An Introduction to the Philosophy of LawPound, Roscoe
Philosophy
An Introduction to the Philosophy of Law
Pound, Roscoe
Law -- Philosophy
If we turn to the ideas which have obtained in conscious thinking
about the end of law, we may recognize three which have held the
ground successively in legal history and a fourth which is beginning
to assert itself. The first and simplest idea is that law exists in
order to keep the peace in a given society; to keep the peace at all
events and at any price. This is the conception of what may be called
the stage of primitive law. It puts satisfaction of the social want of
general security, stated in its lowest terms, as the purpose of the
legal order. So far as the law goes, other individual or social wants
are ignored or are sacrificed to this one. Accordingly the law is made
up of tariffs of exact compositions for every detailed injury instead
of principles of exact reparation, of devices to induce or coerce
submission of controversies to adjudication instead of sanctions, of
regulation of self-help and self-redress instead of a general
prohibition thereof, and of mechanical modes of trial which at any
rate do not admit of argument instead of rational modes of trial
involving debate and hence dispute and so tending to defeat the
purpose of the legal order. In a society organized on the basis of
kinship, in which the greater number of social wants were taken care
of by the kin-organizations, there are two sources of friction: the
clash of kin-interests, leading to controversies of one kindred with
another, and the kinless man, for whom no kin-organization is
responsible, who also has no kin-organization to stand behind him in
asserting his claims. Peace between kindreds and peace between
clansmen and the growing mass of non-gentile population is the
unsatisfied social want to which politically organized society must
address itself. The system of organized kindreds gradually breaks
down. Groups of kinsmen cease to be the fundamental social units.
Kin-organization is replaced by political organization as the primary
agency of social control. The legal unit comes to be the free citizen
or the free man. In this transition regulation of self-redress and
prevention of private war among those who have no strong
clan-organizations to control them or respond for them are demanded by
the general security. The means of satisfying these social wants are
found in a legal order conceived solely in terms of keeping the peace.
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