HERE and THERE – ROSCOE POUND and THE SPIRIT OF THE COMMON LAW

 

The United States of America have produced some great jurists – scholars of the common law and what we call jurisprudence.  In the end, their work may verge on idolatry.  There is likely to be a touch of alchemy at the fringe of every great field knowledge or applied technique.  Occasionally even the bounds of logic get pushed.  But the work of these great thinkers and writers of the law is vital to the bloodstream of what we call the common law.

Roscoe Pound was not born into learning.  He was born just after the end of the American civil war and he died in the same year that the Olympic Games were held in Tokyo.  His parents were true pioneers in the west.  At one time or another he was a scholar (and that’s not a dirty word in America), generalist, professor, dean, reformer, and, perhaps most importantly, a trial lawyer.  He had three degrees, including a Ph D in Botany, but he never took a law degree.  Toward the end of the 19th century, he fought many cases as a trial lawyer before cow-punching juries in Nebraska.  Later he served as a Commissioner of Appeals in the Nebraska Supreme Court.  He wrote a very influential article for the ABA on ‘The Causes of Popular Dissatisfaction with the Administration of Justice.’  His trial experience left him with a distaste for ‘forensic gladiatorial show.’  He wanted the ideals of the common law to be relieved from the ‘yoke of crudity and coarseness which the frontier sought to impose.’  He then taught at Harvard where he was Dean for twenty years.

He had a mighty written output, but all his work is informed by his time at the Bar.  It is difficult to imagine Oliver Wendell Holmes before a Nebraska jury, but is easy to imagine him in deep philosophical discourse with Roscoe Pound.  Pound concluded his preface to The Spirit of the Common Law this way:

When the lawyer refuses to act intelligently, unintelligent application of the legislative steamroller by the layman is the alternative.

The first chapter is ‘The Feudal Element’.

In the sixteenth century, when the Roman law was sweeping over Europe and superseding the endemic law on every hand, the common law stood firm.  Neither the three R’s, as Maitland called them, Renaissance, Reformation, and Reception of Roman law, nor the partial reversion to justice without law under the Tudors shook the hold of our legal tradition.  In the seventeenth century, it contended with the English crown and established its doctrine of the supremacy of law against the Stuart kings.  In America, after the Revolution, it prevailed over the prejudice against all things British, which for a time threatened a reception of French law….

Pound makes a passing reference to elected judges and says:

A system of law-making through judicial empiricism calls for much more in a judge than popularity, honest mediocrity, or ignorant zeal for the public welfare may insure.

That is elemental – but too many elected officials don’t see it.

More on feudalism.

While the strict law insisted that every man should stand upon his own feet and should play the game as a man without squealing, the principal social and legal institution of the time in which the common law was formative, the feudal relation of lord and man, regarded men in quite another way.  Here the question was not what a man had undertaken or what he had done, but what he was.

Here is the distinction made by Sir Henry Maine in Ancient Law between contract and status.  It is fundamental to our history, as is the role of contract.

Then comes ‘Puritanism and the Law’.  In America, the puritans had the numbers.

What is peculiar to Anglo-American legal thinking is an ultra-individualism, an uncompromising insistence upon individual interests and individual property as the focal point of jurisprudence…..Two main factors may be recognised, namely, the emancipation of the middle class and Protestantism.

Further on:

The early history of New England furnishes abundant applications of the idea that covenant or compact – the consent of every individual to the formation and the continuance of the community – was the basis of all communities, political as well as religious.

Just look at the covenant that God made with his chosen people.

In ‘The Courts and the Crown’, Pound looked at the celebrated conference between James I and my Lord Coke.  His trial-bred realism allowed him to see the flip side.

Thus the Sunday-morning conference between King James and the judges, which is the glory of our legal history, led in the nineteenth century to constitutional doctrines that for a time enabled a fortified monopoly to shake its fist in the face of the people, and defy investigation or regulation.

We get more of an attitude that would not have gone down well with most donors to Ivy League universities.

…the fact remains that the present state of the law operates unequally and invites oppression and lawlessness.  No rich man has been subjected to the third degree to obtain proof of violation of anti-trust or anti-rebate legislation, and no powerful politician has been so dealt with in order to obtain proof of bribery or graft.  The common-law right of the accused poacher became the natural right of the accused magnate and entrenched in the bill of rights, shows how legal machinery may defeat its own ends when one age conceives it has said the final word and assumes to prescribe unalterable rules for time to come.

A glance at our jails since the Great Financial Crisis shows that that problem has just got worse.

Under ‘The Pioneers and the Law’:

A pioneer or a sparsely settled rural community is content with and prefers the necessary minimum of government.

This is how this remarkable man concludes this great book.

For through all vicissitudes, the supremacy of law, the insistence upon law as reason to be developed by judicial experience in the decision of causes, and the refusal to take the burden of upholding right from the concrete ‘each’ and put it wholly upon the abstract ‘all’ have survived.  These ideas are realities in comparison whereof rules and dogmas are ephemeral appearances.  They are so much part of the mental and moral makeup of our race, that much more than legal and political revolutions will be required to uproot them.

This book should be read by any lawyer who has what I may call faith.  It should also be read by those historians and philosophers who stubbornly refused to acknowledge the central role played by contract in the development of our laws and of our constitution.

And there’s a bonus – across the 216 pages of this mighty book, there is not one bloody footnote.

So, a man from the back-blocks of the West is generally ranked at the top level of jurists across the common law world – and he got there without a law degree but after running hard cases before outback juries.  He did a lot of work for railroad companies.  He would lose those. Juries did not like big corporations.  One day, when the railroad company had brought the suit, he won!  Someone got one of the jurors in a bar in the capital of Nebraska.  The conversation went something like this.

What happened?

Well, that judge tried to trick us.

How?

He said that the railroad company was the plaintiff.  We know the railroad companies are always the defendant.  So, we came back with a good verdict for the plaintiff – to shove it right up the railroad company.

They don’t often teach you that kind of stuff at Harvard.  Roscoe Pound knew all about it.

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