a conclusion on a point of law. The research may be a product that was originally conducted to answer a more basic social science question.

Adjudicative Fact: Facts that pertain to a case and use traditional rules of evidence.

Social Fact: Research results collected as factual evidence in a case. Not generalizable beyond the specific case and does not create new rules of law. Presented at the trial through expert testimony material to the case. The data collection method may set a precedent.

Jurisprudence: Philosophy of law; how the legal process should proceed, or the science of the law.

Social Jurisprudence: This philosophical approach to law stresses the actual social effects of legal institutions, doctrines, and practices.

Social Authority: Social science research relevant to creating a rule of law as a source of authority rather than a fact; compares replicated research to legal precedent. Not specific to the facts of the case but intended to describe general principles that pertain to behavior.

Precedent: Adherence to what has been decided. Decisions are linked, and the law develops a quality of connectedness, which creates an appearance of stability. These are frequently cited on both sides of a case.

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