The Catholic Lawyer

Volume 13 Number 2 Volume 13, Spring 1967, Number 2 Article 3

The Legal Philosophy of Roscoe Pound

Linus J. McManaman, O.S.B.

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This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. THE LEGAL PHILOSOPHY OF ROSCOE POUND*

LINUS J. MCMANAMAN, O.S.B.t

A MONG AMERICAN jurists, as well as among those of the rest of the world, there is a noticeable interest in natural law. Many are calling for some ultimate principles of law to halt the onward march of pragmatism and its natural offspring, legal realism. But, unhappily, they are not looking for a natural law in the traditional Thomistic sense, a natural law that is binding even in the absence of all positive disposition. Rather they are seeking an ideal picture of law to serve as a norm for the elaboration of positive law. Roscoe Pound is an example of those who see philosophy and natural law only as something to fill lacunae in the positive law, or to serve as post factum critique of the established law. 'The traditional meaning of natural law has been lost, and scholastic philosophers are not without fault. Too often natural law has been rejected by jurists outside of Thomistic schools because it has not been properly presented. There is a task for scholastics of guarding against being deserving of the criticism directed at the contemporary received natural law, and of entering into the arena with our con- temporaries to confront them with the true natural-law tradition. It is beyond the scope of this article to present a complete survey of Thomistic natural law. But in reviewing the legal theory of Roscoe Pound we may see where scholasticism may become an effective force.

Pound and his Problems It was August 29, 1906, at the Capitol Building, St. Paul, Minnesota, the twenty-ninth Annual Meeting of the American Bar Association. A young, hitherto unheralded, jurist and professor

*This article is a portion of a thesis submitted in partial fulfillment of the requirements for the Degree of Doctor of Philosophy at the University of Fribourg, Switzerland. t Professor of Natural Philosophy and Ethics, St. Benedict's College. ROSCOE POUND from the University of Nebraska shocked the National Conference on Criminal Law the assembled jurists into attention and and Criminology and the Illinois Law divided the group into two camps with a Review, of which he was editor-in-chief. paper entitled, The Causes of Popular In 1909 he was appointed to the law Dissatisfaction With the Administration faculty of the University of Chicago. He of Justice.' It was in this way that next became Carter Professor of Law at Roscoe Pound launched the most brilliant Harvard Law School, and in 1916 was career in American jurisprudence, or per- elected dean of that school, a position he haps, in all contemporary jurisprudence. held until his resignation in 1936. As In the assembly at this meeting there dean for twenty years of what is usually was on the one side the "old guard" who considered the nation's most influential felt that there was no popular dissatisfac- law school he was in a position to exer- tion, or, granting that there may have cise an enormous impact upon the legal been a little, they claimed that it was profession. This influence was widened without reason. On the other side was in centrifugal circles as more than a the avant garde who lined up with Pound generation of students trained under him in a demand for better laws, for better entered the legal profession, many of and more effective administration of jus- them as professors in other schools of tice. It is not without significance that law. Upon his resignation from the his first address of national importance deanship of Harvard he continued an was concerned with imperfections in the active life as author, lecturer and teacher, administration of justice. The task which and performed such functions as serving he undertook, and which he continues on a commission for the codification of with undiminished vigor, is that of im- Chinese law. More recently he spent two proving the administration of justice. It years in California organizing a new law is a task in which, happily for us, he has school at the University of California, met with a considerable amount of suc- Los Angeles, before returning in the fall cess. of 1952 to Harvard. The St. Paul address may have earned The importance and influence of Pound him a number of opponents as well as can hardly be called into question, but friends, but it also won him national rather than assume it to be known we recognition and an invitation to move can cite a few of the many tributes to his from the relative obscurity of the erudition. Professor Thomas A. Cowan Nebraska school to the more known and of Nebraska University credits him with more influential Northwestern University reworking the whole structure of Amer- Law School in Evanston, Illinois. While ican legal thought.2 Professor Paul Sayre there, he was instrumental in organizing of New York University notes that all the

'The Causes of Popular Dissatisfaction With the Administration of Justice, Address before 2Cowan, A Report on the Status of Philos- A.B.A. Annual Meeting (1906), reprinted in ophy of Law in the United States, 50 COLUM. 20 J. AM. JUD. SoC'Y (1937). L. REV. 1092 (1950). 13 CATHOLIC LAWYER, SPRING 1967 rest of the legal scholars have lived off Turning now from this brief biograph- Pound's erudition for more than forty ical note 8 we take up the reasons he saw 3 years. Professor Edwin W. Patterson for the "popular dissatisfaction with the finds Pound's influence in jurisprudence administration of justice" in order better an aid in preparing legislation, in predict- to understand what he hoped to accom- ing legal trends and in interpreting legal plish. But to understand the problems literature. He continues that Pound's as he saw them and the solutions he ideas have become commonplace, a fact 4 offers we must review, however briefly, that is a tribute to his insight and vision. the legal Dean Emeritus Albert Kocourek of and intellectual milieu into Northwestern compares him to an Alpine which he entered at the turn of the cen- peak towering above all the surrounding tury. The principles of natural law which landscape.5 And, finally, Professor Her- served as the foundation of American bert D. Laube of Cornell finds that the law in its inception, as stated in the genius of Pound is as penetrating as John Declaration of Independence and the Austin's, as illuminating as Henry Maine's, Constitution, and which continued as the as resourceful as Rodolf von Ihering's dominant force in the formative era of and as humanizing as Lester F. Ward's; American law from the Revolution to the his influence is more widespread than Civil War, began to decline in import- that of any jurist ever honored by the ance about the middle of the last century. Roman Empire.6 The tribute paid to him By the end of the century its importance on the occasion of his seventy-fifth birth- was negligible. 9 day in 1947 is indicative of his inter- national as well as his American reputa- Beginning with the second half of the 7 tion. last century the historical school of legal

3 POUND, OUTLINES OF LECTURES ON JURIS- and South America, South Africa, Australia PRUDENCE (5th ed. 1943), Sayre, Book Review, and Europe. 57 HARV. L. REV. 581, 584-85 (1944). The Introduction contains many congratulatory 4 Patterson, Pound's Theory o1 Social Interests, messages from many foreign jurists, legal asso- INTERPRETATIONS OF MODERN LEGAL PHILOS- ciations and politicians. Edmond N. Cahn finds OPHIES: ESSAYS IN HONOR OF ROSCOE the fact that only two of the thirty-eight essays POUND 560, 571 (Sayre ed. 1947). deal directly with Pound, a tribute to the 5 Kocourek, Roscoe Pound as a Former fact that he created a widespread and informed Colleague Knew Him, INTERPRETATIONS OF interest in legal philosophy where he had found MODERN LEGAL PHILOSOPHIES, op. cit. supra a generation composed almost entirely of igno- note 4, at 419. ramuses and misologists. Cahn, Jurisprudence, 6 SAYRE, INTERPRETATIONS OF MODERN LEGAL ANN. SURVEY AM. L. 1099, 1104 (1947). PHILOSOPHIES: ESSAYS IN HONOR OF 8 For a bibliography of works about Pound ROSCOE POUND (1947), 60 HARV. L. REV. 988 published before July 1, 1940, see SETARO, A (1947). BIBLIOGRAPHY OF THE WRITINGS OF ROSCOE 7 Interpretations of Modern Legal Philosophies: POUND 139-52 (1942). Essays in Honor of Roscoe Pound contains 9 POUND, THE FORMATIVE ERA OF AMERICAN essays by thirty-eight legal scholars from North LAW 101-02, 109-10 (1938). RosCOE POUND interpretation was in the ascendancy. historical research.11 The historical Many factors combined to explain this school has always been skeptical of leg- phenomenon, not the least of which was islation and opposed to codification. the fact that, in 1849, Luther S. Cush- Competing with the historical school ing, a student of Savigny, was teaching for the primacy was another group which law at Harvard University. This fact in Pound calls the school of "philosophical addition to the appearance a few years jurisprudence." 12 This is a heterogen- earlier of the writings of Kent (1826-30) eous group comprising many philosophies and Story (1832-45) led to widespread and various versions of natural-law juris- acceptance of historical jurisprudence.' 0 prudence. For the most part they had The movement received new impetus degenerated into a legal formalism, hold- when, after 1870, American legal stu- ing that a perfect legal system could be dents in increasing numbers were pur- deduced from an ideal of the nature of suing their studies in Germany. Stated law by a process of formal logic, valid briefly this school maintains, after Savig- for all peoples, at all times and in every ny, that law cannot be made but must place. This theory represents the re- be found, the growth of law being an mains of the so-called "classical natural unconscious, organic process with legisla- law" of the eighteenth century which had tion subordinated to custom. As law already been rejected on the Continent grows and becomes more complex and and was rapidly losing favor in America. the popular consciousness (Volksgeist) Like proponents of historical jurispru- cannot manifest itself directly, it becomes dence, though for different reasons, they represented by lawyers who formulate maintained that law could not be made the technical legal principles; the lawyers but could only be found, the method of do not form laws but formulate the pop- finding it being different. Also like the ular consciousness; legislation follows as historical school, they doubted the pos- the last stage. Laws are not universally sibility of creative legislation. valid or applicable, but each people has A third school which gained accept- its own legal habits just as it has a peculiar language which is not applicable "FRIEDMANN, LEGAL THEORY 129 (2d ed. to others. In this system the jurist ranks 1949). Friedmann cites the Hayward English before the legislator in legal progress; translation of Savigny as follows: ". . . the sum therefore of this theory is that all law is but the jurist does not make laws, rather originally formed in the manner in which in he develops the technique of following ordinary, but not quite correct language, cus- the evolution of the Volksgeist by legal tomary law is said to have been formed, i.e., that it is first developed by custom and popular faith, next by jurisprudence, everywhere there- fore by internal silently operating powers, not 10 Id. at 21: "With the rise of historical by the arbitrary will of a law giver." Cf. thinking in the nineteenth century there comes POUND, op. cit. supra note 9, at 115 (1938); 8 to be a combination of history and philosophy, ENCYC. Soc. Sci. 477-92 (1932). observable in Kent and marked in Story. The 128 ENCYC. Soc. Sci. 482 (1932); cf. PoUND, stabilizing work of natural law is taken over op. cit. supra note 9; POUND, THE SPIRIT OF by history...... THE COMMON LAW 151 (1921). 13 CATHOLIC LAWYER, SPRING 1967 ance among many jurists was analytical completion by John Dewey, pragmatism jurisprudence, of which Bentham was the has dominated the philosophical field for founder. Like Austin's mechanical juris- more than half a century. Dean Pound prudence, the analytical school consid- has frequently pointed out that legal ered positive law to be self-sufficient, theory is very resistant to change and divorced from any concept of natural law, usually lags a generation behind changes ethics, or the other social sciences. Tra- in philosophical ideals. This was also ditionally the analytical school has had true of pragmatism, which had not seri- unlimited confidence in man's ability to ously affected juristic thinking at the turn legislate, and its advocates have always of the century. However, with the elo- favored codification. However, in the quent influence of Oliver W. Holmes, last third of nineteenth century America, pragmatism soon became the dominant Bentham's followers began to doubt that legal philosophy. More recently prag- we could add to or produce human hap- matism has divided into many, and often piness by legislation. Consequently, they contradictory, branches. The most vocal developed what Pound calls a "juristic contemporary group is the school of legal pessimism" substantially the same as the realism, a name which Pound charac- historical and philosophical schools. It is terizes as a boast rather than a descrip- a curious phenomenon that the different tion.14 This group did not merit serious schools by different paths, arrived at the consideration when Pound first began his common conclusion that constructive leg- career, but they are introduced here be- 3 islation was impossible? cause much of his subsequent writing is Just before the turn of the century, concerned with them. The realists deny when Pound came to the bar, pragmatism the efficacy not only of natural law and was coming into its own as the dominant positive law, but further they repudiate American philosophy. Initiated by the principle of judicial precedent, which Charles Peirce, developed and popular- is the very cornerstone of the common- ized by William James, and brought to law system.15 For them there is no law except the judge's decision in the individ- 13 POUND, THE SPIRIT OF THE COMMON LAW 151 (1921). "Five types of philosophy of law dual case, and that decision is law for in the nineteenth century are of significance that case alone, not being drawn from for our present purpose. We may call those previous cases and not affecting future who adhered to them the metaphysical school, cases. the historical school, the utilitarians, the positivists and the mechanical sociologists. It is a striking example of the way in which the same conclusion may sustain the most divergent 14 POUND, JUSTICE ACCORDING TO LAW 63 philosophical premises that all of these arrived (1951); cf. Pound, The Call For a Realistic ultimately at the same juristic position by Jurisprudence, 44 HARv. L. REV. 697 (1931). wholly diverse routes and from the most diverse 15 GARLAN, LEGAL REALISM AND JUSTICE 20-21, starting points, so that the futility of conscious 24, 42 (1941). "A right-is an affair of the effort to improve the condition of humanity future, and for the individual who claims the through the law and the conception of justice right it is an affair of probability." Id. at 93. as the securing of the maxims of self-assertion Cf. FRANK, LAW AND THE MODERN MIND become axioms of juristic thought." Id. at 151. (1930). RoscoE POUND

