Essays In Jurisprudence In Honor Of Roscoe Pound

Roscoe Pound (1870-1964) taught the founder of Liberty Fund, Pierre F. Goodrich, law at Harvard University in 1916-17 and they remained in contact for the rest of Pound's life. Goodrich was very much influenced by Pound's ideas on the importance of constitutional and legal guarantees of freedom in the history of the West and later assisted Pound in getting his books on Constitutional Guarantees of Liberty (1957) and Jusiprudence (1959) published.

Source

Roscoe Pound's "Law and Liberty" was published as one of the Lectures on The Harvard Classics, Political Science. V. Law and Liberty, ed. William Allan Nelson et al. in The Harvard Classics, ed Charles W. Eliot (New York: P.F. Collier and Son, 1909-14), vol. 51.

Roscoe Pound, "Law and Liberty" (1914)

Introduction

For what end does the legal order exist? What do we seek to achieve through the political organization? What is the ultimate purpose in lawmaking, that is, in the selection and formulation of the standards for the public administration of justice which organized society establishes or recognizes? These are the first questions in legal and in political philosophy. The history of juristic thought and of political thought is chiefly a history of the way in which men have answered them.

The Aim of Law (1) in Primitive Societies

In primitive societies the answers are that the legal order exists simply to keep the peace, that men seek through the legal order to avert individual self-redress and prevent private war, and that the purpose of lawmaking is to establish rules by which controversies may be adjusted peaceably. Accordingly, whereas to-day we seek, as we say, to do justice, seeking to preserve the peace and to adjust controversies peaceably simply as means thereto and incidents thereof, primitive legal systems make peace the end. Where to-day we think of compensation for an injury, primitive law thinks only of composition for the desire to be avenged. Where to-day we seek to give to each what he ought to have or the nearest possible equivalent, primitive law seeks only to give him a substitute for vengeance in case he is wronged.

Greek philosophy and Roman law soon passed beyond the crude conception of the end of the legal order in primitive society. Instead, they gave these answers: The legal order exists to preserve the social status quo; men seek through the legal order to keep each individual in his appointed groove, and thus to prevent the friction with his fellowmen which primitive law sought only to mitigate. This is brought out very clearly in Greek political philosophy. Thus, in Plato’s ideal state the state is to assign everyone to the class for which he is best fitted and the law is to keep him there, in order that a perfect harmony and unity may prevail. St. Paul’s well-known exhortation (Ephesians v, 22ff. and vi, 1–5) in which he calls on all the faithful to exert themselves to do their duty in the class in which they find themselves, proceeds upon the same conception. The Roman lawyers turned this idea of political philosophy into law. In the great institutional book of Roman law, the Institutes of Justinian, we are told that the precepts of law come to three; to live honorably, not to injure another, and to give to everyone his due. The idea here is that the state and the law exist to maintain harmoniously the existing social order. What the interests of another are, which one is not to injure, what makes anything another’s due, so that it is to be given him, are matters which are left wholly to the traditional social organization.

(3) Before and After the Reformation

On the downfall of the Roman empire the Germanic invaders brought back for a season the primitive ideas of buying off vengeance and keeping the peace through arbitrary peaceful solution of disputes by mechanical modes of trial and hard and fast rules. But during the Middle Ages these conceptions gradually yielded to the classical idea of the legal order as a means of preserving the social status quo, the more since the latter was fortified by the unassailable authority of texts of scripture and of the Roman law. Moreover, from the thirteenth century on, philosophers more and more sought to sustain authority by reason, and in this way they prepared the way for a new conception which developed in the seventeenth century. For by that time two events of capital importance had compelled a complete revolution in legal and political philosophy. In the first place the Reformation had divorced the philosophy of law and of politics from theology and had set them free from the authority of the church. This was the work of the Protestant jurist theologians of the sixteenth century.1 Secondly, following the nationalist movement which resulted from the breakdown of the unifying and universal authorities of the Middle Ages, the church and the empire,2 the Germanists overthrew the idea of the binding authority of the Roman law in modern Europe. Accordingly it became necessary to find new bases for legal and political authority, and those bases were found in reason and in contract, or the consent and agreement of the individual.3

