Saturday, January 10, 2009

ROSCOE POUND AND HIS THEORY ON LAW

Roscoe Pound was the first scholar to analyze jurisprudence with the findings and the methodologies of the social sciences. Until then Philosophy was undermined by centuries of its failings to offer such a theory, logic as a tool was discredited by the attempts of Langdell and his German colleagues. Pound claimed that law is the paramount agency of social control. It has gradually replaced religion and morality as the basic instrument for achieving social order. According to him social control is necessary for preserving civilization since its main function is human control over "internal or human nature," which according to him is absolutely necessary for the conquest of external, i.e. physical, nature.

Pound asserts that this control over human nature upholds civilized society and deters antisocial conduct which is at variance with the postulates of social order. Law, as a mechanism of social control, is primarily the function of the state and it operates "through the systematic and orderly application of force by the appointed agents." But, Pound adds that law is not enough, it needs the backing-up of home training, religion, morality and education. Law is a system of precepts with both ideal and empirical elements, disguised as natural or positive theories.

Pound says that the natural law of each era is essentially a "positive" natural law, an idealized version of the positive law of the time and place, "naturalized" for purposes of social control when the force wielded by organized society is not an adequate justification. He confides that the confusion prevails for the three different meanings of the word law: law as legal order, law as body of authoritative material, and law as judicial process. The important thing that Pound did was, he unified all three meanings in his definition. He defined law and its fundamental function of social control: Law is a regime which is a highly specialized form of social control, carried on in accordance with a body of authoritative precepts, applied in the context of a judicial and an administrative process.

Pound confides that law should be an organ of social engineering. Justice is not an ideal state of relations or some form of virtue. It is a regime of "such an adjustment of relations and ordering of conduct as will make the goods of existence, the means of satisfying human claims to have things and do things, go round as far as possible with the least friction and waste." His theory is based on the corner-stone of "interests." He says that a legal system attains the end of the legal order by recognizing certain of these interests, by defining the limits within which those interests shall be recognized and given effect through legal precepts developed and applied by the judicial process according to an authoritative technique, and by endeavoring to secure the interests so recognized within defined limits."

According to Pound the need for social control originates from the reality of scarcity. The scarcity creates the need for a legal system that will classify interests and recognize some of them. He says that law does not create interests, it finds them "pressing for security". Law chooses to recognize those which are necessary for the maintenance and furtherance of civilization. Pound claims that there are three overlapping classes of interests: individual, i.e. interests of personality, public and social. They are secured through their elevation to the status of "legal rights".

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