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Theory and Application of Roscoe Pound's Sociological Jurisprudence: Crime Prevention Or Control?

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Theory and Application of Roscoe Pound's Sociological Jurisprudence: Crime Prevention Or Control? University of Michigan Journal of Law Reform Volume 2 1969 Theory and Application of Roscoe Pound's Sociological Jurisprudence: Crime Prevention or Control? Louis H. Masotti Case Western Reserve University Michael A. Weinstein Purdue University Follow this and additional works at: https://repository.law.umich.edu/mjlr Part of the Criminal Law Commons, Law and Philosophy Commons, Law and Society Commons, and the Law Enforcement and Corrections Commons Recommended Citation Louis H. Masotti & Michael A. Weinstein, Theory and Application of Roscoe Pound's Sociological Jurisprudence: Crime Prevention or Control?, 2 U. MICH. J. L. REFORM 431 (1969). Available at: https://repository.law.umich.edu/mjlr/vol2/iss2/11 This Article is brought to you for free and open access by the University of Michigan Journal of Law Reform at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in University of Michigan Journal of Law Reform by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. THEORY AND APPLICATION OF ROSCOE POUND'S SOCIOLOGICAL JURISPRUDENCE: CRIME PREVENTION OR CONTROL? Louis H. Masotti* and Michael A. Weinstein** I. Introduction The current interest in reforming the administration of justice has been triggered by a number of factors including the 1967 report of the President's Commission on Law Enforcement and the Administration of Justice1 and the treatment afforded arrestees during the civil disorders of the past few years 2. The nation is alarmed at the reported annual in- creases in crime, and this alarm was manifested in the 1968 presidential election when "law and order" became a major issue. Superficially the answer may seem clear: more effective enforcement of the law and, when necessary, more stringent laws. The critical issue, however, is a jurisprudential-philosophical one: ought the "proper" approach to crime essentially be its prevention through methods such as the rehabilitation of criminal offenders, or its control through efficient administrative procedures? This is not a new question in jurisprudence, but it remains an important and unresolved one. This article will examine an analytical approach to this problem which was developed and applied by Roscoe Pound, one of America's most eminent jurists. After describing and interpreting Pound's concept of sociological jurisprudence, we will relate it generally to the reform of criminal justice administration and analyze Pound's attempt to apply his theory as -Director of the Cleveland Crime Survey of 1921. Finally, we *Associate Professor of Political Science, Case Western Reserve University. A.B. 1956, Princeton University; Ph.D. 1964, Northwestern University. **Assistant Professor of Political Science, Purdue University. A.B. 1964, New York University; Ph.D. 1967. Case Western Reserve University. This-article is drawn from a larger study of the Cleveland Crime Survey, CRIME, POLITICS & REFORM, to be published in the near future. The authors are indebted to the Institute of Law and Criminal Procedure, Georgetown University, for financial support of the project. 'NATIONAL COMMISSION ON LAW ENFORCEMENT & THE ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY (1967). See Comment, The Administration of Justice in the Wake of the Detroit Civil Disorder of July 1967, 66 MICH. L. REV. 1542 (1968). Prospectus [Vol. 2:2 will compare the recommendations of that Cleveland study and the recent report of the President's Commission in a modest effort to assess their impact on the administration of criminal justice and to draw some lessons for future reform endeavors. II. Pound's Sociological Jurisprudence: The General Theory Roscoe Pound defined the goals of sociological jurisprudence in an essay on the philosophy of law: What we-are seeking to do and must do in a civilized society is to adjust relations and or- der conduct in a world in which the goods of existence, the scope for free activity, and the objects on which to exert free activity are limited, and the demands upon those goods and those objects are infinite. To order the activities of men in their endeavor to satisfy their demands so as to enable satisfaction of as much of the whole scheme of demands with the least friction and waste has not merely been what lawmakers and tribunals and jurists have been striving for, it has also been put in one way or another by philoso- phers as what we ought to be doing. 3 This statement contains a summary of Pound's program. In the per- fect society all claims put forward by individuals would be immediately satisfied. However, such a utopia does not exist in the world and people cannot satisfy each of their demands. Further, men come into conflict when they desire the same scarce goods. The basic tenets of sociological jurisprudence place Pound in the tradition of Hobbes: And therefore if any two men desire the same thing, which nevertheless they cannot both enjoy, they become enemies: and in the way to their end, which is principally their own conservation, and sometimes their delectation only, 4endeavor to destroy or subdue one an- other. 