Reason and Natural Rights

In the seventeenth and eighteenth centuries reason was made the measure of all obligation. Seventeenth-century legal and political philosophers considered that law existed in order to produce conformity to the nature of rational creatures. In practice, however, though they had broken with authority as such, they accepted the Roman law as embodied reason and essayed very little that did not have authority behind it. In consequence the Roman maxim—not to injure another and to give to everyone his own—was taken to express the nature of rational creatures, and respect for personality and respect for acquired rights remained the two cardinal principles of justice. But these principles raised two obvious questions: (1) What is there in personality that makes aggression an injury, and (2) what is it that makes anything one’s own? The answer was sought in a theory of natural rights, or of certain qualities inherent in individual human beings and demonstrated by reason to which society, state, and law were bound to give effect. According to this theory, justice is the maximum of individual self-assertion; it is the function of the state and of the law to make it possible for the individual to act freely. Hence the sphere of law is limited to the minimum of restraint and coercion necessary to allow the maximum of self-assertion by each, limited by the like self-assertion by all. This purely individualist theory of justice culminated in the eighteenth century in the Declarations of the Rights of Man and Bills of Rights which are so characteristic of that time.4

 At the close of the eighteenth century the foundations of the seventeenth and eighteenth century theory were shattered by Immanuel Kant.5 But he furnished a new metaphysical foundation for the conception of justice as the maximum of individual self-assertion and in consequence it survived for about a hundred years and was given complete logical development in the political, economic, and juristic writing of the nineteenth century, although the actual law began to break away from this idea in Europe by the middle of the century and was definitely breaking away in America in the last decade thereof.

In the nineteenth century, then, legal and political philosophers were agreed that the end of the legal order, the purpose of political organization and purpose of lawmaking, were to secure and maintain individual liberty. The historian found in history the unfolding of this idea in human experience. The philosophical jurist postulated free will as the fundamental principle and deduced therefrom an ideal system of principles of liberty to which law ought to conform. The utilitarian legislator took individual liberty for the one sure means of producing human happiness and so made it the goal of all lawmaking. Mill’s treatise “On Liberty”6 is the best example of a thoroughgoing exposition of this nineteenth-century idea of abstract liberty. Moreover, it is much more tempered and reasonable in its attitude toward what we now call social legislation, so far as it restrains an abstract liberty of action whereby under pressure the weak barter away their actual liberty, than most contemporary or even subsequent writing from the same standpoint.

The Modern Social Point of View

To-day the social-philosophical school has given us a new conception of the end of the legal order. Instead of the maximum of individual self-assertion consistent with a like self-assertion by all others, we are now putting as the end the maximum satisfaction of human wants, of which self-assertion is only one, even if a very important one. Hence juristic and political theory to-day thinks of interests, that is of claims which a human being may make, and of securing or protecting the greatest number of these interests possible with the least sacrifice of other interests. Moreover there are public interests, or claims which the organized political society may make, and social interests, or claims of society at large. Ultimately all interests, individual and public, are secured and maintained because of a social interest in so doing. But this does not mean that individual interests, the details of which the nineteenth century worked out so well, are to be ignored. On the contrary, the chiefest of social interests is the moral and social life of the individual, and thus individual interests become largely identical with a social interest. In securing them because of the social interest in the moral and social life of the individual, however, and in recognizing that individual self-assertion is only one human want, which must be weighed with others in a finite world where all wants cannot be satisfied, a governmental paternalism or even maternalism may become proper, which would have seemed intolerable to thinkers in the last century. In this connection, Mill on Liberty has a permanent value, despite the entire change in our views as to the end of law and of the state. Just as in the seventeenth century an undue insistence upon public interests, thought of as the interests of the sovereign, defeated the moral and social life of the individual and required the assertion of individual interests in Bills of Rights and Declarations of Rights, there is a like danger that certain social interests will be unduly emphasized and that governmental maternalism will become an end rather than a means and will defeat the real purposes of the legal order. Hence, although we think socially, we must still think of individual interests, and of that greatest of all claims which a human being may make, the claim to assert his individuality, to exercise freely the will and the reason which God has given him. We must emphasize the social interest in the moral and social life of the individual, but we must remember that it is the life of a free-willing being.

