Roscoe Pound (1870-1964) was a major exponent of American social jurisprudence and one of the most influential jurists in the West in the first half of the 20th century. He has taught at the University of Nebraska, Harvard University, and Northwestern University. After retiring in 1947, he came to China as an advisor to the Ministry of Justice administration and the Ministry of Education of the National Government. On the basis of summarizing the research results of various Western legal schools at that time, Pound seriously considered a series of major legal philosophy issues, such as the nature and composition of law, the relationship between law and morality, the interpretation of legal history, etc., and made his own answers, many of which still give people profound enlightenment to this day. His works include "Legal Sayings", "Jurisprudence (five volumes)", and "Social Control through Law and the Task of Law".
Pound first divided the concept of law into three ways: one is the law or law used by natural scientists to refer to things; the other is what the philosophers of law call natural law; and the third is what is generally commonly referred to as law or positive law. He argues that law refers to positive law.
We can summarize Pound's discussion of the constituent elements of law in a set of tables:
Authoritative data refers to a number of social decrees developed and applied by an authoritative technology according to the traditional ideal of authority.
The authoritative ideal refers to the picture of social order at a certain time and place, the legal tradition about what that social order is and what the purpose of social control is, which is the background for the interpretation and application of the decree.
Authoritative technology is the technology of developing and applying laws and regulations, the professional art of legal workers.
(i) Why is law a social control project?
Pound believes that the use of the term "law" in all three interpretations of the concept of law will obviously cause a lot of confusion, and to eliminate this confusion, it is necessary to use a concept that can unify the three, that is, social control engineering. We can envisage a system in which a highly specialized form of social control is exercised in accordance with authoritative decrees used in judicial and administrative processes, namely law.
Pound believed that social control engineering included laws as order, laws as authoritative materials, and laws of judicial and administrative processes. This is because legal order is the process and result of social control, authoritative data is the basis and standard of control, and judicial and administrative processes are the main content of social control.
(ii) Pound's theory of human nature and social control
Pound believed that man was a dual being, with both a "self-assertive aggressive nature" that made him self-conscious, regardless of others, and often attacking and violating others for his own benefit, and a "cooperative social nature" that enabled him to unite with others in the struggle against nature and bad people. Man's "aggressive" nature has led to contradictions and conflicts between them, which is detrimental to the existence and development of human beings, so it is necessary to control them socially, and various means of social control have gradually formed in human history, such as religion, morality, law, and so on. Therefore, law is one of the means of social control, and with the development of history, it has increasingly become the most important means of social control.
(iii) Why can the law achieve the purpose of social control?
Because law, as a code of conduct, first, expresses a social "authoritative value code", the crystallization of human experience and reason, and can therefore be universally recognized by people; second, it relies on social power and can therefore exert greater influence on human behavior.
Here, Pound emphasizes that law is by no means power, it simply organizes and systematizes the exercise of power and makes power something that effectively preserves and promotes civilization.
(1) Law and justice
Pound understood justice as the harmonious interpersonal relationship that the society in which it lived, which minimized the contradictions and conflicts between people and made them achieve the greatest unity. This justice is achieved through the law and is the purpose pursued by the law.
How does the law do this? He said that the law could correctly delineate the reasonable boundaries of interests that gave rise to contradictions and conflicts, harmonize their relations and resolve conflicts between them.
(2) Laws and interests
Pound attaches great importance to the issue of interests, and he divides interests into 11 categories in three categories. They are personal interests, public interests and social interests.
Personal interests: claims, demands or wishes directly related to and made in the name of personal life. It mainly includes personality interests, family relationship interests and material interests.
Public Interest: A claim, demand, or willingness to relate to the life of a politically organized society and to be made in the name of a politically organized society. This includes the interests of the state and the interests of being the defender of social interests.
Social interests: claims, demands or wishes that relate to the social life of a civilized society and are made in the name of such a life. These include general security interests, social organization security interests, general moral interests, protection of social resources, general progress interests and personal life interests.
