Roscoe Pound and jurisprudence and nineteenth century schools

I really wanted to read and understand Roscoe Pound's five-volume Jurisprudence. After all, he was one of the leading jurisprudential thinkers of the period form 1900-1940 and had moved bench and bar and school along on many issues in that time. I looked at him as a sort of "bridge" figure from the old analytical style of Austinian jurisprudence to the "sociological" or "realist" jurisprudence of the New Dealers and those in the 1950s and beyond. I really wanted to enter with Pound and patiently comb the history of 19th century European jurisprudential works so that I would be standing on a firm foundation when I "left Pound" in order to understand 20th century jurisprudence, which I would roughly define as legal philosophy from 1930-2000.

Thus, I was looking for (and still am seeking) a nuanced treatment of various jurisprudential approaches from the time of the decline of natural law on the continent (through the work of Kant) and the rise of positivism in England (Bentham) until the period just before WWII, when some of the leading thinkers who have died in the past decade or so or are still living were shaped. Once I get this earlier knowledge I am confident of being able to trace out the multitude of rivulets in jurisprudential thinking since 1930. I don't find the task to be that exciting; it is more or less a task of trying to describe and trace a person's pedigree in order to understand them. Since jurisprudence for me is simply thinking about law, I am interested in the ways that people who write think about law.

Back to Pound

So I was almost trembling with excitement when I picked up Pound's first volume to read chs. 2-4, where he surveys the history of various "schools" of jurisprudence from the 19th century to about 1930 or so. I got the "standard" Pound approach to the subject: dividing the 19th century into (1) the analytic jurisprudents; (2) the historical school; and (3) the philosophical school, with various permutations and combinations before he looked at "sociologial jurisprudence" in the 20th century. But, I will have to confess, his approach left me more dessicated than nourished, despite his obvious learning. I think it is because of his excessive interest in classification and his satisfaction in just giving examples of the faults of a particular "school," rather than trying to understand the generative problematic that moved individual authors. Indeed, he ignored the very thing that the sociological jurisprudes say moves them: the "realia" of life. I was looking for someone to tell me what is it about the life situation of Ihering, for example, or the historical experience of Germany in his time, that would have led him to define issues the way he did.

Pound's "pounderosity" comes out, for example, in his treatment of the 19th century "schools." Rather than trying to understand each on its own terms, in its own generative history, he propounds five issues or filters through which he plans to evaluate these schools: (1) What element in the complex of phenomena that we give the name of law, and what kind of system of social control through law, does it chiefly regard? (2) What answer does it give to the question as to the nature of law? (3) How does it answer the quesion, what makes law obligatory? (4) What form of legal precept does it take as the type? (5) What are its philosophical views?

My response, in 2005, to any of these issues is, 'why are any of these questions particularly important?' He seems to take individual thinkers not as indications of individuals trying to understand law from their own perspectives, driven and shaped as they are by their own education and historical experience, but merely as representatives of some kind of disembodied "school" which has some kind of approach and loyalty oath independent of any of its "members." So, as I tried to read Pound, I had not only to try to learn about each of the "schools" (a concept in itself I didn't like) but I had to try to piece together their approach through his five-question filter. It was disheartening. All I got were a series of names that will be valuable when I put together my own approach.

Moving to the Sociological Jurisprudents

I figured that Pound's treatment of the 19th century "schools" might have been ponderous because he was simply trying to classify as a prelude to dismissing their efforts. So I gave him one last chance, through his chapter on "The Social Philosophical Schools" (ch. 4), mostly of the 20th century. He first talked about three "movements" having their beginings in the last half of the 19th century, which led to three "types of jurist" in the 20th century. But after describing these "movements," we move to the 20th century "Schools," of which he lists five: the social utilitarians, the neo-Kantians, the neo-Hegelians, the recent neo-Idealists and those pursuing the revival of natural law. We have the feeling that we are moving in the area of "types" of people, who like machines move past each other, tipping their hats as they proceed to the next class of their respective "schools." All he says about the "social utilitarians" is that their method is "analytical and social philosophical." There are five important features of their thought, according to Pound, some of which are listed without comment, such as item 2--"Insistence upon the intersts which the legal system secures rather than upn the formal legal rights by which it secrues them" (p. 133). But I haven't the slightest understanding of what he means.

Conclusion

I suppose if I tried real hard to tease some meaning out of Pound's classifications and vocabulary I could make some progress. I could likewise erect a kind of scaffolding in my mind on which I hang all sorts of people and "schools." I could try to put all of Pound's comments in order and try to put names of people in each category. But, is this the way that I think or that is helpful to thik in the 21st century? Not at all. Some classification may be necessary, especially as you try to understand a scholar's overall approach to law or to the shaping influences of his/her life. But now I see, more than anything, why the "realistic jurisprudents" like Karl Llewellyn and others in 1931 began to have little patience with Pound. Pound, like Elihu in Job 32-37, is full of words but, in his case, the words aren't very valuable to me.

Thus, I will probably consult again his three HLR articles from 1911-1912 on sociological jurisprudence, but the reason for so doing will be to make lists of names rather than to understand the people whom he will try to classify. Then, I will have to make my own lists and try to piece together little pieces of information from here and there that allow me to "make sense" of these people. Unfortunately, for me, it is a very slow process. The story of how these people "fit together" told in 2005 has to be different from that story in 1955. I don't quite know of anyone, however, who is telling the story today...

Back to the library, Roscoe.

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