Pound, Roscoe
Pound, Roscoe
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.]
WORKS BY POUND
(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.
SUPPLEMENTARY BIBLIOGRAPHY
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.
Ross, Edward A. 1901 Social Control: A Survey of the Foundations of Order. New York and London: Macmillan.
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.