Harvard Law School - Yearbook (Cambridge, MA)

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From Lord Wright of urley I am honored at being invited by the Chairman of the Harvard Law School Yearbook Committee to make a short contribution to the Harvard Law School Yearbook to the dedicatory section, in honor of the seventy-fifth birthday of Roscoe Pound. His name is honored and his works are studied in every part of the Common Law World and I should add by legal thinkers in every quarter of the globe. I write as an English student and practitioner of the Common Law in its Old Home. , I cannot express how much I owe to the inspiration and instruction of Dean Roscoe Pound as scholar, thinker and expositor. The im- mense range ofhis learning and thought may be gathered from his Outline ofj urisprudence which, as he says, represents over fifty years study, and forty years teaching, ofjurisprudence. It should be the 1'dlfC'IllC't'lll1l of every lawyer. It is so much more than a bibliography. It will give germinal ideas to the lawyer on every topic with which he is likely to be confronted. But Pound has never been mastered by his learning, immense as it is. Mem agiml molem. His more detailed writings convey to the reader not only rich and accurate analysis and exposition, but above all, they con- vey the impression ofa vivid personality inspired by a liberal and humanitarian philosophy of the individual and corporate life in all its various aspects which fall within the sphere of law. He is not hidebound by formulas and dogmas repeated from generation to generation of lawyers. He looks behind them to see how they square with the realities of things, and to see what is the residuum of truth which they contain. In particular, he seeks to equate them, as far as may be, with the requirements of modern thought and ideals. And at the back of his mind, there is ever active and operating the idea of justice, the idea that first and last the quest of justice is the purpose of law. Law is not for him a self-sufficient and independent end, but is the means to a realization of justice. May I quote once more a memorable and characteristic passage fone out of many availablej: A theory, he says, which leaves out of account the quest of jurists and judges for an ideal of absolute, eternal justice, well or ill conceived, to which they seek to make the rules enforced in tribunals approximate as far as possible . . . ignores the chief influences in determining the bulk ofthe rules actually in force in any legal system at any given time. To have pursued the search, in his writings and teachings, for this essential idea of justice, through all the mazes of particular rules and forms, is an even greater achievement than all his contributions of learning and exposition, immense as they are. r Illl

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SUPREME COURT ,D.C. W ASHiNGT ON 1 945 October, d Roscoe Pound by his protound studies and varie ' i ce among American schoiars. ' d activities has a unique p a iedge oi iegai subiects an By reason oi his wide icnow his rare taient tor exposition he has been a briiiiant teacher. His writings constitute a notabie contribution the science ot iurisprudence. He has aiso been a biems oi the courts and to tudent oi the practicai pro nd administrative ciose s eatiy aided in promoting sou has gr measures. WWW

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Roscoe Poundis ilutstanding Contribu- tion to American Jurisprudence There are two fundamentally different ways to interpret ' phenomena in general and the phenomenon called law in par- ticular: the metaphysical and the positivistic or empirical one. The metaphysical interpretation is characterized by that well-known dualism which has its original and most primitive expression in animism and its classical philosophical formulation in Plato's doctrine of the ideas. This doctrine tries to explain, and at the same time to justify or to reject, the world of our experience by the assumption of another world of which the former is a more or less imperfect copy. In the field of jurisprudence the metaphysical interpretation manifests itself in the theory which assumes behind and above the more or less imperfect positive a perfect natural law as the archetype of the former. According to this view the law- Hans Kelsen the true and just law-cannot be made, neither by a legislator nor by a judgeg it can only be found as the result of an insight in the existent transcendental order of human relations. The empirical interpretation aims at the emancipation from the futile attempt to ex- plain things by their imaginary reduplication. It restricts itself to one world, the one which is within our human experience. Legal positivism is its counterpart in the field of jurisprudence. It conceives of the law as the work of men, as an instrument created by human beings for the maintenance of their social existence. According to this view, the law is a specific social tech- nique. The classical formulation of this view we owe to Roscoe Pound. He calls it the engineering interpretation, and describes it by an analogy which has become in juristic litera- ture one of the most often quoted statements: It must give us an interpretation in terms of activity, leading us to think oflegal institutions not merely as things that are, but as things that are made, not merely as things that have come to us but as things that were made at some time and are made now by those who believe in them and will them-and are largely what the latter believe them and will them to be. Yet it must give us an interpretation in terms of conditioned activity, conditioned by capacities, the characters and the prejudices of those who plan and make, by the materials with which they must work, by the circumstances in which they must work, and by the special purposes for which they work. Such an analogy seems to me to be afforded by engi- neering. Let us think of jurisprudence for a moment as a science of social engineering, having to do with that part of the whole field which may be achieved by the ordering ofhuman relations through the action of politically organized society-engineering is thought of as a process, as an activity, not merely as a body of knowledge or as a fixed order of construction. It is a doing of things, not a serving as passive instruments through which mathematical formulas and mechanical laws realize themselves in the eternally appointed way. The engineer is judged by what he does. His work is judged by its ade- quacy to the purposes for which it is done, not by its conformity to some ideal form ofa traditional plan. We are beginning, in contrast with the last century, to think ofjurist and judge and lawmaker in the same way. We are coming to study the legal order instead of debating as to the nature of law. 4' Rostrm: Pmmu, Init.:-rprt-rntinrm of Legal History H9337 pp. 15lf. i121