SOCIAL

CONTROL
THROUGH
L A W
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~
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http://taylorandfrancis.com
SOCIAL
CONTROL
THROUGH
L A W
R o S C 0 E
P o U N D
W 1 T H A N E W

INTRODUCTION BY

A. J A V 1 E R
T R E V 1 商。

i之 frrrzt叩
Original1y published in 1942 by Yale University Press

Published 1997 by Transaction Publishers

Published 2017 by Routledge

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Library ofCongress Catalog Number: 96-2793

Library of Congress Cataloging-in-Pu blication Data

Pound, Roscoe , 1870-1964.
Social control through law / Roscoe Pound ; with a new in町萨
duction by A. Javier Treviño.
p. cm.
Originally published: New Haven : Yale University Press
。 1942.
Includes index.
ISBN 1-560∞-916-0 (pbk. : alk. paper)
1. Law-Philosophy. 2. Sωiological jurisprudence. 3.
Social control. 1. TItle.

K230.P67S66 1996 96-2793

340' .115一-dc20 CIP

ISBN 13: 978-1-56000-916-0 (pbk)

 CONTENTS

TRANSACfION INTRODUCfION 世i

1. C IVll..IZATION AND SOCIAL CONTROL 1

11. WHAT Is LAW? 35

III. THE TASK OF LAW 63

IV. THE PROBLEM OF V ALUES 103

lNDEX 135
C\
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 TRANSACTION
INTRODUCTION

