Brandeis: Sociological Jurisprudence and the Harvard Law School

At the close of the 19th century, experts in written law (jurists), were of three general schools of thought: philosophical, historical, and analytical. According to Nathan Roscoe Pound, the Dean of Harvard Law School, the failure of these three schools was twofold. For Pound, the previous forms of jurisprudence were either too reliant on the past or treading too haphazardly and experimentally into the future, a “trial-and-error and ad hoc approach.” The answer according to Pound, was a clearly defined sociological legal policy that would eliminate these previously harmful “retrospective” and “prospective-accidental” models.

According to Pound, the path to the most efficient form of law would not be formally realized by following the historical, analytical or philosophical schools of thought, but by forming a necessary synthesis of the three into a type of ‘legal progressivism’ wholly based around the principles of sociology, the scientific study of human beings.

Pound stating:

“a wholly new creed is framing … to bring these formerly divergent schools into something like accord … We should expect a new school to arise from this breakdown of the older schools, and there are many signs that such an event has taken place. Jurists are coming together upon a new ground from different starting points … The rising and still formative school to which we may look chiefly henceforth for advance in juristic thought, may be styled the Sociological School.” (1)

Holmes and later Roscoe Pound would be the great theorists of sociological jurisprudence, but Louis Brandeis would be its great practitioner. In 1908, when he submitted his pathbreaking brief in Muller v Oregon, he put into practice the theory he had heard Holmes talk about more than a quarter century earlier.” (2)

Brandeis lectured law at Harvard after graduation, and founded both the Harvard Law School Association in 1886, and the Harvard Law Review in 1887, naming himself secretary and treasurer. The HLSA is considered today “the oldest association of its kind”, and the Harvard Law Review one of the largest circulated law journals in the world.  Brandeis influential in steering curriculum as a member of the Advising Committee, of which his trusty Zionist lieutenant Julian Mack was business manager.

“Brandeis regularly corresponded with the dean and faculty members offering suggestions for courses and advice on the school’s management. He provided both advice towards the creation of the Harvard Law Review, served as its first treasurer, and was a trustee until his appointment to the Supreme Court. Brandeis also served as a member of the Law School’s Visiting Committee (appointed by the Board of Overseers) from 1889-1890 and 1891-1919.” Brandeis Papers, Harvard Law School, Box 114, Folder 17, HLS Historical & Special Collections.

Above artifact from, Justice Louis D. Brandeis: Celebrating the 100th Anniversary of his Confirmation to the U.S. Supreme Court, Harvard Law Today, Harvard Law School Association, Carolyn Kelley

“Frankfurter had become Brandeis’s surrogate, fulfilling the
jurist’s urge to be an activist, a need thwarted by the restraints of the black robe. It was Frankfurter who had picked up the burden of defending wages and hours legislation, and who furthered the use of the Brandeis brief.” pg. 200, The American Journal of Legal History, Vol. 22, No., 3.

Brandeis, Holmes, Frankfurter, Pound all Phi Beta Kappa, Harvard Law School with honours.

Oliver Wendell Holmes Jr.

Holmes Jr., being assisted by Brandeis.

“He [Brandeis] was a key player in both the creation of the Harvard Law School Association and the Harvard Law Review, a member of the Visiting Committee, and an adviser on the school’s management and curriculum, regularly corresponding with deans and faculty members to offer suggestions.” Harvard Law Today, Harvard Law School Association. (3)

“When I went to Chicago in 1907 I met Albion W Small and to Ross and Small, …. I owe a decisive impetus at a critical point in my study.” pg. xxi, Social Control Through Law.

Nathan Roscoe Pound is the one most attributed with founding sociological jurisprudence in America. Pound studied Roman law, receiving his BA in 1888 and his MA in 1889 at Nebraska University. In 1903 Pound became the Dean of the University of Nebraska College of Law.

In 1908 he was a founding editor of the Annual Bulletin of the American Bar Association. In 1909 he taught at University of Chicago Law School and in 1911 Pound moved to Harvard, first as a professor of law, and then from 1916 until 1936, Pound was the Dean of the Harvard Law School. Pound stating in his foundational Harvard Law Review article, Sociological Jurisprudence: Its Scope and Purpose, that lawyers are nothing less than social engineers who use their knowledge and experience of the law to deliberately create the framework for a better society.

The other great theorist of sociological jurisprudence mentioned in the above quote was Oliver Wendell Holmes Jr., nominated Supreme Court Justice in 1902 Holmes held that position for the next thirty years. One of the most cited justices in American history. Holmes, Harvard Law alum, stood defiantly against natural law and was famous for his prediction theory, believing that crime, especially recidivism, or the repeating of criminal offenses, can be predicted and then prevented.

