You are on page 1of 8 Roscoe Pound, 1870-1964 Papers: 1880-1963, mostly 1930s-1950s Lincoln, Lancaster County, Neb.; Chicago, Ill.

; and Massachusetts: Lawyer, educator Size: 2.5 cu. ft. BIOGRAPHICAL NOTE Nathan Roscoe Pound was born on October 27, 1870, in Lincoln, Nebraska. He was the son of Stephen B. Pound, a lawyer and judge, and Laura Biddlecome Pound, a native of New York. Roscoe Pound earned his B.A, M.A, and Ph.D. degrees in botany at the University of Nebraska and was one of Dr. Charles E. Bessey's first serious botany students at the university. Pound began studying law at Harvard in 1889 but stayed only a year before returning to Nebraska to begin his own practice. He was admitted to the Nebraska Bar without a law degree, and from 1899 to 1907, Pound taught law at the University of Nebraska, serving as Law School Dean during his final four years. He was also Commissioner of Appeals of the Nebraska Supreme Court from 1901 to 1903 and later taught at Northwestern University and the University of Chicago before becoming a law professor at Harvard in 1910. In 1916, Pound became Dean of the Harvard Law School, a post he held until his retirement in 1936, at which point he agreed to stay on as a professor. This appointment made him Harvard's first professor with a license to teach any subject in the university, not only law. At the age of 76, Pound resigned from teaching to accept an invitation from Chiang Kai-Shek to codify Chinese Laws. During his long career Pound held many posts of legal prominence, including the presidency of the Association of American Law Schools, membership in the standing advisory committee for the jurist section of the International Institute of Intellectual Cooperation, and membership on the

Wickersham Commission which reported to President Hoover in 1931 on the prohibition law. Pound held some 200 honorary degrees from universities in this country and abroad. In 1940 he was awarded the Golden Medal of the American Bar Association for "conspicuous service to the cause of American jurisprudence." Roscoe was a past master of Lancaster Lodge 54 AF&AM in Lincoln and grand orator of the Grand Lodge AF&AM of Nebraska, of which he was an honorary past grand master. He received the 33rd degree of the Scottish Rite in 1913 in Philadelphia. Roscoe made his last appearance in Nebraska in March 1960 when he delivered a lecture at the University of Nebraska College of Law, where in 1950 the Roscoe Pound Lectureship was established. His first wife, Grace Gerrard of Columbus, Nebraska, died in 1928. In 1931, he married Mrs. Lucy Miller of Washington, D.C. who died in 1959. Roscoe Pound died on June 30, 1964 at the age of 93 in Cambridge, Massachusetts. He left no survivors. SCOPE AND CONTENT NOTE This collection is arranged in four series: 1) Correspondence, 1889-1963; 2) Writings by Roscoe Pound, 1893-1962, n.d.; 3) Writings about Roscoe Pound, 1896-1964, n.d.; and 4) Miscellaneous. Series 1, Correspondence, 1889-1963, consists of both incoming and outgoing letters of Roscoe Pound. A portion of the correspondence relates to major events in Roscoe's, life, including his second marriage, resignation of the Harvard deanship, and his 75th birthday celebration. Correspondence with Paul Sayre regarding Pound's biography is also included. Series 2, Writings by Roscoe Pound, 1893-1962, n.d., includes various articles by Pound. The majority of the writings appeared in the Harvard Law Review and other legal publications and date from 1903-1962. Also included in this series are a few Nebraska court case briefs.