THISmbMon dRose川oun仇
Social Control Through La w will no
doubt be enthusiastically gree也d by a new gen-
eration of juris毡， legal 也eorists ， and sociolo-
gists. Perhaps no other volume produced by
Pound can, in one small package, better con-
vey the whole ofhis thought. Many ofthe ba-
sic themes that Pound repeatedly expounds
(albeit from different angles) in his numerous
works 缸e contained in this small book一出e
scope and su均ectma民.er of law, legal history
and comp町ative law, the nature of law, law
and morals , sociological jurisprudence, the
jural postulates ，也e engineering 由eory， social
control, and the survey of social interests. In
Social Control Through Law we find Pound
as a jurist, philosopher, and scientist. To be
sure, Pound possessed extended erudition in
many kinds of scholarship besides legal schol-
缸ship. His breadth ofreading and inexhaust-
ible leaming induced Oliver Wendell Holmes
to proclaim 也at it made him tired just to 位y
to remember the titles of what Pound "knows."
Pound surveyed 由e law so widely and 由or-
viii Social Control 耻oughLaw
oughly that, at the time ofhis death , the bibli-
ography of his publications consisted of close
to a thousand titles , of which several hundred
were books and m碍。r essays , many of which
were intended for a general audience. My in-
tentionin 由is introduction is to briefly outline
由e principal aspects ofRoscoe Pound's legal
philosophy, as it was conveyed in several
b∞ks ， articles , and addresses , and show 由err
relation to Social Control Through Law.
I
The broad details of Pound' s academic
C缸eer are relatively well known. He was bom
on October 27 , 1870, in the frontier town of
Lincoln , Nebraska, the capital of the then
newest state in the Union. His father, Stephen
Bosworth Pound, was a successfullawyer and
a district court judge. The young Roscoe was
educated at home by his mother, Laura
Biddlecomb Pound , until the time 由at he
enrolled in Latin School. At 由e age of thir-
teen , Pound entered the University of Ne-
braska where he majored in botany, thus
acquiring a thorough grounding in the method
of the natural sciences. The importance that
Pound gave to empirical investigation was to
 Transaction lntroduction ix
influence his approach to jurisprudence
throughout his long and active c缸'ee汇Indeed，
Pound had a penchant for collecting and sys-
tematically classifying and cataloging legal
ideas much as a botanist would collect, clas-
sify, and catalogue various botanical species.
This taxonomic approach is especially evi-
dent in Pound's Outlines 01 Lectures on Ju-
risprudence (1903) where he engages in 出e
scientific ordering , the "botanization" as it
were , of minutely detailed judicial terms.
Pound graduated 仕om 由e University of
Nebraska in 1888 and the following ye缸 re­
ceived his M.A. degree in botany. Although
hardly surprising, it is nevertheless interesting
that despite Pound's love ofbotany, his initial
fascination with law was sparked by his fa-
也er. During Pound's junior year in college his
father gave him three books on jurisprudence
which Pound repeatedly read: Holland's Ele-
ments 01 Jurisprudence, Amos's Science 01
Law, and Maine' s Ancient Law. These three
volumes may well have inspired Pound to pur-
sue legal study in e缸nest. But since the Uni-
versity ofNebraska did not, at 由at time, offer
professional training in law, Pound went East
in the fall of 1889 to attend Harvard Law
x Social Control through Law
SchooL He spent only one ye缸 at H缸V缸d，
leaving the law school, as he put it, "a con-
vinced utilitarian" and a follower of the nine-
teen出-century British legal philosopher John
Austin. To be sure, Pound remained a social
utilitarian throughout his life (even ifhis utili-
tarianism was continuously modified) , but it
was not long before he partially eschewed
Austin's well-known proposal 由at the sanc-
tion of law is found in the threat of a sover-
eign. In contrast, for Pound the justification
of law is found in the social ends 由at law, as
an instrument of the community, must serve.
Nevertheless, Pound seems to have retained
Austin's idea that force is an essential element
oflaw. As he states in Social Controll再rough
La叫 "it is well to remember 由at if law as a
mode of social control has all the strength of
force , it has also all the weaknesses of depen-
dence on force" (p. 20). Pound, however,
makes it clear 由at force is only a means , not
an end in itself.
Aside from his intensive ye缸 atH缸vard
Pound never again undertook any other for-
mal study of the law or completed the pre-
scribed requirements for a law degree. The
scantiness ofhis legal education notwithstand-
 Transaction Introduction xi
ing, he became one of the foremost legal schol-
缸s of all time. Some ye町s after his Harvard
experience Pound implored law teachers, or
"legal monks" as he derisively called them, to
supplement 由e traditional subject-matter of
legal study to include a scientific understand-
ing of the relations of law and society and of
the needs and interests of modern industrial
life.
Upon leaving Harvard Pound returned to
Lincoln, qualified for the Nebraska bar, and
began to apprentice at his father's law firm.
Busy starting his practice in Lincoln, Pound
initially wavered a bit between professions. In
1892 he founded and became director of the
Botanical Survey of Nebraska, an organiza-
tion wi也 a university affiliation, which hel严d
Pound launch his plan for the systematic bo-
tanical exploration of Nebraska. Five ye缸S
later he completed his dissertation，世lePhyto­
geography ofNebraska, a landmark scientific
treatise on American plant ecology which
earned him a Ph.D. in botany.ηle rl叫uire­
ments for the degree included a minor as well
as a major and Pound opted to minor in Ro-
man Law. Shortly after graduating Pound re-
solved to embark on a legal career and started
xii Social C'On衍'01 thr'Ough Law
'Out by writing briefs with his father and by
arguing appeals in state and federal c'Ourts. In
1899 he was app'Ointed an assistant pr'Ofess 'Or
'Of jurisprudence and internati'O nallaw at 也e
University 'OfNebraska C'Ollege 'Of Law.
Alth'Ough P'Ound spent 'Over sixty ye町S 1O­
v'Olved chiefly in the administrative and teach-
ing tasks 'Of academe , he peri'Odically enj 'Oyed
brief s'Oj 'Ourns in the active practice 'Oflaw. One
such interval 'Occurred in 1901 when, at the
age 'Of thirty, P'Ound was named as 'One 'Of nine
c'Ommissi'Oners (auxiliary judges) 'Of appeals 'Of
the Supreme C'Ourt ofNebraska in a m'Ove t'O
expedite an 'Overfl'Ow 'Of judicial cases. The
c'Ommissioner's "rec'Ommendati'Ons" were n'Ot
superficial and cursory rhet'Oric 'On p缸ticul町
cases; rather they were taken, pro f'Orma, as
也e judicial decisions of the c'Ourt. While serv-
ing as c'Ommissioner Pound prepared rec'Om-
mendati'Ons in m'Ore than 200 cases.
In 1903 P'Ound relinquished his judicial du-
ties and returned t'O academe, becoming dean
'Of the C 'Ol1ege 'Of Law at Nebraska. Ar'Ound
this time his f'Ormulation of soci'Ol'Ogical juris-
prudencet∞k its initial and f'Oundati'Onal f'Orm.
App缸'ent1y attracted t'O Pound's "progressive"
views , J'Ohn H. Wigm'Ore , dean 'Of the N'Orth-
 transaction Introduction xiii
westem University School of Law appointed
him professor oflaw in 1907. After only a short
period at Northwestem, Pound accepted a pro-
fessorship at the University of Chicago , and
oneye盯 after 由at Dean Ezra Thayer brought
him toHarv缸d as Story Professor of Law. In
1913 Pound was made Carter Professor of
General Jurisprudence, a title that more closely
reflected his dominant interest. While at
Harvard he served as dean for twenty ye缸S
before being given one ofthe newly instituted
University Professorships in 1936. Though he
formally became emeritus in 1947 at the age
of seventy-seven, Pound continued to publish
prolifically until his death in 1964.
In addition to these regul缸 teaching posi-
tions , Pound held a variety of distinguished
visiting lectureships at several universities in-
cluding Yale, D盯tmou由， Cambridge, Tulane,
and North Carolina. Many ofhis lectures were
subsequently published as little books-The
Spirit olthe Common Law (1 921) , An Intro-
duction to the Philosophy ofLaw (1922) ,Law
and Morals (1923) , Interpretations 01 Le gal
History (1 923) , The Formative Era 01Ameri-
can Law (1938) , The Development 01 Consti-
tutional Guarantees 01 Liberty (1 957) , and
xiv Social Control through Law
several others. In point of fact，也efourchap­
ters comprising Social Control Th rough Law
constitute a series of1ectures 由at Pound gave
at Indiana University in 194 1. He also deliv-
ered numerous addresses to bar associations
and other public audiences in the Uni臼dStates，
England, and on the Continent. Among the
many accolades he acquired throughout his
career, Pound received honorary doctorates
from some sixteen universities at home and
abroad. His accomplishments , however, were
not limited to the halls of academe. Pound's
nonacademic work inc1uded important prac-
tical aspects oflaw: intemational arbi位atorto
the American-British Claims Arbitration
(1926-1927); consultant on administrative
procedure and crime surveys , inc1uding the
Cleveland Survey ofCriminal Justice (1 921一
1922) and the Boston Crime Survey (1926);
member of President Hoover's National Com-
mission on Law Observance and Enforcement
(也e "Wickersham Commission勺， which was
concerned with the problems of national Pro-
hibition (1929-1931); director of the National
Conference of Judicial Counci1s (1 938-1946);
and advisor to the Chinese N ationalist
government' s Minis町 of Justice, leaving for
 Transaction Introduction xv
Nanking to undertake the task of setting up
由e courts (1 946-1949).

