roscoe pound and karl llewellyn and realist jurisprudence and sociological jurisprudence

I have been reading a delightful section of NEH Hull's Roscoe Pound and Karl Llewellyn, a fairly recent (1997) attempt to understand the independent jurisprudential contribution of each of these men as well as the way that their lives overlapped in 1930-1931 in the most famous, until that time, jurisprudential flap in American history. This and the next essay set the context for understanding not simply the controversy but a series of issues swirling around these two "great men" about 75 or more years ago. Hull provides the context for an understanding not only of the "issues" involved but the men who provoked the issues. She confirms what I have thought and taught for years--that the root and meaning of all great ideas is to be found in biography, and that if you just massage the data of a person's life thoroughly enough you not only can create the world out of which s/he emerged but the thoughts that s/he thought. By pursuing a thoroughgoing biographical approach, the ideas can truly be put in their "proper" perspective (according to my approach): as just the iceberg tips of a rich and deep life.*

[*I suppose, on further reflection, this is why I am not all that interested in reading many books or articles except as they give me insight to what a person felt, what influenced them, how they reacted to those things which influenced them, etc. I tend to see ideas as generated by feelings, feelings shaped by obvious and not so obvious forces in a life.]

Getting a Grip on Pound

By the time the jurisprudential disagreement with Llewellyn came to a head in 1930-31 over what constituted "realist" jurisprudence, Pound had established himself as the premier legal thinker in America. Holmes was 90 and had finished a long and distinguished career, even if there was still in him the "canting" motion of the horse after it has finished the race. But Pound was 60 years old in 1930 and had already been teaching at Harvard (his fourth school) for 20 years and had been Dean for 14. As it relates to the field of jurisprudence, Pound was one who introduced German thinkers to America, classifying them according to "schools" and drawing out from them what he considered to be the most precious insights. He was interested in a "jurisprudence of results" rather than a "jurisprudence of conceptions" (indebted to Ihering for this insight) or a "sociological jurisprudence (indebted to Eugen Ehrlich for this). Pound represented for a younger generation of jurisprudes (born after 1880) the transitional figure who not only put to bed the Langdellian orthodoxy in which all of them were nurtured but showed the way to a new and exciting way of doing jurisprudence. Law would be driven by the realities of life, by the desire to make the legal system more efficient and people-oriented, by the need to dispense with "mechanical" judging and application of useless old legal rules. Pound, then, fired the hearts of a generation or more of younger legal thinkers--to become contributors themselves to this new world of "realist" thinking.

We must pause at this point for an observation on the nature of legal instruction and thinking at the period beginning about 1900. Law was a small operation in those days, with no more than a handful of law schools shaping the nature and understanding of law for most of America. Of course you had "big names" at "little places," such as John Henry Wigmore, the great evidence scholar, at Northwestern, but the important law schools at the turn of the 20th century were Harvard, Yale, and Columbia, The first two decades of the 20th century saw a wide array of law schools take shape. But even at Harvard the number of professors was not large. In his oral history describing his year as a student at Harvard in 1889-90, Pound went through and listed the entire faculty--all 8 of them. By the 1940s Harvard, the largest law school in America, had a faculty of about 50 (one woman) but in the teens and twenties they had no more than two dozen instructors.

I need to mention this point because it was indeed possible to become #1 in American law at the time, and Pound, before the 1930s, was definitely "up there." Thus, when a younger generation of scholars, such as Llewellyn and those who came of age in the 20th century, began writing, they didn't want to alientate themselves from this "big man" who could possibly hold some of their future professional fate in his hands.

Pound as a Writer

Pound had two peculiarities as a writer which I want to mention and illustrate, which eventually made him singularly unhelpful to a new generation of scholars, even if they were indebted to him for their "sociological" approach to jurisprudence.* On the one hand he had a personal aversion

[*Indeed, one of the reasons I think that Llewellyn wrote about a "realist" jurisprudence in the early 1930s, when disagreeing with Pound, was that he wanted to distinguish himself from the great Pound by even dreaming up a new word that would differentiate him from Pound. Pound had favored "sociological" jurisprudence.]

to conflict and confrontation, which meant that as he wrote he would usually talk about "tendencies" in scholarship or "approaches" to problems rather than naming names of those with whom he disagreed. This allowed him to make his point even while others were uncertain if they were the targets of his attack. Second he had, probably because of his training in classification as a botanist, divided the intellectual history of the "world," so to speak, into categories or "schools," as if every manifestation of thought was to be stuck through with a pin, labeled and put in a super-Linnean classificatory scheme. This tendency is evident in vol. 1 of his Jurisprudence. For example, in ch. 2, he talks about the "history of jurisprudence." A not atypical statement is:

"There are four forms of the social-philosophical school. Stated in chronological order of appearance, they are: (1) Social Utilitarians; (2) Neo-Kantians; (3) Neo-Hegelians; and (4) Revived Natural Law."

But then he goes on to talk about the "original writings" of the Revived Natural Law "school" to be "of three forms:--(a) Neo-scholastic; (b) metaphysical-psychological; and (c) positvist-sociological" (pp. 67-68). Then there are far more "schools" in his system. By the time he gets through making up his classifications you kind of want to say to him, "Roscoe, I lost you after you mentioned (1)."

Conclusion

I think that two of the factors, then, that caused a rift between Pound and a younger generation of scholars were his style of writing and his generality of points. Other points may relate to his age (shaped by a different experience) and position (Dean at Harvard). In any case, we are ready to understand Llewellyn and the controversy now.

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