In the light of this review, however chanically. Contrariwise the historical brief, of his intellectual environment we school, and even more so the realists, can now pose the problems which Pound consider only the individual case, thereby saw and to the correction of which he endangering the general security. set his mind and his pen. Some of Considering the problem from the these problems are not original with viewpoint of stability versus change, the Pound or peculiar to America, but as alignment is almost the same. For the ancient as law itself. Others, however, formalists and analytical jurists the per- are a peculiar product of the time and fect code is valid for all times. For the place. historians and realists there is only The first problem, which he calls the change.' 7 Stability is required so that "perennial problem" of law because it men may plan a course of action with a goes back to the very beginnings of law, reasonable expectancy of what course the has two aspects, but because of their law will take. It is particularly true in close association they can be, and are, economic fields that men wish to act with treated as one. These two aspects are, confidence that their operations of today first, the general security versus the in- will not be judged illegal tomorrow. At dividual life, and secondly, the need for the same time the law may not be so stability versus the need for change. Dif- rigorous as not to accommodate itself to ferent legal theories at different times the changes in society which are con- have maintained one of these at the ex- stantly taking place. pense of the other. Pound feels that these There were other problems, more pe- preferences cannot be maintained. In culiar to the time and place, in Pound's America, during the last century, the gen- mind, not only in his famous St. Paul eral security was preferred. In the pres- address, but in much of his subsequent ent century, there is a tendency to prefer speaking and writing. The first of these, the individual life.' The problem is to already intimated, was what he calls have a legal system which gives recogni- "juristic pessimism." 18 The various tion to one without destroying the other. schools of jurisprudence, from diverse The formalists and analytical school pro- premises, arrived at the common conclu- tected the general security by providing sion that legislation is impossible or use- in advance for every eventuality, but they less. This give-it-up philosophy generated gave no consideration to the individual the attitude that you cannot do anything, offender; the law had to be applied me- therefore do not try to do anything. Against this attitude Pound has been a

10 POUND, AN INTRODUCTION TO THE PHILOS- relentless foe. OPHY OF LAW 96 (1922). "The last century Secondly, a major problem for Amer- preferred the general security. The present ican jurisprudence was created by the century has shown many signs of preferring the individual moral and social life. I doubt whether such preferences can maintain them- 17 Cf. FRANK, op. cit. supra note 15. selves." Ibid. Cf. POUND, CRIMINAL JUSTICE 18 Cf. POUND, THE SPIRIT OF THE COMMON IN AMERICA 38 (1930). LAW (1921). 13 CATHOLIC LAWYER, SPRING 1967

enormous changes in the social and eco- practice of apprentice-training for lawyers nomic order. The law, as received into persisted well into the present century, America and developed during the form- and almost anybody could serve a term ative era, was ideally adapted to a pio- as a clerk in an attorney's office and then 22 neer, agricultural society. But by the turn go into practice for himself. The situa- of the century the era of expansion and tion reached such proportions as to frontier was rapidly being passed and the prompt Mr. Justice Miller to remark that country was becoming an urban, indus- the prime factor in the formation of our 23 trial society. Changes in law had not law was ignorance. kept pace with the changes in the struc- A fourth problem is seen in the in- ture of society. 19 adequate and poor legislation provided A third problem which he attacked was by the lawmaking bodies of our govern- the inadequate education of the legal pro- ment. Reasons for this legislative inade- fession. One could with reason cite quacy are various, but certainly one rea- Pound's own biography as indicative of son was the traditional common-law the meager requirements for admission attitude toward legislation. The common- to the bar. That he became the most law jurist is wont to give very little recog- eminent among the legal scholars is a nition to legislative law, or, at best, to tribute to his own initiative and genius interpret it very strictly as applying to and not to the demands of the legal pro- the particular case in point and not as fession. That these demands were not providing a point of departure for legal exacting can be seen from the fact that reasoning. This attitude in turn led to he was admitted to the bar before reach- legislative irresponsibility, prompting leg- ing the age of twenty after having already islators to give only skeleton rules or begun a career as a botanist. In the be- directives, the details of which were to ginning of American legal history this be worked out by judicial decision; or was not accidental but part of a policy. they turned out laws which were prac- An excessive fervor for democracy and tically unenforceable. Another reason universal equality fostered the idea that can be found in a tendency of the legis- no professional class should be set apart; lative branch to meddle in judicial func- every profession should be accessible to tions during the very early period of all.20 He cites examples of blacksmiths, legal history. The net result was a grow- farmers and common laborers who were ing popular distrust of legislatures and a justices of state supreme courts . 1 The turning to the judiciary not only for judgment but also for making law. Judi- cial empiricism became the common man- 19 POUND, THE FORMATIVE ERA OF AMERICAN 24 LAW 98 (1938); POUND, CRIMINAL JUSTICE ner of lawmaking. AND THE COMMON LAW 19 (1930); POUND, THE SPIRIT OF THE COMMON LAW ch. 5 JUSTICE IN AMERICA 145 (1921). 22POUND, CRIMINAL 2 0 POUND, THE FORMATIVE ERA OF AMERICAN (1930). supra note 20. LAW 8 (1938). 23 POUND, op. cit. 21 Ibid. 24 POUND, op. cit. supra note 20, at 39, 49, 59. ROSCOE POUND

Related to this difficulty is a fifth prob- and their omission is not to be considered lem of more recent origin. It is what as granting them a slight importance. Pound calls administrative or executive The purpose here is to mention the main justice as contrasted with judicial justice. problems which Pound attempted to solve In recent years, and particularly in the as a background against which to view last two decades, he sees a growing, and his theories on law. Further it is felt undesirable, tendency for the executive that almost any other problem that might branch of the government to assume be mentioned could be subsumed under many functions belonging properly to the one of those already indicated. It should judiciary.25 This is seen as undesirable not be expected that our author will sin- because the executive branch is not ex gle out each of these problems for in- officio qualified by training and experi- dividual treatment. Rather does he at- ence for the judicial functions. More im- tempt a solution that will strike at the portant, he sees in administrative justice roots of all of them simultaneously. 2 6 a tendency towards absolutism. In studying his predecessors Pound saw Finally, a sixth problem requiring at- that all the nineteenth century schools tention is the tendency, developed in the were subject to the common criticism of last half of the last century, to mix law attempting to construct a science of law and politics. Another name for the same solely in terms of law and on the basis problem is the elective judiciary. 27 He of law, divorced from all other phe- can see no correlation between a man's nomena of social control and civiliza- qualifications to act as a judge and his tion. 0 For him a legal science, in order ability to influence voters to elect him to to meet the needs of a changing society, the position of a judge. 28 The general must give up its exclusiveness and work acceptance of the elected bench in state in closer association with the other social and local jurisdictions has had an unde- sciences.3' It must view law in all of its sirable effect on the administration of senses in relation to the whole problem justice. 29 The desire to please the voter of social control. 32 The social purposes or political patron whose support can in- of law must be stressed more than the sure the judge's position is too frequently sanctions, for law is to be regarded as a an impediment to justice. social institution which can be improved Other problems could be considered, by intelligent effort. 3 3 To discover the best means of directing and furthering 25 POUND, JUSTICE ACCORDING TO LAW 76-78, efforts to improve the law, the jurist must 83 (1951); cf. POUND, NEW PATHS OF THE LAW ch. 3 (1950); POUND, THE FORMATIVE ERA OF AMERICAN LAW (1938). 30 Pound, Fifty Years of Jurisprudence (pt. 1), 20 POUND, JUSTICE ACCORDING TO LAW 76-78, 51 HARV. L. REV. 444 (1938). 83 (1951). 32 Pound, Fifty Years of Jurisprudence (pt. 2), 27 POUND, CRIMINAL JUSTICE IN AMERICA 185 52 HARV. L. REV. 777, 812 (1938). (1930); cf. POUND, THE FORMATIVE ERA OF 32 Ibid. AMERICAN LAW (1938). 3' Pound, The Scope and Purpose of Sociolog- 28 Ibid. ical Jurisprudence (pt. 3), 25 HARv. L. REV. 29 ibid. 489 (1912). 13 CATHOLIC LAWYER, SPRING 1967 be concerned with a wide range of can be significant to a particular prob- 36 studies, and not just of law. This re- lem. Nor was legal history neglected; quires a study of the actual effects of he studied widely the legal systems of 37 legal institutions and doctrines; a study the past. In like manner he gave him- of the means of making legal rules effec- self to the study of modem philosophy, tive; a sociological legal history, which is psychology and sociology. In sum, there a study not only of how doctrines have is scarcely anyone among modern and evolved and developed, considered solely contemporary sociologists, philosophers as jural materials, but of what social ef- and jurists to whom he does not owe, 8 fects the doctrines of law have produced and acknowledge, a debt. in the past and how they produce them.34 It was in the light of these extensive The study of legal history is very import- studies that Pound developed his system ant to see what effects the jurists desired of sociological jurisprudence. It presents to produce, the effects actually produced a curious union of many diverse, and and the method used to produce the de- often contradictory, philosophies of law. sired effect. The functional attitude, But to this peculiar union he does give a which is the study not only of what legal fundamental unity based on the purpose materials are and how they came to be, of law. but also of what they aim to effect and The Nature of Law how they work, is fundamental in Pound's Before entering upon a detailed discus- legal theory. Also, there must necessarily sion of the nature of law according to be intensive study of philosophy and psy- Pound, it is necessary first to have a clear chology; in order for a legal science to notion of our subject. It is to Pound's be valuable it must be consistent with credit that, among English-speaking jur- the best of modem philosophy and psy- ists, he has done much in clarifying the chology.3" meaning, or diverse meanings, of "law." Pound pursued this course of studies Frequently among treatises on law we very seriously. He studied all the con- find the term applied indiscriminately to temporary jurists, both of the English any one of a number of possibilities with- common-law jurisdictions and the con- out distinction. tinental civil law systems, taking freely For Pound "law" has three meanings: from the most diverse schools of thought first, it signifies the legal order, i.e., the the materials which he found useful; he MPound,6 supra note 35, at 711. considered that there can be many ap- ON LEGAL HISTORY to juristic truth and that each 37 POUND, INTERPRETATIONS proaches (1923). 3sPound, Fifty Years of Jurisprudence (pts. 3.Pound, supra note 33, at 513-14; cf. POUND, 1-2), 51-52 HARv. L. REV. 444, 777 (1938); Purpose of Sociological OUTLINES OF LECTURES ON JURISPRUDENCE Pound, The Scope and 32-34 (5th ed. 1943). Jurisprudence (pt. 3), 25 HARv. L. REV. 489 3 Pound, A Call for a Realistic Jurisprudence, (1912); cf. Thomas Cowan's article in INTER- 44 HARv. L. REV. 697, 710-11 (1931); cf. PRETATIONS OF MODERN LEGAL PHILOSOPHIES: POUND, OUTLINES OF LECTURES ON JURIS- ESSAYS IN HONOR OF ROSCOE POUND 130-42 PRUDENCE 35 (5th ed. 1943). (Sayre ed. 1947). RosCOE POUND ordering of human conduct through the more, the element of precepts contains systematic application of the force of within itself four distinct concepts. First, politically organized society. In this sense there is the rule or precept in the strict it is called a regime of social control. sense, which determines a detailed set of Secondly, it means the sum of the au- consequences for a determined state of thoritative grounds for judicial and ad- facts. Secondly, there are principles or ministrative decisions in such a society. authoritative starting points for legal rea- Thirdly, it may mean what is called the soning. Thirdly, there are legal concep- "judicial process." A fourth meaning can tions or authoritative categories into be added since the term "law" can be, which cases are fitted, and by reason of and often is, used to mean all three of which certain rules and principles become 3 9 the other meanings just mentioned. applicable, as, for example, sale and When we speak of a "science of law," trust. And, fourthly, there are standards42 we are using the term in the second or measures of conduct prescribed sense. It is in this sense that Dean Pound by law from which one departs at his uses the term in analyzing the science of own peril, as, for example, the standard law,40 and it is likewise in this sense that of due care not to cause an unreasonable it will be used here unless otherwise in- risk of injury to others.4 dicated. In speaking of law in this second sense Used in this second sense as the body there is a temptation to think only of of authoritative grounds for decisions, precepts, and then only of the rules or law is not a simple concept. There are precepts in the strict sense. But in truth contained within it three elements: pre- the element of technique, or "art of the cepts, technique, and ideals.4 1 Further- lawyers' craft," and the element of ideals are quite as authoritative and no less im- 3,Pound, A Comparison of Ideals of Law, 47 HARV. L. REV. 1-2 (1933); cf. POUND, JUSTICE portant. It is the element of technique ACCORDING TO LAW 48 (1951); Pound, which distinguishes the two great modern My Philosophy of Law, MY PHILOSOPHY OF systems of the law.4 4 The technique of LAW, CREDOS OF SIXTEEN AMERICAN SCHOLARS (1941). the common-law lawyer consists in reason- 40 See POUND, JUSTICE ACCORDING TO LAW ing by analogy from reported judicial de- 49 (1951): "The second sense is the one in cisions while considering statutes as fur- which Lawyers habitually use the term 'law.' nishing a rule for the class within its pur- It is the meaning which the word has borne since the classical Roman jurists and the one to which we may well restrict it in the science ground of juristic writing and judicial decision." of Law." Ibid. 8 ENCYC. Soc. Sci. 486 (1932). 4) POUND, op. cit. supra note 40, at 50. 4 POUND, op. cit. supra note 40, at 58. "There "[Alnalytical jurists had in mind the precept is a characteristic element of fairness or reason- element of law . . . historical jurists had in ableness in standards which makes them a mind very largely the [technique] traditional point of contact between law and morals." Ibid. art of the lawyer's craft . . . and philosophical 43 Id. at 56-58. See, e.g., POUND, SOURCES AND jurists had in mind the ideal element in law. FORMS OF LAW (1946); 8 ENCYC. SOC. SCI. Today we may very well give up these dis- 477-92 (1932). cussions. All three elements should be con- 44POUND, op. cit. supra note 40, at 50-51; sidered and together they constitute the back- POUND, THE TASK OF LAW 47-48 (1944). 13 CATHOLIC LAWYER, SPRING 1967