11
The intellectual influences that contributed,
directly or indirectly, to Pound's juristic
由ought 缸'et∞ numerous to proper1y list here.
However， p缸ticular mention should be made
oftwojuris钮， one phi1osopher, and 也ree so-
ciologists who had a indelible impact on
Pound's 由inking.
To begin with, two ofPound's ml:苟ljo
町 rc
∞ 任-
on
往创ibu咀onstlωoju
田ris叩
prud
也en
肌
E比
ce-萨←-幽-一.
cal relativity in law and the notion of jural
pos阳lat缸e郎阳s一werep缸tly derived 丘 fromt由
henine­
t臼eent由h-cent阳 ur
叩 y neo-Hegelian jurist, Josef
Koh1er. The idea of historical relativity in law
took form in Kohler as he looked at law not as
a fixed and permanent entity suitable for al1由ne，
but as a dynamic phenomenon ofhuman civili-
zation. Koh1er, in his Philosophy ofLaw (1914) ,
maintained that since civi1ization is constantly
developing and changing, so t∞ mustthe law
evolve and adapt to the changing needs and
demands of culture. It follows，也en，也at for
Koh1er the law that is suitable for one period of
civi1ization is not so for another.
xvi Social Control through Law
For Pound as for Kohler, the task of the
law is twofold: To maintain the existing val-
ues of civilization and to maintain, further, and
transmit to their most complete possibilities
the human powers of a given civilization. In
Social Control1而rough La w, however, Pound
goes beyond Kohler in 缸guing 也at the ideal
civilization must recognize competition and
cooperation as two factors in achieving ulti-
mate mastery over external and internal hu-
man nature. In Pound's view, human beings
need the force of social control to keep their
aggressive, self-assertive side in balance with
their cooperative social tendency. He recog-
nized that despite the law's 由reedis由lctmean­
ings-namely，由at of legal order, the body of
precepts , and 由e judiciaVadminis饥tive pro-
cess-they could all be united by the idea of
social control. Consequently, Pound ap-
proached law as a type of organized social
control, which he describes in Social Control
Through Law as "白e pressure upon each man
brought to be缸 by his fellow men in order to
constrain him to do his p盯t in upholding civi-
lized society and to deter him from antisocial
conduct，出at is , conduct at variance with the
posωlates of social order" (p. 18). Thus , for
 Transaction Introduction xvii
Pound, the subject-matter oflaw involves ex-
amining those manifestations of intemal na-
ture which, in asserting or seeking to realize
individual expectations , require social control.
The law, in tum, is shaped by civilization's
requirements for certain definite principles of
law 也at Pound and Kohler term 由e ‘'jural
postulates" of civilized life. But whereas
Kohler failsωs严cifically explain how 由eJ田al
postulates 缸'e determined and derived, Pound,
as will be discussed presently, conceives them
to be presupposed by the de facto claims , de-
mands , or interests made by human beings.
Once Pound arrived at a method for deter-
mining the jural postulates of a given time and
place he then pr∞eeded to connect them to
his idea of the scheme of interests.
From Rudolf von Jhering, Pound appropri-
ated 也e notion of interests一由epu甲oses of
human existence-which, when given indi-
vidual expression 缸'e characterized by egois-
tical self-assertion, and when given social
expression involve collective cooperation
through ethical self-assertion. In Law as a
Means to an End (1 913) Jhering views the law
as an instrument for securing the social inter-
es钮， that is , the general，。均 ective， and orga-
xviii Social Control through Law
nized pu币。ses of a number of people. What
is more, for Jhering a legally protected inter-
est is a legal right. From these ideas Pound
was able to formulate what became his highly
popular"由.eory of social interes臼." Jhering' s
regard for the de facto interests 也at 缸e as-
serted in a particular civilization, had a con-
siderable impact on Pound. Additionally,
Pound drew from Jhering's concept of pur-
pose in the law; of law owing i臼 origins to a
practical motive, to an end. Pound was at-
tracted to the fact 由at Jhering inquired into
也e more immediate social purposes and func-
tions of law, rather than what had previously
been considered important in nineteenth-cen-
tury jurisprudence: the abstract nat町eoflaw.
From WilliamJames's philosophy ofprag-
matism, Pound acquired the ethical position,
stated in James's essay "The Moral Philoso-
pher and the Moral Life" (1 891) ，出atthe end
of ends is the goal for satis马ring at all times as
many demands as possible. Pound modified
也is utilitarian consideration in two significant
ways. First, Pound states that the task of law
should be to , at all times , satisfy as much of
由e total amount as it can for as many demands
as it can. Or, as he puts it in Social Control
 Transaction Introduction xix
Th rough Law, the law as a mechanism of so-
cial control "makes it possible to do the most
也at can be done for the most people" (p. 64).
However, since all desired resources-that is ,
也e goods of existence，也e scope for 台'ee ac-
tivity, and the 0均 ects on which to exert free
activity-are limited, people's appetite for
goodsando时ects will inevitably conflict with
or overlap those of their neighbors. In由isc副院
Pound looks to the entire scheme of interests
in dealing with a multiplicity of competing in-
terests of a given situation. Second, and in con-
tradistinction to James , Pound argues that
implicit in the balancing of social interests and
in the preservation of a pluralistic community's
stability is the problem of values: the question
of how to measure and appraise conflicting
and overlapping social interests. Throughout
his works , Pound repeatedly emphasizes 由at
no legal philosophy can escape the problem
of values. Indeed, Pound regards sociological
jurisprudence as a prescriptive and valuative
science. As such, his object is to give effect to
也e greatest tota1 of interests or to the interests
that weigh most in civilization, with the least
sacrifice to the scheme of interests as a whole.
However, in Social Control Through La w
xx Social Control through Law
Pound candidly admits 由at "[m]anifestly one
cannot speak: wi由 assurance as to how we 缸e
in the end to value competing and overlap-
ping interests in the present century" (p. 126).
Tuming next to the sociological compo-
nents of Pound's jurisprudence, it is widely
recognized that they were derived largely from
the writings of Lester F. Ward, Albion W.
Small, and most especially E. A. Ross , who
was a colleague of Pound's at the University
ofNebraska during 1901-1906. W;缸dwasan
ardent advocate of govemment control and
social planning who believed that legislation
would contribute to 出e organization of hu-
man experience. Similarly, Small assumed that
social reform could be carried out through le-
gal means. Due to the influence of these two
men Pound approached the law as a form of
"social engineering." Indeed, the idea of law
as an instrument of engineering and social con-
trol at alllevels of govemment is an integral
P缸t of Pound's sociological jurisprudence.
Toward the end of his life, Pound acknowl-
edges his intellectual debts to Ross and Small
in the preface to his magnum opus Jurispru-
dence. He writes: "Happily in the early ye缸S
of the present centuηit was my good fortune
 Transaction Introduction xxi
to be associated with Edward A. Ross , then
Professor at Nebraska, and thus to be set to
reading Ward and to thinking about sociologi-
calj町isprudence. When 1 went to Chicago in
19071 met Albion W. Small, and to Ross and
Small,. ..1 owe a decisive impetus at a critical
point in my study."
In 1901 Ross published Social Control, a
book that quickly became an early American
classic, representing an elaborate inventory of
the methods by which a society induces con-
formity into human behavior. Here Ross con-
tends 也at of all the various instrumenta1 ities
of social control-public opinion, belief, so-
cial suggestion, religion, and so fo此h一law
reigns supreme as "the most specialized and
highly finished engine of control employed by
society." Following Ross's lead, Pound there-
after focuses on the social character of law
and sees the law, simultaneously，出 reflecting
the needs of a well-ordered society and as in翩
fluencing that society. Accordingly, in Social
Control Th rough Law, Pound defines law as a
"highly specialized form of social control, c缸­
ried on in accordance wi由 a body of authori-
tative precepts , applied in a judicial and an
administrative prωess" (p. 41). 币le upshot
xxii Social Control through Law
of Ross' s influence 扭曲at the notion of social
control provided Pound's jurisprudence with
a sociological starting point.
In light of Pound's efforts to purposefully
forge intellectual ties and cultivate personal
企iendships wi由 such early American sociolo-
gists as Ward, Small, and Ross (as wellωwith
H町V缸d sociologists and Pound's colleagues ,
Georges Gurvitch , Nicholas S. Timashe茧，
Pitirim Sorokin, and Talcott Parsons) , it is
ironic that Pound's work is now scarcely con-
sidered in the s∞iological commur咀ty. Clearly,
Pound's sociological jurisprudence is an ap-
plied science in the tradition of empirical s∞1-
ology. In "Philosophy of Law and Comparative
Law" (1 951), Pound underscores his prefer-
ence for this tradition and acknowledges
sociology's influence on him in stating 由athe，
like other scholars trained during the early
twentieth century, had been educated on 也e
empiricism and sociology of Auguste Comte.
The cumulative effect of these sociological
influences is 由at Pound's philosophy of law
significantly promoted the recognition of law
as a social phenomenon. Little wonder that
Pound felt justified in referring to his legal
philosophy as sociological jurisprudence.
 Transaction Introduction xxiii
111

