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Roscoe Pound (1870-1964) taught the founder of Liberty Fund, Pierre F. Goodrich,
law at Harvard University in 1916-17 and they remained in contact for the rest
of Pound's life. Goodrich was very much influenced by Pound's ideas on the
importance of constitutional and legal guarantees of freedom in the history
of the West and later assisted Pound in getting his books on Constitutional
Guarantees of Liberty (1957) and Jusiprudence (1959) published.
Roscoe Pound's "Law and Liberty" was published as one of the Lectures
on The Harvard Classics, Political Science. V. Law and Liberty, ed. William
Allan Nelson et al. in The Harvard Classics, ed Charles W. Eliot (New
York: P.F. Collier and Son, 1909-14), vol. 51.
Roscoe Pound, "Law and Liberty" (1914)
For what end does the legal order exist? What do we seek to achieve through
the political organization? What is the ultimate purpose in lawmaking, that
is, in the selection and formulation of the standards for the public administration
of justice which organized society establishes or recognizes? These are the
first questions in legal and in political philosophy. The history of juristic
thought and of political thought is chiefly a history of the way in which men
have answered them.
The Aim of Law (1) in Primitive Societies
In primitive societies the answers are that the legal order exists simply to
keep the peace, that men seek through the legal order to avert individual self-redress
and prevent private war, and that the purpose of lawmaking is to establish rules
by which controversies may be adjusted peaceably. Accordingly, whereas to-day
we seek, as we say, to do justice, seeking to preserve the peace and to adjust
controversies peaceably simply as means thereto and incidents thereof, primitive
legal systems make peace the end. Where to-day we think of compensation for
an injury, primitive law thinks only of composition for the desire to be avenged.
Where to-day we seek to give to each what he ought to have or the nearest possible
equivalent, primitive law seeks only to give him a substitute for vengeance
in case he is wronged.
Greek philosophy and Roman law soon passed beyond the crude conception of the
end of the legal order in primitive society. Instead, they gave these answers:
The legal order exists to preserve the social status quo; men seek through
the legal order to keep each individual in his appointed groove, and thus to
prevent the friction with his fellowmen which primitive law sought only to mitigate.
This is brought out very clearly in Greek political philosophy. Thus, in Plato’s
ideal state the state is to assign everyone to the class for which he is best
fitted and the law is to keep him there, in order that a perfect harmony and
unity may prevail. St. Paul’s well-known exhortation (Ephesians v, 22ff.
and vi, 1–5) in which he calls on all the faithful to exert themselves
to do their duty in the class in which they find themselves, proceeds upon the
same conception. The Roman lawyers turned this idea of political philosophy
into law. In the great institutional book of Roman law, the Institutes of Justinian,
we are told that the precepts of law come to three; to live honorably, not to
injure another, and to give to everyone his due. The idea here is that the state
and the law exist to maintain harmoniously the existing social order. What the
interests of another are, which one is not to injure, what makes anything another’s
due, so that it is to be given him, are matters which are left wholly to the
traditional social organization.
(3) Before and After the Reformation
On the downfall of the Roman empire the Germanic invaders brought back for
a season the primitive ideas of buying off vengeance and keeping the peace through
arbitrary peaceful solution of disputes by mechanical modes of trial and hard
and fast rules. But during the Middle Ages these conceptions gradually yielded
to the classical idea of the legal order as a means of preserving the social
status quo, the more since the latter was fortified by the unassailable
authority of texts of scripture and of the Roman law. Moreover, from the thirteenth
century on, philosophers more and more sought to sustain authority by reason,
and in this way they prepared the way for a new conception which developed in
the seventeenth century. For by that time two events of capital importance had
compelled a complete revolution in legal and political philosophy. In the first
place the Reformation had divorced the philosophy of law and of politics from
theology and had set them free from the authority of the church. This was the
work of the Protestant jurist theologians of the sixteenth century.1
Secondly, following the nationalist movement which resulted from the breakdown
of the unifying and universal authorities of the Middle Ages, the church and
the empire,2 the Germanists
overthrew the idea of the binding authority of the Roman law in modern Europe.
Accordingly it became necessary to find new bases for legal and political authority,
and those bases were found in reason and in contract, or the consent and agreement
of the individual.3
Reason and Natural Rights
In the seventeenth and eighteenth centuries reason was made the measure of
all obligation. Seventeenth-century legal and political philosophers considered
that law existed in order to produce conformity to the nature of rational creatures.
In practice, however, though they had broken with authority as such, they accepted
the Roman law as embodied reason and essayed very little that did not have authority
behind it. In consequence the Roman maxim—not to injure another and to
give to everyone his own—was taken to express the nature of rational creatures,
and respect for personality and respect for acquired rights remained the two
cardinal principles of justice. But these principles raised two obvious questions:
(1) What is there in personality that makes aggression an injury, and (2) what
is it that makes anything one’s own? The answer was sought in a theory
of natural rights, or of certain qualities inherent in individual human beings
and demonstrated by reason to which society, state, and law were bound to give
effect. According to this theory, justice is the maximum of individual self-assertion;
it is the function of the state and of the law to make it possible for the individual
to act freely. Hence the sphere of law is limited to the minimum of restraint
and coercion necessary to allow the maximum of self-assertion by each, limited
by the like self-assertion by all. This purely individualist theory of justice
culminated in the eighteenth century in the Declarations of the Rights of Man
and Bills of Rights which are so characteristic of that time.4
At the close of the eighteenth century the foundations of the seventeenth
and eighteenth century theory were shattered by Immanuel Kant.5
But he furnished a new metaphysical foundation for the conception of justice
as the maximum of individual self-assertion and in consequence it survived for
about a hundred years and was given complete logical development in the political,
economic, and juristic writing of the nineteenth century, although the actual
law began to break away from this idea in Europe by the middle of the century
and was definitely breaking away in America in the last decade thereof.
