Education: Law & the Welfare State

As a teacher of law and dean of Harvard Law School for more than a quarter of a century, Roscoe Pound was a leader of the lusty pack of lawyers who set about destroying the 19th Century image of the law as an inflexible and inviolate set of principles. “The law,” Dean Pound said at the time—and still says—”is social engineering.” But by the time he retired from Harvard (in 1947), Pound had discovered that some of his eager social engineers, discarding absolute values as the progressive educators had, seemed intent on scrapping the very foundation of U.S. jurisprudence along with its abuses.

Against them, Roscoe Pound has tried his best to emphasize that law is something more than a variant form of sociology. In a book published last week, Justice According to Law (Yale; $2.50), the 81-year-old dean of U.S. legal scholars summarizes his defense of legal values that once seemed as unassailable as free-enterprise economics or a classical education.

The Subjective Factor. One of Pound’s great fears is that belief in “the justice of the courts” is being undermined. Where 19th Century judges scorned to adapt their abstract reasoning to experience and social change, the “realists” of today, stimulated perhaps by hasty readings in Marx and Freud, challenge the worth of any standard except experience. “. . . [Some] assert [the law] is a camouflage of reason covering up … individual personal prejudices or wishes . . . because human judges cannot keep purely subjective factors from influencing and indeed determining their action . . .”

To the realists’ argument Jurist Pound has a confident rebuttal: “To judges well brought up in the common-law tradition the main body of its precepts speak alike no matter what their individual social or economic backgrounds . . . The judges who have made American law did not find an easy retreat from the hard work of the judicial office in a theory of a psychological impotence of judges to reach impersonal results.”

Basic Definitions. What bothers Pound much more is that basic definitions of law and justice are now more obscured than ever. The law, he writes, has three distinct and necessary meanings: i) “a regime of social control”; 2) “the body of authoritative guides to … decision”; 3) “the judicial process.” The realists, Pound holds, destroy the whole purpose of the law by scrapping the second meaning—”a taught tradition of experience developed by reason and reason tested by experience.”

The realists, says Pound, thrive in the atmosphere of the “service state” (i.e., the welfare state), because in its ponderous administrative machinery there is a dangerous blurring of administrative and judicial functions. When an. administrative agency acquires judicial functions in this way, the temptation is to shape laws in line with a stated policy, not merely to interpret them. To restrain these agencies there are few checks, no “taught tradition . . . Some today say that the law is power, where we used to think of it as a restraint upon power . . .”

Two Kinds of Justice. This confusion of judicial law with the business of governing has also left its mark on the U.S. courts. Since Aristotle’s time, Pound notes, justice has been of two kinds. It was the job of the legislator to give “to each according to his merits” and to regulate the place of the citizen in society. The courts were not the place to adjust basic inequalities. But modern legal procedure has the two confused. Legal liability for a loss is increasingly put, for example, not on the party who caused it, but on the party best able to pay. “It may be that we shall call this justice. But the morals are those of Robin Hood or of the pickpocket who was so moved by the eloquence of the preacher of the charity sermon that he picked the pockets of everyone in reach and put the contents in the plate.

“A dominant administration, not checked by law applied by an independent judiciary, means a mere preachment bill of rights, a hierarchy of superman administrative officials who ex officio know what is good for us … and ultimately a super-superman to give direction to … the hierarchy.”

Pound’s remedy: defense and reinforcement of the American judiciary. “We have always known that the judicial process does not at all times and in all places conform absolutely… to our ideal of it. . . [But] it is the approximation to our ideal of it which is significant, not the fallings short … If a theory of social control … is made from the fallings short rather than from the achievements, we shall undo what has made increasingly for civilization since the beginnings of modern law . . .”