The rise of Roscoe Pound's sociological

jurisprudence is crucially interwoven with the
vast institutional and ideological transforma-
tions taking place in the United States dur-
ing the first quarter of the twentieth century.
At this time the United States was shedding
its frontier image and entering a period of
modemity, an era characterized by increased
urbanization (l argely as a result of massive
immigration) and industrialization. Rapid so-
cial change , triggered in p缸t by enormous
economic grow由， helped the coun位yachieve
its status as a major world power. In the pro-
cess , however, this rapid social change also
generated immense social problems charac-
terized by new and sharper levels of tension
and conflict: poor working conditions in fac-
tories , political corruption , crowded city
slums , the growth of the impoverished
masses , the cartelization of the American
economy, and the like.
巧rpically sluggish in keeping up with chang-
ing times , the American legal system entered
the twentieth century in its traditional nine-
teenth-century guise, as formalist or analyti-
xxiv Social Control through Law
cal jurisprudence. Cle町ly 也e most pervasively
influential school of jurisprudence, analytical
jurisprudence was the most recent school at
the time that Pound was writing. Austin-
Pound's inspiration while a law student-was
a key figure in nineteenth-century analytical
jurisprudence as he sugges时也.e development
of a formal , logical closed system of law.ηle
five schools of jurists and methods of juris-
prudence 由此 preceded the analytical school
and 由at Pound details in The Spirit 01 the
Common Law are the metaphysical school, the
historical school, the uti1itarians，由e positiv-
is钮， and the mechanical sociologists.
Analytical jurisprudence, being politically
congruent with the liberal political 由eory of
the post-Civil War period, had kept legal inter-
vention and regulation in s∞ial and economic
ma眈ers to a bare minimum. 咀lis laissez-faire
policy did not signify the complete absence of
legal oversight, it merely meant shifting the
responsibility of control from artificial entities
like the polity to "natural" ones like 由em缸­
ketplace. 咀le self-regulating market was said
to be guided by such universal economic prin-
ciples as occupational specialization , the
growth of wealth, and self-interest.
 Transaction Introduction xxv
The notion of universal , or first , prin-
ciples-that is , fixed axioms , etemal tru出s，
pli时eten咀ned conceptions-also affec忧d 由e
academic disciplines of biology, economics ,
and sociology. Indeed, during the nineteenth
century there was an intense preoccupation
with the idea 由at general absolutes govemed
the social and natural worlds; thus, it was only
a matter of time before American legal doc-
创ne was likewise attracted to 由e universal
principle. However, not long into 由enewcen­
tury the natural and social sciences-namely,
biology, economics , sociology-made an
abrupt about-face and abandoned the at也mpt
to deduce knowledge from predetermined
conceptions. In contrast, analytical jurispru-
dence tenaciously held on to the traditional
notion of authoritative precepts and 也ismade
the law rigid and unyielding. Noting the law's
inability to keep up with social progress , in
his 1910 article, "Law in Books and Law in
Action," Pound wryly observed 由at the law
had always been dominated by ideas of the past
long after they had ceased being vital in other
knowledge-fields. Accordingly, legal doc位me
ran into the problem of not being able to adapt
to the changing social and economic condi幅
xxvi Social Control through Law
tions of the time. Or, as Pound saw it, there
existed a discrepancy between the law in books
and the law in action. 币le traditionallegal d∞­
位ine revealed its inadequacy by failing to meet
social ends. As Pound succinctly states inSo-
cial Control Through Law, law "falls short of
what is expected of it, especially in dealing
with the many new questions and endeavors
to secure newly pressing interests involved in
a changing economic order" (p. 14).
Pound introduαds∞iological jurisprudenω
in a revolutionary address 由at he delivered in
S t. Paul, Minnesota, on August 29 , 1906, be-
fore that most staid oflegal bodies, the Ameri-
can Bar Association. He stated resolutely that
the American court system wωarchaic and its
legal prωedures behind the times. Pound's
S严ech was a clarion call for the reform and
modemization of what he saw as an antiquated
system of legal justice. Law, he remarked in
characteristically bold fashion, usually functions
as a govemment of 由elivingby 由edead. 古世s
speech was pivotal in American legal history
because it marked the beginning of a new move-
ment in law 由at shook, challenged, and dis帽
turbed 由e existing system of legal orthodoxy.
As John Wigmore so eloquently put it, Pound' s
 Transaction Introduction xxvii
St. Paul speech was 由e "sp缸k 也atkindled 由e
white flame" of legal progress.
In his 1908 缸世cle， "Mechanical Jurispru-
dence," Pound commen也d on the need for a
scientific law. For Pound the word "scientific"
had two distinct meanings: one refers to the 町t
of abstract systematization, the other to 也e
tecru世que of pragmatic application. He states
也at analytical jurisprudence had transformed
law into a reasoned body of principles for the
administration of justice. Analytical jurispru-
dence is scientific in the abstract sense because
it is marked by a conformity to reason, unifor-
mity, and certainty. As such, law is endowed
wi也 a certain degree of logic , precision, and
predictability. Put another way, as a deductive
systβm oflaw, analyticaljurisprudence is scien-
tific in that it reduces judges' biases, ignorance,
