Harvard Law School - Yearbook (Cambridge, MA)

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The consequence of an engineering interpretation seems to be the statement that the law is a means, not an end, a specific means to very different ends. Hence jurisprudence as a science of engineering cannot define the nature of law by the end for which it is made and used. It is not upon the engineer to determine the purpose for which he is asked to work, this purpose is given to him by others. He has to build the instrument by which this purpose-whether he likes it or not-can be realized in the most adequate way. This purpose may be destruction or conservation of life and other values. The engineer's job is an atomic bomb as well as irrigation works for the transformation of deserts into arable land. Hence the problem of justice in its original sense is eliminated from the realm of jurisprudence or has changed its meaning. From the point of view of engineering interpretation, just law is law technically adequate for its purposeg and its purpose may be different in different social groups. The purpose of the law is a political not a scientific question. Roscoe Pound has tried to answer this question too. And his answer is the expression of the noblest and most human creed, formulated in the impressive language of a great thinker: From an earthly standpoint the central tragedy of existence is that there are not enough of the material goods of existence, as it were, to go roundg that while individual claims and want and desires are in- finite, the material means of satisfying them are finiteg that while, in common phrase, we all want the earth, there are many of us but there is only one earth. Thus we may think of the task of the legal order as one of precluding friction and eliminating wasteg as one of conserving the goods of existence in order to make them go as far as possible, and of precluding friction and eliminating waste in the human use and enjoyment of them, so that where each may not have all that he claims, he may at least have all that is possible. Put in this way, we are seeking to secure as much of human claims and desires -that is as much ofthe whole scheme ofinterests-as possible, with the least sacrifice ofsuch interests. ' Pound's engineering interpretation is usually called sociological jurisprudence. It is scientific jurisprudence in contradistinction to metaphysical speculation. It makes the law, the positive law, the object ofa true science whose three-fold task is to investigate the develop- ment of its object: legal history, to submit the various legal orders to a structural analysis on a comparative basis: analytical theory of lawg and to examine the conditions of their effectiveness: sociology of law. If jurisprudence is true science of law it is entitled to be taught at universities and especially at the law schools. History, analytical theory and sociology of law are essential in the preparation for the legal profession. To make students of law familiar with the routine of courts and attorneys, to have them learn as many cases as possible, is not enough. Since law is the core ofsocial life, the science oflaw is the center of all social sciences, and the law schools are the only places where the science of law can find a home. In this respect we owe to Roscoe Pound more than to any other teacher of juris. prudence. His internationally recognized authority has secured the United States an outstanding position in the literature oflegal theory. His exemplary lectures, based on a unique and profound knowledge of the works of all legal philosophers, have implanted in the younger generations of American jurists the respect for a subject formerly almost completely neglected, Ar his Seventy- fifth birthday we gratefully greet him as the master of American jurisprudence. n 'W' 'MMV 4' lim-icon l'ouNu, The Spirit of the Commun Law flilifllp. 196. l13l

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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

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Ifielwin IV. l'ul.l.erson A Tribute to Roscoe Pound To Roscoe Pound, in celebration of the seventy-fifth anniversary of his birth, I gladly offer a token of the debt which I owe him as teacher, friend, and philosopher of law. More than a quarter of a century has passed by since, as a student in his Seminars injurisprudence and in Roman Law, I was privileged to partake ofhis revealing insights into the basic values and methods of the world's two great legal systems: Anglo-American law, and the Roman-civil law. He was the hrst teacher who taught me to see law whole, to see it as a structure of the social order, and yet to see its conflicts and its compromises, its subtleties and nuances. Many a time outside the classroom he took pains to guide my eager inquiries into some obscure theory of ancient or modern legal philosophy. Likewise did he generously counsel me when in 1920 I began work on the first of the Harvard Studies in Administrative Law. This personal debt of gratitude is insignificant as compared with that which we all owe him for his contributions to the philosophy oflaw. When I began the teaching oflaw some thirty years ago, American legal thinking displayed a mechanistic formalism, its superficiality was only slightly penetrated by an historical approach which sought to find in the Yearbooks basic reasons for twentieth century law. That such is no longer the case is due to the work of Roscoe Pound more than of any other one man. Pound spoke for the culture of the Middle West, where the niceties of Yearbook learning were little known and less respected. His avid interests in the reasons behind law and his monumental learning in the doctrines and philosophies of English and European law enabled him to bring us insights of unrivaled richness and variety. To these and through these he has added his own contributions. The latter include his theory of social interests, which reveals the basic significance of public policies and social or ethical values in Anglo-American law. Many a judge and legislator and law teacher who was unfamiliar with Pound's writings has come under his influence. His philosophy of law is a framework for the whole of law, from the Statute of Wills to the latest piece of labor legislation. Through his numerous public addresses he brought legal philosophy out of the classroom and into the halls where bar associations and similar bodies gathered. He enlivened it with touches of humor and sometimes with a shrewd practical insight into American folkways. He gave it concreteness and vitality by calling upon his vast and accurate knowledge of the law. He has already expressed his philosophy of law in an outpouring of books and articles which will, I believe, long outlive our day. His work is not yet done. As we pay tribute to him on this occasion let us hope that in the years ahead he will integratezthese partial embodiments ofhis ideas and his learning in the long awaited treatise on jurisprudence. 5 W . I D I Cardozo Professor ofj urisprudence Columbia University