Series 3, Writings about Roscoe Pound, 1896-1964, n.d., consists of articles and biographical sketches authored by various sources. Of particular note are the items authored by Roscoe's mother and sisters. Also included in this series is a manuscript draft for the Roscoe Pound biography authored by Paul Sayre. The remainder of this series consists of alumni magazine articles and newspaper clippings. Series 4, Miscellaneous, includes a student essay and Roscoe's report cards from his years as a student at the University of Nebraska, general information regarding the entire Pound family, a biographical sketch for Dr. Francis F. Tucker, and miscellaneous newspaper clippings. Roscoe Pound was one of the leading figures in twentiethcentury legal thought. As a scholar, teacher, reformer, and dean of Harvard Law School, Pound strove to link law and society through his "sociological jurisprudence" and to improve the administration of the judicial system. In the early decades of the century, Pound was viewed as a radical thinker for arguing that the law is not static and must adapt to the needs of society. By the 1930s, however, he was seen as a more conservative figure, fighting the growth of federal government. Pound was born on October 27, 1870, in Lincoln, Nebraska. The son of a judge, Pound attended the University of Nebraska, earning a bachelor of arts degree in botany in 1888. His father convinced him to attend Harvard Law School, but he stayed only one year. The death of his father led Pound to return to Lincoln, where he passed the Nebraska bar examination and was admitted to the bar in 1890. From 1890 to 1903, Pound practiced law, taught at the University of Nebraska, earned a doctorate in botany from the university, and served as the director of the state botanical

survey. In addition, he helped organize the Nebraska Bar Association in 1900. A gifted scholar, Pound could have had a distinguished career in the sciences, but his appointment in 1901 as a commissioner of appeals for the Nebraska Supreme Court permanently shifted his career to the law. As a commissioner he acted as a temporary appellate judge, helping to reduce a backlog of cases. His opinions emphasized substance over procedure and reflected a concern with the practical effect of the law. In 1903 he was appointed dean of the Nebraska College of Law. His academic interests merged with his experience as a court commissioner in 1906 when he addressed the annual convention of the American Bar Association in St. Paul. His speech, titled "The Causes of Popular Dissatisfaction with the Administration of Justice," was a call to improve court administration and a preview of his theory of law, called sociological Jurisprudence. The speech, which has remained a classic statement on Judicial Administration, attracted the attention of John Henry Wigmore, the dean of Northwestern University School of Law. He asked Pound to join his faculty in 1907. Pound's two-year association with the school was marked by his organization of the First National Conference on Criminal Law and Criminology, which gathered participants from many professions to discuss ways to reform the criminal law. The conference was one of the first of Pound's efforts to give practical application to sociological jurisprudence. "THE LAW MUST BE STABLE, BUT IT MUST NOT STAND STILL." ROSCOE POUND In 1910, after having spent a year at the University of Chicago, Pound joined the faculty at Harvard Law School. He was appointed dean in 1916 and served until 1936. It was during this period that Pound's views and influence were at their zenith.

Pound's contribution to U.S. jurisprudence was to further the work that OLIVER WENDELL HOLMES JR. had begun in debunking the legal theories that had dominated during the nineteenth century. Pound fought the notion that an unchanging and inflexible Natural Law formed the basis for the Common Law. He did believe that some constant principles existed in the common law, particularly ones dealing with methods, to which he gave the name "taught legal tradition." Pound firmly believed that the implementation of the principles of the taught legal tradition by wise common-law judges resulted in substantive change, which reflected changes in society. As the interpreters of the common law, judges had a special duty to consider the practical effects of their decisions and to strive to ensure that judging facilitated rather than hindered societal growth. Pound placed his sociological jurisprudence in opposition to what he termed "mechanical jurisprudence," which he characterized as a common but odious practice whereby judges woodenly applied precedent to the facts of cases without regard to the consequences. For Pound, the logic of previous precedent alone would not solve jurisprudential problems. Despite his desire to see the law adapt to the needs of society, Pound believed that the common law should develop slowly and that it should only follow changes in society. Certainty in the law, especially in areas such as commercial and Property Law, was often more beneficial than attempts at practical alteration. He revealed a more conservative cast of mind in his distrust of legislative statutes, arguing that the slow development of judge-made law was preferable to the radical changes often brought by legislation. His study of biology led him to believe that the law, like nature, was a seamless web and that changes in one part might produce totally unexpected and undesirable results in a distant part. Pound's sociological jurisprudence fell out of favor in the 1930s, when the Legal Realism movement attacked his

