University of Nebraska College of Law - Yearbook (Lincoln, NE)

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mate terms with his Creator and can expound I-Iis will offhand on all occasions, the man who thinks the administration of justice the simplest of matters, which any one can carry on by the light of nature,-all these in all times swell a chorus of harmless complaint against even the best of legal systems. But we should not be de- ceived by this innocuous and inevitable outcry against all law into overlooking or underrating the real and serious lack of respect for law which exists in America. A philosopher defined law as the external conditions of life measured by reason. If the current disrespect for law meant dis- respect for reason, if it meant that the people were unwilling to measure their relations with each other by reason, but sought to leave them to cat 'ce and the chance impulse of the moment, it would be a serious phenomenon indeed. But, serious as disrespect for the law must always be, I am persuaded the present attitude of the public toward the law is not of this sort. I believe it a normal phenomenon in legal history, a necessary incident of a period of transition to enacted law. So far from rejecting reason, the people are endeavoring to reason. But they are not agreed, and as they are many and the law is one, the law can not accord with all of them. The reasons of conflicting interests in the community con- Hict with each other, and each conflicts with the reason of the past, embodied in the common law, and the reason of the whole people, as embodied in the statutes. For instance, the ultra-individualism of our common law, to which our ancestors were attached so stead- fastly, conflicts with the reason and with the interests of two of the dominant classes of modern society. In its insistence on freedom of contract, on individual freedom to work as, and as long as, one chooses, and on individual responsibility forthe risk of employ- ment, it confiicts with the reason and with the interest of laborers. In its insistence on competition at all events and at whatever cost, its hostility to combination and organization, its insistence that a partnership is not an entity, and its narrow views of the powers of corporations, it conflicts with the reason and the interest of men of business. Thus the two chief forces in the community, labor and business, are out of accord with the law, and this at a time when each is pushing forward and extending its influence. Individual grievances against the law are as old as the law. They have no necessary effect. On the other hand, friction be- tween the law and important groups or classes in the community affects the whole administration of justice. In legal history, it has ' 76

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RESPECT FOR LAW' BY ROSCOE POUND., DEAN ffm . D! ' , 3 L.-XY friend to whom I suggested the sub- ject, Respect for Law. responded. as ' ii:-321 ' ii ' lavmen will, If You want the law re- spected, make it respectable. Our pro- ' ,, if 'f n ession is usec to suci jests. aniuiani, some 2250 years changed their dec spiders' webs, in through. The aut that Alfred hung names it as one of he lived that such before Christ, legislated against judges who isions. The Greek wise man compared laws to which small nies are caught but the great break hor of the apocryphal Mirror of Justices tells us some thirty-two judges during' his reign, and the chief abuses of the degenerate times in which executions had ceased. The monks of the Mid- dle Ages had a saying, 'iB0lIfZI5 j111'1's111, 11101115 C1Z1'1.SfC'l,U and Luther went them one better with his, Hf1lI'1'Sff'll 110050 C111'Z'Sft'11f, ja c1111- b011's1c1z. ' Melancthon termed us u1UgI1l11 r011101'f01'rs, 110110111111 F.1'f01'fCS.H Shakespeare had more than one Hing at the law and its professors. The subtleties of law and the artincialities of procedure have been satyrized by Browning. Tn short, as long as there have been laws and lawyers, conscientious and well-meaning men have believed laws mere arbitrary technicalities and lawyers crafty warp- ers of them to suit their own purposes. It is evident, then, that a great deal of what is said about the law, in any age, must be taken with much allowance. The defeated litigant, the lawyer who does not observe Judge Groverls rule as to election of remedies, the man of one idea, whose idea has not yet been embodied in the law of the land, the man who is on inti- 'liuniaeaumamcs I5 Fl 51:1sN1:E, fuvu uns nv THE GRFINEEET EEIENEE5 UPDN WHICH THE HHMAN Minn ann BE EmP1..u-1E1:x, - asmntev 75

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produced fictions--an apparent law of one tenor, and an actual law of another. W'ith us, there is, perhaps as yet no resultant fiction. But our well-known phenomenon, the dead-letter statute, is some- thing very like one. In truth, all departments of law are strained and warped by such a contlict between the reason of the law and the reason of important portions of society. Today, one part of the community strain their oaths in the jury-box and Find verdicts against corporations in the teeth of law and evidence, to vindicate their personal notions of justice, the other retain lawyers by the year to advise them how to evade what to them are unintelligent and unreasonable restrictions upon necessary modes of doing busi- ness. Eloquent advocates exert their talents to incite the one. Diligent and acute Scholars in the law put arth their best energies to assist the other. Thus it comes about that the law is one thing and the practice another, and that a respectable man convicted of violating the land laws of the United States can tell us, I doubt not in good faith, that he meant no ill, and did what every one was doing without consciousness of wrong. VVe laugh at the Roman who could only sue for vines cut down under the liction that they were treesg at the Englishman of john's day who, to recover for deceit practiced by his landlady, had to allege that she sold him beer by a false measure with force and arms and in breach of the King's peacevg at the declaration in trover, with its allegation ot the casual finding of, say, a thousand tons ot pig iron, at the procedure in ejectment, with its fictitious lease, fictitious plaintiff and fictitious defendant. But our modern American race to beat and evade the law, brought about by like causes, is producing like results. 7 This race in beating the law is furthered by what Professor Wfigmore calls the sporting theory' of justice, characteristic of our contentious procedure, which makes the law a game with prizes for the most astute player or the most determined bluffer. Neither the players who take part in such a game nor the public who witness it can be expected to have much respect for it. just as the protes- sional football coach, in order to win at any cost, coached his play- ers in systematic violations of the rules, the lawyer-coach coaches his client in the tricks of the great game. I remember once seeing a successful business man watching a trial in which he was interested. As objections to evidence were made in the usual machine-gun style, his eyes sparkled. He turned to me and whispered, My God, Pound, just watch him take his ex- ceptions. We must not be surprised that business men who ac- 77