Pound believes that good law lies in being able to quickly determine the various interests of the society in which it is located, clarify its scope, delineate its reasonable boundaries and position in society, so as to determine whether to protect and protect it in scope and order, and then promote or limit certain interests and coordinate the relationship between various interests, so as to achieve the purpose of preventing and reducing contradictions and conflicts and promoting social progress and development.
How do you determine the status and order of interests? This is the question of the value orientation of the law. He believes that this criterion is different at different times. How do I confirm or discover a standard? Pound gave three approaches:
The first is empiricism. To find from experience a way to reconcile conflicting and overlapping interests without prejudice to the overall programme of interests, and at the same time to give this experience a rational development.
The second is rationalism. It is the compensation for inexperience, the evaluation of the legal hypothesis of civilization at a certain time and place. It is often a rational answer to emerging social problems as a starting point for solving problems and making new laws.
The third is the theory of authority. The picture of the ideal social order conceived by a certain authority or the authoritative concept of the nation accumulated over a long period of time is based on which to determine the standard of measurement.
It can be seen that Pound thinks about the value standard of law from the standpoint of pragmatism, because he does not want to look for an eternal natural law, but only a practical natural law that applies only to a specific space. The method of seeking is no longer used rationally, but more empirically.
Pound believed that the relationship between law and morality was different at different stages of social development, so he expounded the relationship between the two from a dynamic point of view.
In the first stage, in the embryonic stage of law, law and other means of social control have not yet been separated. Religion, law, and morality are all conflated in a simple form of social moderation.
In the second stage, the law is separated from other social norms, the law is self-contained, and morality is disregarded. However, the laws and regulations of this period were rough and strict.
In the third stage, the development of the law is mainly due to the assimilation and the citation of information from the legal system or information outside the law, and the judiciary solves the difficult problems encountered by equitable methods, and they examine the legal problems with their inner moral concepts, and in this period, the law must be consistent with moral desires in any aspect.
In the fourth stage, many moral or equitable ideas have become fixed legal provisions, that is, they have been legalized, and law and morality have once again been separated. The connection between the two is manifested in both legislation and justice, in which the law must be based on morality, while in the judicial process, morality has the function of supplementing the law. The law of this period emphasized the supremacy of individual rights
In the fifth stage, the focus of the law began to shift from personal interests to social interests, and the law paid more and more attention to protecting the public interest, and the pursuit of responsibility no longer adhered to the principle of fault responsibility.
Pound also proposed the sixth stage of legal development, the "world law" stage. He advocated the establishment of a worldwide legal order and the formation of a new civil law, that is, not only to maintain world peace, but also to promote the general happiness of mankind.
(i) How did the sociology of law come about?
Pound believed that social jurisprudence developed with the development of Western society, and there were roughly four periods:
1. Mechanical period. Before the first half of the 19th century, it was also the early period of social jurisprudence, when mechanical materialism dominated.
2. Biological period. In 1895, Darwin proposed the theory of biological evolution, a period when people were keen to explain social and legal issues from the perspective of evolution.
3. Psychological period. Psychology emerged and became popular at the end of the 19th century.
4. The period of union. After entering the 20th century, the various schools of social jurisprudence realized that a single method could not be used, and combined the various methods, so that there was a trend of unity.
(ii) Pound summarized the program of social jurisprudence (8 points)
1. Mainly study the practical effects of the legal system and legal doctrine;
(2) The preparation of legislation shall include a sociological study of the enacted law;
3. To study the means of making the law effective;
(4) In the study of law, it is necessary to conduct psychological research on both the judiciary, the executive and the legislature, as well as the ideal philosophy;
5. Conduct sociological research on the history of the legal system;
(6) Recognize the importance of the application of the rule of law in the case-by-case context, i.e. the principle of individual cases;
7. Focus on the study of the role of the Ministry of Justice in common law countries;
8. The mission of sociology is to enable us to achieve more desirable results in our efforts for the purpose of achieving legal order.
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