An Introduction to the Philosophy of LawPound, Roscoe
Philosophy
An Introduction to the Philosophy of Law
Pound, Roscoe
Law -- Philosophy
Social utilitarians would say, weigh the several interests in terms of
the end of law. But have we any given to us absolutely? Is the end of
law anything less than to do whatever may be achieved thereby to
satisfy human desires? Are the limits any other than those imposed by
the tools with which we work, whereby we may lose more than we gain,
if we attempt to apply them in certain situations? If so, there is
always a possibility of improved tools. The Greek philosopher who said
that the only possible subjects of lawsuit were "insult, injury and
homicide," was as dogmatic as Herbert Spencer, who conceived of
sanitary laws and housing laws in our large cities as quite outside
the domain of the legal order. Better legal machinery extends the
field of legal effectiveness as better machinery has extended the
field of industrial effectiveness. I do not mean that the law should
interfere as of course in every human relation and in every situation
where some one chances to think a social want may be satisfied
thereby. Experience has shown abundantly how futile legal machinery
may be in its attempts to secure certain kinds of interests. What I do
say is, that if in any field of human conduct or in any human relation
the law, with such machinery as it has, may satisfy a social want
without a disproportionate sacrifice of other claims, there is no
eternal limitation inherent in the nature of things, there are no
bounds imposed at creation, to stand in the way of its doing so.
Let us apply some of the other theories which are now current. The
Neo-Hegelians say: Try the claims in terms of civilization, in terms
of the development of human powers to the most of which they are
capable--the most complete human mastery of nature, both human nature
and external nature. The Neo-Kantians say: Try them in terms of a
community of free-willing men as the social ideal. Duguit says: Try
them in terms of social interdependence and social function. Do they
promote or do they impede social interdependence through similarity of
interest and division of labor? In these formulas do we really get
away from the problem of a balance compatible with maintaining all the
interests, with responding to all the wants and claims, which are
involved in civilized social existence?
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