Loyola University Chicago Loyola eCommons Master's Theses Theses and Dissertations 1958 Roscoe Pound and His Theory of Social Interests Joseph Clarence Verhelle Loyola University Chicago Follow this and additional works at: https://ecommons.luc.edu/luc_theses Part of the Philosophy Commons Recommended Citation Verhelle, Joseph Clarence, "Roscoe Pound and His Theory of Social Interests" (1958). Master's Theses. 1717. https://ecommons.luc.edu/luc_theses/1717 This Thesis is brought to you for free and open access by the Theses and Dissertations at Loyola eCommons. It has been accepted for inclusion in Master's Theses by an authorized administrator of Loyola eCommons. For more information, please contact [email protected]. This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License. Copyright © 1958 Joseph Clarence Verhelle ROSCOE POUID AID HIS 'lBE0R!' 01' SOC IAL Ilft'EftES1'8 bl Joaeph Olarenoe Verbsll., S.J. A !h.ai. Submit'e4 to the PaoultJ or the Gra4uat. Sohool or Lo,ola UD1v ...1-., 1n Partial Pultlllmeat or tbe 14Mtu1 ••aenta tor the Degree ot Maater ot Art. Janua17 19$8 LIl'I Jo•• ph Olarence Verhelle, 8.J., wal born In Chicago, Il11noil, January 10, 1921. Hia high achool yeara, 1934 to 1938, were spent at the UnlveNi t,. ot Detroit High School. In 1942 he graduated from Georgetown univeraity, Waahington, D.C. wlth a Bachelor of Arts d.egr ••• In FebruaP,J, 1949, atter tour yeara ot milltaP7 aervice and two ,.eara ot law at the l1n1veraity ot Detroit La.. School, he entered the Society ot Jeaua at Illtord, Oblo. TWo yeara later he enrolled aa a graduate atudent in the Department ot Philoaopb7 at Weat Baden College, Weat Baden, Indiana, a branoh ot Loyola UDiverait,., Chicago, Illinoil. During the Ichool yeaN 1953 to 1955 he taught at the Unlversity ot Detroit High School. SIOLA and PLACE OF PUBLICATION Title Abbreviation pUblished Alabama Law Journal. Ala. L.J •. Montgomery,Ala. American Bar Association A.B.A..J. Baltimore and Journal Chi o ago American Law Review A.L.R. st.LouiS, Mo. Boston University Law Review Bos.U.L.R. Boston, Mass. Oanadian Bar Review Oan. B.R. ottawa, Oan. Catholic University Law Review Oath.U.L.R. WaShington, D.C. Columbia Law Review 001. L.R. New York, N,Y. Cornell Law Quarterly Cor. L.Q.. Ithaca, N.Y .. Fordham Law Review For. L.R. New York, N.Y. Georgetown Law Journal Geo. L.J. Washington, D.C. George Washington Law Review Geo.W.L.R. Washington, D.C. Green Bag G.B. Boston, Mass. Harvard Law Review Har. L.R. Cambridge, Mass. Illinois Law Review Ill.L.B. Chicago, Ill. Indiana Law Journal Ind.L.J. Bloomington, Ind. Iowa Law Review Ia.L.R. Iowa City, Ia. Kentucky Law Journal Ken. L.J. Lexington, Ky. Law Quarterly Review L.Q.R. London, Eng. Louisiana Law Review La.L.R. Baton Rouge, La. Marquette Law Review Mar.L.R. Milwaukee, Wis. Miami Law Quarterly Ml.L.Q. Hiami, Fla.. Miohigan Law Review Mich. L.R. Ann Arbor, Mich. Michigan state Bar Journal. Mich.St.B.J. Lansing, Mich. Minnesota Law Review Minn.L.B. Minneapolis, Minn. Mississippi Law Journal Miss.L.J. University, Miss. Nebraska Law Bulletin Neb.L.B. Lincoln, Neb. New York University Law Quarterly Review N.Y.U.Q.R. New York, N.Y. Borth Carolina Law Review N.Car.L.R. Chapel Rill, N.C. Notre Dame Lawyer Ii.D.L. Notre Dame, Ind. Ohio state Bar Journal O.st.B.J. OolWllbus, Ohio Oregon Law Review Ore.L.R. Eugene, Ore. Pittsburg Law Review Pitt.L.R. Pittsburg, Pa.. syracuse Law Review Syr.L.R. Syracuse, N.Y, Tennessee Law Review Tenn.L.R. Knoxville, Tenn. Tulane Law Review Tul.L.R. New Orleans, La. University of Oalifornia, Los Angeles Law Review UCLA L.R. Los Angeles, Calif. University of Cincinnati Law Review Cin.L.R. Cinoinnati, Ohio University of Chicago Law ReviewObi.L.R. Chicago, Ill. University of Pennsylvania. Law Review Pa.L.R, Philadelphia, Pa. i Title Abbreviation Published University of Toronto Law Journal Tor.L.J. Toronto, Can. Vanderbilt Law Review Van.L.R. Nashville, Tenn. Virginia Law Review Va.L.R. Charlotteville, Va. West Virginia Law Quarterly W.Va.L.Q. Morgantown, W.Va. Wisconsin Law Review Wie.L.R. Madison, Wis. Yale Law Journal Yale L.J. New Haven, Conn. ii TABLE OF CONTENTS CHAPTER PAGE I • TWO BASI C ERRORS • • • • • • • • • • • • • • • •• 1 PUrpose ot thesis--Historioal baokground ot errors--First error: Mechanical Jurisprudence-­ Historical sohool--Analytical school--Philosoph­ lcal sohool--Poundts objections--second error: EXaggerated Individuallsm--Historical background-­ Philosophical school--Historical sohool--Analyt­ ical sohool--pound's objections. II. METHOD AND ElID OP LAW ... ·THEORY OP INTERESTS • • •• 20 pound's approach--Sociological Jurisprudence-­ Proxima te and ul tlma te end of law--Theory ot Social Interests--Definition of interests--Types of interests--Valuation ot interests--Char­ acteristics of Ola1ms or Interests--poundts method of evaluating interests. III. EVALUATION DIFFICULTIES. • • • • • • • • • • • • • 40 summary ot Theory ot Interests--Source ot Postu­ lates--Evaluation and the "idea ot civiliza­ tionn--progress and civilizs.tion--Satistaction ot wants and civlllzation--evaluatlon and jural postulates--evaluation and indlvidual claims-­ Frankts objectlon--WUt s "solution1t ••Sayre t s camments--Relation between law and oonfllct of interests.