view and not as a starting point for legal recognized and to what extent it shall be reasoning. The civil law, on the contrary, recognized. reasons by analogy from legislative pre- Considering the elements just discussed cepts while considering court decisions as we can define law as "a body of authori- establishing only one precise point for tative precepts, developed and applied by the case in litigation and not as a point an authoritative technique in the light of of departure for legal reasoning. authoritative traditional ideals." 47 This Like technique, the ideal element does is a definition of law in its second sense, not determine a detailed set of conse- and is the way it is used in the science quences for a detailed state of facts. But, of law. It is, therefore, this sense of the in the deciding of causes, it is of great word with which we are chiefly con- importance and is, indeed, decisive in cerned. However, at this time it would new cases when there is necessity of not be without value to examine other choosing from among equally authorita- meanings of law given by Pound from tive principles. This ideal element is "a different points of view. Since it is ex- picture of the social order of the time tremely difficult to find a definition in and place, a legal tradition as to what the writings of Dean Pound, the nearest the social order is and so as to what is approach is descriptions from different the purpose of social control, which is points of view. Besides the one just given the authoritative background of interpre- we find three others that consistently ap- tation and application of legal pre- pear in Pound's writings. cepts." 45 The ideal element, in that it Firstly, as a regime, law is defined as presents a picture of what the legal order a highly specialized form of social control ought to be and what it ought to achieve, in a politically organized society exercised is undoubtedly the most important ele- through the systematic and orderly ap- 48 ment.4 6 This is just, since in practical plication of the force of such a society. science the end is first in intention and It is the force of politically organized so- is an element in the premises of the prac- ciety which constitutes the formal element tical discourse. As we shall have occa- of law. sion to see in greater detail later, the From still another point of view, which ideal element has a preponderant role might aptly be called the origin, law is when there is question of weighing inter- defined as experience developed by rea- ests to determine which one shall be son and reason tested by experience; it is experience organized and developed by 45 POUND, JUSTICE ACCORDING TO LAW 54 reason, authoritatively promulgated by (1951); POUND, THE FORMATIVE ERA OF AMER- the lawmaking organs of society and ICAN LAW 28-29 (1938); Pound, A Comparison of Ideals of Law, 47 HARV. L. REV. 2-3

(1933); Pound, The Ideal Element in American 47POUND, JUSTICE ACCORDING TO LAW 50 Judicial Decision, 45 HARV. L. REV. 147-48 (1951). (1931); Pound, The Theory of Judicial 4 POUND, JUSTICE ACCORDING TO LAW 48 Decision, 21 HARV. L. REV. 958 (1923). (1951); Pound, My Philosophy of Law, My 46 Pound, The Theory of Judicial Decision, 21 PHILOSOPHY OF LAW, CREDOS OF SIXTEEN HARV. L. REV. 958 (1923). AMERICAN SCHOLARS 249 (1941). Roscoe POUND backed by the force of that society.4 9 with a minimum of friction and waste. The importance of reason is insisted upon This composite definition reveals essen- throughout, but it is not reason operating tially the nature of law according to in a vacuum. It must be reason tested Pound, but it must be elaborated in a and guided by experience. little more detail. He constantly refers to Finally, viewed with regard to its end, law as a process of social engineering. law is defined as a task of social en- This, however, is somewhat misleading. gineering designed to eliminate friction The analogy with engineering is not im- and waste in the satisfaction of unlimited mediately evident. Engineering is a prac- human interests and demands out of a tical art which seeks to bring into con- limited store of goods in existence.50 This crete existence a plan which has been is undoubtedly the most important aspect conceived and drawn up in detail in ad- of Pound's doctrine of law. He insists vance. It is difficult to see that Pound always that law cannot be judged with looks upon law as striving to achieve an reference to itself, as the analytical school orderly plan which has been well for- judges, or with respect to an ideal picture mulated in advance. He expressly denies of law, as the formalists do, but must that law is a reflection of divine reason be judged functionally with respect to its governing the universe or of a God-given end. The relationship between this view order.5 1 Rather it is a process of social of law and the ideal element already dis- adjusting; a system of practical com- cussed is readily seen, since it is the ideal promises of conflicting and overlapping element which proposes the end which interests."2 the law should effect and it is with a In a world in which there are an un- view to the ideal element that demands limited number of human demands and and interests are classified and either desires but where the means of satisfying granted or denied recognition. those demands are limited it is inevitable Having seen four definitions of law that conflicts should arise. These conflicts from different points of view, we can are resolved by giving legal effect to one make a synthesis and achieve a composite interest which thus becomes a legal right, definition comprising all the meanings or simply a "right." In law we must given by Pound: Law is a system of reconcile and adjust these conflicting in- guides to judicial decisions, including pre- terests or claims so as to secure as much cepts, technique, and ideals, found by of the totality of them as we can.5 reason, tested by experience, promulgated by the authority of politically organized 51 Pound, The Theory of Judicial Decision (pt. society and backed by the force of that 3), 21 HARV. L. REV. 594 (1923). 52 POUND, THE FORMATIVE ERA OF AMERICAN society, for the purpose of securing the LAW 125-26 (1938). maximum of human interests and satisfy- 53 POUND, JUSTICE ACCORDING TO LAW 31 ing the maximum of human demands (1951); cfI. Pound, My Philosophy of Law, MY PHILOSOPHY OF LAW, CREDOS OF SIXTEEN 49 POUND, THE TASK OF LAW 62 (1944). AMERICAN SCHOLARS 259 (1941); Pound, Philo- 5( POUND, SOCIAL CONTROL THROUGH LAW 64 sophical Theory and International Law, 1 (1942); 8 ENCYC. Soc. Sci. 487 (1932). BIBLIOTHECA VISSERIANA 89 (1923). 13 CATHOLIC LAWYER, SPRING 1967