and possibility of corruption preventing 也err
departure from clearly articulated, predeter-
mined rules. Pound, however, favored the no-
tion of scientific law in i也 pragmatic sense.
咀lUS， he points out the shortcomings of a juris-
pruden白白atisabs回.ctly scientific as conα，ms
the logical processes of its intemal structure but
not conceming the practical results it achieves.
According to Pound, since analytical jurispru-
xxviii Social Control through Law
dence regarded the law not as a means to a
achieving an emp挝cal end but as a means in
itself, it had transformed lawmaking and judi-
cial adjudication into a technical and artificial
ente叩rise. Moreover, Pound notes 由atowing
to 由e law's 缸tificiality， lawyers tend to forget
由at the real function of scientific law is to ad-
just everyday relations so as to meet current
ideas of fair play. Additionally, the rigid exposi-
tion of hard-and-fast rules in analytical j町is­
prudence prevents the law from adapting itself
to the mutable culture of a modem, urban envi-
ronment. As a result, the law had ceased hav嗣
ing a utilitarian function in dealing with the
realities of everyday life. It had turned into a
hopelessly self-sustaining entity completely out
of touch with the human condition and the new
social needs that had arisen within the past half
century.
Analytical jurisprudence, with its a priori
concepts and deductive calculus , had become
a mechanical jurisprudence. Pound urges ju-
rists to reject the technical operations of me-
chanicallegal d∞创ne ， or what he sometimes
referred to as "the jurisprudence of concep-
tions," and accept a more realistic and action-
oriented 气jurisprudence of ends." The central
 Transaction Introduction xxix
question to be considered, according to Pound,
should be: How will a rule or decision operate
in practice? His objective in asking it is to at-
tain a pragmatic, sociologicallegal science that
would make rules fit cases instead of making
cases fit rules. In short, Pound's sociological
jurisprudence-which regarded the actual
operation of law rather than its abstract con-
tent-was a protest agamst 也e conceptualist
jurisprudence prevalent among early twenti-
eth-century judges.
In 1907 , in his address to the American Bar
Association's Section on Legal Education ,
Pound advanced the idea that the artificial and
technical nature of mechanical jurisprudence
had created a discrepancy between the con-
ceptualism of the written law and the more
sublunary sentiments of the American public.
That is to say，由at the law's rigidity prevents
it 仕om considering the practical needs , wants ,
and interests ofthe individuals the law is meant
to serve. Accordingly, Pound maintained 也at
American legal theory and doctrine had
reached a degree of "fixity" prior to the emer-
gence of the conditions that the law must ad-
dress in a modem, urban, industrial society.
However, in "The Need of a Sociological Ju-
xxx Social Control through Law
risprudence" (1907), he notes optimistically
由at with the rise and growth of economics ,
political science, and sociology the time was
ripe for a new tendency in leg a1 scholarship
由at would consider the practica1 relations of
lawtos∞iety. A few years later, in 叮'heScope
and Purpose of Sociologica1 Jurisprudence,"
a lengthy three-part article 由at appe缸ed in
也e 1911 and 1912 issues of the Harvard Law
Review, Pound announced the emergence of
sociological jurisprudence as a discrete and
definable lega1 philosophy. Pound's sociologi-
cal jurisprudence treats law not as a concep-
tual and logic a1 system of formal rules , but as
an institution operating within a larger soci-
eta1 context 由at functions to regulate soci a1
processes with the object of securing and pro-
tecting society's interests. Wi也出is notionof
law Pound, through the 由eory of social inter-
es钮， explains how the law accomplishes 由IS
objective. However, before 由e 也eory of so-
ci a1 interests can be discussed, the jural pos-
tulates of time and place must be analyzed.
IV
Inspired by Kohler, who in Hegelian fash-
ion stressed the ideal rather than the non-
 Transaction Introduction xxxi
rational elements of the civilization of a given
period, Pound ultimately formulated a tota1 of
seven jural ideals or posωlates 由at provided
him with an organizing framework within
which to locate his scheme of interests. In
broad view, the jural postulates 缸'e a set of
fundamental presuppositions 由at encompass
也e moral sentiments of a reflective commu-
nity and that 盯e recognized and enforced by
law concerning reasonable expectations of
human conduct in a civilized sωiety of the time
and place. By "civilized society" Pound has in
mind the English-speaking countrles of Great
Britain, the United States , Canada, Australia,
and New Zealand. The deliberate exclusion of
coun位les 由at did not develop their legal sys幽
tems according to the conventions of English
common law clearly reveals Pound's bias in
favor of the Anglo-American legal tradition.
Thus，就由e present time when the ideas of
cultural diversity and cultural equality have
gained hegemony in the 缸ts， humanities, and
social sciences , Pound's remarks about the
legal order of the civilized society of the time
and place appe缸 to be ethnocentric at best.
The jural postulates 缸'e expressed as ex-
pectations, claims, or "rights" and 缸'eprocured
xxxii Social Control through Law
from the great substantive branches of the
positive law including criminallaw, the law of
to此s (especially negligence and liability wi也­
out fault) , property law, contract law, and the
law of restitution. The first five jural postu-
lates for the domain of American law, at least,
are articula也d in Chapter IV of Social Con-
trol Through Law as follows:

