Critique of Formalism Mechanical Jurisprudence

Roscoe Pound (1870-1964)

Critique of Formalism – Mechanical Jurisprudence

▪ Pound’s Thoughts on Legal Education

"...... I should put as the content of a good legal education:

(1) A solid all round cultural training, with a grasp of significant information which such a training involves, but much more with the broadening and deepening of experience and ability to appraise information to which it leads.

(2) A grasp at the ends and technique of the social sciences – this only, for beyond that, what has been taught in their name has been short-lived.

(3) A grasp of the history and a system of common law, of the outline and ends of the legal order, of the theory and ends of the judicial and administrative processes, and of the history, organization, and standards of the legal profession.

(4) A thorough grasp of the organization and content of the authoritative legal materials of the time and place and of the technique of developing and applying them.

If one has these, he has whereon he can build to the exigencies of the many demands of different types of professional activity and of the public need of enlightened judges and wise lawmakers, of law reformers and law teachers, and of legal scholars."

From an address to the American Bar Association in 1933.

▪ “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 The idea of science as a system of deductions is obsolete.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.

▪ The Possibility of a Measure of Values

▪ The purpose of a civilized society is the distribution of limited resources amongst all persons in society as far as possible with the least friction and waste.

▪ Without regard to philosophy, problems presented to jurists for resolution are practical problems presented in a practical way, and at every step in finding a practical solution we encounter the problem of values.

▪ Since Jhering distinguished the legal system from the legal claim, we have had to deal with which individual and community interests should be recognized and secured.

▪ Each of these claims may have to be looked at from several different points of view.

▪ Individual Interests:

▸ Economic

▸ Physical and spiritual existence

▪ The Possibility of a Measure of Values (cont.)

▪ Societal Interests:

▸ The dignity of the political organization of society

▸ General security

▸ Public safety

▸ General health

▸ Security of acquisitions, and

▸ Security of transactions.

▪ Every claim must be weighed against every other interest, and this results in a constant struggle to obtain a higher valuing of particular claims or demands.

▪ These competing claims have created many of the standing puzzles of the law.

▪ The ideas of jurisprudence have given us a starting point for legal reasoning, a criterion of interpretation, and a measure of the application of standards so that practical solutions can be derived to practical competing interests.

▪ The Possibility of a Measure of Values (cont.)

▪ What are the alternatives to a jurisprudence of values where competing interests are adjusted to secure as much as possible of the differing interests with the least friction and waste?

▸ A regime of free contractual rights and duties – a philosophy of anarchy

▸ Marx’s doctrine of disappearance of law – a regime of administrative absolutism

▸ A corporative state in which the unit is no longer the individual but the occupational group – a regime which led to the development of law.

▪ Although law is not the only agency of social control, the legal system bears the brunt of this task.

▪ The Possibility of a Measure of Values (cont.)

▪ We may concede that there are no absolute values, that value is relative to something, and perhaps the value of jurisprudence is relative to the civilization which develops it.

▪ The law today relies more on the application of standards than authoritative statements of rules.

▪ Legal philosophy may not be able to give us an ability to measure values, but it can provide a method for critically analyzing traditional ideals of the law.

▪ What we need is not a reversion to justice without law (a further development of absolutism) but a redrawing of the authoritative picture of the society in which justice is administered.