It is incorrect, Pound tells us, to speak and compromised so that neither is fully of rights before interests have been de- satisfied nor completely sacrificed.5 fined, delimited, and recognized by law. Pound has outlined an elaborate hier- Once this has been done, "rights" are the archical system of interests which are to means by which interests are secured. be recognized, or are pressing for recog- Theories of natural right erred in con- nition. It is not our intention to enter fusing the interest which the law should into the practical details of his legal secure with the rights by which it is se- theory to too great an extent, but since cured. For Pound a natural right is this theory of interests forms the central nothing other than an interest which we core of his theory it must be presented at think should be secured, a demand which least in summary form. The interests we think ought to be satisfied.5 4 An in- which the law should recognize and to terest exists independently of any law which it should give effect are classified and is not a creature of the state, but in three major groups. They are social it is an error to think that it has any interests, public interests, and individual binding force until defined, delimited, and interests.5 7 An interest, for the purpose recognized by the law. of the law, is a claim or demand which In the light of what principles are these human beings make either as individuals interests classified, defined, delimited and or in groups or associations and of which recognized? Pound renounces any pre- the legal order must take account. Individ- tense of immutable principles or absolute ual interests are those claims which in- judgments. For him it is a matter of dividuals make as individuals and assert compromise of conflicting interests.5 5 So in title of that individual life. Public in- long as a satisfactory compromise can be terests are those claims asserted in title reached and we may satisfy a social want of life in politically organized society. without a disproportionate sacrifice of And, finally, social interests are those de- other interests there are no natural, neces- mands and claims asserted in title of so- sary reasons why we should not do so. cial life in civilized society; they are Not all interests can be satisfied, at least treated as the claims of the entire social not fully; where interests of equal valor 5,"What I do say is, that if in any field of are in conflict they must be reconciled human conduct or in any human relation the law, with such machinery as it has, may satisfy 5-4POUND, THE SPIRIT OF THE COMMON LAW a social want without a disproportionate sac- 91-92 (1921). rifice of other claims, there is no eternal limi- 55 "But I am skeptical as to the possibility of tation inherent in the nature of things, there an absolute judgment. We are confronted at are no bounds imposed at creation, to stand this point by a fundamental question of social in the way of its doing so." POUND, Op. Cit. and political philosophy. I do not believe that supra note 55, at 97-98; cf. POUND, SOCIAL the jurist has to do more than recognize the CONTROL THROUGH LAW 78 (1942). problem and perceive that it is presented to 5 Pound, A Survey of Social Interests, 57 him as one of securing all social interests so HARV. L. REV. 1 (1943); cf. POUND, THE TASK far as he may, of maintaining harmony among OF LAW (1944); POUND, OUTLINES OF LEC- them that is compatible with the securing of TURES ON JURISPRUDENCE (5th ed. 1943); all of them." POUND, AN INTRODUCTION TO THE POUND, SOCIAL CONTROL THROUGH LAW (1942). PHILOSOPHY OF LAW 96 (1922). This division is attributed to Ihering. RoscoE POUND group. 58 Not every claim that men might pair their efficiency. This includes inter- make is necessarily or always in one of est in the security of domestic institutions, these groups, but when they are com- religious institutions, political institutions, pared for the purpose of adjusting con- and, more recently, economic institutions. flicts they must be compared with refer- Pound's third social interest is in the ence to the same group. In general, they general morals, or the claim that social should be compared under the most gen- life in civilized society be secure against eral form, i.e., social interests. 59 While forms of action offensive to the moral the law of the last century saw only in- sentiments of the general body of individ- dividual interests, the law today is more uals therein for the time being. This in- and more subsuming them to social in- cludes policies against such misdemeanors terests. Wherever a demand can be sat- as dishonesty, corruption, gambling and isfied if treated as a social interest rather things of immoral tendency. than an individual one, it should be con- Fourthly, there is the social interest in 60 sidered a social interest. For this rea- the conservation of social resources, or son Dean Pound devotes most of his the claim that the goods of existence shall planning to social interests as being the not be wasted; that courses of conduct more inclusive order. which tend needlessly to destroy these The first of Pound's social interests is goods be restrained. This refers chiefly the interest in the general security. This to common property which is used but is a claim that social life be secure against not owned by individuals, and is closely forms of actions and courses of conduct related to the interest in the protection which threaten its existence. In its sim- and training of dependents and defectives. plest form, this interest is concerned with Fifth is the social interest in general the general safety as the highest law, but progress, or the demand that the develop- it extends to such forms as interest in ment of human powers and of human general morals, general health, peace, control over nature for the satisfaction of order, security of transactions and of ac- human wants go forward; the claim that quisitions. social engineering be increasingly and Second is the social interest in the continuously improved for the develop- security of social institutions, i.e., the ment of human powers. This includes claim that fundamental institutions of so- interest in economic, political and cul- cial life be secure from courses of con- tural progress. duct that threaten their existence or im- Sixth, and last, is the social interest in 58 Pound, A Survey of Social Interests, 57 HARV. the individual life. This is in many ways L. REV. 1-2 (1943). the most important. It is the claim that 59 Id. at 2-3. each individual be able to live a human 60 Pound, A Comparison of Ideals of Law, 47 HARv. L. REV. 15 (1933); cf. POUND, life in civilized society according to the OUTLINES OF LECTURES ON JURISPRUDENCE 32- standards of that society. 34 (5th ed. 1943); Pound, The Scope and Such, in brief, are the social interests Purpose of Sociological Jurisprudence (pt. 3), 25 HARv. L. REV. 489 (1912). which are recognized or are coming to 13 CATHOLIC LAWYER, SPRING 1967 be recognized by the law.6 1 When looked son. This interest includes the claim to at functionally, and it is in this way that integrity, freedom of action and honor of it must be viewed,6 2 the law is an attempt the state as a moral person, as well as to satisfy, to reconcile, these conflicting the claim of the state as a corporation to and overlapping interests and claims hold property for corporate purpose. either through securing them directly, or And, secondly, there is the interest of through securing certain individual inter- the state as the guardian of social inter- ests so as to give effect to the greatest ests.6" But, he concludes, to the extent total of interests, or the interests that that the public interest is one only of the weigh most, with the least possible sac- dignity of the sovereign, it ought to give rifice of the scheme of interests as a way under modern conditions."5 As al- whole. ready mentioned, whenever possible the The public and individual interests are interests should be subsumed to the social less elaborately treated by Pound and the interests as the more inclusive order. In- reason is not difficult to divine. From dividual interests are given a still more the social interests just presented it is summary treatment. Most of the interests possible to see how most of the public which formerly were granted as belonging and individual interests could be sub- to individuals as individuals are now, he sumed to the social interests. And where says, subsumed under social interests. this is possible, he finds it desirable that Thus the right of the individual to pos- it should be so done. 63 Yet he does not sess property is taken as a social interest neglect the public or individual interests in security of possessions. 66 The right to altogether. The public interest is, first, expect exact performance of promises and the interest of the state as a juristic per- contracts is subsumed to the social in- terest in security of contract and transac- G6The essentials of this summary are taken tions. 67 However, the common law is from Pound, supra note 58. They may also coming more and more to recognize the be found in: POUND, OUTLINES OF LECTURES promises. 6 ON JURISPRUDENCE (5th ed. 1943); POUND, SO- binding force of such CIAL CONTROL THROUGH LAW (1942); POUND, It remains to be seen upon what basis THE SPIRIT OF THE COMMON LAW (1921); these interests are so classified and either cf. Patterson, Pound's Theory of Social In- terests, INTERPRETATIONS OF MODERN LEGAL recognized or denied recognition. Pound PHILOSOPHIES: ESSAYS IN HONOR OF ROSCOE believes that the basis for such a classi- POUND (Sayre ed. 1947); FRIEDMANN, LEGAL fication is what he calls the presupposi- THEORY 230-31 (2d ed. 1949). 62Pound, Fifty Years of Jurisprudence (pt. 2), 52 HARV. L. REV. 777, 812 (1938); POUND, 64Pound, A Survey of Public Interests, 58 OUTLINES OF LECTURES ON JURISPRUDENCE 32- HARV. L. REV. 910 (1945). 34 (5th ed. 1943); POUND, INTERPRETATIONS 65Id. at 925. OF LEGAL HISTORY (1923); Pound, The Call 66 Pound, A Survey of Social Interests, 57 for a Realistic Jurisprudence, 44 HARV. L. REV. HARv. L. REV. 1, 20 (1943); cf. POUND, AN 697, 710 (1931); Pound, The Scope and Pur- INTRODUCTION '10 THE PHILOSOPHY OF LAW pose of Sociological Jurisprudence (pt. 3), 25 234 (1922). HARV. L. REV. 489 (1912). 67 Pound, supra note 66; cf. POUND, op. cit. 63 Cf. POUND, CRIMINAL JUSTICE IN AMERICA supra note 66, at 237. 145 (1930). 684 ENCYC. Soc. ScI. 42 (1932). ROSCOE POUND tions of civilization, or, the "jural postu- In the light of these "jural postulates" lates." These are the reasonable expec- the various interests which press for rec- tations which all men have in civilized ognition are examined, defined, delimited society. They are the minimum require- and, if recognition is granted, they are ments in order that that society may secured by the law. survive.69 Stated briefly these postulates are, first, in civilized society men must The End of Law be able to assume that men will commit What the end of law should be accord- no intentional aggressions upon them. ing to Pound has already been briefly Secondly, we must assume that men may intimated but since it plays such a pre- control for beneficial purposes what they ponderant role in his legal theory it must have discovered and appropriated for receive greater consideration than already their own use, created by their own labor, given. or acquired according to the existing so- Analyzing the history of law Pound cial and economic order. Third, we must finds three theories of the end of law assume that those with whom we deal that have been held successively in legal will act in good faith, making good their history and a fourth which is beginning promises, carrying out their undertakings to assert itself. The first, and simplest, according to the expectations of the mor- which existed in the period of primitive al sentiment of the community, and re- law, was that of keeping the peace at 71 storing specifically or by equivalent what any price. Under the influence of comes to them by mistake or in any way Greek philosophers this was superseded whereby they receive at another's expense by the second theory which was one of what they could not expect to receive preserving the status quo. This theory under other circumstances. Fourth, we maintained itself through the period of must assume that men will act with due classical Roman law, and, except for a care not to cast on others an unreason- brief interruption of primitive law under able risk of injury. And, finally, we as- German influence, through the Middle 72 sume that those who keep things, such as Ages. According to this theory, the animals, which are likely to get out of end of law is to insure social stability by hand and do damage will restrain them putting everybody in his place and keep- within proper bounds. 0 ing him there. Emphasis is on the social order, with the individual destined to

69 POUND, AN INTRODUCTION TO THE PHILOSOPHY serve that order at all costs to personal OF LAW 169-79, 188 (1922); cf. POUND, IN- liberty. TERPRETATIONS OF LEGAL HISTORY 148-49 (1923); POUND, SOCIAL CONTROL THROUGH LAW Jurisprudence, ANN. SURVEY AM. L. 913, 920- 112 (1942); POUND, THE SPIRIT OF THE COM- 21 (1942); POUND, INTERPRETATIONS OF LEGAL MON LAW 82 (1921). Pound admits borrow- HISTORY 148-49 (1923). ing these postulates from Kohler. Cf. KOHLER, 11POUND, AN INTRODUCTION TO THE PHILOS- PHILOSOPHY OF LAW 83 (1914). OPHY OF LAW 72-74 (1922); POUND, THE SPIRIT 7O POUND, AN INTRODUCTION TO THE PHILOSOPHY OF THE COMMON LAW 85-87 (1921). OF LAW 169-79, 188 (1922); cf. FRIEDMANN, 72 POUND, AN INTRODUCTION TO THE PHILOSOPHY LEGAL THEORY 233 (2d ed. 1949); De Sloov~re, OF LAW 78-79 (1922). 13 CATHOLIC LAWYER, SPRING 1967

