Roscoe Pound 18701964

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Roscoe Pound (1870-1964)

• Critique of Formalism Mechanical Jurisprudence

American jurist, b. Lincoln, Nebr. He studied
(1889-90) at Harvard law school, but never
received a law degree. Pound was a prominent
botanist as well as a jurist.
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Pounds Thoughts on Legal Education

• ".......I should put as the content of a good
  legal education
• (1) A solid all round cultural training, with a
  grasp of significant information which such a
  training involves, but much more with the
  broadening and deepening of experience and
  ability to appraise information to which it
  leads.
• (2) A grasp at the ends and technique of the
  social sciences this only, for beyond that,
  what has been taught in their name has been
  short-lived.
• (3) A grasp of the history and a system of common
  law, of the outline and ends of the legal order,
  of the theory and ends of the judicial and
  administrative processes, and of the history,
  organization, and standards of the legal
  profession.
• (4) A thorough grasp of the organization and
  content of the authoritative legal materials of
  the time and place and of the technique of
  developing and applying them.
• If one has these, he has whereon he can build to
  the exigencies of the many demands of different
  types of professional activity and of the public
  need of enlightened judges and wise lawmakers, of
  law reformers and law teachers, and of legal
  scholars."
• From an address to the American Bar Association
  in 1933.

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Full, equal, and exact justice.

• Scientific law demands
• Full justice solutions that solve the root
  controversy
• Equal justice like adjustment of like relations
  under like conditions
• Exact justice legal operations which, within
  reason, are predictable
• Scientific law, then, is a reasoned body of
  principles for the administration of justice, and
  its antithesis is a system of enforcing
  magisterial caprice, however honest, and however
  much disguised under the name of justice or
  equity or natural law.
• Law should be scientific in order to
• Eliminate the personal equation in judicial
  administration
• Preclude corruption,
• Limit the dangers of magisterial ignorance
• Law is not scientific for the sake of science,
  but as a means to an end and the results it
  achieves.
• Beware of systems, as it is in the nature of
  rules to operate mechanically without regard to
  current ideas of fair play.

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Science in Law

• We reject scientific as meaning a system of
  deductions from a priori conceptions. The idea
  of science as a system of deductions is obsolete.
• Theories are instruments, not answers to enigmas.
  We require them to exhibit practical utility,
  and rest them upon a foundation of policy and
  established adaptation to human needs.
• The sociological movement is a movement for
  pragmatism as a philosophy of law in place of
  assumed first principles the human factor has
  first place, while logic is but an instrument.
• Law as science is a dangerous game as
  pseudo-sciences may lead to monstrous legal
  rules. Law is not scientific in the hard or
  empirical science sense, but only in the soft
  or social sciences sense. GWR

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The Sociological School of Jurisprudence
(Reformers)

• Instead of seeking for an ideal universal law by
  metaphysical methods, the ideal of all schools is
  to turn the community of fact of mankind into a
  community of law in accord with the reasonable
  ordering of active life. Hence they hold that
  the less arbitrary the character of a rule and
  the more clearly it conforms to the nature of
  things, the more nearly does it approach to the
  norm of a perfect law.
• Principles, not rules, should be the basis of
  judicial decision. The true way is to make rules
  fit cases instead of making cases fit rules.
• His classic example is the rules of procedure,
  which he deems to be one in which mechanical
  (scientific) procedure becomes and end of itself,
  delaying or defeating substantive law and justice
  instead of being a mechanism for speeding and
  enforcing substantive justice.
• The life of the law is in its enforcement.

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The Task of Judging

• The nadir of mechanical jurisprudence is reached
  when conceptions are used, not as premises from
  which to reason, but as ultimate solutions.
• Law is the art of knowing what is good and just.
  Anyone may properly call us the priests of this
  art, for we cultivate justice and profess to know
  what is good and equitable, dividing right from
  wrong, and distinguishing what is lawful from
  what is unlawful desiring to make men good
  through fear of punishment, but also by the
  encouragement of reward aiming, if I am not
  mistaken, at a true and not a pretended
  philosophy.
• The task of a judge is to make a principle
  living, not by deducing from it rules to last
  forever, but by achieving thoroughly the less
  ambitious but more useful labor of giving a fresh
  illustration of the intelligent application of
  the principle to a concrete cause, producing a
  workable and a just result. The real genius of
  our common law is in this, not in an eternal
  case-law.