Law as an instrument of progress toward civilization cannot standstill, yet it must be stable. Pound himself has inserted a certain evaluation by describing the interest in individual life as the most important of all. Thus, Pound endorsed Lincoln's Civil War restrictions on the press and various cases in which courts upheld restrictions on speech rights. Through his vast legal studies, excursions into legal his-t This article is a rewritten and enlarged version of a paper prepared forProfessor Harry W. The legislator must have a more de-tailed picture to guide him in lawmaking.
Volume 7 Issue 1 Article 11-1-1961The Sociological Jurisprudence of Roscoe Pound Part I James A. Pound describesthese limitations as growing out of the following difficulties: 1 difficulties involved in the ascertainment of facts; 2 the intangible-ness of many duties which are morally important but defy legal en-forcement; 3 the subtlety of modes of infringing important interestswhich the law would like to secure if it could; 4 the inapplicabilityof legal machinery of rule and remedy to many phases of human con-59. He evenadmits the tendency of jurists to adopt an idealized version of thelegal picture of an earlier time. He is acknowledged as the founder of sociological jurisprudence—an interdisciplinary approach to legal concepts in which the law is recognized as a dynamic system that is influenced by social conditions and that, in turn, influences society as a whole. Engineering to perfection using laws. He adoptedJhering's notion that rights exist only to protect interests which thestate ought to secure and the notion that the growth of law takes placebecause of purposes, that is, in order to protect such interests. The second step is to deter-mine the interests which the law should recognize and secure.
It recognizesthe creative element in legal history and avoids the confident rejectionof the past faith in abstract rationalization of the eighteenth century. According to Pound, the law should be flexible to meet the changing needs of society. The only possible kind of proofyou could adduce would be the exhibition of another creature whoshould make a demand that ran the other way. The working out of individual legalrights is emphasized; hence, emphasis is on equality, property andrigid adherence to fixed rules. So far as he feels anything to be good, he makes itgood. These will be considered further in the critique of Pound'swritings.
The only possiblereason there can be why any phenomena ought to exist is thatsuch a phenomenon actually is desired. The compound so produced will help to establish a foundation for a praxiological sociology of American constitutional law. Define the limits within which such interest are to be legally recognized and given effect to it. For the purpose of satisfying human interests, Pound defined interest as , claims or wants or desires which men assert de facto about which the law must do something if organized societies are to endure. Pound does not give an ideal scale of values with reference to interests. Pound, supra note 46, at 147.
From this comprehensive picture, the jurist must synthesize the prin-ciples of conduct which are recognized and given effect by law, that is,the legal ideals of the particular society. This functional sociological approach is Stammler's greatest achieve-ment. The theory of interests is a theory of justice, since there is nogood without reference to some criterion, and this criterion is thesatisfaction of the maximum number of claims with the least frictionand waste. They held it was an attempt to bring about justice, the ideal relationbetween men, by means of an authoritative pronouncement of reason. Law is a social mechanism, a means to further the ends of society. There is really no more ground for supposingthat all our demands can be accounted for by one universal under-lying kind of motive than there is ground for supposing that allphysical phenomena are cases of a single law.
Category: Law Author : Edward B. A study to ascertain the means by which legal rules can bemade more effective in the existing conditions of life, including thelimits of effective legal action. Thus the conception of public policy was never clearly worked out,nor were the several policies recognized by the common law defined aswere the individual interests to which the jurists gave their wholeattention. Withhis airis the sociological jurist must be in thorough accord. This dynamic feature of law is undermined. In particular they 1 consider theworking of the law rather than its abstract content; 2 regard law asa social institution which may be improved by human effort andendeavor to discover and effect such improvement; 3 lay stress uponthe social ends of law rather than sanctions; 4 urge that legalprecepts be used as guides to socially desirable results rather thaninflexible molds; and 5 their philosophical views are diverse,usually positivist or some branch of the social-philosophical school.
Our judges must be conscious that what38. The jurist also musthave a clear picture whereby to lay out the lines of creative aswell as of ordering and systematizing activity. Nothing else maintains itselfin the legal system. These ideological constructs are the ultimate basisfor discriminating just law from unjust law. This is also known as sociology of law. The son of a judge, Pound attended the University of Nebraska, earning a bachelor of arts degree in botany in 1888. He has not said anything about the interest which will be given more priority over other.
Pound explains that rights unlike interests, are plagued with a multiplicity of meanings. Conflicting de facto claims must be firstconverted to a common level for purposes of comparison of the com-peting interests pressing for recognition. Law is experience organized and developed by reason,authoritatively promulgated by the lawmaking or law-declaring organs of a politicallyorganized society and backed by the force of that society. He wasinfluenced by the notions of Stammler that justice can be obtainedonly by a harmonious synthesis, but whereas Stammler posited anideal abstract community as a device by which this result might beachieved, Pound claims that he has achieved the result a posterioriin the actual working community of the given society. Law is relative to civilization. Pound, Natural Law and Positive Natural Law, 68 L. They think of a full economic andsocial existence.
Whenone sentient being comes into existence, there is a chance for goodand evil to exist. The mission of law is the advancement of civilization throughthe forcible ordering of society. All inter-pretations utilize analogies, and theories are constructed and under-stood in this manner. Individualization of the application of legal rules so as to takeaccount of the concrete circumstances of particular cases. It will doubtlessly continue to engage jurists, legal theorists, and sociologists for many years to come. He set up the social ideal as the goal of justice through law. Public interests: preservation of the state, state's protection of social interest Social interests: Presevation of peace and security.
His father convinced him to attend Harvard Law School, but he stayed only one year. The jural postu-lates are thus put to the practical work of bringing legal institutionsof society into harmony with the actual demands of the people asformulated in the postulates themselves. The two fundamental doctrines of the common law, Pound writes, are the doctrine of precedents and the doctrine of supremacy of law. Using the jural postulates as working hypotheses, Poundworked out a systematic inventory of the interests which may claimrecognition and enforcement in the given society. Judges, in their view, had no right to strike down legislation merely because some inconsistency was perceived with the intentions of the constitutional framers. In this case the two principles emerged i.