3 TWENTIETH CENTURY PHILOSOPHY: LIVING SCHOOLS OF THOUGHT 69 (D. Runes ed. 1958) [hereinafter cited as Runes]. 4 T. HOBBES, LEVIATHAN -105 (1951 Bobbs-Merrill edition). April 1969] Sociological Jurisprudence Pound articulated a conflict theory founded on individual interest. To escape from a state of nature men devise systems of law which enable them to fulfill "as much of the whole scheme of demands with the least friction and waste." The legal system is made effective through a mo- nopoly of coercive power: I think of law as in one sense a highly special- ized form of social control in a developed politically organized society -a social control through the systematic and orderly appli- cation of the force of such a society.5 Thus, sociological jurisprudence introduces two components into its definition of law. On the one hand, law is a means of alleviating conflict through the imposition of organized force. On the other, law functions to secure the realization of as many individual interests as possible. An appropriate question arises here whether the second assertion is meant to state a fact or prescribe an ideal. We will examine this question, but for now we may accept these components as the starting point for Pound. Although the theory of interests was prefigured in nineteenth century jurisprudence, Pound brought the approach to maturity.6 He devised categories under which to subsume the demands enunciated in social systems: If we take, as it were, an inventory of the concrete claims which press upon the law for satisfaction and seek to classify those which the law recognizes and endeavors to secure, they fall conveniently into three groups: indi- vidual interests, public interests, and social interests. 7 Individual interest are demands which particular people consciously and immediately recognize as their own, such as a demand for non-discriminatory treatment in hiring. Public interests are the claims pressed on behalf of a politically organized society, such as the desire for a new courthouse. 8 Demands of the social group are social interests. These include the security of social institutions defined as the protection 5 Runes 67. 6 For the historical background of Pound's interest theory see H. REUSCHLEIN, JURISPRU- DENCE: ITS AMERICAN PROPHETS (1951). 7 R. POUND, CRIMINAL JUSTICE IN AMERICA 5 (1930). 8 Id. Prospectus ,Voi. 2:: of economic, social and religious organizations; the general morals defi- ned as the enforcement of social standards; the general progress defined as the increase of man's control over nature; the conservation of social resources defined as efficient use of the goods of existence; the general security defined as the defense of order; and the individual life.9 The social interest in the individual life consists of three demands: the desire for self-assertion, the demand for fair opportunity and the interest in a 0 minimum standard of life.' Since the law operates through general rules, specific "individual interests" or demands must be generalized before they are recognized as legal rights." When generalized they become the social interest in the individual life noted above. Thus, our example of non-discriminatory treatment in hiring becomes a recognized legal right subsumed under the social interest in an individual's "demand for fair opportunity". For purposes of comparing and weighing interests, then, Pound considers all interests on the social level. When we come to discuss the application of the general theory of sociological jurisprudence to the administration of criminal justice, we will see that the jurist is primarily concerned with balancing the social interests in the general security and in the individual life. Sociological jurisprudence is not a simple philosophy and there are many ambiguities in the argument as we have reproduced it in this simple form. In order to understand better what is meant by an "inter- est", it is worth noting how Pound's concept of "interest" has evolved. Contributions are drawn from several sources. Samuel Krislov points out that all interests must be traced to individual activity;' 2 he empha- sizes the danger that the term social interest might prompt us to believe that society has desires.' 3 Pierre Lepaulle adds to the concept by show- ing that if interests are to be balanced they must be consciously ex- pressed.' 4 Finally, Lester B. Snyder argues that Pound used an empiri- cal method to determine his matrix of interests: Pound did not ascertain these interests by use of logical presuppositions about the ideals of existence in society. Nor did he ascertain these interests through a study of the funda- mental behavioral tendencies of men. In a 9 Id. 'ld. at 9.
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