Roscoe Pound (1870–1964), an American legal philosopher and law teacher whose published works and public addresses have influenced world-wide juristic thought during this century, was born and reared in Lincoln, Nebraska, a university community near what was then the western frontier. Despite his vast learning, he remained true to his vigorous, kindly, and optimistic Middle Western culture. From his father, a lawyer, he may have derived some of his political conservatism, and from his mother, a college graduate, he received encouragement for his ardent intellectual curiosity. At one time he specialized in botany, earning a PH.D. degree in that field from the University of Nebraska and making significant scholarly contributions. His interests had earlier turned to law, and he spent a year as a student in the Harvard Law School. Returning to Nebraska, he was admitted to the bar and practiced law. In 1901 he was appointed a commissioner (auxiliary judge) of the state Supreme Court, where he gained valuable insights into the work of the judiciary. Yet his academic interests prevailed. From 1903 on he was, successively, a member of the law faculties of Nebraska, Northwestern, Chicago, and Harvard universities. At Harvard he was dean of the law school from 1916 to 1936, later becoming a university professor, a high academic honor.
Sociological jurisprudence. Pound’s philosophy of law was influenced by Hegel’s philosophy of historical evolution. Revolting against the German historicism of Savigny, with its reverence for the ancient Volksgeist, and against its American counterpart, the sanctification of English common law, Pound put forth his conception of legal change as experience developed by reason and tested by further reason. From William James, as well as from Hegel, he was led toward an evaluative theory of law based on the selection, reconciliation, and compromise of conflicting claims. From the sociology of Lester F. Ward and Edward A. Ross he obtained some of his enduring ideas. Both had an avowed belief in moderate social meliorism, which Pound came to share. Ward’s conception of social forces and of their susceptibility to directive guidance by the human mind is analogous to Pound’s theory of social interests, yet Pound did not use the term “social forces”; he avoided Ward’s emphasis on biological evolution and adopted none of Ward’s whimsical “economic paradoxes.” Ward’s book The Psychic Factors of Civilization (1893), along with Hegel’s Philosophy of History and Jhering’s Geist des römischen Rechts (“The Spirit of the Roman Law”), were important precursors of Pound’s Interpretations of Legal History (1923). From Ross (1901), Pound seems to have derived his view of law as only one means of social control, but Pound expressly rejected the theory of social instincts, on which Ross relied. Thus, Pound’s sociological jurisprudence became an analytical-evaluative discipline, which he later distinguished from the analytic-descriptive discipline that he called “sociology of law” (1943a).
In his famous 1906 address to the American Bar Association, which aroused a storm of protest, Pound attacked the complacency of lawyers who mechanically follow outmoded rules of judicial procedure. In 1907 there appeared another influential address, “The Need of a Sociological Jurisprudence.” Then came three of his best-known articles, each of which attacked some aspects of the common law and its American developments. In “Mechanical Jurisprudence” (1908) he acknowledged his homage to James’s pragmatism and protested the judicial habit of applying mechanically outmoded rules in various fields, from constitutional law to court procedure. In “Liberty of Contract” (1909) he contrasted the theoretical Hegelian liberty of the industrial employee with his actual liberty and thus lent support to the long struggle for collective bargaining. In “Law in Books and Law in Action” (1910) he showed the disparity between the legal rules as to liability for personal injuries and the verdicts of juries, thus preparing the way for workmen’s compensation laws, which abolished the common law defenses of employers (contributory negligence, assumption of risk, and the fellow-servant rule), imposed strict liability for industrial accidents, and dispensed with jury trials.
Pound presented a more systematic treatment of these problems in a series of articles on sociological jurisprudence (1911–1912). Then followed a series of short books presenting aspects of his philosophy. He cited law and legal theory from American, from medieval, and from modern English and continental European sources and from Roman law. By 1960 he had published 24 books and 287 major articles and addresses. His five-volume work Jurisprudence (1959) was chiefly a summary of earlier writings.
Pound’s great contribution to juristic thought was his view of law as an instrument of social engineering and his drive to discover how “to make [human] effort more effective in achieving the purposes of law” (1903, p. 34). Although he acknowledged his indebtedness to Oliver Wendell Holmes for this “functional conception of jurisprudence” (see the letter to Holmes, dated November 10, 1919, in Sayre 1948, p. 276), Pound elaborated the idea and made it his own. The list of legal means is never exhausted. Since law is only one means of social control, the lawmaker needs to study the social effects of legal institutions and legal doctrines in relation to these other controls: a sociology of law. Pound’s admiration of Eugen Ehrlich’s work in legal sociology gained Ehrlich many American followers. The studies of William U. Moore, Herman Oliphant, William O. Douglas, and other American legal realists were partly inspired by this new philosophy.