Endnotes

[1] See Harvard Classics, xxxvi, 336.

[2] For this nationalist idea see H. C., xxxvi, 7. 

[3] H. C., xxxiv, 309.

[4] H. C., xliii, 66, 147, 150. 

[5] H. C., xxxii, 305.

[6] H. C., xxv, 195ff.

Bibliography

Books by Roscoe Pound

Franklin C. Setaro, A Bibliography of the Writings of Roscoe Pound. Harvard Series of Legal Bibliographies III. (Harvard University Press, 1942).

Roscoe Pound, Jurisprudence, 5 vols. (St. Paul, Minn.: West Publishing, 1959).

Roscoe Pound, The Ideal Element in Law (1958) (Indianapolis: Liberty Fund, 2002).

Roscoe Pound, The Development of Constitutional Guarantees of Liberty (1957).

Roscoe Pound, The Lawyer from Antiquity to Modern Times (1953).

Roscoe Pound, Justice According to the Law (New Haven: Yale University Press, 1951).

Law in Action: An Anthology of Law in Literature, ed. Amicus Curiae, introduction by Roscoe Pound (New York: Crown, 1947).

Roscoe Pound, Law and the Administration of Justice (Nanking: Sino-American Cultural Service, 1947).

Roscoe Pound, Social Contrtol through Law (Yale University Press, 1942).

Roscoe Pound, Appellate Procedure in Civil Cases (1941).

Roscoe Pound, Organization of Courts (1940).

Roscoe Pound, The Formative Era of American Law (Boston: Little Brown and Co., 1938).

Roscoe Pound, Criminal Justice in America (1929).

Roscoe Pound, Law and Morals (University of North Carolina Press, 1924, rev. ed. 1926).

Roscoe Pound, Interpretations of Legal History (1923).

Roscoe Pound, Introduction to the Philosophy of Law (Yale University Press, 1922, revised edition 1954).

Roscoe Pound, The Spirit of the Common Law (1921).

Books about Roscoe Pound

Edward B. McLean, Law and Civilization: The Legal Thought of Roscoe Pound (Lanham MD.: University Press of America, 1992).

N.E.H. Hull, Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence (University of Chicago Press, 1997).

Paul Sayre, The Life of Roscoe Pound (Iowa City: College of Law Committee, State University of Iowa, 1948).

Essays in Jurisprudence in Honor of Roscoe Pound, ed. Ralph A. Newman (Indianapolis: Bobbs-Merrill, 1962).

Interpretations of Modern Legal Philosophies: Essays in Honor of Roscoe Pound, ed. Paul Sayre (New York: Oxford University Press, 1947).

  • Albert Kocourek, "Roscoe Pound as a Former Colleague Knew Him," pp. 419-33.
  • Paule Sayre, "Introduction," pp. 3-13.

Last modified April 13, 2016

Nathan Roscoe Pound (October 27, 1870 – June 30, 1964) was a distinguished American legal scholar and educator. He was Dean of University of Nebraska College of Law from 1903 to 1911 and then Dean of Harvard Law School from 1916 to 1936. The Journal of Legal Studies has identified Pound as one of the most cited legal scholars of the 20th century.[1]

Early life[edit]

Pound was born in Lincoln, Nebraska, to Stephen Bosworth Pound and Laura Pound.