-Poundts reaction. IV. ROSCOE POUND AND THE NATURAL LAW--HIS CONTRIBUTIONS TO JURISPRUDENCE • • • • • • • • • • • • • • • •• 62 pragmatism and law--Pound1s theory and natural law--Five basic points of natural law--poundts conception of scholastic natural law--Theologi­ cal element ot natural law--Immntability of natu­ ral law--Three errors of pragmatism--Lack ot a iil 1v bas1c norm--Materialistic concept of man--no transcendental truth--Pound's contributIons. BIBLIOGRAPHY • • • • • • • • • • • • • • • • • • • • •• 87 CHAPTER I TWO BASIC ERRORS You may think ot philosophy as dwelling in the clouds. I hope that you may see that she is able to descend to earth. • • • You may think that there is nothing prac­ tical in the theory that is concerned with ultimate conceptions. That is true perhaps while you are doing the journeyman's work at your profession. You may find in the end, when you pass to higher problems, that in­ stead of being true that the study of the ultimate is profitless, there 1s l1ttle else that is profitable in the study of anything else. l Dean Roscoe Pound as a teacher, sOientist, historian, legal L~d political scholar has not only become one of the tore­ most authorities in bringing the philosophy of law to earth, digesting it, correlating it and criticizing it, but as a true reformer has set forth a positive oonstructive theory of his own. A prolific writer, his ideas have helped mold the legal instruction and legal philosophy of our times. It is our purpose here to examine the history and legal philosophies of his day, so necessary for an intelligent understanding of precisely in what pound's criticism as a legal reformer consisted and more especially as an aid in grasping his 1 Benjamin W. Cardoza, The Growth of the Law, New Haven, 1924, 23. - - -- 1 2 own positive philosophy as to its evolution, method and content. It will also aid us in an evaluation ot his doctrine which has taken such a marked hold on the legal thought of today that such an influential jurist as John C.H. WU once stated that: "A deri­ nite philosophy ot law is now actually in existence whose founder and exponent is none other than Professor Pound himselt."2 There is pretty general agreement that the theory ot law dominant in the nineteenth century and the early part of the twentieth embodies some fundamental errors of social philosophy. The views of the three schools of jurisprudenoe whioh exercised the greatest influence on the theory and to a large extent the practice of law during this period offended in two major respects. Firstly, law was unable to adapt itself to changing conditions, especially social ohanges, since rules of law, whet.her codified as advocated by the analytical school, or as derived from theo­ ries of law, as the historioal and philosophical schools insisted, were presumed to be amenable to perfect application. Yet law in such a case was conceived apart from its funotional role in 2 John C.H. WU, "The Juristic Philosophy of Roscoe Pound," Ill. L. Rev., Chicago, XVIII, January, 1924, 285. See also pa~ayre,~e Life of Roscoe pound, Iowa Oity, 1948; F.J. Powers, "Some ReflectIons on pound's JurIsprudence of Interests," ~. Q. ~. ~., Washington, D.C., III, January, 1953, 10; George R. Farnum, "Roscoe Pound ... ·His Significance in American Legal Thought," Boston U. L. Rev., Boston XIV, November, 1934, 715-727. --- 3 society.3 Secondly, the controlling premise in all these phi­ losophies of law was the principle of treedom. As far as possi- ble the rules of law were molded and interpreted to express this principle: individual rights must be proteoted. This was the ob- jective legislators were always to keep in mind. In point of fact, judges, often unconsclo11s1y, accepted this doctrine as thei first principle, oftentimes to the detriment of the common good. The prevailing schools which echoed the spirit of the times and which were the object o~ Pound's criticism were the historical school, the analytical school, and the metaphysical or philosophical school. Mechanical Jurisprudence The historical school placed uppermost the mass of tra­ ditional ideas and customs from which actual legal rules are de- rived. Law could no more be made than language; each was a growth upon the basis of a received tradition--the latter a thought to which Pound himself would subsc~ibe.4 Since law is something found and not made, the legislator had no function.