With the beginning of law in the end of law as the maximum of self- modern sense, after the Protestant Revolu- assertion jurists began to think of it as tion, the emphasis shifted from society to the maximum satisfaction of wants and the individual. At first the purpose of interests. The problem for jurisprudence law was conceived as securing natural became one of finding the criteria of the rights, which got their warrant from the relative value of interests.7 4 Pound adopts inherent moral qualities of man; there this German Interessenjurisprudenz, de- should be no restraint for any other pur- veloped from the ideas of Ihering, and pose. In the nineteenth century, this gave it its greatest elaboration in his mode of thought turned metaphysical with sociological jurisprudence. juristic emphasis on individual conscious- Law is spoken of by Pound as one 7 5 ness; the social problem was one of very specialized form of social control. reconciling conflicting human wills. Kant As such, the end of law must ultimately had rationalized the law in these terms be the same as the entire system of social as a system of principles or universal control, the other agencies of which are rules applied to human actions whereby morals, religion, family and school. And the free will of each might coexist with so he tells us that the end of law is, at the free will of all others making a maxi- bottom, the end of social control.76 But mum of self-expression the end of law. the other agencies of social control no 77 Hegel also emphasized liberty and longer exercise an organized effect. rationalized law as an idea of liberty Hence, in modern society, law has be- 7 8 being realized in human experience. come the paramount agency. Bentham considered law as a body of 74 POUND, op. cit. supra note 72, at 89; rules laid down and enforced by the state, POUND, JUSTICE ACCORDING TO LAW 19-20 the end of which was to secure a maxi- (1951); cf. POUND, NEW PATHS OF THE LAW mum of happiness conceived as free in- 4-5 (1950). 75Compare the definitions of law as found Spencer also dividual self-assertion. in footnotes 48-50 supra. conceived of the function of law as 76PoUND, My Philosophy of Law, My PHI- promotion, the liberty of each limited LOSOPHY OF LAW, CREDOS OF SIXTEEN AMERICAN SCHOLARS 250-52 (1941): "If, as lawyers must, only by the liberty of all. 73 In any of we look at law, in all of its senses, functionally these ways, the end of law was conceived with respect to its end, as the end is at bottom as that of securing the greatest possible the end of social control, our science of law individual self-assertion. cannot be self-sufficient. Ethics has to do with another great agency of social control covering Toward the end of the last century much of the ground covered by the legal and the beginning of the present, the order and having much to tell us as to what emphasis in juristic thinking began to legal precepts ought to be and ought to bring about." shift from human wills to human wants ,7 POUND, SOCIAL CONTROL THROUGH LAW 21- or desires. Instead of thinking of the 25 (1942). 78 POUND, op. cit. supra note 77, at 20: "In the modern world law has become the par- 73 POUND, op. cit. supra note 72, at 83-84; amount agency of social control. Our main re- POUND, THE SPIRIT OF THE COMMON LAW 87, liance in the society of today is upon the force 194 (1921). of politically organized society." RoscoE POUND

Now, we can ask, what is the end of middle of a road, which direct human social control of which law is the para- actions the way they ought to go.82 Still mount agency? It is defined as an ideal using traffic regulations as an example, he of co-operation toward civilization, to tells us that law must form habits of raising human powers to their highest proper behavior instead of waiting for possible unfolding, to a maximum of them to develop,89 even though the reason- human control over external and internal ableness of the law is not apparent at nature for human purposes.79 Pound is once to all. In still other instances he speaking in the same vein when he refers says that the end of law is justice, which to law as giving external support to man's in turn is defined as "an ideal relation social instincts as against his selfish, among men." 84 aggressive instincts, approving the opinions Looked at functionally with respect to of some last-century jurists who spoke of its end, which is the end of social control, law and government as extensions of in- law is not self-sufficient. It depends dividual self-control.,' Law, unlike the upon other agencies, especially ethics, to laws of physical sciences which are point out what legal precepts ought to be 8 5 based on observation of what is, must be and what they ought to effect. based on experience and observation of This presentation of the end of law what ought to be, of how men ought to would be readily acceptable to any conduct themselves in relation with scholastic philosopher and it is all found others.8 ' The law is compared to some in Pound's writings. However, he fre- traffic regulations, such as lines in the quently contradicts these statements or qualifies them until they have no mean- 151POUND, op. cit. supra note 77, at 127, 132: "An ideal of civilization of raising human ing, or at least, no acceptable meaning powers to their highest possible unfolding of left. Thus the highest development of external the maximum of human control over human powers 86 loses some of its lofty nature and over internal nature for human of social interests purposes .. "; Cf. POUND, A SURVEY OF SOCIAL appeal in his survey INTERESTS 30 (1943): "Social interest in gen- when he goes on to explain that this fifth eral progress, that is the claim . . . that the interest, which he calls the "social in- development of human powers and of human 87 covers control over nature for the satisfaction of terest in general progress," human wants go forward, the demand that social engineering be increasingly and continu- ." See also 8 ENCYC. Soc. Sci. 485 ously improved, as it were the self-assertion of (1932). the social group toward higher and more com- 82 POUND, CRIMINAL JUSTICE IN AMERICA 29 plete development of human powers." (1930). 80 POUND, THE TASK OF LAW 25-26 (1944). 83 POUND, op. cit. supra note 80, at 65; cf. 81 POUND, op. cit. supra note 80, at 49; POUND, POUND, JUSTICE AcCORING To LAW 17 (1951). SOCIAL CONTROL THROUGH LAW 32 (1942): 84 POUND, op. cit. supra note 80, at 19. "But we are not dealing with physical nature, 85 POUND, SOCIAL CONTROL THROUGH LAW 62 as to which opinions of good and bad and (1942); Pound, My Philosophy of Law, MY criticisms of its phenomena are irrelevant. We PHILOSOPHY OF LAW, CREDOS OF SIXTEEN are dealing with phenomena in the domain and AMERICAN SCHOLARS 252 (1941). under the control of the human will and that 8r Cf. note 9 supra. it does not tell the whole story. Here the 87 POUND, A SURVEY OF SOCIAL INTERESTS 30 ultimate question is always what ought to be. (1943). 13 CATHOLIC LAWYER, SPRING 1967 such major policies as freedom of prop- human claims and desires with a mini- erty, free trade and protection from mum of friction and waste.9 1 This tells monopoly, free industry, and encourage- us not only what law does but also what 92 ment of inventions, as well as a policy of it ought to do. political progress through free criticism, free education and the like."" Sources of Law The conflict between selfish instinct In considering the question of the and social instincts 89 which law is to help sources of law there are two major prob- control is seen to be a conflict between lems. First, there is question of the moral virtue and justice. The self- proximate authoritative sources from assertive instincts are identified with in- which the existing legal precepts are dividual moral development and the so- drawn. Secondly, there is the issue of cial instincts with justice. The two are the source of the authority of the law as seen to be in essential conflict. Hence such. 93 The second of these poses three law must maintain one set of moral distinct problems: the immediate practical values against another.90 source, the ultimate practical source, and By justice as the end of law, Pound the ultimate moral source of the authority 9 4 does not mean an individual virtue; nor of law. In dealing with the first prob- does he mean the ideal relation among lem the term "source" has been, and still men. Rather he means a regime, an is, used to mean at least four different adjustment of relations and ordering of things: the authoritative texts which are conduct so as to satisfy the maximum of the bases of juristic and doctrinal devel- opment; the "raw materials" from which judges derive the grounds for deciding 88 Ibid. 89 Cf. note 10 supra. cases; the formulating agencies by which 0 ' POUND, THE TASK OF LAW 25, 36 (1944): rules and principles are shaped; and the "Undoubtedly there are inherent difficulties in literary shapes in which precepts are a regime of justice according to law. But we must pay a price for order, security, and a found. This last Pound prefers to call developed economic order. We must pay a "form" rather than "source" of law. 95 price for a balance of security, justice in the All of these answer the questions of how sense of the ideal relation among men, and morals in the sense of the highest individual and by whom the content of the precepts development. No one of these can be carried has been worked out, and whence they out to a logical extreme at the expense of the others. Free individual self-assertion-spontan- eous free activity-on the one hand, and l POUND, SOCIAL CONTROL THROUGH LAW 64- ordered, even regimented cooperation, are both 65 (1942). agencies of civilization. A social order which 92Pound, My Philosophy of Law, My Pm- ignores and would repress either is not moving LOSOPHY OF LAW, CREDOS OF SIXTEEN AMERICAN toward the highest unfolding of human pow- SCHOLARS 252 (1941). ers." Cf. POUND, JUSTICE ACCORDING TO LAW o9 POUND, SOURCES AND FORMS OF LAW 3 21 (1951), citing Radbruch whom Dean Pound (1946). had just referred to as the ". . . foremost phi- 94 POUND, SOURCES AND FORMS OF LAW 5 losopher of law . . . in the present generation" (1946); POUND, SOCIAL CONTROL THROUGH LAW as saying there is an irreducible antimony be- 51 (1942). tween justice, morals and security. !) POUND, op. cit. supra note 93, at 3-5. RoscOE POUND

derived their content as distinct from than a source. But if the decisions are their force and authority. 96 so well formulated that they are adopted A. Source of Content by a higher court they become authorita- Considering the factors to which legal tive and so are a source of law. 0' precepts owe their content, Pound finds Scientific discussion is a source of law there are six: usage, religion, moral and when the discussions of text writers and philosophical ideas, adjudication, scientific commentators are given formal authority discussion and legislation. 9 by being embodied in the decisions and Usage becomes a source of law when statutes of courts or legislatures. Doctrinal a rule or principle that has been worked writing has been a very important agency out and formulated by common usage is in formulating our law. "While in form given the authority of law by courts or our law is chiefly the work of judges, in legislature. The usage of merchants is an great part judges simply put the guinea example. 98 Religion, in earlier stages of stamp of the state's authority upon pro- legal development, was a principal positions which they found worked out source. In modem law, particularly on for them in advance. Their creative the Continent, the influence of the law work was often a work of intelligent

of the Church is still evident; 19 moral selection." 102 Finally legislation or direct and philosophical ideas have their in- formulation of legal precepts by the law- fluence not only in affecting old precepts making organs of the state is an im- but also in shaping, or helping to shape portant source of law. This is a par- new ones. This is particularly true in ticularly important source in civil law times when equity and natural law are a jurisdictions, while it is less so in com- predominant force and there is a tendency mon-law systems, and, in America, has to identify law and morals. 10 Adjudica- made no lasting contribution to law.103 tion gives rise to a tradition of judicial Briefly, the forms or literary shapes in action as usage gives rise to a tradition which the common law of the United of popular action. In civil law systems, States are found authoritatively expressed where legislative precepts rather than are seven: 1) decisions of old English judicial decisions form the starting point courts (before the American Revolution); for legal reasoning, a settled course of 2) American judicial decisions, after the decision may be a form rather than a Revolution; 3) judicial decisions of Eng- source of law. In common-law systems lish and other common-law jurisdictions a course of judicial decisions which has since the Revolution; 4) the Law Mer- only persuasive authority is a form rather 101 POUND, SOURCES AND FORMS OF LAW 25 9CPOUND, op. cit. supra note 93, at 5. (1946). 07 POUND, op. cit. supra note 93, at 5-9. 102 POUND, op. cit. supra note 101, at 7-8; cf. 98 Ibid. POUND, THE FORMATIVE ERA OF AMERICAN 90 POUND, THE SPIRIT OF THE COMMON LAW LAW 42-43 (1938). ch. 2 (1921); cf. Puritanism and the Common 103 POUND, THE FORMATIVE ERA OF AMERICAN Law, ANN. PROC. KAN. B. ASS'N (1910). LAW (1938); POUND, THE SPIRIT OF THE COM- 00 POUND, LAW AND MORALS (1924); Law and MON LAW (1921); POUND, AN INTRODUCTION Morals, ANN. PROC. W. VA. B. ASS'N (1915). TO AMERICAN LAW (1920). 13 CATHOLIC LAWYER, SPRING 1967 chant; 5) the Canon Law of the Church of development: unconscious legislation, in some matters such as probate and declaratory legislation, selection and divorce; 6) International Law; and 7) amendment, conscious constructive legis- English statutes before the Revolution so lation, and habitual legislation as an far as they were applicable and received ordinary agency which often culminates 0 4 1 9 into the United States law.1 in codification. From the foregoing it is seen that a B. Source of the Authority of Law developed legal system is made up of two The source of the content of legal elements: a customary or traditional ele- precepts could be developed at much ment, and an imperative or legislative greater length. However, it is a question element. The customary element must of technical nature, of interest primarily 110 not be thought to derive from a customary to the jurist and legal historian. For mode of popular action. It is rather a our present purpose the source of the product of customary modes of profes- authority of law is of primary concern. sional or juristic handling of controversies This problem is not so elaborately devel- and is developed by professional writing oped by Pound as the former, but it pro- As and teaching. 05 The imperative element vides a better clue as to his philosophy. is that part of the legal system in the already indicated,", this question poses form of rules or standards authoritatively three distinct problems. promulgated by the legislative bodies of The first problem is that of the im- the state prior to judicial decisions, and mediate practical source of the authority is found to be usually prior to action.' of the legal order. This in the legislative and administrative bodies One more point remains for brief con- of politically organized society and backed sideration in connection with the content by the force of that society." 2 of legal precepts. We have just seen the The second question, that of the origin of the precepts. There remain ultimate practical source of authority, the modes of growth, or to use Maine's Pound considers to be a question for expression, the "agencies by which law political science to solve. However, he is brought into harmony with society." 107 submits, in our political theory we have The agencies of growth through the tradi- come to accept the theory that the source tional element are eight: fictions, inter- is consent-the consent of a free people pretation, equity, natural law, juristic to be ruled by a government of their own science, judicial empiricism, comparative 08 choosing and by laws which they ap- law, and sociological studies. In the 1 13 prove. imperative element there are five stages 1091d. at 74-75. 0 FORMS OF LAW 104POUND, op. cit. supra note 101, at 32; cf. " See POUND, SOURCES AND POUND, THE FORMATIVE ERA OF AMERICAN LAW (1946). (1938). I" Cf. note 94 supra. 105 POUND, SOURCES AND FORMS OF LAW 37 112 Cf. POUND, SOURCES AND FORMS OF LAW (1946). 5 (1946); POUND, SOCIAL CONTROL THROUGH 1oG Id. at 70. LAW 51 (1942). 107 Id. at 40. 113 POUND, SOCIAL CONTROL THROUGH LAW 52 108 Ibid. (1942). RoscoE POUND