In the nineteenth century, then, legal and political philosophers were agreed
that the end of the legal order, the purpose of political organization and purpose
of lawmaking, were to secure and maintain individual liberty. The historian
found in history the unfolding of this idea in human experience. The philosophical
jurist postulated free will as the fundamental principle and deduced therefrom
an ideal system of principles of liberty to which law ought to conform. The
utilitarian legislator took individual liberty for the one sure means of producing
human happiness and so made it the goal of all lawmaking. Mill’s treatise
is the best example of a thoroughgoing exposition of this nineteenth-century
idea of abstract liberty. Moreover, it is much more tempered and reasonable
in its attitude toward what we now call social legislation, so far as it restrains
an abstract liberty of action whereby under pressure the weak barter away their
actual liberty, than most contemporary or even subsequent writing from the same
The Modern Social Point of View
To-day the social-philosophical school has given us a new conception of the
end of the legal order. Instead of the maximum of individual self-assertion
consistent with a like self-assertion by all others, we are now putting as the
end the maximum satisfaction of human wants, of which self-assertion is only
one, even if a very important one. Hence juristic and political theory to-day
thinks of interests, that is of claims which a human being may make, and of
securing or protecting the greatest number of these interests possible with
the least sacrifice of other interests. Moreover there are public interests,
or claims which the organized political society may make, and social interests,
or claims of society at large. Ultimately all interests, individual and public,
are secured and maintained because of a social interest in so doing. But this
does not mean that individual interests, the details of which the nineteenth
century worked out so well, are to be ignored. On the contrary, the chiefest
of social interests is the moral and social life of the individual, and thus
individual interests become largely identical with a social interest. In securing
them because of the social interest in the moral and social life of the individual,
however, and in recognizing that individual self-assertion is only one human
want, which must be weighed with others in a finite world where all wants cannot
be satisfied, a governmental paternalism or even maternalism may become proper,
which would have seemed intolerable to thinkers in the last century. In this
connection, Mill on Liberty has a permanent value, despite the entire change
in our views as to the end of law and of the state. Just as in the seventeenth
century an undue insistence upon public interests, thought of as the interests
of the sovereign, defeated the moral and social life of the individual and required
the assertion of individual interests in Bills of Rights and Declarations of
Rights, there is a like danger that certain social interests will be unduly
emphasized and that governmental maternalism will become an end rather than
a means and will defeat the real purposes of the legal order. Hence, although
we think socially, we must still think of individual interests, and of that
greatest of all claims which a human being may make, the claim to assert his
individuality, to exercise freely the will and the reason which God has given
him. We must emphasize the social interest in the moral and social life of the
individual, but we must remember that it is the life of a free-willing being.
 See Harvard Classics,
 For this nationalist idea see
H. C., xxxvi, 7.
 H. C., xxxiv, 309.
 H. C., xliii, 66, 147,
 H. C., xxxii, 305.
 H. C., xxv, 195ff.
Books by Roscoe Pound
Franklin C. Setaro, A Bibliography of the Writings of Roscoe
Pound. Harvard Series of Legal Bibliographies III. (Harvard University Press,
Roscoe Pound, Jurisprudence, 5 vols. (St. Paul, Minn.:
West Publishing, 1959).
Roscoe Pound, The Ideal Element in Law (1958) (Indianapolis:
Liberty Fund, 2002).
Roscoe Pound, The Development of Constitutional Guarantees of Liberty
Roscoe Pound, The Lawyer from Antiquity to Modern Times (1953).
Roscoe Pound, Justice According to the Law (New Haven: Yale University
Law in Action: An Anthology of Law in Literature, ed. Amicus Curiae,
introduction by Roscoe Pound (New York: Crown, 1947).
Roscoe Pound, Law and the Administration of Justice (Nanking: Sino-American
Cultural Service, 1947).
Roscoe Pound, Social Contrtol through Law (Yale University Press, 1942).
Roscoe Pound, Appellate Procedure in Civil Cases (1941).
Roscoe Pound, Organization of Courts (1940).
Roscoe Pound, The Formative Era of American Law (Boston: Little Brown
and Co., 1938).
Roscoe Pound, Criminal Justice in America (1929).
Roscoe Pound, Law and Morals (University of North Carolina Press, 1924,
rev. ed. 1926).
Roscoe Pound, Interpretations of Legal History (1923).
Roscoe Pound, Introduction to the Philosophy of Law (Yale University
Press, 1922, revised edition 1954).
Roscoe Pound, The Spirit of the Common Law (1921).
Books about Roscoe Pound
Edward B. McLean, Law and Civilization: The Legal Thought of Roscoe Pound
(Lanham MD.: University Press of America, 1992).
N.E.H. Hull, Roscoe Pound and Karl Llewellyn: Searching for an American
Jurisprudence (University of Chicago Press, 1997).
Paul Sayre, The Life of Roscoe Pound (Iowa City: College of Law Committee,
State University of Iowa, 1948).
Essays in Jurisprudence in Honor of Roscoe Pound, ed. Ralph A. Newman
(Indianapolis: Bobbs-Merrill, 1962).
Interpretations of Modern Legal Philosophies: Essays in Honor of Roscoe
Pound, ed. Paul Sayre (New York: Oxford University Press, 1947).
- Albert Kocourek, "Roscoe Pound as a Former Colleague Knew Him,"
- Paule Sayre, "Introduction," pp. 3-13.