The Ideal Element in Law
This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.
The cuneiform inscription that serves as our logo and as a design element in Liberty Fund books is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 B.C. in the Sumerian city-state of Lagash.
© 2002 by Liberty Fund, Inc. Originally published by the University of Calcutta Press in 1958.
This eBook edition published in 2011.
eBook ISBN: E-PUB 978-1-61487-178-1
Contents
I. Is There an Ideal Element in Law?
IV. Rights, Interests, and Values
V. The End of Law: Maintaining the Social Status Quo
VI. Promotion of Free Self-Assertion: 1. The Sixteenth to the Eighteenth Century
VII. Promotion of Free Self-Assertion: 2. Nineteenth Century to the Present
VIII. Maintaining and Furthering Civilization
IX. Class Interest and Economic Pressure: The Marxian Interpretation
X. Later Forms of Juristic Realism
XI. The Humanitarian Idea
XII. The Authoritarian Idea
Epilogue
Glossary
Bibliography of Works Cited
Index
Roscoe Pound (born on October 27, 1872, in Lincoln, Nebraska; died on July 1, 1964, in Cambridge, Massachusetts), practically unknown among the general American population today, was the most famous American jurisprudential thinker of the first half of the twentieth century. He was also the greatest twentieth-century dean of the Harvard Law School (1916–36). Through his work in building faculty and programs and in seeking international students, he made Harvard the first of the world-class American law schools. His name now graces one of Harvard’s buildings, an honor accorded to only a handful of legal greats. Pound was the principal architect of a legal philosophical approach he called “sociological jurisprudence,” which sought to make the law more responsive to changes in society, while still maintaining its authoritative traditional and moral character. Pound is the spiritual father of the still dominant school of American legal thought now known as “legal realism,” but he might have regarded legal realism as a prodigal son.1
Legal realism, as practiced in the 1930s, maintained that a sensible and “realistic” jurisprudence ought to result in altering law and legal institutions to meet the needs of the times, and ought not to pay excessive deference to older concepts such as freedom of contract and restraints on the interference of state and federal governments with private agreements. If Pound’s work was an inspiration for legal realism, then Pound is due some of the credit for laying the foundations of legal realism’s greatest triumph, President Franklin D. Roosevelt’s New Deal. During the New Deal, lawyers trained in legal realism expanded the role of the federal government through plastic interpretations of the U.S. Constitution and the creation of a myriad of new administrative agencies. Still, late in life Pound turned against legal realism and expressed uneasiness with the increasingly centralized federal control of American life the New Deal had spawned.
Though Pound always believed in the need for sensible legal reform, there was a tension in Pound’s reformist jurisprudence, because along with his fervor for modernizing the law, Pound had a healthy respect for what he called the “taught legal tradition.” Roscoe Pound favored the slow and orderly change of the law through the courts and other established legal institutions, rather than the New Deal era’s radical shift of legal power from the states to the federal government. The Ideal Element in the Law, a series of lectures delivered at the University of Calcutta in 1948, and first published ten years later, contains a concise, and yet a mature and thorough statement of the basic tenets of Pound’s jurisprudence. It is an extraordinary survey of the development of jurisprudence in Greece, Rome, Continental Europe, England, and America, and a treasure trove of information about the law with value for both lawyers and laymen. It reflects what were for Pound the most important jurisprudential problems in his last years—what goals should law and legal institutions have? How can the law be used to preserve liberty and avoid tyranny? These questions, of great concern before, during, and after World War II, the period of time when Pound developed the analysis in these lectures, are no less important now.
Pound was the son of a prominent Nebraska judge, who wanted his boy to follow in his footsteps and study the law. Pound did become a lawyer, but his love of his native prairie environment also led him to become a professionally trained and highly regarded botanist. He received a B.A. (1888) and a Ph.D. (1897) in botany from the University of Nebraska. Pound was the brightest star in a small galaxy of talented botanists at Nebraska, and had as his mentor Professor Charles Bessey, an early follower of Charles Darwin. For some time Pound appears to have vacillated between the law and botany. He studied law for one year at Harvard (1889–90), when Harvard’s great innovator, Dean Christopher Columbus Langdell, had introduced the case method and Socratic teaching, and was pioneering the study of law as if it were an evolutionary science. Pound did well at Harvard, and would likely have been invited to join the Harvard Law Review (the most prestigious honor, then and now, that a Harvard law student can secure), but was forced to return home to Lincoln, Nebraska, because of the ill-health of his father. Pound became a member of the Nebraska bar even as he continued his study of botany. He taught law at the University of Nebraska from 1890 to 1903, but also served as the director of Nebraska’s state botanical survey. Along with a fellow botanist, Pound wrote a path-breaking book on plant life in Nebraska, Phytogeography of Nebraska (1898),2 treating botany not as a sterile field concerned only with taxonomy and classification, but rather encompassing an understanding of the organic and evolutionary relationship among all plant life.
Pound’s training as a natural scientist, and as a Darwinist under the influence of Bessey, predisposed him to see the law in terms of organic growth and to understand that only those parts of the law should survive that were useful. This was a perspective he never abandoned, as readers of this book will understand. But readers will also not be surprised to learn that while Pound understood the fact of organic change