1. In civilized society men must be able to

assume 由at others will commit no in-
tentional aggressions upon them.
2. In civilized society men must be able to
assume 曲时也ey control for beneficial
puψoses what they have discovered and
appropriated to their own use, what they
have created by their own labor, and
what 由ey have acquired under the ex-
isting social and economic order.
3. In civilized society men must be able to
assume 也at those wi由 whom 也ey deal
10 由e general intercourse of society will
act in good faith and hence

(a) will make good reasonable expec-

tations which their promises or other
conduct reasonably create;
 Transaction Introduction xxxiii
(b)willc缸ry out their undertakings ac-
cording to the expectations which
the moral sentiment of the commu-
nity attaches thereto;
(c) will restore specifically or by equiva-
lent what comes to them by mistake
or unanticipated 岳阳ation whereby
由ey receive , at another's expense,
what 由.ey could not reasonably have
expected to receive under the actual
circumstances.

4. In civilized society men must be able to

assume 出at those who 缸e engaged in
someco町se of conduct will act with due
C缸'e not to cast an unreasonable risk of
1I飞jury upon others.
5. In civilized society men must be able to
assume 由at those who maintain things
likely to get out of hand or to escape
and do damage will restrain them or keep
them within their proper bounds.
In recognition of the two main direc-
tions that juristic 由inking was taking一
(1) concem for the concrete individual
life rather than for the abstract individual
will , and (2) concem for civilization as
xxxiv Social C'Ontr'Ol thr'Ough Law
distinct 仕om and c 'Ontrasted with p'Oliti-
callyo皂剧zeds∞iety-P'Ound， in 1959,
prop'Osed tw 'O new jural p'Ostulates in the
first v'Olume 'Of his Jurisprudence:
6. Every'One is entitled t'O assume 由at 由e
burdens incident t'O life in s∞ietywill be
b'Omebys∞iety.
7. Every'One is entitled t'O assume 也at at
least a standard human life will be as-
sured him; n'Ot merely equal 'Opp'Ortuni-
ties 'O f pr'O viding 'Or attaining it, but
immediate material satisfacti'Ons.