“Pound defines law as a ‘highly specialized form of social control” pg. xxi, Social Control Through Law.

Pound was the “Grand Representative of Nebraska”, and made the, “Orator of the Nebraska Grand Lodge” in 1907. (4)  He was crowned 33rd degree in 1913 as the Past Master of Lancaster Lodge No. 54 Ancient Free & Accepted Masons in Lincoln Nebraska.  When he left the cornfields for Boston he didn’t leave his apron behind, Pound was made Deputy Grand Master for the Grand Lodge of Massachusetts, almost as if his promotion as a Mason was the main catalyst for his move to Harvard. Either way they happened simultaneously. And according to Gould’s History of Freemasonry Throughout the World:

“The Grand Lodge of Masons in Massachusetts is not only the senior Grand Lodge but, also, the senior Masonic Body of any kind now functioning in the Western hemisphere.”(5)

After completing post graduate work in Germany the founders of sociology all returned directly to America by design, where each would make significant pioneering contributions to the burgeoning field of sociology.  at various members of the Association of American Universities. The three professors of sociology demonstrating a profound collective influence on Pound while at Nebraska, Pound becoming a member of the American Sociological Society, serving on several their committees, even contributing several articles. It’s here, at the University of Nebraska, surrounded by sociologists of the Prussian historical school, that Pound first formulates his revolutionary sociological approach to law.

Pound the founder of the Harvard Lodge AF & AM and was a prolific contributor to the Harvard Chapter of the Acacia Fraternity, giving lectures on “masonic jurisprudence”. The Acacia Fraternity one of several Masonic clubs on campus (the Harvard Masonic Club and The Square and Compass Club to name two others). This completely true, yet far less accepted view revealing significant connections to both the Phi Beta Kappa Society and Freemasonry. Pound not only a Grand Master, but his being chosen to pioneer new expansion into Ivy League academia reveals a type of masonic long-view entrusted only to a 33rd degree Master Mason.

The sociological school theorized by Pound and Holmes Jr, and practiced by Brandeis was first brought to America through the sociological department of the University of Nebraska while Pound was professor of law (professor from 1899 to 1907; Dean of Nebraska University College of Law from 1903 until 1911). Roscoe Pound was close friends with the founders of sociology in America through their shared leadership of the American Sociological Association: Edward Alsworth Ross, George Elliot Howard, and Albion Woodbury Small all presidents and Pound present on several committees and vocal proponent. Not coincidentally, all three men, after graduating from American state colleges, travelled abroad for at least a two-year post-graduate program involving a more specialized, social science based education not found in America. (See Knies, Bluntschi, Ratzenhofer, Wundt et al.)

Pound’s theory of a functional society stated that there must be, “social interest in general progress; the claim or want or demand of society that the development of human powers and of human control over nature for the satisfaction of human wants go forward; the demand that social engineering be increasingly and continually improved; as it were, the self-assertion of the group toward higher and more complete development of human powers. This interest appears in three main forms, an interest in economic progress, an interest in political progress, and an interest in cultural progress.” (6)

Nathan Roscoe Pound

Edward Alsworth Ross married the niece of his personal and professional mentor, Lester Frank Ward.

Edward Alsworth Ross, sociologist professor at NU from 1901 until 1906, first studied theology and liberal arts at Coe College in the US and before attending the University of Berlin. Ross returns to the States landing at Johns Hopkins University where he gained a doctorate degree under Richard T. Ely. Ross is said to be the most responsible for introducing Roscoe Pound to a sociological jurisprudence and a major influence in the development of early criminology writing Social Control: A Survey of the Foundations of Order in 1901, and founding the first professional association of sociologists in the United States, the American Sociological Society in 1905.

In 1912 Ross writes Changing America: Studies in Contemporary History, The Old World in the New in 1914, and What is America in 1919. influenced by Marx economic theory of class conflict and both JHU and University of Chicago are, more than any other American university, connected directly to German intellectualism and idealism.

“Law, the most formidable engine of control employed by society.” Pg 93, Edward Alsworth Ross, Social Control.

“The law the most specialized and highly finished engine of control employed by society” pg. 106, Edward Alsworth Ross, Social Control.

“Largely due to the work of Roscoe Pound, the concept of social engineering through law has been popular in the jurisprudence, sociology of law, and political science of the Western countries.” (7)

“For a few golden years, Nebraska laid full-time claim to the intellectual skills of three of the nation’s most talented social scientists: Ross, Howard, and Pound.” (8)

“Turning next to the sociological components of Pound’s jurisprudence, it is widely recognized that they were derived largely from the writings of Lester F. Ward, Albion Small, and most especially E. A. Ross, who was a colleague of Pound’s at the University of Nebraska.” pg. xx, Social Control Through Law.

