An Introduction to the Philosophy of LawPound, Roscoe
Philosophy
An Introduction to the Philosophy of Law
Pound, Roscoe
Law -- Philosophy
When this last stage in the development of the idea of law as existing
to promote or permit the maximum of free individual self-assertion had
been reached, the juristic possibilities of the conception had been
exhausted. There were no more continents to discover. Natural
resources had been discovered and exploited and the need was for
conservation of what remained available. The forces of nature had been
harnessed to human use. Industrial development had reached large
proportions, and organization and division of labor in our economic
order had gone so far that anyone who would could no longer go forth
freely and do anything which a restless imagination and daring
ambition suggested to him as a means of gain. Although lawyers went on
repeating the old formula, the law began to move in another direction.
The freedom of the owner of property to do upon it whatever he liked,
so he did not overstep his limits or endanger the public health or
safety, began to be restricted. Nay, the law began to make men act
affirmatively upon their property in fashions which it dictated, where
the general health was endangered by non-action. The power to make
contracts began to be limited where industrial conditions made
abstract freedom of contract defeat rather than advance full
individual human life. The power of the owner to dispose freely of his
property began to be limited in order to safeguard the security of the
social institutions of marriage and the family. Freedom of
appropriating _res nullius_ and of using _res communes_ came to be
abridged in order to conserve the natural resources of society.
Freedom of engaging in lawful callings came to be restricted, and an
elaborate process of education and examination to be imposed upon
those who would engage in them, lest there be injury to the public
health, safety or morals. A regime in which anyone might freely set up
a corporation to engage in a public service, or freely compete in such
service, was superseded by one of legal exemption of existing public
utilities from destructive competition. In a crowded world, whose
resources had been exploited, a system of promoting the maximum of
individual self-assertion had come to produce more friction than it
relieved and to further rather than to eliminate waste.
Public-domain text, read in full here on John Shaqi.
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