Turning now to the ultimate moral he continues, for our purposes today we source of the authority of law Pound do not have to be guided by any God- notes that in the classical juristic theory it given order laid down once and for all, was held that law deduced its authority nor by any reflection of this divine reason 6 directly from justice and derived its bind- governing the whole universe." For our ing force from justice of which it is purposes, he continues, and the point is declaratory. Today, the dominant legal sufficiently significant to warrant direct philosophy tells us we cannot speak of an quotation: "If but his precept is other- ultimate moral source. But he submits wise good social engineering, it is quite that the legal order has kept authority immaterial what are the premises of the because it performs, and performs well, legislative lawmaker or how he develops them or whether he has any premises at the task of social engineering; in other all." 117 words, because it works."' Is it possible that law can achieve its It might well be asked upon what purpose without principles, that justice premises this work of social engineering can be really attained by a process of is effected, upon what principles we select compromising and reconciling conflicting and classify, compromise and reconcile claims? If a compromise has been suc- the overlapping and conflicting demands cessfully effected in a controversy can which press for recognition. We cannot we really say that justice has been real- reconcile conflicting demands except in ized? For Pound the answer must neces- the light of some principle of justice, some sarily be affirmative."" The judicial pro- idea as to the end of law. Pound tells cess is one not of seeking a reasonable us that in the past the process of social principle of justice but of a trial and engineering has been governed by ideals error method of finding the workable of the end of law and the legal and social legal precept."19 The workableness, the order, and so it should be today.' 15 But, and of the legal and social order, and it is 114 Id. at 53: "The classical juristic theory is submitted that such ideals must be our reliance that law may be deduced directly from justice, today and tomorrow." from the ideal relation between men, and owes "'ild. at 954. its binding force to the binding force of 117 Id. at 956. justice which it declares. The dominant legal 118 Cf. Pound, My Philosophy of Law, My philosophy of today tells us that we cannot PHILOSOPHY OF LAW, CREDOS OF SIXTEEN answer this question. . . . But the legal AMERICAN SCHOLARS 252 (1941). order goes on, whatever may be the basis of 119 POUND, op. cit. supra note 115, at 953: whatever rightful authority it has, and I submit "Our chief agency of lawmaking is judicial em- it has kept and holds authority because it per- piricism-the judicial search for the workable forms, and performs well, its task of reconciling legal precept, for the principle which is fruitful and harmonizing conflicting and overlapping of good results in giving satisfactory grounds human demands and so maintains a social of decision of actual causes, for the legal order in which we may maintain and further conception into which the facts of actual con- civilization." See also Pound, The Pioneers troversies may be fitted with results that accord and the Common Law, 27 W. VA. L. REV. 1 with justice between the parties to concrete (1920). litigation. It is a process of trial and error 115 POUND, THE THEORY OF JUDICIAL DECISIONS with all the advantages and disadvantages of 953 (1923): "In the past it has been governed such a process." Cf. POUND, THE FORMATIVE and its path defined by ideals of the end of.law ERA OF AMERICAN LAW 124 (1938). 13 CATHOLIC LAWYER, SPRING 1967

functional approach, is always stressed however, we should speak rather of in- rather than the intrinsic reasonableness of terests than of rights. These interests are legal precepts. Therefore, because the the demands or desires which human intrinsic reason and justice of rules do beings, living in society, seek to satisfy not give them an unchallengeable author- and of which the legal order must take ity, he approved the jurists of the last account. These interests do not, however, century who rejected natural law. 2' give rise to an unchallengeable claim Necessarily connected with the ques- against society, or against other individ- tion of the source of the authority of law uals, until they have been defined, de- is that of the source of rights and obli- limited, and given legal recognition within gations. By reviewing Pound's opinions the defined limits. They are similar to as to the source of these rights and obli- what jurists used to call natural rights in gations we obtain a clearer insight into that they are not created by law and his theory of law. would exist independently of law. Looking first at the question of rights, "[M]uch of a kernel of truth . . . was in Pound reviews opinions of his predeces- the old ideas of a state of nature and in natural rights." 122 sors and notes that, in antecedent legal the theory of theories, it was commonly held that rights We can illustrate this shift in emphasis were a necessary consequence of human by one concrete example, the right to nature and pertained to man simply be- property. Pound sees in the institution cause he is man. They thought of law of property not a natural right which is as giving effect to these rights simply given effect by legal precept, but a wise 12 1 bit because they are natural rights. Now, of social engineering. Private prop- erty is a way of satisfying more interests, more demands and desires with a mini- 120 POUND, PHILOSOPHICAL THEORY AND INTER- 123 NATIONAL LAW 83 (1923): "Yet the jurists of mum of friction and waste. the last century were right in their judgment that the classical law-of-nature philosophy could the limits within which these interests shall be serve them no longer. They did not perceive recognized legally and given effect through legal that the facts of political life which it assumed precepts and by endeavoring to secure the and interpreted were changing fundamentally. interests so recognized within the defined But they did perceive vividly that its theory limits. For such a theory an interest may be of the source of legal obligation was unsuited defined within the defined limits. For such a to the times. A theory that found the binding theory an interest may be defined as a demand force of legal rules in the intrinsic reason and or desire which human beings, either individu- justice of the rules themselves did not put be- ally or in groups, seek to satisfy and of which hind its rules the unchallengeable basis of therefore the ordering of human relations must authority which men have been eager to pro- take account .. " vide for the law of the land." CI. 8 ENCYC. 1221bid.; cf. POUND, THE TASK OF LAW 26-30 Soc. SCl. 483 (1932). (1944); POUND, AN INTRODUCTION TO THE 1218 ENCYC. Soc. Sci. 489 (1932): "Where PHILOSOPHY OF LAW 41-43 (1922). the nineteenth century thought of law as ex- 123 POUND, AN INTRODUCTION TO THE PHI- isting to give effect to natural rights . .. LOSOPHY OF LAW 234 (1922): "Social-utilitarian jurists since Ihering have thought of recogniz- theories explain and justify property as an in- ing, delimiting and securing interests. It is stitution which secures a maximum of interests conceived that a legal system attains its end or satisfies a maximum of wants, conceiving it by recognizing certain interests, by defining to be a sound and wise bit of social engineering Roscoe POUND

Turning next to the root of obligations, keep promises or to honor contracts Pound finds this also to be in social in- comes not from the will of the person terest. Emphasis is no longer on the in- who binds himself, but from the social 127 dividual will but upon the desires and interest in the security of transactions. 2 4 claims involved in civilized society.1 It is wise social engineering. If we think The basis for delictual fault is a jural that it is the order of nature it is only postulate of civilized society that men because the habitual application of the act with due care 125 and the basis for rules of an art come to be taken for 2 8 delictual liability is the social interest in granted.1 2 the general security. The obligation to Evaluation and Critique In the light of the expos6 just pre- when viewed with reference to its results. This sented of Pound's legal doctrine, we may is the method of Professor Ely's well-known evaluate, both positively and negatively, book on Property and Contract. No one has his contribution to the advancement of yet done so, but I suspect one might combine this mode of thought with the civilization in- jurisprudence. Recalling the problems terpretation of the neo-Hegelians and argue presented in the first chapter we may well that the system of individual property, on the inquire to what extent he has been suc- whole, conduces to the maintaining and further- ing of civilization-to the development of cessful in solving or alleviating those dif- human powers to the most of which they are ficulties. Naturally every solution of such capable-instead of viewing it as a realization a problem cannot be attributed to him of the idea of civilization as it unfolds in human experience. Perhaps the theories of the im- directly and individually, but in the de- mediate future will run along some such lines. velopment of American law during the For we have had no experience of conducting last half-century, he has a pre-eminent civilization on any other basis, and the waste and friction involved in going to any other role. Even yet he is not satisfied that the basis must give us pause. Moreover, what- law is perfect, but it must be admitted ever we do, we must take account of the in- that there have been many improvements stinct of acquisitiveness and of individual claims St. Paul in 1906.129 grounded thereon. We may believe that the since he spoke in law of property is a wise bit of social engineer- ing in the world as we know it, and that we 127 Id. at 188-90, 237; cf. Pound, Individual In- satisfy more human wants, secure more interests, terests of Substance-Promised Advantages, 49 with a sacrifice of less thereby than by anything HARv. L. REV. 1 (1945). we are likely to devise-we may believe this 128 POUND, op. cit. supra note 125, at 278: "Two without holding that private property is etern- circumstances operate to keep the requirements ally and absolutely necessary and that human of consideration alive in our law of simple con- society may not expect in some civilization, tract. One is the professional feeling that the which we cannot forecast, to achieve something common law is in an idealized form of natural different and something better." See also POUND, law and that its actual rules are declaratory of A SURVEY OF SOCIAL INTERESTS (1943); POUND, natural law. This mode of thinking is to be THE SPIRIT OF THE COMMON LAW 196-98 found in all professions and is a result of (1921). habitual application of the rules of an art until 124 POUND, A SURVEY OF SOCIAL INTERESTS they are taken for granted." (1943); POUND, AN INTRODUCTION TO THE 129We cannot agree with the observation of PHILOSOPHY OF LAW 169 (1922). Edmond Cahn that Pound appears ". . . so 125 POUND, AN INTRODUCTION TO THE PHI- well satisfied with the law as it now is." See LOSOPHY OF LAWN 170, 188-90 (1922). Cahn, Jurisprudence, ANN. SURVEY AM. L. 12C Id. at 177. 1160 (1944). From the time of his first 13 CATHOLIC LAWYER, SPRING 1967