George Eliott Howard graduated Peru State College with a BA. The founder of institutional sociology and the author of the groundbreaking, A History of Matrimonial Institutions in 1876. Howard went to Ludwig-Maximilians-Universitat in Munich where he studied political science, history, and Roman law. Howard returned to the States two years later earning his MA in 1879. Howard was appointed Professor of Political Science and Sociology and was the very first Professor of History while also teaching Public Law with Pound at the University of Nebraska. In 1894 Howard received his PhD and in 1901 travelled to Stanford and was one of their original faculty members before resigning under controversy. For two years he lectured at Chicago University before returning to NU in 1903, named the head of the Department of Political Science and Sociology and professor of Institutional History. Howard remained at NU until his death nearly twenty years later.

Pound, Howard, and Ross all were members of the University of Nebraska Graduate Club and met regularly at each other’s home to present and discuss papers and direction. They were members of a smaller more intimate group, a dinner club known as ‘the congenial ten’. There they discussed the pressing sociological issues of society and both “Ross and Pound were social and intellectual spark-plugs who drew people together and got them talking.” (9)

Pound was an active member of the American Sociological Society and Ross, Howard, and Small were all presidents of the ASS. As president, Howard “organized the 1917 meeting on the topic of “Social Control”, his address titled, “Ideals as a Factor in the Future Control of International Society.”

“As president, he [E.A. Ross] sponsored ASS sessions on freedom of expression and appointed his friend Roscoe Pound, then of the Harvard Law School, to represent the ASS on an interdisciplinary committee that became the mechanism
for founding the American Association of University Professors.”

While the US was entering the war academia was already preparing for a future international peace conference, aroused by the thought of ideals (largely seen then and today as unattainable), being used as catalysts for social change. Other lectures of that day were titled: ‘War as a Crisis in Social Control’, ‘Social Control in a Democracy’, and “Social Control in International Relations’.

Albion Woodbury Small  was born to Reverend Keith Parris Small and Thankful Lincoln Woodbury Small. Albion studied as a young boy at the Newton Theological Institute but was never ordained, instead choosing to focus on the social sciences being taught out of the German Historical School. A centralized, bureaucratic, administrative progressive government increasingly more reliant on quantitative data with an aspect of social responsibility.  Small “clung tightly to the tenets” of “especially the Social Gospel”. Small credited with founding the first sociology department at Chicago University, after studying under the founder and long time chair of the German Economic Association, Gustav con Schmoller. Schmoller an early teacher of the social sciences and was a major influence in the Progressive movement in the United States.

Small wrote his dissertation at JHU upon returning from Germany entitled, The Beginnings of American Nationality. Woodrow Wilson and Richard T. Ely were members of his PhD committee.

“Small explained his conception of sociology, rooted in evolutionism. Its goal should be to determine “social forces” by studying the global dynamics of society—its “social process”—in order to control social change in accordance with ethical principles for the good of society in general.” ASA website, Albion Woodbury Small.

“The current study is a qualitative content analysis of the manuscripts written by William G. Sumner, Lester F. Ward, Franklin H. Giddings, Albion W. Small, Charles H. Cooley and Edward A. Ross. These individuals are generally considered to be the founders of American academic sociology … Their writings can tell a great deal about the development of Marxian sociology in the United States. The present study supports the theory that those founders working at universities in the Midwest were more likely to discuss Marx than the founders from the East Coast because those in the Midwest were at institutions which were more progressive … The founders often addressed Marx’s concepts which related to his discussions of class, surplus value, capital, capitalism, historical materialism, class consciousness, and property.” (10)

George Eliott Howard

Albion Woodbury Small

William Graham Sumner

William Graham Sumner was named first president of the burgeoning sociological society and we now see undeniably, the entire modern fields of sociology and law, as were so many other fields of American academic study, first formed overseas in Prussia, schools of thought brought forward from the Prussian Reformation and imprinted onto the minds of these distinguished men of letters and numbers. Sociology and law, looked at from the perspective of these social engineers all of a sudden become major tools of social control, “the most specialized engine of social control” in fact, and it was all invented by men we’ve never heard of during times we never lived.