Pound studied botany at the University of Nebraska in Lincoln, where he became a member of the Chi Phi Fraternity. He received his bachelor's degree in 1888 and his master's degree in 1889.[2] In 1889 he began the study of law; he spent one year at Harvard but never received a law degree. He received the first PhD in botany from the University of Nebraska in 1898.

The University of Nebraska fielded its first football team the year after Pound graduated. Pound traveled with the teams to their games, including their first one. He also covered the team in the student newspaper and even refereed some. Pound created many chants and songs for the team and helped create a fan base that traveled well, which is something that the Cornhuskers still see to this day.[3]

Law career[edit]

In 1903 Pound became dean of the University of Nebraska School of Law. In 1911 Pound began teaching at Harvard and in 1916 became dean of Harvard Law School and served in that role until 1937. He wrote "Spurious Interpretation" in 1907, Outlines of Lectures on Jurisprudence in 1914, The Spirit of the Common Law[4] in 1921, Law and Morals in 1924, and Criminal Justice in America in 1930.

In 1908 he was part of the founding editorial staff of the first comparative law journal in the United States, the Annual Bulletin of the Comparative Law Bureau of the American Bar Association. He was also the founder of the movement for "sociological jurisprudence", an influential critic of the U.S. Supreme Court's "liberty of contract" (freedom of contract) line of cases, symbolized by Lochner v. New York (1905), and one of the early leaders of the movement for American Legal Realism, which argued for a more pragmatic and public-interested interpretation of law and a focus on how the legal process actually occurred, as opposed to (in his view) the arid legal formalism which prevailed in American jurisprudence at the time. According to Pound, these jurisprudential movements advocated “the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles”.[5] While Pound was dean, law school registration almost doubled, but his standards were so rigorous that one-third of those matriculated did not receive degrees. Among these were many of the great political innovators of the New Deal years.[6]

In 1929 President Herbert Hoover appointed Pound as one of the eleven primary members of the Wickersham Commission on issues relating to law enforcement, criminal activity, police brutality, and Prohibition.[7]

During Roosevelt's first term, Pound initially supported the New Deal.[6] In 1937, however, Pound turned against the New Deal and the legal realist movement altogether after Roosevelt proposed packing the federal courts and bringing independent agencies into the executive branch.[6][8] Other factors contributing to this "lurking conservatism" within Pound included bitter battles with liberals on the Harvard law faculty, the death of his wife, and a sharp exchange with Karl Llewellyn.[9] Pound, however, had for years been an outspoken advocate of these court and administrative reforms that Roosevelt proposed[6] and it was acknowledged that he only became conservative because he saw an opportunity to gain attention after his Harvard colleagues had turned on his ideas of government reform after Roosevelt had proposed them.[6][10]

In 1937 Pound resigned as Dean of Harvard Law School to become a University Professor[6] and soon became a leading critic of the legal realists.[6][10] He proposed his ideas of government reform to Chinese leader Chiang Kai-shek.[6] In 1934 Pound received an honorary degree from the University of Berlin, presented by the German Ambassador to the United States.[11] In the 1940s, Pound was apparently favourably disposed to replacing John P. Higgins as a judge on the International Military Tribunal for the Far East, which was conducting a war crimes trial in Tokyo, though an appointment did not eventuate.[12]

Criminal justice in Cleveland[edit]

In 1922 Roscoe Pound and Felix Frankfurter undertook a detailed quantitative study of crime reporting in Cleveland newspapers for the month of January 1919, using column inch counts. They found that in the first half of the month, the total amount of space given over to crime was 925 in., but in the second half, it leapt to 6642 in. That was in spite the fact that the number of crimes reported had increased only from 345 to 363. They concluded that although the city's much publicized "crime wave" was largely fictitious and manufactured by the press, the coverage had a very real consequence for the administration of criminal justice.