philosophy. Though the legal realists and Pound had much in common, the realists, especially JEROME N. FRANK, differed over the nature of judicial decision making. Where Pound believed that judges, with the objective application of his principles of sociological jurisprudence, could logically produce the result in a given case, Frank, in his book Law and the Modern Mind (1933), thought otherwise. Frank maintained that not logic but the unique psychological makeup of judges was the most important factor in the resolution of a lawsuit. The realists pointed out, after analyzing many court decisions, that often a judge could support a decision for either side on a given legal issue. Therefore, they argued, judges were forced to decide cases on the basis of their subjective feelings of what was "fair" and then turn to the applicable part of the case law to furnish legal fig leaves to hide what they had actually done. Pound reacted angrily to this analysis in a series of law review articles. He believed that the RULES OF LAW, especially rules of commercial law and property, could be determined with certainty and even attain the logical coherence of propositions of Euclid. Pound conceded that it was important to study the psychology of judging, but only to prevent the aberrations the realists claimed were common. Pound thought that the realists emphasized the oddities, and not the central factors, in their analysis of the judicial system. He disliked the realists for discounting the importance of the common law and for their willingness to advocate that the law be used to change society. For Pound, the legal system worked best when the law followed society. Any attempt to make society follow the law was futile. Pound resigned as dean of the Harvard Law School in 1936. He was appointed the first university professor of Harvard in 1937, an appointment that permitted him to teach in any of the academic units of Harvard. An opponent of much of President FRANKLIN D. ROOSEVELT's New Deal legislation, Pound was actively involved in attempts to stop the great expansion

of federal administrative agencies. He continued writing during his later years, publishing his monumental fivevolume Jurisprudence in 1959. He died on July 1, 1964, in Cambridge, Massachusetts, at the age of ninety-three. d=337&Itemid=284 Law and Liberty by Roscoe Pound Roscoe Pound (1870-1964) taught the founder of Liberty Fund, Pierre F. Goodrich, law at Harvard University in 191617 and they remained in contact for the rest of Pound's life. Goodrich was very much influenced by Pound's ideas on the importance of constitutional and legal guarantees of freedom in the history of the West and later assisted Pound in getting his books on Constitutional Guarantees of Liberty (1957) and Jusiprudence (1959) published. Works on Law Roscoe Pound's "Law and Liberty" was published as one of the Lectures on The Harvard Classics, Political Science. V. Law and Liberty, ed. William Allan Nelson et al. in The Harvard Classics, ed Charles W. Eliot (New York: P.F. Collier and Son, 1909-14), vol. 51.

For what end does the legal order exist? What do we seek to achieve through the political organization? What is the ultimate purpose in lawmaking, that is, in the selection and formulation of the standards for the public administration of justice which organized society establishes or recognizes? These are the first questions in legal and in political philosophy. The history of juristic thought and of political thought is chiefly a history of the way in which men have answered them.

The Aim of Law (1) in Primitive Societies

Roscoe Pound, "Law and Liberty" (1914)

In primitive societies the answers are that the legal order exists simply to keep the peace, that men seek through the legal order to avert individual self-redress and prevent private war, and that the purpose of lawmaking is to establish rules by which controversies may be adjusted peaceably. Accordingly, whereas to-day we seek, as we say, to do justice, seeking to preserve the peace and to adjust controversies peaceably simply as means thereto and incidents thereof, primitive legal systems make peace the end. Where to-day we think of compensation for an injury, primitive law thinks only of composition for the desire to be avenged. Where to-day we seek to give to each what he ought to have or the nearest possible equivalent, primitive law seeks only to give him a substitute for vengeance in case he is wronged.