As social-ethical principles，由ejuralpos伽­
lates f'Or law have a practical 由ree-f'Old pur-
p'O se. First, they 町e meant t'O identify and
expl剖n the substantial t 'Otality 'Of actual hu-
man claims , demands , 'Or interests 'Of a given
s'Ocial 'Order. Sec'Ond , they express what the
maj 'Ority 'Of individuals in a given s∞ietywant
the law t'O d'O.白lÏrd， and relatedly，也e jural
p'Ostulates 缸e meant t'O guide 由e c'Ou口s10
applying the law. P 'Ound asserts 由at 由e jural
p'Os阳lates 缸e neither etemal , immutable, 'Or
exhaustive. Indeed, he reg町ds them as prin-
ciples that 'Overlap, c 'O nflict, and 缸e 10 c 'On-
tinu 'Ous dynamic transiti'On. P 'Ound's p'O siti'On
xxxvi Social Control through Law
Pound does see a need for some connection, a
mediating procedure , between the practical
problems posed by the administration of jus-
tice and 也e jural postulates of the civilization
of the time and place. This link consists of a
set of interests which, like the jural postulates ,
also press for legal recognition and enforce-
mentin 由at society. Pound rather ingeniously
classifies certain claims of human beings to
have 也ings and do things by distinguishing
between three ideal type interests: the indi-
vidual, the public , and the social.
V
In Chapter 111 of Social Control Through
Law Pound defines an interest as 飞 demand
or desire which human beings, either individu-
ally or through groups or associations or in
relations , seek to satisfy." Individual interests ,
he tells us，缸e "claims or demands or desires
involved immediately 扭曲.e individuallife and
asserted in title of that life." Individual inter-
ests divide into interests in personality, inter-
ests in domestic relations , and interests of
substance. Public interests consist of "claims
or demands or desires involved in life in a po唰
litically organized society and asserted in title
 Transaction Introduction xxxv
toward the jural postulates is therefore one of
relativity, for upon being recognized the pos-
tulates 缸e legally protected only until the
empirical facts of a changing society make
也.em outmoded and obsolete. In the meantime,
they 町e employed in the practical work of
bringingap缸ticul缸 S∞iety's legal institutions
into a condition ofharmony with the jural pos-
tulates , and therefore into a condition of har-
mony with the de facto claims made by the
majority of persons in a given s∞iety at a given
time.
币le link between the jural posωlates and
the scheme of interests is less than clear in
Pound's work. InSocial Control1百roughùlW
hetrea也由ej田alposωlates as simply a me由od
for valuating social interests , one that was fast
becoming less useful because society was un-
dergoing the transition to a social order that
had not yet formulated a generally accepted
notion of the ideal. In Jurisprudence, by con-
trast, Pound refers to the jural postulates and
the scheme of interests as two approaches that
he finds useful in teaching law. In other con-
tex钮， Pound views the jural postulates as noth-
ing more than general and universal
expressions of the s∞ialin也res臼. In anyevent,
 Transaction lntroduction xxxvii
of that organization." Final1y, Pound defines
social interests as "claims or demands or de-
sires involved in sociallife in civilized society
and asserted in title of 由at life" (quotations
from pp. 66 and 69). Pound w缸ns 由at these
由ree types of interests 缸e overlapping and
interdependent and that most claims , demands,
and desires can be placed in all three catego-
ries , depending upon one's pu甲ose. However,
as a practical ma忧er， and in order to comp缸e
them on 由e s缸ne plane, he tended to treat
claims , demands , and desires in their most
general form，由at is, as social interests.
It is no exaggeration to say that Pound's
由eory of social interests is crucial to h扭曲ink­
ing about law and lies at the conceptual core
of sociologicaljurisprudence. Pound first pre-
sent刨出e 由eory in the keynote address which
he delivered before the American Sociologi-
calS∞iety in 1920. Considering that Pound's
notion of social interests evolved through the
ye缸s， a composite description derived from
Chapter III of Social Control Through La叫
"A Survey of Social lnterests" (1 943) , and the
由ird volume ofPound's Jurisprudence (1 959) ,
yields the fol1owing definition: Social inter-
ests are the prevalent and reasonable, de facto
xxxviii Social Control through Law
claims, demands, desires, or expectations that
human beings collectively seek to sati功'and
that civilized society must recognize and pro-
tect through la以 Because law protects social
interests they 缸e given the status of legal
rights. Thus , a right is usually a legally
protected social interest. In Social Control
Th rough Law Pound explains that the relation
between interests and rights has to do with
the fact 由at the latter conception is plagued
with a multiplicity of meanings. At bottom,
however, Pound rejects the idea of rights as
being natural or inalienable-a quality inher-
ent in humans as rational beings. Pound 缸­
gues 由at what is natural are not "rights" but
"in臼rests."
In contrast to the abstract idea of right, so-
cial interests 缸es位ictly and precisely empiri-
cal entities because they 町'e to be found solely
in the law and legal prωesses of society. In
other words, social interests 缸'e not abstruse
propositions derived，由rough logical deduc-
tion, from such determinist sources as 也eo­
logical doctrine, philosophical ideas about
human nature, or the psychological classifica-
tion of instincts. Rather, social interests can
be inferred only 由rough the empirical investi-
 Transaction Introduction xxxix
gation of such objective data as court deci-
sions, legislative decl缸ations， and what is writ-
ten in a wide array of works (most of which,
for Pound, are Westβm and especially English
and American sources) referring to 由elaw.ln
"A Survey of S∞ial Interests ," Pound explains
that the first step in conducting such an inves-
tigation involves surveying the legal order (by
which he means 由e regime maintained by a
mature system of law in the latest stage of its
development) and inventorying those social
interests 由at have pressed upon lawmakers ,
judges, and jurists for recognition and satis-
faction. Through a painstaking and thorough
analysis of hundreds of legal documents ,
Pound inventories 由es∞ial interests that have
been asserted and which must be acknowl-
edged and secured by 由e courts in order to
maintain social order and attain civilized soci-
ety. He proposes six broad categories of so-
cial interests and their subcategories:

