Vol. 7 No. 11 (November 1997) pp. 527-530.

SOCIAL CONTROL THROUGH LAW by Roscoe Pound. With a new introduction by A. Javier Trevino. New Brunswick, NJ and London: Transaction Publishers, 1997. L + 138 pp. $21.95 Paper. ISBN 1-56000-916-0.

Reviewed by Aristides N. Hatzis, University of Chicago Law School
 

According to the scholar responsible for the republication of Pound's SOCIAL CONTROL THROUGH LAW, there is no doubt that the book will "be enthusiastically greeted by a new generation of jurists, legal theorists, and sociologists." (p. vii). However, as a member of this generation I don't feel much enthusiasm after re-reading this book, which is indisputably Pound's most representative work, in the sense that it summarily contains "the whole of his thought" (vii).

But why the lack of enthusiasm? After all, I already had a particular interest in Pound's work, I was better acquainted with his work compared to the average member of my generation of legal scholars and I had studied sociology of law for more than three years. But upon reading this book again I felt that I could no longer consider Pound one of the greatest legal scholars, since his way of thinking seemed rusty, if not moldy.

What happened in the meantime? What was the reason for my metamorphosis from avid proponent of sociological jurisprudence to skeptic? Well, I bumped into law & economics! Following this encounter, law has not been the same for me. So, what am I, a Young Turk? I hope not. I just think (and I am not alone in this) that after the work of figures like Coase, Calabresi, Posner and Becker, legal theory has been transformed into another kind of science, a semi-hard science, whose first symptoms of hardness are already apparent. Above all, knowledge has started to accumulate: it's no longer a recycling of natural and positive law theories.

What does this mean? Law books need new revised editions more often than ever before, this time not because of a reversal of precedent by the Supreme Court or of a new statute, but because law is now a science with "discoveries" both theoretical (e.g. Coase's theorem) and empirical (e.g. Macaulay's empirical studies on long-term contractual relationships). This scientification of law is largely a corollary of the work of thinkers like Roscoe Pound and the legal scholars of his era (from O.W. Holmes to Karl Llewellyn).

Roscoe Pound was not only the first but also the most dedicated scholar in a new project which involved the exploitation of the findings and the methodologies of the social sciences by a new legal science with an enlarged object of study. Philosophy was undermined by centuries of its failings to offer such a theory, logic as a tool was discredited by the attempts of Langdell and his German colleagues, and Political Science didn't stand a chance. It all got down to Sociology and Economics, the new ambitious social sciences and their relevant methodologies. Economics won relatively easily. Of course, the other social sciences and philosophy were not instantly rendered useless. For example, sociology offers economics a much-needed touch with reality. The problem, however, is how the work of theorists like Roscoe Pound, Jerome Frank, or even Benjamin Cardozo, is to be treated today.

These works are of great interest to scholars who study the history of institutions or the history of legal theory. But are they useful to students? If I had to compile a syllabus on legal theory, I would greatly hesitate to include a text written by Pound or Frank, and I would prefer a minor, even insignificant, "Crit" or "law & society" scholar with a more updated theory. Since there are major and significant scholars in both camps, I would assign several of them (instead of Pound) without the slightest compunction! Otherwise, it would be like assigning economics undergraduates texts written by Menger, Veblen or Ayres. Yes, Pound is not the parallel of Alfred Marshall (Holmes is) and he certainly isn't Aristotle, Smith, Kant or Marx.

Older and new generations of legal scholars seem to agree with me, at least implicitly. In a search for citations to the book in the huge Westlaw TP-ALL archive, I found only 12 (of which only 5 during the 90s, 2 of them by the same author). Another search in the Legal Resources Index revealed that Pound's ideas are discussed extensively only in 15 law review articles published since 1980. Only 5 of these have been written in this decade (the three of them are historical essays) and from the rest, only two are non-historical.

This is not surprising. SOCIAL CONTROL THROUGH LAW is a book that is quite confusing and unorganized (even though it consists of four lectures), not as sharp and fresh as previous work, quite ephemeral (thanks to its date of publication), and comprised of numerous classifications much like a botany book (a common characteristic of Pound's work) which try to accommodate, encompass and describe a social phenomenon like law with a pseudo-scientific theoretical framework that is congenial to Langdell's conceptualism, but without the illusion of a logical closed system. The whole enterprise reveals a knowledgeable scholar sitting at his desk next to his library producing certain insightful ideas about law, scattered throughout a text which fails to provide a coherent theory.

It is apparent from the title that for Pound law is the paramount agency of social control. It has gradually replaced religion and morality as the basic instrument for achieving social order. Social control is necessary for preserving civilization since its main function is human control over "internal or human nature" (p. 16) which is absolutely necessary for the conquest of external, i.e. physical, nature. This control over human nature (which is a typically Freudian premise) upholds civilized society and deters antisocial conduct which is at variance with the postulates of social order. Law, as a mechanism of social control, is primarily the function of the state and it operates "through the systematic and orderly application of force by the appointed agents." (p. 25). However, law is not enough, it needs the backing-up of home training, religion, morality and education.