Sumner, Phi Beta Kappa, Skull and Bones, attended Gottengen in Germany post grad. In 1867, he was ordained a deacon in the Protestant Episcopal church at Trinity Church in New Haven. He was the Chair of Political and Social Sciences at Yale and remained there until his death. President of ASS 1908-1909. Sumner was inspired by Herbert Spencer and Auguste Comte. Taught first ever course called sociology, setting the groundwork for formal academic sociology by Durkheim and Max Weber. Weber another very influential figure in the development of the social sciences.

Albion Woodbury Small showing a similar pattern, after graduating from Colby College in 1876, and studying theology at the Andover Newton Theological School in Massachusetts, as did all the other main founders of sociology, travelled to Germany for two years post-grad work, Small studying German history, social economics and politics from the leading professors at Leipzig and Berlin University.

In 1889 Small then travels back to America, gaining his PhD at Johns Hopkins University and founding the very first sociological department at the University of Chicago in 1892 where he would remain the acting chairman for over thirty years. Small revealing another familiar pattern by harnessing the two main pillars of propaganda (institution and information), by establishing a brick and mortar research department with a faculty, while also creating from out of nowhere the foundational literature for a burgeoning new specialty science.

Small writing the first sociology textbook, An Introduction to the Study of Society in 1894. He authors the first sociological journal, the American Journal of Sociology and was elected Dean of the University of Chicago Graduate School of Arts and Literature. Small influencing the entire field of sociology during its most formative years through establishing both a place to congregate and a way to spread their message influencing both the political class (the most important group of society to indoctrinate), and the general public, largely made up of the remaining 80 percent of the population, through broad dissemination of their literary writings, periodicals, and professional journals.

Lester Frank Ward is considered the “father of the Welfare State”, and was the very first president of ASS in 1906-1907. He remained at Brown University (Ivy League) until his death.

“His book Dynamic Sociology was revolutionary, arguing that progress depended on a planned society led and controlled by a benevolent government, that provided universal education, freedom from poverty and happiness for all. When this book was first published, courses in sociology were nonexistent in American universities, and by the time the second edition was published in 1896, sociology was being taught in all colleges.” Lester Frank Ward Papers,

“In his [Lester Frank Ward] early works, there is little doubt that he was largely influenced by Auguste Comte, Herbert Spencer, and many other evolutionists.” (11)

“His belief in the role of government in changing the environment and promoting reform led historian Henry Steele Commager to describe Ward as the “philosophical architect” of the modern welfare state.” (12)

Ward is best remembered for his pioneering work in sociology. Between 1883 and his death in 1913, he completed several important works including Dynamic Sociology (1883), Outlines of Sociology (1898), Pure Sociology (1903), and Applied Sociology (1906).

Lester Frank Ward

Franklin Henry Giddings was the son of a very prominent Congregational reverend, a professor of Political Science at Bryn Mawr College beginning in 1888 and would leave to become the chair of Sociology at Columbia University in 1894. Also considered a founder of sociology, Giddings wrote, The Principles of Sociology (1896), The Theory of Socialization (1897), The Elements of Sociology (1898). He was the president of the American Academy of Political and Social Science and a member of the Century Club, the Academy of Natural Sciences of Philadelphia, the vice president of the American Economic Association (1896-1897). Founder ASS.

“The following men were elected officers of the new society: Lester Ward (President), William Sumner (First Vice President), Franklin Giddings (Second Vice President), C.W.A. Veditz (Secretary and Treasurer). Council members were: E. A. Ross, W.F. Wilcox, Albion Small, Samuel Lindsay, D. C. Wells, and William Davenport.

When they left Baltimore, the birth of the American Sociological Society was complete, a Constitution had been adopted, officers were elected, and plans were made for the second Annual Meeting of the new Society.” ASA website, History of the American Sociological Association.

Together, Ward, Small, Howard, Ross, and Pound established sociology as a legit science and set the future course for both sociology and sociological jurisprudence in America for the rest of the Twentieth Century.

Other interesting past presidents of ASS include George Edgar Vincent, 1916. Vincent was the president of the Chautauqua Institution funded by Rockefeller and cowriter with Albion W. Small, of, An Introduction to the Study of Society. Other past presidents include the two main contributors to the Princeton Radio Research Project and the famous Invasion from Mars, War of the Worlds broadcast, Robert K Merton (Meyer Robert Schkolnick), Paul Felix Lazarsfeld. These two were also funded heavily in their work by the Rockefeller Foundation.

Lazarsfeld and Merton famously wrote Mass Communication: Popular Taste and Organized Social Action in 1948, and are the very coiners of the term ‘narcotizing dysfunction’, and the ‘One and Two Step Flow of Communication Models’. For obvious reasons, the society changed its name to the American Sociological Association (ASA), and today remains very relevant publishing over a dozen sociology journals and magazines.

