An Introduction to the Philosophy of LawPound, Roscoe
Philosophy
An Introduction to the Philosophy of Law
Pound, Roscoe
Law -- Philosophy
than merely order and systematize and logically reconcile details. One
has but to compare the law of today on such subjects as torts, or
public utilities or administrative law with the law of a generation
ago to see that we are in a new stage of transition; to see that the
juristic pessimism of the immediate past, which arose to save us from
taking in more from without while what had been taken already remained
undigested, will serve no longer; and to see that the jurist of
tomorrow will stand in need of some new philosophical theory of law,
will call for some new philosophical conception of the end of law and
at the same time will want some new steadying philosophical conception
to safeguard the general security, in order to make the law which we
hand down to him achieve justice in his time and place.
II
The End of Law
Making or finding law, call it which you will, presupposes a mental
picture of what one is doing and of why he is doing it. Hence the
nature of law has been the chief battleground of jurisprudence since
the Greek philosophers began to argue as to the basis of the law's
authority. But the end of law has been debated more in politics than
in jurisprudence. In the stage of equity and natural law the
prevailing theory of the nature of law seemed to answer the question
as to its end. In the maturity of law the law was thought of as
something self-sufficient, to be judged by an ideal form of itself,
and as something which could not be made, or, if it could be made, was
to be made sparingly. The idea of natural rights seemed to explain
incidentally what law was for and to show that there ought to be as
little of it as possible, since it was a restraint upon liberty and
even the least of such restraint demanded affirmative justification.
Thus, apart from mere systematic and formal improvement, the theory of
lawmaking in the maturity of law was negative. It told us chiefly how
we should not legislate and upon what subjects we should refrain from
lawmaking. Having no positive theory of creative lawmaking, the last
century was little conscious of requiring or holding a theory as to
the end of law. But in fact it held such a theory and held it
strongly.
As ideas of what law is for are so largely implicit in ideas of what
law is, a brief survey of ideas of the nature of law from this
standpoint will be useful. No less than twelve conceptions of what law
is may be distinguished.
First, we may put the idea of a divinely ordained rule or set of rules
for human action, as for example, the Mosaic law, or Hammurapi's code,
handed him ready-made by the sun god, or Manu, dictated to the sages
by Manu's son Bhrigu in Manu's presence and by his direction.
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account