pound and mechanical jurisprudence and legal realism

Once you catch the approach of someone, his or her intellectual "flavor" as it were, you are able to move through their work with skill and determine rather easily what really concerns them. Holmes is a complex thinker, trying to load four or five very large ideas on us in the space of one law review article ("The Path of the Law"). Pound, however, is not quite as gifted a stylist as Holmes but is more of a polemicist. He is doing battle in this little article, and he really only wants to establish one major point--that law needs to respond to present-day needs. However, in order to get to that point he has to set up what some might say is a straw person in order to knock it down with the proposal he is making. That straw person is "mechanical jurisprudence" or law's failure to respond to vital needs of present-day life (614). This essay will probe Pound's method of argumentation here, with special attention to the language he uses to describe the problem, as he sees it, and his solution.

First, the Solution

Well, let's get to the solution right away, and then we will "backfill" by seeing how Pound describes the problem. Pound's "hero" is the "sociological jurist," the one who stands against abstract theories and who recognizes the "innumerable bonds of association and the naturalness of social authority" which should become the basis of our laws (609). You can tell who he is listening to by whom he quotes. "Professor Small" (609) is none other than Albion W. Small, the chariman of the first department of sociology in the United States (U of Chicago, beginning in 1892 and editor of the first journal exclusively dedicated to sociology--the American Journal of Sociology), who deeply believed that what American intellectual life needed was "a frank endeavor to secure for the human factor in experience the central place which belongs to it in our whole scheme of thought and action" (Id.).* Thus, Pound says:

"The sociological movement in jurisprudence is a movement for pragmatism as a philosophy of law; for the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles; for putting the human factor in the central place and relegating logic to its true position as an instrument" (609-10).

[*Pound had moved to the Chicago area in 1907 to become a professor at Northwestern School of Law. Small also taught in Chicago, but at the U of Chicago. Despite their apparent difference in personal history--Pound was born in NE and Small a product of a small Maine town--both of them would have subscribed to Puritan ethic of work and approach to life. From 1901-1906 Pound taught in NE with Edward A. Ross, another premier sociologist who no doubt influeced him a great deal, but Pound is content to quote Small here now that he is in Chicago.]

This isn't nearly as practical a solution to the problem as is Holmes' in "The Path of the Law," but it is sort of a clarion or trumpet call to try to see the world differently. Well, what is he trying to replace?

The Problem, Mechanical Jurisprudence

Every movement that wants to establish itself as distinct from a predecessor needs to vilify that predecessor, if ever so slightly, to get its point across. So that is what Pound does in the first four or five pages. Science is the catchword of the day (1908) and has been so for at least 1/2 a century. Indeed, we have already seen that the word "science" lay at the heart of what Langdell thought he was doing. The library to the law student and professor was like the laboratory to the scientist. Experimentation, data, and the raw material for theory building was contained in the law library. Such materials would enable people to build systems of law, derived from cases and ultimately consisting of rather few rules.

Pound has no quarrel with the general designation of law as a science. The marks of a scientific law are "conformity to reason, uniformity, and certainty" (605). Law is scientific as it tries to accomplish its end, which is the administration of justice. "Law is scientific in order to eliminate so far as may be the personal equation in judicial administration, to preclude corruption and to limit the dangerous possibilities of magisterial ignorance." No problem at all. But law cannot be scientific for the sake of science. Science must be the means and not the end. The dual dangers faced by a legal system are that its rulings appear might arbitrary to members of the public and that it can tend to be dominated by the "ghosts of departed masters" (606). When this happens legal science degenerates into technicality, and scientific jurisprudence becomes "a mechanical jurisprudence" (607).

One of the signs of law's becoming mechanical is the fascination with the technical. Just as lay people are obsessed with the fact that you can't sign a contract in pencil, so the lawyer may tend to hold artificiality as an end in itself and thereby forget the purpose of law. But the view of science on which this tendency rests, "science as a series of deductions," has become obsolete. It has been replaced by a more "modern" view of science that must look at the organisms themselves. Linneaus, the great classifier from the 18th century, layed down a proposition that every living thing comes from an egg without looking at the phenomena himself. However the present-day study of organisms has overthrown his fundamental proposition (609). And, the rest of the intellectual world is changing also.

"We have, then, the same task in jurisprudence that has been achieved in philosophy, in the natural sciences and in politics. We have to rid ourselves of this sort of legality and to attain a pragmatic, a sociological legal science" (609).

European Jurisprudence is Changing

From pp. 610-614 Pound gives us an impressive, if not pedantic, display of learning that is impossible to follow if a person is unfamiliar with lots of history. Suffice it to say that he refers to Germany for an example of what he wants America to do. Germany had been dominated, he says, by philosophical and historical jurisprudence (early-mid 19th century) but these were also jurisprudences of conceptions. Ihering, in the late 19th century, then emphasized a "jurisprudence of results," which proved to be the basis of the German Civil Code (1900). In that Code the emphasis is on the "ordinary workings of business" (611) rather than trying to deduct logical conclusions from established principles. Then, he dives into Roman law and becomes obscure but he returns to his point on p. 612--the next step for law is to realize the importance of legal development through legislation. Then he dives back into the subterranean depths of canon law before emerging again to talk about the "analytical school" (of German jurisprudence). Finally he gets to his point. "In Europe, it is obvioius that the different schools are coming together in a new sociological school that is to dominate juristic thought" (613). The virtue of the new German code is that it lays down principles from which to deduce, not rules but decisions (613). What is now needed in America is legislation that is the product of preliminary study of the conditions to which it was to apply (613).

"It (American law) has not expressed social standards accurately. It has not responded accurately to social needs. Hence a large proportion has been nugatory in practice" (613-14).

The American Scene

Pound then goes on a long and helpful journey in the next several pages to show the inadequacy of American law (and courts) in dealing with the real issues of human life. He lists the issues of employers liability, a uniform commerical law, future interests in land, discrimination by public service companies, allocation of water in western states, liability of corporations, etc. American case law failus to rise to social and legal emergencies (615).

This last observation gives him leave to focus on the diastrous decisions (for him) of the Court in Adair (1908) and Lochner (1905). "The conception of freedom of contract is made the basis of a logical deduction. The court does not inquire what the effect of such a deduction will be, when applied to the actual situation" (616). Deductions like this have given us rules of law that are wholly inadequate.

In addition, American procedure is "inexcusably behind the rest of the English-speaking world," and the culprit again is "mechanical jurisprudence" (617). Courts make "scientific procedure an end in itself, and thus, in the result, make adjective law an agency for defeating or delaying substantive law and justice instead of one for enforcing and speeding them" (Id.). The result? Absurd legal decisions, which he catalogues on 618.

Conclusion

This essay is becoming too long. In short, substantive law is still governed by a jurisprudence of conceptions (like freedom of contract), procedural law is a mess and, indeed, legal terminology is conclusory rather than helpful. We have words like "estoppel, malic, privity, implied, intention of the testator, vested and contingent" (621), all of which are "solving" words that really solve nothing. "Like Habib in the Arabian Nights, we wave aloft our scimitar and pronounce the talismanic word."

He is pleading for facts, for commissions, for investigations, for uniformity that will reflect life as it is actually lived. His cries did not go unheeded. We can look at the FRCP as a response in the procedural realm, the UCC in the substantive realm and, ultimately, the fact-collecting and government service of Legal Realists in the New Deal and beyond as an answer to Pound's cry. So much sometimes comes from such a shrill cry.

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