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Roscoe Pound (1870-1964)

Critique of Formalism Mechanical Jurisprudence

Full, equal, and exact justice.

Scientific law demands:

Full justice solutions that solve the root controversy

Equal justice like adjustment of like relations under like conditions

Exact justice legal operations which, within reason, are predictable

Scientific law, then, is a reasoned body of principles for the administration of

justice, and its antithesis is a system of enforcing magisterial caprice,
however honest, and however much disguised under the name of justice or
equity or natural law.

Law should be scientific in order to:

Eliminate the personal equation in judicial administration

Preclude corruption,

Limit the dangers of magisterial ignorance

Law is not scientific for the sake of science, but as a means to an end and the
results it achieves.

Beware of systems, as it is in the nature of rules to operate mechanically

without regard to current ideas of fair play.

Science in Law

We reject scientific as meaning a system of deductions from a priori

conceptions. The idea of science as a system of deductions is obsolete.

Theories are instruments, not answers to enigmas. We require them to

exhibit practical utility, and rest them upon a foundation of policy and
established adaptation to human needs.

The sociological movement is a movement for pragmatism as a philosophy of

law in place of assumed first principles the human factor has first place,
while logic is but an instrument.

[Law as science is a dangerous game as pseudo-sciences may lead to

monstrous legal rules. Law is not scientific in the hard or empirical science
sense, but only in the soft or social sciences sense. GWR]

The Sociological School of Jurisprudence (Reformers)

Instead of seeking for an ideal universal law by metaphysical methods, the

ideal of all schools is to turn the community of fact of mankind into a
community of law in accord with the reasonable ordering of active life.
Hence they hold that the less arbitrary the character of a rule and the more
clearly it conforms to the nature of things, the more nearly does it approach
to the norm of a perfect law.

Principles, not rules, should be the basis of judicial decision. The true way is
to make rules fit cases instead of making cases fit rules.

His classic example is the rules of procedure, which he deems to be one in

which mechanical (scientific) procedure becomes and end of itself, delaying
or defeating substantive law and justice instead of being a mechanism for
speeding and enforcing substantive justice.

The life of the law is in its enforcement.

The Task of Judging

The nadir of mechanical jurisprudence is reached when conceptions are used,

not as premises from which to reason, but as ultimate solutions.

Law is the art of knowing what is good and just. Anyone may properly call us
the priests of this art, for we cultivate justice and profess to know what is
good and equitable, dividing right from wrong, and distinguishing what is
lawful from what is unlawful; desiring to make men good through fear of
punishment, but also by the encouragement of reward; aiming, if I am not
mistaken, at a true and not a pretended philosophy.

The task of a judge is to make a principle living, not by deducing from it rules
to last forever, but by achieving thoroughly the less ambitious but more
useful labor of giving a fresh illustration of the intelligent application of the
principle to a concrete cause, producing a workable and a just result. The
real genius of our common law is in this, not in an eternal case-law.