Pound believed that professional study of the means of making legal precepts effective would lead to better remedies: money damages cannot adequately recompense the badly injured employee; rehabilitation training is a better means of restitution. A sociological legal history, by revealing the occasion and the need for old law, aids the present generation to discard more intelligently the traditional doctrines that are no longer needed. From Raymond Saleilles, Pound took the idea of making penal treatment fit the criminal, rather than the crime. In 1920 he became a codirector of the Cleveland survey of criminal justice. The results of that survey led to improvements in criminal law and its administration in crowded urban areas. He remained a steadfast admirer of the legal profession despite its conservatism, and of judicial justice, the only possible “justice according to law.” His imaginative mind, viewing legal phenomena with the aid of pragmatism and Midwestern shrewdness, Hegelian and American idealism, produced a down-to-earth jurisprudence that could point to practical results.
Theory of social interests. Practical results, however, often have a shorter life than do ideas. Pound’s chief contribution to systematic legal philosophy is his theory of social interests, on which he began to work as early as 1913 (see the letter to Holmes, dated February 22, 1913, in Sayre 1948, p. 270). From Bentham and Jhering he took the idea of interest as a basic element of legal protection: a right is a legally protected interest. From this idea of individual interests, Pound developed the concept of public interests (the interests of governmental units as property owners) and social interests (the claims and values of society which the legal order strives to maintain). He shared Jhering’s view that society is supreme and the state should be subordinated to it. Lawmaking and adjudication are processes in which a balancing of interests or a reconciliation of competing claims takes place; so dominant are the social interests that individual interests are entitled to protection only to the extent that one or more social interests will be furthered or maintained. The factory owner’s claim to freedom from official interference in the operation of his machinery is supported by the social interest in the security of acquisitions, yet it may have to give way partly to the social interest in health and safety, as implemented by laws requiring certain safeguards on dangerous machinery. Again, the father’s individual interest in the upbringing of his minor children must give way to the social interest in security from juvenile aggression and in the conservation of human resources (the juveniles). This argument was used to support juvenile-court legislation when it was attacked as unconstitutional.
Pound’s theory sounds like the death knell of nineteenth-century individualism until one finds that security and conservation rank high in three of his six classes of social interests, and that social interest in the individual human life—economic, political, cultural–is another value expressed in social legislation. Pound was a patient and optimistic idealist. His theory of social interests is much less radical than it seems at first reading.
Five stages of legal history. Pound’s concept of the five stages of legal history resulted from his search for the ends of law, as developed in legal rules and doctrines. His first stage, primitive law, presupposes a clan-divided society and a weak central government that seeks chiefly to prevent blood feuds and to maintain the peace by providing a tariff of compensations for injuries, as exemplified in the Anglo-Saxon and other early laws. This stage was later expanded to include some extant primitive societies, as described by anthropologists.
In the second stage, strict law, the end sought was certainty and security in the administration of legal remedies, to be attained by rigid enforcement of narrow procedural rules and by formalism in legal transactions. In ancient Rome, in this stage, the head of the family alone had full legal personality, and in the corresponding English stage the wife and minor children were in subjection to the husband-father. In English law the system of writs and of common law pleading, and in Roman law the period of jus strictum, exemplify this stage.
In the stage of equity and natural law, the third stage, the unmoral attitude of strict law gave way to an insistence on justice in the ethical sense, and the concept of legal personality was broadened to include dependent members of the family. In Roman law this came about in the classical period, from Augustus to the early part of the third century A.D., and in England and continental Europe the corresponding transition came about in the seventeenth and eighteenth centuries. From this period in England date the married woman’s separate estate in equity and the equity of redemption, by which a debtor-mortgagor who had not paid strictly on time could get the chancery court to compel the mortgagee, who by strict law now had legal title to the land, to accept a delayed payment and relinquish the land. In this and many other ways the formal rigors of the earlier period were diminished, and so was the emphasis upon security.