(2) In Greece and Rome

Greek philosophy and Roman law soon passed beyond the crude conception of the end of the legal order in primitive society. Instead, they gave these answers: The legal order exists to preserve the social status quo; men seek through the legal order to keep each individual in his appointed groove, and thus to prevent the friction with his fellowmen which primitive law sought only to mitigate. This is brought out very clearly in Greek political philosophy. Thus, in Platos ideal state the state is to assign everyone to the class for which he is best fitted and the law is to keep him there, in order that a perfect harmony and unity may prevail. St. Pauls well-known exhortation (Ephesians v, 22ff. and vi, 15) in which he calls on all the faithful to exert themselves to do their duty in the class in which they find themselves, proceeds upon the same conception. The Roman lawyers turned this idea of political philosophy into law. In the great institutional book of Roman law, the Institutes of Justinian, we are told that the precepts of law come to three; to live honorably, not to injure another, and to give to everyone his due. The idea here is that the state and the law exist to maintain harmoniously the existing social order. What the interests of another are, which one is not to injure, what makes anything anothers due, so that it is to be given him, are matters which are left wholly to the traditional social organization.

means of preserving the social status quo, the more since the latter was fortified by the unassailable authority of texts of scripture and of the Roman law. Moreover, from the thirteenth century on, philosophers more and more sought to sustain authority by reason, and in this way they prepared the way for a new conception which developed in the seventeenth century. For by that time two events of capital importance had compelled a complete revolution in legal and political philosophy. In the first place the Reformation had divorced the philosophy of law and of politics from theology and had set them free from the authority of the church. This was the work of the Protestant jurist theologians of the sixteenth century.1 Secondly, following the nationalist movement which resulted from the breakdown of the unifying and universal authorities of the Middle Ages, the church and the empire,2 the Germanists overthrew the idea of the binding authority of the Roman law in modern Europe. Accordingly it became necessary to find new bases for legal and political authority, and those bases were found in reason and in contract, or the consent and agreement of the individual.3

Reason and Natural Rights

(3) Before and After the Reformation

On the downfall of the Roman empire the Germanic invaders brought back for a season the primitive ideas of buying off vengeance and keeping the peace through arbitrary peaceful solution of disputes by mechanical modes of trial and hard and fast rules. But during the Middle Ages these conceptions gradually yielded to the classical idea of the legal order as a

In the seventeenth and eighteenth centuries reason was made the measure of all obligation. Seventeenth-century legal and political philosophers considered that law existed in order to produce conformity to the nature of rational creatures. In practice, however, though they had broken with authority as such, they accepted the Roman law as embodied reason and essayed very little that did not have authority behind it. In consequence the Roman maximnot to injure another and to give to everyone his ownwas taken to express the nature of rational creatures, and respect for personality and respect for

acquired rights remained the two cardinal principles of justice. But these principles raised two obvious questions: (1) What is there in personality that makes aggression an injury, and (2) what is it that makes anything ones own? The answer was sought in a theory of natural rights, or of certain qualities inherent in individual human beings and demonstrated by reason to which society, state, and law were bound to give effect. According to this theory, justice is the maximum of individual self-assertion; it is the function of the state and of the law to make it possible for the individual to act freely. Hence the sphere of law is limited to the minimum of restraint and coercion necessary to allow the maximum of selfassertion by each, limited by the like self-assertion by all. This purely individualist theory of justice culminated in the eighteenth century in the Declarations of the Rights of Man and Bills of Rights which are so characteristic of that time.4

found in history the unfolding of this idea in human experience. The philosophical jurist postulated free will as the fundamental principle and deduced therefrom an ideal system of principles of liberty to which law ought to conform. The utilitarian legislator took individual liberty for the one sure means of producing human happiness and so made it the goal of all lawmaking. Mills treatise On Liberty6 is the best example of a thoroughgoing exposition of this nineteenthcentury idea of abstract liberty. Moreover, it is much more tempered and reasonable in its attitude toward what we now call social legislation, so far as it restrains an abstract liberty of action whereby under pressure the weak barter away their actual liberty, than most contemporary or even subsequent writing from the same standpoint.