Pound's main endeavor has been in the great personal success in winning adher- field of legal education. In this domain ents to his legal theory. He has earned alone he has contributed enormously for himself a host of friends, admirers towards raising the standards required for and followers nationally and internation- the legal profession. Not only has he as- ally. Yet it cannot be said that his every sisted in improving the basic require- effort was positive contribution. Many of ments for admission to the legal profes- his observations and conclusions merit sion, but also, by his voluminous reading critical examination. and writing, he has helped to create a A. Historical Critique interest in legal philosophy.130 widespread Our historical critique is not going to If there is a growing interest in natural be prolonged to include every historical law now in America, as there seems to observation, nor is it to be specifically 3 be,1 ' there can be no doubt but that detailed. However, there are a few points Pound helped to foster it. Though not a which need to be corrected. If it is not strong advocate of natural law himself, too pedantic to bring up such a point, it he has been largely responsible for intro- should be said, as a general criticism, ducing European ideas of legal philosophy that he is guilty of a methodological error into America. Realizing that there did on a grand scale. Time after time he exist a generation of lawyers who studied cites various authors with never a refer- law solely in terms of law divorced from ence to the locus. The reader is left with- all other social phenomena, he has striv- out an easy opportunity to read the text en, both in and out of the classroom, to in its context. It is extremely difficult, to bring about a closer alliance between law the point of impossibility, to check all the and the other social sciences."' references. In The Spirit of the Common Pound's efforts in the field of education Law, which he considers his most im- have been productive of some good re- portant work, Pound cites more than sixty sults elsewhere. It has helped to over- individual authors, either directly or in- come much of the "juristic pessimism" directly, besides groups of schools of 33 of which he spoke.1 It has enabled legal thought, without one reference note. other lawyers, as well as himself, to adapt For this reason we do not know his the laws of the country to changed social source of information when he writes and economic circumstances. about Aristotle, but he certainly could not Dean Pound has certainly achieved a have been reading Aristotle's text. Pound calls Aristotle the first of the mechanical major address, note supra, 1 until his book, jurists, for he held that the rule of law Justice According to Law, he has been seeking and suggesting methods for improving the was to be applied strictly without regard 1 3 4 law. for the justice of the individual case. 30 Cf. note 7 supra. Pound professed a great admiration for 1-3 Cf. Utz, Neue Str6mungen in der Nordam- erikanischen Rechtsphilosophie, 1949-50 ARCHIV FUER RECHTS-UND SOZIALPHILOSOPHIE 38. 13 C. POUND, AN INTRODUCTION TO THE 132 cf. note 30 supra. PHILOSOPHY OF LAW 109-10 (1922); POUND, 133 C. note 18 supra. THE SPIRIT OF THE COMMON LAW 86 (1921). ROSCOE POUND

Kohler, yet had he read Kohler correctly says, looks to the plurality of cases, but he would have discovered that Kohler is aware that his rule may not fit every admired Aristotle for just the opposite. 3 ' particular case. So the judge, in resort- However, it is not necessary to go to ing to equity to attain justice in an Kohler for approval of Aristotle. The individual case, is doing what the 1 41 text of Aristotle makes it clear that he legislator would do if he were there. looked on the judge as a sort of animate Pound's contention that the Scholastics justice. 136 He considered equity a correc- conceived of law as a matter of mere 137 tion of the law. authority can hardly be reconciled with Since Pound makes the same com- the definition of St. Thomas. For Pound, ments with regard to St. Thomas Aquinas reason came into the law after the as he did of Aristotle, we can turn for Reformation. 141 St. Thomas defines law contradictory evidence to Thomas' com- as essentially an act of reason.143 As mentaries on the same text of Aristotle. to its end, law is ordered to the common According to Pound, St. Thomas con- good 14 and not to putting everybody in ceived the end of law to be one of his place by force and keeping him there. putting everybody in his place and keep- The common good includes the ultimate ing him there. 1 38 As to the application happiness of all the members. of law in particular case, the Scholastics, Dean Pound appears to have been too says Pound, ignored the moral aspects of easily convinced by a popular Renaissance the case, asking only if the prescribed notion that the middle ages were dark legal forms were followed. 13 9 In his com- ages. Had he investigated the Scholastic mentary on Aristotle, St. Thomas also writers more carefully, rather than taking tells us plainly that the judge is con- the word of a secondary source, he sidered to be a sort of incarnate justice could not possibly have come to the in that his mind is totally possessed with conclusions he did. In helping to per- justice.'140 Likewise he praises equity as petuate a story that is no longer believed being more excellent in that it observes by prudent historians, he has rendered the intention of the legislator when his a disservice to scholarship in general as words are at variance with justice in an well as to jurisprudence. It is unbeliev- individual case. For the legislator, he able that a man of Pound's intellectual ability could commit so gross an error 35KOHLER, PHILOSOPHY OF LAW 6-7, 86 (1914). if the doctrine of St. Thomas on law had 136Aristotle, Nicomachean Ethics, in 5 THE ever once been presented to him ob- BASIC WORKS OF ARISTOTLE (1941). jectively. 13T Aristotle, Nicomachean Ethics, in 5 id. at Turning to contemporary scholars we 1137b10. 13S POUND, THE SPIRIT OF THE COMMON LAW 86-87, 98 (1921). '41 AQUINAS, op. cit. supra note 140, lect. 16. 39 Pound, The Theory of Judicial Decision, 36 142Pound, A Comparison of Ideals of Law, HARV. L. REV. 658 (1923). 47 HARV. L. REV. 10 (1933). 140 AQUINAS, IN DECEM LIBRos ETHICORUM 143 AQUINAS, SUMMA THEOLOGICA I-I, q. 90, art. ARISTOTELIS AD NICOMACHUM EXPOSITo, bk. V, 1. lect. 6, No. 955 (Marietti ed. 1934). 144 Id. at I-I, q. 90, art. 2. 13 CATHOLIC LAWYER, SPRING 1967 find that Dean Pound takes suitable to him to intimate that he extolls tech- phrases or ideas out of context and uses nique over science in law. But there is them to his own advantage. It has nothing to be gained by multiplication of already been noted that from Kohler he examples. This method of citation is takes thee jural postulates by a scissors- destined only to deceive. The use of con- and-paste method while rejecting the venient texts does not in any considerable principles upon which they were con- extent change the essential pragmatism of 4 5 ceived by Kohler.' Pound's legal theory. In a like manner, Pound claims to take B. Philosophical Critique his scheme of social interests from A philosophical critique of Pound's Ihering. For Ihering an interest presup- legal theory is much more difficult since poses a right and the interest is artificially there is very little of philosophy to be stimulated, if necessary, in order to main- found therein. This is not intended as tain rights. For Pound, on the contrary, a harsh criticism since he makes no great there are only interests which the law pretense at philosophy and very aptly may or may not recognize. Private refers to his theory as sociological juris- property for example, is considered by prudence. Nevertheless there are funda- Pound to be a wise bit of social engineer- mental presuppositions, the lack of ing, a way of securing more interests. For which is itself a matter of investigation Ihering, property is a part of personality in legal theory. 1 46 extended to things.' To speak of With Pound the difficulty is made property in terms of interest is, for him, greater by reason of his extraordinarily a degeneration of the proper sense of loose use of language and distrust of, or property and a denial of its natural disrespect for, logic. One well known 7 basis. ' In short, if one's knowledge of American professor of law was almost Ihering were limited to what can be driven to despair when he could not un- gained from Pound it would be very derstand the legal Realists. But he felt inexact. In effect he has taken from relieved to learn that Pound could not Ihering only the terminology of "interests" understand them, nor could they under- and given it an altogether different mean- stand him.148 The fact is, he rarely makes ing. a statement of consequence without sur- Another case in point is G~ny. Where rounding it with so many qualifying and he speaks of science and technique as conditional phrases that one wonders at necessary to law, Pound takes only the the end if he is speaking or quoting. elements of technique as though that were However, even with the lack of logic and all that was mentioned by Gfny. Grny loose language a few notions do emerge is the foremost natural-law legal scholar distinctly. in France, and it would be an injustice Definition of Law: It has already