A revival of this emphasis brought about the fourth stage, the maturity of law, in which the undue fluidity of law, resulting from the infusion of morals, was gradually corrected and the law became more stable without sacrificing all of the modifications effected in the preceding stage. As Pound said, history does not repeat itself in mere cycles but moves upward in spirals. The idea of equality was carried over from the equity stage and led to the concept of equality of opportunity to exercise one’s faculties and to use one’s substance. In the nineteenth century in England, security and equality were reconciled in the safeguarding of the property and contracts of individuals. A similar stage is said to have been reached in Roman law, and in nineteenth-century Continental law.
The socialization of law, the fifth period, brought out the emphasis on social interests rather than on individual interests, the limitations on property and contract, and many types of social legislation (1959, vol. 1, chapter 7).
The dependence of law upon sociology and other social sciences was emphasized in Pound’s earlier writings and was repeated in a recent essay (American Society for Legal History 1962, p. vii). Yet the social phenomena from which he derived his social interests were chiefly legal phenomena (1943b), and only in his survey of crime did he turn to criminological data. In his best work he found his own fertile insights to be sufficient, without benefit of any conclusions derived from an empirical sociology. The main contribution of sociological jurisprudence is a sustained and systematic demonstration that law is one means of social control and that its merits or demerits are to be judged by its social consequences.
Edwin W. Patterson
[For the historical context of Pound’s work, seeJuri prudence; Law, article onthe sociology of law; LegalSystems; and the biographies ofBentham; Ehrlich; Hegel; Holmes; James; Kantorowicz; Llewellyn; Ross; Ward, Lester.]
(1903) 1943 Outlines of Lectures on Jurisprudence. 5th ed. Cambridge, Mass.: Harvard Univ. Press.
(1906) 1963 The Causes of Popular Dissatisfaction With the Administration of Justice. Chicago: American Judicature Society.
1907 The Need of a Sociological Jurisprudence. GreenBag19:607–615.
1908 Mechanical Jurisprudence. Columbia Law Review8:605–623.
1909 Liberty of Contract. Yale Law Review 18:454–487.
1910 Law in Books and Law in Action. American LawReview 44:12–36.
1911–1912 The Scope and Purpose of Sociological Jurisprudence. Harvard Law Review 24:591–619; 25:140168, 489–516.
1921 The Spirit of the Common Law. Boston: Marshall Jones
(1922) 1954 An Introduction to the Philosophy of Law.Reved. New Haven: Yale Univ. Press.
(1923) 1946 Interpretations of Legal History. Cambridge,MassHarvard Univ. Press.
1943a Sociology of Law and Sociological Jurisprudence.University of Toronto Law Journal 5:1–20.
1943b A Survey of Social Interests. Harvard Law Review57:1–39.
1959 Jurisprudence. 5 vols. St. Paul, Minn.: West. → Volume 1: Jurisprudence. The End of Law. Volume 2: The Nature of Law. Volume 3: The Scope and Subject Matter of Law. Volume 4: Application and Enforcement of Law. Volume 5: The System of Law.
American Society For Legal History 1962 Essays in Jurisprudence in Honor of Roscoe Pound. Edited by Ralph A. Newman. Indianapolis, Ind.: Bobbs-Merrill.
Harvard University, Law School, Library 1960 A Bibliography of the Writings of Roscoe Pound: 19401960, by George A. Strait. Cambridge, Mass.: The Library.
Sayre, Paul L. 1948 The Life of Roscoe Pound. Iowa City: State Univ. of Iowa, College of Law Committee.
Setaro, Franklyn C. 1942 A Bibliography of Roscoe Pound. Cambridge, Mass.: Harvard Univ. Press.
Ward, Lester F. (1893) 1906 The Psychic Factors of Civilization. 2d ed. Boston: Ginn.
Roscoe Pound was one of the leading figures in twentieth-century legal thought. As a scholar, teacher, reformer, and dean of Harvard Law School, Pound strove to link law and society through his "sociological jurisprudence" and to improve the administration of the judicial system. In the early decades of the century, Pound was viewed as a radical thinker for arguing that the law is not static and must adapt to the needs of society. By the 1930s, however, he was seen as a more conservative figure, fighting the growth of federal government.
Pound was born on October 27, 1870, in Lincoln, Nebraska. The son of a judge, Pound attended the University of Nebraska, earning a bachelor of arts degree in botany in 1888. His father convinced him to attend Harvard Law School, but he stayed only one year. The death of his father led Pound to return to Lincoln, where he passed the Nebraska bar examination and was admitted to the bar in 1890.