Law is a system of precepts with both ideal and empirical elements, disguised as natural or positive theories. Nevertheless, the natural law of each era is essentially a "positive" natural law, an idealized version of the positive law of the time and place, "naturalized" for purposes of social control when the force wielded by organized society is not an adequate justification. However, a number of theorists from ancient times to the present (1942), based on extreme relativism, skepticism and hedonism, have concluded that law "is no more than what those officials do" (p. 39), thus eliminating the ideal element.

The confusion arises because of the three different meanings of the word law: law as legal order, law as body of authoritative material, and law as judicial process. Pound unifies these three meanings in his definition, which incorporates law's basic function of social control: Law is a regime which is a highly specialized form of social control, carried on in accordance with a body of authoritative precepts, applied in the context of a judicial and an administrative process (p. 41). This definition emphasizes the ideal element of the law, which is absent in legal positivism, but which underlines the purpose of social control (e.g. as it is signified in the use of standards, rules, principles and conceptions).

So if force is not the source of authority, what is? There is no answer to this question. There is more than one source. There are: a) the immediate practical source, which is essentially the force of the politically organized society, b) the ultimate practical source, which may be consent or the habit of obedience or the interests of the dominant class (under different political theories), and c) the ultimate moral source which is even more unidentifiable, even though various theories have unsuccessfully attempted to answer this question. The bottom line is that a definite answer is not necessary for a well-functioning legal system when the latter manages to maintain social order by reconciling and harmonizing the conflicting human demands in spite of certain limitations of legal action (difficulties in the ascertainment of facts, the intangibility of many duties, the inapplicability of law in many situations, etc.).

Therefore, law should be an organ of social engineering. Justice is not an ideal state of relations or some form of virtue. It is a regime of "such an adjustment of relations and ordering of conduct as will make the goods of existence, the means of satisfying human claims to have things and do things, go round as far as possible with the least friction and waste" (p. 65).

Pound, following Jhering's famous theory, makes these human demands, claims or desires (individual and collective), under the rubric "interests", the cornerstone of his theory:
 

"A legal system attains the end of the legal order .... by recognizing certain of these interests, by defining the limits within which those interests shall be recognized and given effect through legal precepts developed and applied by the judicial .... process according to an authoritative technique, and by endeavoring to secure the interests so recognized within defined limits." (p. 66) The above paragraph encompasses the essence of Pound's formulation. The need for social control stems from the reality of scarcity, which creates the need for a legal system that will classify interests and recognize some of them. Law does not create interests, it finds them "pressing for security". It chooses to recognize those which are necessary for the maintenance and furtherance of civilization (basically those which are based on reasonable expectations and experience).

There are three overlapping classes of interests: individual (interests of personality, in domestic relations, of substance), public and social. They are secured through their elevation to the status of "legal rights". For Pound there are no natural, inalienable rights. However, the positivistic idea that there are no rights, only threats announced by the ruling organ, is ignorant of the most significant feature of social control, namely, "the attempt to carry it upon a basis of reason and toward what is conceived of as justice." (p. 97).

In the last lecture of the four that comprise the book, Pound comes back to the problem of values supporting a legal system, a problem that can't be easily overlooked. The fact that there is no answer as to the source of authority doesn't mean that sheer force is the answer. However, if we were more pragmatic and less ambitious, we would try to find a more practical measure based on efficiency (even though Pound doesn't use the word), experience and reason in order to formulate the "jural postulates of civilized society" for a specific time and place. Pound does his share by presenting his version of the principles necessary for civilization (pp. 113-117), emphasizing both individual initiative and cooperation. "For Pound the justification of law is found in the social ends that law, as an instrument of the community, must serve." (p. x).

SOCIAL CONTROL THROUGH LAW is a book belonging to the middle ground between the prehistory and the history of legal science. Pound is one of the fathers of the scientific study of law using the tools of the modern social sciences, but his thinking may be characterized as unsophisticated in many respects, despite numerous insights dispersed throughout his work. (I have resisted the urge to comment on some of these insights, but I tried to include them in my account; I have also resisted mentioning the profound similarities with thinkers like Llewellyn or Hayek). This is not entirely his fault. He was not (and could not) be aware of developments in the social sciences (especially economics) that took place decades later. But even the use of the findings of social scientists that were his contemporaries is rare and casual.

In his introduction, Prof. Trevino offers a successful outline of the principal aspects of Roscoe Pound's legal philosophy and its relation to SOCIAL CONTROL THROUGH LAW. He acknowledges that the book has "aged badly" but his diagnosis is not so accurate.

I would prefer a more dynamic intervention on the original document than just a reprint. Texts like this crave for a kind of "critical edition" that will render them useful for younger scholars and non-specialists. Additional notes that would clarify issues and terminology and would provide some perspective, would seem to be in order. This is (or should be) a general rule for such republications, but Pound's book needs it more than others. Pound is more perplexed than others, he likes digressions, he doesn't seem to have organized his thoughts and he refers to persons and ideas without even mentioning them or citing them (e.g. in this book: Kelsen, Llewellyn, Hale, Schmitt, Kohler, etc.).

I conclude by repeating that Pound is one of the intellectual forefathers of today's quality and soundness of legal scholarship, but we can no longer rely on him for our study of legal phenomena, much as nuclear physicists can't rely on Democritus for their study of atoms.


Copyright 1997