“The mass media prove most effective when they operate in a situation of virtual “psychological monopoly,” or when the objective is one of canalizing rather than modifying basic attitudes or when they operate in conjunction with face-to-face contacts … But these three conditions are rarely satisfied conjointly in propaganda for social objectives. To the degree that monopolization of attention is rare, opposing propagandas have free play in a democracy …Finally, for the most obvious of reasons, the close collaboration of mass media and locally organized centers for face-to-face con tact has seldom been achieved in groups striving for planned social change. Such programs are expensive …in view of the present organization of business ownership and control of the mass media, they have served to cement the structure of our society. Organized business does approach a virtual “psychological monopoly” of the mass media … Face-to-face contacts with those who have been socialized in our culture serve primarily to reinforce the prevailing culture patterns. Thus the very conditions which make for the maximum effectiveness of the mass media of communication operate toward the maintenance of the going social and cultural structure.” pg. 248,249, Mass Communication: Popular Taste and Organized Social Action.

canalize: too convey something through a channel or duct; “a narrow straight can so canalyze the tide that a powerful current is developed”. Television the ultimate in persuasive social machinery in that it combines, written word, spoken word, music, and motion picture all into the most dangerously potent form of propaganda on the planet.

By introducing the West to sociology, Ross, Small, Howard, all following a similar pattern observed in the parallel creations of psychology, psychiatry, and philosophy departments helping establish the association of American universities. People become cogs in the wheel of something bigger turning. The founders of sociology establishing  the two main pillars of propaganda (institution and information), by being the first to establish brick and mortar research departments with their own faculty and authoring the foundational literature necessary for the propagation of a burgeoning soft science. The chart below, A Chart Designed to Show the Distribution of Functions at Various Stages of Social Organization speaks like the blueprint for the Seven Functions of Society so important to the Changing Images of Man Study at Stanford Research Institute published one hundred years later. The development of the individual within society being driven by his basic values to act according to the stimulus applied by way of feedback loop some forty years before Norbert Weiner’s famous discovery and the onset of the cybernetic age. Subtly and slowly steering our interests away from the natural agrarian farm life to that of a stainless steel metropolitan lifestyle.

“The functional many-sidedness of the primary social combination, the family, is of great significance … the family displays in microcosm all the activities of the village, city, or nation. This is not to be construed into an assertion that the nation is merely a larger structure of the family type, or that modem government corresponds to parental authority … In conditions generally recognized as normal, propagation is exclusively a function of the family, which therefore serves as a connecting link between physical life and that of the social organism. It is the peculiar service of the family to produce the new individuals who take the places of those that perish … In order that a society may attain a high degree of organization and stability, it is necessary that its individual members should be brought into orderly relations with the land …. The functions exclusively or largely performed by the family are : (a) propagation, (b) location or settlement, (c) defense, (d) production, (e) apportionment and transmission, (f) communication, (g) intellectual training, (h) socialization. All these activities combine in the one general function of preserving the physical and psychical continuity of society.” pg. 250, The Study of Society, An Introduction, Albion Woodbury Small.


  1. pg. 594 Harvard Law Review, Vol. XXIV, No. 8. June 1911, The Scope and Purpose of Sociological Jurisprudence.
  2. pg. 76, Brandeis: A Life, Urofsky,
  4. Brandeis personal letter to Felix Warburg Esq., Treasurer, American Jewish Relief Committee, July 21, 1916.
  5. Pg 414, 415, Gould’s History of Freemasonry Throughout the World, Volume 5, 1936, 1st Volume.
  6. pg. 39, Publications of the American Sociological Society, Theory of Social Interests, Roscoe Pound.
  7. Pg 177, Human Organization, Law and Social Engineering, Adam Podgorecki, University of Poland; Human Organization is the journal of the Society for Applied Anthropology.
  8. Pg 6, Roscoe Pound and Academic Community on the Great Plains: The Interactional Origins of American Sociological Jurisprudence at the University of Nebraska, 1900-1907, Michael R. Hill(1991).
  9. Pg 8, Roscoe Pound and Academic Community on the Great Plains: The Interactional Origins of American Sociological Jurisprudence at the University of Nebraska, 1900-1907, Michael R. Hill (1991).
  10. Pg. 2, Regional Differences in the Treatment of Karl Marx by the Founders of American Academic Sociology, Rich Alan Wallace.
  11. Pg. 45 Regional Differences in the Treatment of Karl Marx by the Founders of American Academic Sociology, Rich Alan Wallace.
  12. Rhode Island Heritage Hall of Fame;