From 1890 to 1903, Pound practiced law, taught at the University of Nebraska, earned a doctorate in botany from the university, and served as the director of the state botanical survey. In addition, he helped organize the Nebraska Bar Association in 1900.
A gifted scholar, Pound could have had a distinguished career in the sciences, but his appointment in 1901 as a commissioner of appeals for the Nebraska Supreme Court permanently shifted his career to the law. As a commissioner he acted as a temporary appellate judge, helping to reduce a backlog of cases. His opinions emphasized substance over procedure and reflected a concern with the practical effect of the law.
In 1903 he was appointed dean of the Nebraska College of Law. His academic interests merged with his experience as a court commissioner in 1906 when he addressed the annual convention of the american bar association in St. Paul. His speech, titled "The Causes of Popular Dissatisfaction with the Administration of Justice," was a call to improve court administration and a preview of his theory of law, called sociological jurisprudence. The speech, which has remained a classic statement on judicial administration, attracted the attention of john henry wigmore, the dean of Northwestern University School of Law. He asked Pound to join his faculty in 1907. Pound's two-year association with the school was marked by his organization of the First National Conference on Criminal Law and Criminology, which gathered participants from many professions to discuss ways to reform the criminal law. The conference was one of the first of Pound's efforts to give practical application to sociological jurisprudence.
"The law must be stable, but it must not stand still."
In 1910, after having spent a year at the University of Chicago, Pound joined the faculty at Harvard Law School. He was appointed dean in 1916 and served until 1936. It was during this period that Pound's views and influence were at their zenith.
Pound's contribution to U.S. jurisprudence was to further the work that oliver wendell holmes jr. had begun in debunking the legal theories that had dominated during the nineteenth century. Pound fought the notion that an unchanging and inflexible natural law formed the basis for the common law. He did believe that some constant principles existed in the common law, particularly ones dealing with methods, to which he gave the name "taught legal tradition." Pound firmly believed that the implementation of the principles of the taught legal tradition by wise common-law judges resulted in substantive change, which reflected changes in society. As the interpreters of the common law, judges had a special duty to consider the practical effects of their decisions and to strive to ensure that judging facilitated rather than hindered societal growth.
Pound placed his sociological jurisprudence in opposition to what he termed "mechanical jurisprudence," which he characterized as a common but odious practice whereby judges woodenly applied precedent to the facts of cases without regard to the consequences. For Pound, the logic of previous precedent alone would not solve jurisprudential problems.
Despite his desire to see the law adapt to the needs of society, Pound believed that the common law should develop slowly and that it should only follow changes in society. Certainty in the law, especially in areas such as commercial and property law, was often more beneficial than attempts at practical alteration. He revealed a more conservative cast of mind in his distrust of legislative statutes, arguing that the slow development of judge-made law was preferable to the radical changes often brought by legislation. His study of biology led him to believe that the law, like nature, was a seamless web and that changes in one part might produce totally unexpected and undesirable results in a distant part.
Pound's sociological jurisprudence fell out of favor in the 1930s, when the legal realism movement attacked his philosophy. Though the legal realists and Pound had much in common, the realists, especially jerome n. frank, differed over the nature of judicial decision making. Where Pound believed that judges, with the objective application of his principles of sociological jurisprudence, could logically produce the result in a given case, Frank, in his book Law and the Modern Mind (1933), thought otherwise. Frank maintained that not logic but the
unique psychological makeup of judges was the most important factor in the resolution of a lawsuit. The realists pointed out, after analyzing many court decisions, that often a judge could support a decision for either side on a given legal issue. Therefore, they argued, judges were forced to decide cases on the basis of their subjective feelings of what was "fair" and then turn to the applicable part of the case law to furnish legal fig leaves to hide what they had actually done.
Pound reacted angrily to this analysis in a series of law review articles. He believed that the rules of law, especially rules of commercial law and property, could be determined with certainty and even attain the logical coherence of propositions of Euclid. Pound conceded that it was important to study the psychology of judging, but only to prevent the aberrations the realists claimed were common. Pound thought that the realists emphasized the oddities, and not the central factors, in their analysis of the judicial system. He disliked the realists for discounting the importance of the common law and for their willingness to advocate that the law be used to change society. For Pound, the legal system worked best when the law followed society. Any attempt to make society follow the law was futile.