Because the public believed they were in the middle of a crime epidemic, they demanded an immediate response from the police and the city authorities. The agencies, wishing to retain public support, complied, caring "more to satisfy popular demand than to be observant of the tried process of law." The result was a greatly increased likelihood of miscarriages of justice and sentences more severe than the offenses warranted.[13][14]

Contribution to jurisprudence[edit]

Roscoe Pound also made a significant contribution to jurisprudence in the tradition of sociological jurisprudence, which emphasized on the importance of social relationships in the development of law and vice versa. His best-known theory consists of conceptualising law as social engineering. According to Pound, a lawmaker acts as a social engineer by attempting to solve problems in society using law as a tool.[15]

Personal life[edit]

In 1903 Pound, with George Condra, founded the Society of Innocents, the preeminent senior honor society at Nebraska. It is still in existence. Pound is also a member of the Nebraska Hall of Fame. He was a Freemason, and was a member and Past Master of Lancaster Lodge No. 54 AF & AM Lincoln, Nebraska. He also served as Deputy Grand Master for the Grand Lodge of Massachusetts in 1915 and delivered a series of Masonic lectures for the Grand Lodge in March and April 1916. He helped to found The Harvard Lodge A.F. & A.M. along with Kirsopp Lake a Professor of the Divinity School, and others.

Notes[edit]

  1. ^Shapiro, Fred R. (2000). "The Most-Cited Legal Scholars". Journal of Legal Studies. 29 (1): 409–26. doi:10.1086/468080. 
  2. ^Acacia Fraternity. "Acacia Fraternity: Notable Acacians". Archived from the original on July 5, 2008. Retrieved 2008-10-30. 
  3. ^Nebraska Educational Television. "Roscoe Pound: Nebraska's First Fanatic". Archived from the original on November 25, 2010. 
  4. ^Roscoe Pound. ""The Spirit of the Common Law" by Roscoe Pound". Digitalcommons.unl.edu. Retrieved 2012-09-05. 
  5. ^Root, Damon (2011-02-11) "Are We All Originalists Now?", Reason
  6. ^ abcdefgh"Roscoe Pound Dies at 93, Revitalized Legal System". The Harvard Crimson. 3 July 1964. Retrieved 2012-09-05. 
  7. ^Encyclopedia of Crime and Punishment, Volume 1, edited by David Levinson, p. 1708
  8. ^Willrich, Michael (2003). City of Courts: Socializing Justice in Progressive Era Chicago. New York, NY: Cambridge University Press. p. 332. ISBN 9780521794039. 
  9. ^[1][dead link]
  10. ^ abDuxbury, Neil (1997). Patterns of American Jurisprudence. New York, NY: Oxford University Press. p. 536. ISBN 978-0198264910. 
  11. ^Norwood, Stephen H. (May 2009). The Third Reich in the Ivory Tower: Complicity and Conflict on American Campuses. Cambridge University Press. ISBN 978-0-521-76243-4.  chapter 2, "Legitimating Nazism: Harvard University and the Hitler Regime, 1933–1937".
  12. ^Personal correspondence, Sir William Webb, as President of the International Military Tribunal for the Far East to Dr Evatt, Minister for External Affairs and Attorney General. Letter of 3 July 1946. Available at: http://recordsearch.naa.gov.au/SearchNRetrieve/Interface/DetailsReports/ItemDetail.aspx?Barcode=819494&isAv=N
  13. ^Jensen, Klaus Bruhn (May 10, 2002). A Handbook of Media and Communication Research: Qualitative and Quantitative Methodologies. UK: Routledge. ISBN 0-415-22588-4.  pp. 45–46
  14. ^Pound, Roscoe; Felix Frankfurter (1922). Criminal Justice in Cleveland. Cleveland, OH: The Cleveland Foundation. , p. 546
  15. ^"Social Engineering Theory Of Roscoe Pound Free Essays 1 – 20". StudyMode.com. Retrieved 2012-09-05. 

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