Dogmatic and social scientific activism in the Lochner era

Molnár, András (2015) Dogmatic and social scientific activism in the Lochner era. Acta Juridica Hungarica, 56 (2-3). pp. 213-229. ISSN 1216-2574

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Abstract

The Lochner era has much to say about conceptions of judicial role and judicial activism, and can be used as an analytical example. I examine the era from the aspect of judicial reasoning. The analysis is composed of three main units. First, I point out a distinction between judicial and constitutional, as well as between single activist decisions and tendencies. Second, I sketch a theoretical framework that concerns the inclusion of social sciences into judicial reasoning. “Social scientific passivistic” reasoning features references to exact data from social sciences, and tends to uphold the legislative action in question. On the other hand, “social scientific activistic” reasoning refers to social scientific data and aims to strike down the legislative action in question. In a similar vein, “dogmatic activistic” reasoning is grounded on precedents and methods of legal interpretation, tending to strike down a legislative act, while “dogmatic passivistic” reasoning aims at upholding such an act. These categories are not mutually exclusive; however, they help to analyze constitutional decisions with directing attention to their nature behind their prima facie content. Finally, I apply the scheme to the Supreme Court’s Lochner era constitutional adjudication.

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