Pound resigned as dean of the Harvard Law School in 1936. He was appointed the first university professor of Harvard in 1937, an appointment that permitted him to teach in any of the academic units of Harvard. An opponent of much of President franklin d. roosevelt's new deal legislation, Pound was actively involved in attempts to stop the great expansion of federal administrative agencies. He continued writing during his later years, publishing his monumental five-volume Jurisprudence in 1959. He died on July 1, 1964, in Cambridge, Massachusetts, at the age of ninety-three.
Carrington, Paul D. 1999. "The Obsolescence of the United States Courts of Appeals: Roscoe Pound's Structural Solution." The Journal of Law & Politics 15 (summer).
Hull, N.E.H. 1997. Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence. Chicago: Univ. of Chicago Press.
Lasser, Mitchel. 2002. "Comparative Readings of Roscoe Pound's 'Jurisprudence.'" American Journal of Comparative Law 50 (fall).
Roscoe Pound (1870-1964), American jurist and botanist, furthered the development of sociological jurisprudence, which significantly altered American legal thought.
Roscoe Pound was born at Lincoln, Nebr., on Oct. 27, 1870, the son of a judge. After graduating from the University of Nebraska in 1888, he earned a master of arts degree in 1889 and then attended Harvard Law School for a year. He passed the bar exam in 1890 and began practicing law, teaching at the University of Nebraska Law School, and working toward his doctorate in botany, which he earned in 1897. For several years he directed the botanical survey of Nebraska and discovered a rare lichen (later designated the "roscopoundia"). His botanical writings are still considered important.
As commissioner of appeals of the Supreme Court of Nebraska (1901-1903), Pound wrote 102 opinions that have often been cited. He was commissioner for uniform state laws for Nebraska (1904-1907) and dean of the law department at the University of Nebraska (1903-1907). He taught law at Northwestern University (1907-1909) and at the University of Chicago (1909-1910).
Pound's vast erudition included all phases of the law and jurisprudence as well as the classics and foreign languages. He often worked 16 hours a day and had a phenomenal memory and great intellectual curiosity. He became the leading exponent of sociological jurisprudence, that is, applying pragmatism to the law to make it amenable to society's needs rather than adhering to inapplicable precedents. Pound first set forth his concept of sociological jurisprudence in a 1906 address and continued to expound it for nearly a generation. At about the same time, he also began expressing his "formative era" concept, which stated that an indigenous new law for the country was evolved by American judges between 1789 and 1860.
In 1910 Pound became professor of law at Harvard. He was dean from 1916 to 1936 during what was called Harvard Law School's "golden age". He helped shape a faculty and program of legal education equipped to implement his concept of sociological jurisprudence. A large number of the law school graduates were active in formulating policies of Franklin D. Roosevelt's New Deal, and Pound supported many of its early measures. But though he had once felt that the law stifled administration, he came to feel that courts must serve as a bulwark against potential dictatorship. Similarly, he became critical of the legal realists of the 1930s, whose thinking was founded in Pound's earlier work; he felt that they placed value only on experience in setting legal standards.
In 1936 Pound resigned as dean and was assigned to one of the first Harvard "roving professorships"; for the next 11 years he taught everything from law to the classics. In 1938 he was named director of the National Conference of Judicial Councils. He received the American Bar Association's medal for "conspicuous service to the cause of American jurisprudence" in 1940. He served as adviser to the Nationalist China Ministry of Justice (1946-1949), which was reorganizing its judicial system. When he returned to the United States, he was extremely critical of America's China policy, because of its ineffective support of Chiang Kai-shek.
Pound retired from Harvard in 1947 but continued to teach at a number of law schools for several years and maintained his steady flow of publications. In all, he authored over 1, 000 items, including his massive fivevolume Jurisprudence (1959). He died in Cambridge, Mass., on July 1, 1964.
Pound's own Roscoe Pound and Criminal Justice was edited by Sheldon Glueck in 1965. Studies of Pound include Paul Lombard Sayre, The Life of Roscoe Pound (1948), and Arthur Leon Harding, ed., The Administration of Justice in Retrospect: Roscoe Pound's 1906 Address in a Half-century of Experience (1957).
Sayre, Paul Lombard, The life of Roscoe Pound, Littleton, Colo.: Rothman, 1981, 1948.
Wigdor, David, Roscoe Pound; philosopher of law, Westport, Conn., Greenwood Press 1974. □