145 POUND, INTERPRETATIONS OF LEGAL HISTORY been noted that Pound gives various 150 (1923). 146 IHERING, DER KAMPF 40. 148Lucey, Natural Law and American Legal 247 Ibid. Realism, 30 GEO. L.J. 493-94 (1942). RoscoE POUND descriptions of law but never arrives at been pointed out that for Geny the ele- a precise definition. 149 Each of the ment of technique is always secondary to descriptions reveals something of his the science and is at the service of philosophy of law but no one of them, science to realize the ends which the nor even all of them taken together, science of law proposes. But, as inter- gives a clear notion of what he means preted by Pound, the technique of G~ny by law. Nevertheless, by considering not becomes a means of attaining an order only the descriptions of law which he of peace among those who seek to gives, but also the various meanings of satisfy their own interests. law which he criticizes, one can gain a Taking the various descriptions which clearer concept of what he himself under- he gives, and the criticisms of other stands by law. jurists, we see that, for Pound, law is a compromise Thus Pound criticizes the ancient jurists imposed by authority in a society where each one seeks his own because they considered the purpose of interests. This definition, however, law to be the maintenance of peace. It has special qualities. is, therefore, clear that for Pound law It is not a pure positivist definition as, for example, we is not an instrument for securing and find in Kelsen. For Kelsen there is no maintaining peace in society. recognition of personality but only pure Likewise he criticizes Aristotle and the law. For him the notion of law is derived scholastics for holding that the end of purely from law as such, abstracting from law is the maintenance of the status quo. any concept of personality or of any The historical dubiety of this point has given society of persons. For Lauter- already been indicated. But from his pacht also, law is defined as an instru- criticism of this alleged purpose it is ment of order in a society with no con- clear that for Pound the end of law is sideration of the persons in the society or not the preservation of the existing order of the determined structure of the so- in society. ciety. Del Vecchio also gives a definition On the other hand, he says, using of law in which he envisages a deter- Ihering's system of social interests, law mined society but abstracts from the in- is not in the person but in society. It ternal structure of the society. is clear that, for Pound, law and rights For Pound, on the other hand, there is are not in the person. In each person always a real element since he sees law there are only interests which he seeks as an instrument in a free society, a to have recognized. Only when the society in which he takes into consider- interests are recognized can we speak of ation the liberty of all who seek their per- rights. Each individual seeks his own sonal development. For this reason he proper good by pressing for the recog- is certainly not a positivist in the sense nition of his interests. of Kelsen. We recognize here a realiza- Likewise Pound takes from Gcny the tion of a demand of natural law, that element of technique. It has already is, that the definition of law must imply 49 See text at note 39 supra. the real human nature, or a society of 13 CATHOLIC LAWYER, SPRING 1967 free men. Unfortunately, however, with social, not only individual, nature of man. Pound it is not human nature as For this reason it is clear that Pound universally given. does not take all of human reality into Despite this approach to natural law, consideration, although he does not ab- there is in his conception of law an stract completely from human personality element far removed from natural law, as do some other jurists. But since he properly speaking. From Ihering he does not consider all of human reality he takes the notion of interests and develops remains outside the natural-law concept it as though there were no rights in the of law and closer to the positivist person but only interests which struggle definition. for recognition. It is thus clear that for Finality: Considering finality as it is Pound rights and law exist only in so- found in law, Pound approaches the ciety and not in persons. Parenthetically, idealists and also, to a certain extent, the it might be said that there is a sense in natural-law jurists. A philosophy of which this is correct, for if there were pure law, such as advocated by Kelsen only one person in the world there would for example, eliminates all finality and be no law. Law formally exists as a considers only the operation of pure relation among several free, moral sub- positive law. Pound, on the contrary, jects. Nevertheless, what exists before introduces the notion of finality into his this formal law is more than a personal conception of law. interest only. There is a real law realized However, the notion of finality with in the same nature of the several subjects, which Pound is concerned tends to con- as we shall explain in more detail later. fuse juridical politics and the finality of Dean Pound believes law is an instru- law itself. What he is really concerned ment of organization in a concrete with is the finality as found in juridical political society where each seeks his own politics. In this sense all idealists, such interests. But according to natural law as Stammler and Del Vecchio, admit a one can well imagine that, before the finality. But juridical politics is not law; state, there is a society founded upon it does not establish a juridical order. It human nature as such. While it is true is rather the antecedent effort to estab- that in one sense society has a primacy lish a juridical order. In the juridical over the individual, it is also true that order itself Pound does not admit of a man exists before the actual creation of finality but rather of a conflict of com- the state, and carries his personal rights peting interests which seek for recognition. into the state which he founds. The The order which he imposes is not, there- rights of the individual are not creations fore, a juridical order. of the state, but, as Pound remarks re- In the theory of natural law, on the garding interests, they exist in the person other hand, man with all his rights is independently of any state. Certainly, law social. And we must consider the com- always exists in any social organization. plete nature of man as a member of a But this social organization precedes social community with a task to perform, positive legislation, being included in the not merely as he is known by social ROSCOE POUND psychology as an intelligent being who finality. In Pound's theory, on the other has interests he wishes to satisfy. hand, this protection is absent because Finality, as understood by natural law, is there are no rights in the person but only imposed by the very nature of man as a interests which are recognized by political social being who must by nature seek authority. It follows, if there are no the common good. This finality is itself higher norms, that the authority which juridical and not merely ethical in the granted recognition to certain interests modern sense of individual ethics, and it could likewise withdraw that recognition. creates law by itself prior to and inde- With our conception of finality we can pendently of positive legislation. resolve questions of law where there is Some might object that this theory- no positive determination. For Pound, first that a determined finality is the on the other hand, these questions can principle of the legal order-creates law, only be resolved by a compromise of con- and favors dictatorship in the formation flicting interests. If understood properly of law, as for example Nazism. With his principle is not entirely false because Pound's theory, they would add, this interests, in so far as they are conformed danger is absent because there is no pre- to human nature, are a principle of order. determined finality but only juridical But experience demonstrates that not politics in a determined society. every interest which men seek to secure To this objection we reply that it is is conformed to human nature. Because clear that juridical finality could be interests which are in conformity with abused and made to serve the end of human nature are a principle of order, totalitarianism. To avoid this danger we Christian theory of natural law has must create barriers and also have re- always supported the principle of sub- course to a certain individualism. This sidiarity as a juridical principle. Accord- individualist principle of order is found ing to this principle, individuals seek to in natural law and as a juridical principle. satisfy their own interests in an order Natural law does not say that any finality which is conformed to nature and which is juridical. If that were the case, then seeks first the common good. This can- it would be true that the objectives pro- not be identified with Pound's theory of posed for itself by any determined political interests, which are not and cannot be regime would have the power to create juridical principles. law. But only that finality which cor- responds to human nature has the power Norms: The most important part of to create law. Therefore the principle Pound's philosophy of law gives occasion cannot serve the ends of any form of to a discussion of his conception of norms. totalitarianism. On the contrary, it. is Actually he has no juridical norms in the the surest protection against absolutism strict sense. What he admits as similar since it insists that finality as found in to norms are the interests of the citizens human nature not only creates law but organized in a political society. Peace also renders morally and juridically void and order are to be realized in this so- any positive legislation contrary to that ciety, not according to any superior 13 CATHOLIC LAWYER, SPRING 1967 norms, but only according to the different ization and social engineering. There, only wills. the objective truth, which is imposed on To be sure, there is some rule, some everybody, is a norm. Here, one could norm, i.e., freedom. But this freedom has speak of a dogmatic function of law, no determined content. The content, the settled by an authority like divine manner, of this freedom is in continuous authority. But where is this infallible evolution, depending on the decision of authority? Contemporary society no the citizen. The concept of freedom as a longer acknowledges such an authority as rule is, therefore, similar to a categorical it was in medieval times when Christian concept of Kant, without any determin- faith was the foundation of all social ation. Nevertheless we have to recog- action. Modem society has no common nize that Pound, by underlining individual conscience. On the contrary, human con- freedom, is in no way in agreement with science has disintegrated to the point the neo-Kantian, Kelsen, for whom there where there are as many consciences as is nothing determined by the concept of there are human beings. law. For Kelsen, Russian law would be For this reason we are forced to regu- law in the same way as American law. late social order according to the prin- Pound's doctrine of freedom, on the con- ciple of individual freedom. Otherwise trary, determines the concept of law in a there would be no order. Or should we., restricted sense, though he does not admit perhaps, regulate it according to author- any determination for this freedom. itarianism? This is excluded by reason Here the doctrine of natural law pro- of the fact that no human authority can ceeds by determining the freedom of man guarantee to conduct human society in a according to a really strict norm, that of really objective sense. Therefore author- human nature. And in this manner we itarianism must always remain a social or come to an ethical concept of norms, political system opposed to ethical norms. that is, a norm imposed as an ideal for We come, apparently, to the same con- everyone. For human nature is not only clusion proposed by Pound: individual a norm for the individual man; it is the freedom is the rule for social engineering. same for all of humanity. Thus human That much is certainly true. But there nature becomes a principle for organizing is a great difference. Our conclusion is every human society. really a conclusion, that is an application But this doctrine of natural law as an of ethical principles. According to our ethical norm of society provokes a delicate principle there is not simply individual question, i.e., whether this norm must be freedom but freedom absolutely subjected rigorously and rigidly applied to society. to objective truth. Only in the applica- The difficulty is evident. When we have tion can we agree that individual freedom to apply ethical norms to society in the can be recognized as a rule of order. 50 same way as to the individual man, there And even in this we can never abandon is no more freedom for each man in the sense that his own discretion and 150 Cf. UTz, RECHT UND GERECHLIGKEIT 564-71 arbitrariness be the norm of social organ- (1953). ROSCOE POUND the ethical demand that the juridical existing law or to formulate positive order, in so far as it is possible, must con- laws, but they are not admitted as juridi- stantly seek the absolute truth. Accord- cal norms. Natural law, in the Thomistic ing to the doctrine of natural law, there sense, is rejected chiefly because it is not exists in every man a certain general known. When Pound speaks of natural knowledge of ethical demands. It is for law he is referring to later concepts of the this reason, for example, that after seventeenth and eighteenth centuries. World War II it was possible to punish Pound's legal theory is radically de- war criminals. ficient because he attempts to create a It appears that Pound supposes this legal order without juridical norms. general knowledge of ethical demands in Although he speaks frequently of absolute saying that apart from freedom there is norms of justice, in reality he does not another norm, i.e., "civilization." How- admit of such norms or he confuses them ever, it is not clear what he means by with social or cultural norms. As is this term. Like freedom, this concept of evident from his use of the jural postu- civilizaton is, with Pound, evolutionary lates, the law should be designed to meet and devoid of any determined content. the reasonable expectations of the society Nevertheless, this conception seems to of the time and place. The law then is, approach the above mentioned idea of a for him, an instrument for ordering social general knowledge of ethical demands. life in a determinate society, something However, this is an interpretation which which is wholly foreign to the absolute may not have been Pound's when he norms of natural law of which St. Thomas speaks of civilization. Because the term speaks. Pound speaks of morality in the as used by him is vague and used to de- law, but on these principles it could be nominate a future possible, it cannot only a morality born of the social con- serve as a juridical norm. To summarize, science of the time and place. A Thom- Pound attempts to build a juridical sys- ist could not admit such a norm of tem without any juridical norms. morality. For a Thomist human nature Conclusion is the principle not only of individual We have seen briefly, but in its essential ethics but also of social ethics, of which elements, the legal philosophy of Roscoe legal philosophy forms a part. The legal Pound. For him, law is a process of order must, therefore, enforce a moral social engineering, a process of adjusting conduct which is objective and not born and compromising conflicting claims so of a particular social or cultural con- that the maximum of human interest may science. be satisfied with a minimum of friction In practice, however, it is extremely and waste. The philosophical foundations difficult to change an established legal of Pound's legal theory is essentially system and theory. If the norm for pragmatism; law is defined in terms of jurisprudence is to be the individual will, function. Natural law and philosophy then the task that faces the scholastic are admitted as supplying ideal norms legal scholar is one of juridical politics. which may be used as a critique of The individual conscience must be so 13 CATHOLIC LAWYER, SPRING 1967

formed that what each one wills cor- only if and to the extent that they are responds with what he should will. The recognized by the political force of the so- principle that the individual will pro- ciety. It is evident, therefore, that the vides the ultimate norm for a legal sys- very thing that Pound is most anxious to tem can provide the basis for a stable avoid is rendered more easily possible and social and legal order only when the in- the door is left open to absolutism in dividual will is perfectly subjected to the government. Only when there is recog- objective norms deriving from human na- nition of rights based on human nature is ture. Admittedly it would be difficult to freedom guaranteed. the point of impossibility to form the Besides the juridical politics mentioned conscience of all so that they corresponded above there is yet another way that exactly with objective norms of human scholastic philosophers and legal scholars action. But if a majority, or even a can exercise an influence in the accepted large number, of the citizens were so schools of jurisprudence. It has been formed then their desires would be re- seen that Pound draws his materials from flected in laws more in conformity with the most diverse sources. Although this the demands of natural law. does not alter his fundamental pragma- In the practical order, one of Pound's tism, it does offer an opportunity to constant concerns has been to avoid any modem scholastics to exercise an in- form of absolutism in government. To fluence even within the framework of this end he insists that we must have pragmatic legal theory. At the present absolute norms of values. If the ideals time there is in America a decided dis- are absolute, he says, it puts something satisfaction with the reigning legal theory. first, are above the ruler or ruling body, something Jurists, and Pound among the by which to judge them and by which calling for legal philosophy to direct the In the past jurists have they are held to rule. Yet it is impossible new movement. they for Pound himself to have absolute rejected natural-law theories because have been confronted with pseudo ideals of justice. Based as it is on a for scholastics is to theory of social interests, his measure of theories. The task present the authentic natural law and values must necessarily be relative and allow it to be judged on its own merits. also must necessarily be constantly Another strong movement which can changing and adjusting to the needs of be noticed among American jurists is a the time and place. Further, since this sentiment for codification of the law. theory of interest admits of no absolute If such a move should come, it would rights but only interests that have been not necessarily destroy the common- recognized by the political force of the law technique, but it would give society, it follows that the political force a greater stability to the law. Modern that granted the recognition can like- scholastics must be prepared to present wise withdraw its recognition. Thus the the traditional Thomistic doctrine of law. individual is left without any rights that The time is ripe and the sentiment is owe their existence to his nature. The well disposed for it to be received into interests of the individual are enforceable the law.