An Introduction to the Philosophy of LawPound, Roscoe
Philosophy
An Introduction to the Philosophy of Law
Pound, Roscoe
Law -- Philosophy
If we look back at the means of individualizing the application of law
which have developed in our legal system, it will be seen that almost
without exception they have to do with cases involving the moral
quality of individual conduct or of the conduct of enterprises, as
distinguished from matters of property and of commercial law. Equity
uses its powers of individualizing to the best advantage in
connection with the conduct of those in whom trust and confidence have
been reposed. Legal standards are used chiefly in the law of torts, in
the law of public utilities and in the law as to fiduciary relations.
Jury lawlessness is an agency of justice chiefly in connection with
the moral quality of conduct where the special circumstances exclude
that "intelligence without passion" which, according to Aristotle,
characterizes the law. It is significant that in England today the
civil jury is substantially confined to cases of defamation, malicious
prosecution, assault and battery and breach of promise of marriage.
Judicial individualization through choice of a rule is most noticeable
in the law of torts, in the law of domestic relations and in passing
upon the conduct of enterprises. The elaborate system of
individualization in criminal procedure has to do wholly with
individual human conduct. The informal methods of petty courts are
meant for tribunals which pass upon conduct in the crowd and hurry of
our large cities. The administrative tribunals, which are setting up
on every hand, are most called for and prove most effective as means
of regulating the conduct of enterprises.
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