roscoe pound and jurisprudence and two modes of treatment and four methods of jurisprudence

The staggeringly learned Roscoe Pound worked on his five volume jurisprudential treatise for more than 60 years, publishing it at age 89 in 1959. Ever since he wrote to friend Owen Hershey in 1892 mentioning that TE Holland did his jurisprudential work as if he were a "comparative Histologist," Pound was developing his own approach to the subject. As a result of his criticism of Holland I was suprised, on reading the first chapter of vol. 1 on the definition of jurisprudence, to discover the extensive dependence of Pound on Holland. The appearance of dependence is made even more extensive because of the systematic or classificatory nature of Pound's mind (he talks about three meanings of the term, four definitions of law, four schools of jurisprudence and two modes of treatment of the subject all in the first 16 pages).

These dependencies are enough to encourage me to advance a tentative hypothesis--that Pound's mind was mostly of the organizing and systematizing, rather than creative or generative, type. His greatest asset is when he surveyed the vast array of material on the history of law/jurisprudence. Yet, one has the sense that the work is nearly out of date the moment it came off the press. It is really a product of a mind "stuck" in the early part of the century rather than mid-century. Indeed, since so many changes would rapidly come upon American life beginning shortly after Pound's death, his work became obsolete and ignored very quickly. The purpose of this essay is to show Pound's approach to the subject, making reference especially to how he builds upon Holland's earlier work.

Defining the Term

Pound has four concerns in the first chapter. First, like Holland, he defines the term "jurisprudence" as the science of law, even though he doesn't regale us with quotations from Cicero or Ulpian. While Holland gave us three ways in which the term was used (the reflection on principles common to various systems--the analytic approach; the course of decisions on a subject by a court; a synonym for law ("dental jurisprudence")), and disparages the second and third, Pound gives us these three definitions and disparages none. He simply concludes that "Jurisprudence means the science of law." By science he means "a body of controlled and ordered knowledge about something significant" (10). Thus, even though he would like to distinguish himself from Holland, his approach has a 19th century flavor to it. He tries to distinguish philosophical jurisprudence from the philosophy of law (11), but the distinction isn't clear in my mind and he doesn't illustrate what the distinction means. He has not started with a bang.

Meaning of "Law"

Second, he suggests that the term "law" can be used in four ways. His presentation is made confusing when he reviews the first ("the aggregate of laws, the whole body of legal precepts which obtain in a given politically organized society") and says that this is "law in the second sense" (13). However, as long as you follow his curious order here and in the next section (where the "philosophical" method is listed as the third jurisprudential method while he says it is the second in order of historical appearance), you can easily follow him. So a second meaning of the term "law" is the total legal order, which is a "specialized phase of social control" (13). This translates the German word "Rechtsordnung" and the French "ordre juridique." He suggests a third meaning of law, following Benjamin Cardozo, as "the judicial process," including the "administrative process." Finally, he says that law may be used to mean "all three of the foregoing" as when someone talks about "law and morality" and means either the legal order, the body of authoritative materials for guidance of judicial or administrative action or the judicial process or all three. These three/four ideas of law can be unified under the rubric of social control. Law is a species of social control, even if it is not coextensive with it. He freely admits his dependence on Professor EA Ross, a colleague at U of NE in the early days of the 20th century, for this insight (15). So, he concludes this definition of law by defining the "science of law" as follows:

"an organized and critically controlled body of knowledge both of legal institutions and legal precepts and of the legal order, that is, of the legal ordering of society" (16).

The Four Jurisprudential "Points of View"

Whereas Holland only presented the analytical as the method for jurisprudential thinking, Pound lists four. The analytical, as with Holland, is a method that analyzes principles of a system and compares them with other systems. The historical method investigates, surprise surprise, the "historical origin and development of the legal system and its institutions..." (18). The philosophical, which is the second method to develop, "seeks to reach philosophical presuppositions of the legal system, and to understand and organize its ideal elements through philosophy" (19). The "general science of law" arises when this method is combined with the analytical. Finally, the sociological method studies the legal system as a social instrument, as a "part of social control" (20). Eugen Ehrlich (1862-1922) of Czernowitz (currently in the Ukraine but, at the time, in the Austro-Hungarian Empire) is credited by Pound as being the "pioneer" of this method.

The Two Modes of Treatment and Conclusion

Finally, he concludes his chapter by suggesting that these methods may be treated either dogmatically or critically (23). He stresses that sociological jurisprudence is especially concerned with a critical mode of treatment. So far Pound doesn't wildly impress. He treats jurisprudence as both a science and as a system of social control. But the whole idea behind a sociological jurisprudence is to understand the realia of life, the real things that make up the daunting particularity of any society. Thus, it is hard to see how such particularity can make up a "science," since the basic principle of sociological jurisprudence is that the accidents of life and history contribute more to the shaping of law than any kind of logical process. Thus, we can be grateful to Pound for attempting to systematize and classify everything, but the classification, it seems to me, kind of belies his seeming commitment to social scientific methods. We will have to see how his work unfolds. As for now, it is rather ho-hum.

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