The Modern Social Point of View At the close of the eighteenth century the foundations of the seventeenth and eighteenth century theory were shattered by Immanuel Kant.5 But he furnished a new metaphysical foundation for the conception of justice as the maximum of individual self-assertion and in consequence it survived for about a hundred years and was given complete logical development in the political, economic, and juristic writing of the nineteenth century, although the actual law began to break away from this idea in Europe by the middle of the century and was definitely breaking away in America in the last decade thereof.

In the nineteenth century, then, legal and political philosophers were agreed that the end of the legal order, the purpose of political organization and purpose of lawmaking, were to secure and maintain individual liberty. The historian

To-day the social-philosophical school has given us a new conception of the end of the legal order. Instead of the maximum of individual self-assertion consistent with a like self-assertion by all others, we are now putting as the end the maximum satisfaction of human wants, of which selfassertion is only one, even if a very important one. Hence juristic and political theory to-day thinks of interests, that is of claims which a human being may make, and of securing or protecting the greatest number of these interests possible with the least sacrifice of other interests. Moreover there are public interests, or claims which the organized political society may make, and social interests, or claims of society at large. Ultimately all interests, individual and public, are secured and maintained because of a social interest in so doing. But this does not mean that individual interests, the details of which the nineteenth century worked out so well, are to be

ignored. On the contrary, the chiefest of social interests is the moral and social life of the individual, and thus individual interests become largely identical with a social interest. In securing them because of the social interest in the moral and social life of the individual, however, and in recognizing that individual self-assertion is only one human want, which must be weighed with others in a finite world where all wants cannot be satisfied, a governmental paternalism or even maternalism may become proper, which would have seemed intolerable to thinkers in the last century. In this connection, Mill on Liberty has a permanent value, despite the entire change in our views as to the end of law and of the state. Just as in the seventeenth century an undue insistence upon public interests, thought of as the interests of the sovereign, defeated the moral and social life of the individual and required the assertion of individual interests in Bills of Rights and Declarations of Rights, there is a like danger that certain social interests will be unduly emphasized and that governmental maternalism will become an end rather than a means and will defeat the real purposes of the legal order. Hence, although we think socially, we must still think of individual interests, and of that greatest of all claims which a human being may make, the claim to assert his individuality, to exercise freely the will and the reason which God has given him. We must emphasize the social interest in the moral and social life of the individual, but we must remember that it is the life of a free-willing being.

Massachusetts), American jurist, botanist, and educator, chief advocate of sociological jurisprudence and a leader in the reform of court administration in the United States. After studying botany at the University of Nebraska and law at Harvard (188990), Pound was admitted to the Nebraska bar, and he practiced law while also teaching at the state university (18901903). While serving as director of the state botanical survey (18921903), he discovered a rare lichen, which was subsequently named Roscopoundia. Pound also served as commissioner of appeals for the state supreme court (190103) and commissioner on uniform state laws for Nebraska (190407). He taught at Northwestern University in Evanston, Illinois (190709), and at

the University of Chicago (190910), after which he went to Harvard, where he was professor of law (191037) and dean of the law school (191636). On his resignation as dean, he received a roving professorship there and taught a variety of e-Pound Roscoe Pound, (born October 27, 1870, Lincoln, Nebraska, U.S.died July 1, 1964, Cambridge,

subjects until his retirement (1947). After World War II he spent some time in China reorganizing the Nationalist Chinese judicial system.


five-volume Jurisprudence is




comprehensive of 20th-century legal works. His theory of sociological jurisprudence required that inherited legal codes and traditions be adjusted to reflect contemporary social conditions. The theory may have partially inspiredand was advanced by others as a justification ofthe New

Deal legislation of President Franklin D. Roosevelt in the 1930s, which Pound nonetheless considered extreme.