An Introduction to the Philosophy of LawPound, Roscoe
Philosophy
An Introduction to the Philosophy of Law
Pound, Roscoe
Law -- Philosophy
argue that the cause is not to be fitted to the rule but the rule to
the cause.
Much that has been written by advocates of the equitable theory of
application of law is extravagant. As usually happens, in reaction
from theories going too far in one direction this theory has gone too
far in the other. The last century would have eliminated
individualization of application. Now, as in the sixteenth- and
seventeenth-century reaction from the strict law, come those who would
have nothing else; who would turn over the whole field of judicial
justice to administrative methods. If we must choose, if judicial
administration of justice must of necessity be wholly mechanical or
else wholly administrative, it was a sound instinct of lawyers in the
maturity of law that led them to prefer the former. Only a saint, such
as Louis IX under the oak at Vincennes, may be trusted with the wide
powers of a judge restrained only by a desire for just results in each
case to be reached by taking the law for a general guide. And St.
Louis did not have the crowded calendars that confront the modern
judge. But are we required to choose? May we not learn something from
the futility of all efforts to administer justice exclusively by
either method? May we not find the proper field of each by examining
the means through which in fact we achieve an individualization which
we deny in theory, and considering the cases in which those means
operate most persistently and the actual administration of justice
most obstinately refuses to become as mechanical in practice as we
expect it to be in theory?
In Anglo-American law today there are no less than seven agencies
for individualizing the application of law. We achieve an
individualization in practice: (1) through the discretion of courts in
the application of equitable remedies; (2) through legal standards
applied to conduct generally when injury results and also to certain
relations and callings; (3) through the power of juries to render
general verdicts; (4) through latitude of judicial application
involved in finding the law; (5) through devices for adjusting penal
treatment to the individual offender; (6) through informal methods of
judicial administration in petty courts, and (7) through
administrative tribunals. The second and fourth have been considered.
Let us look for a moment at the others.
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