L The social interest in general security

refers to society's claim to be secure against
those pattems of behavior that threaten its
existence. Thi s s∞ial interest takes five forms:
1. Physical sa[ety o[ the people.
xl Social Control through Law
2. General health of the population.
3. Peace and public order.
4. Security ofacquisitions, or the demands
that titles are not vulnerable to indefi-
nite attack.
5. Security oftransactions, or the demands
that previous commercial exchanges 缸e
not subject to indefinite inquiry, so as to
unsettle credit and disturb business and
trade.
II. The social interest in security of social
institutions refers to society's claim that its
fundamental institutions be secure from pat-
terns of behavior 由at threaten their existence
or impair their efficient functioning. This so-
cial interest takes four fo口ns:
1. Security of domestic institutions.
2. Security of religious institutions.
3. Security of political institutions.
4. Securi走y of economic institutions.
皿. The social interest in general morals
refers to society's claim to be sec町'e against
patterns of behavior deemed offensive to 由e
moral sentiments of the general population.
IV. The social interest in conservation of
social resou陀es refers to society's claim that
the goods of existence not be needlessly and
 Transaction Introduction xli
completely wasted. This social interest takes
twofo口ns:
1. Use and conservation 01 natural re-
sources.
2. Protection and training 01 dependents
andd吃fectives.
V. The social interest in general progress
refers to society's claim that the development
of human powers and of human control over
nature for the satisfaction of human wants go
forw缸d. 白山 social interest tak:es three forms:
1. Economic progress.
2. PoUtical progress.
3. Cultural progress.
VI. The social interest in individual life
refers to society's claim 由at each individual
be able to live a human life in accordance with
the standards of the s∞iety. This social inter-
est takes three forms:
1. lndividual se{严assertion. (This claim is
expressed in those cases where self-help
is allowed).
2. lndividualopportuniηrefers tos∞iety's
claim 由at all individuals have fair, rea-
sonable, and equal oPPO此unities.
3. Individual conditions ollife refers to 也e
claim 由at each individual be assured at
xlii Social Control through Law
least the minimum living conditions
which society can provide at that point
mtime.

Although Pound compiled this inventory of

social interests between 1920 and 1959 with
the intent of identifying the prevailing claims
of his era, he was well aw缸e of the fact that
new values would emerge in the future. While
he paid scant attention to predicting what in-
terests will be recognized, he nonetheless
seems to have foreshadowed claims that clam翻
ored for recognition and pr。 l 但ction by Ameri-
can legislatures , courts , and administrative
agencies during the 1960s and beyond. In 80-
cial Control Through Law, Pound states with
some foresight: "But some p缸tofthe pa由 of
the juristic thought of tomo町ow is already
app缸'ent. It seems to be a pa由 toward an ideal
of cooperation rather than one of competitive
self-assertion" (pp. 126-27). These claims of
出e 1960s, which developed out of the exi-
gencies of particular political and moral
struggles , were, to a measured degree, based
on values of cooperation , stimulated in p盯t
by the principles of grea恒r equality, tolerance,
ands∞ial justice. In the zeitgeist of the 196Os,
 Transaction Introduction xliii
the claims, incited by a spirit of "coopera-
tion"一-expressed， for example, as "peace and
love" by some leaders of the youth movement
and by "understanding" by some leaders of the
civil rights movement-were given voice by
public opinion, public policies , and cou此
decisions.
Numerous social interests , which many be-
lieved ought to be protected and promoted by
pr∞edures of law and government, were re-
alized through the civil rights movement; the
Warren Court's most significant decisions
including the school segregation cases; 也e
Johnson administration's war on poverty and
W缸 on crime; social welfare policies and pro-
grams like aid to dependent children, Medic-
aid and Medic缸e; 由eCivil Righ也 Actof1964;
consumer protection legislation; questions of
civilliberties; affirmative action; protections
against self-incrimination; the environmental
movement and energy crisis. While Pound
would probably have endorsed these claims
(though perhaps not the immediacy and ur-
gency with which they were made) , it is highly
unlikely that, despite his intensely activist drive,
he would have approved of 也e political me由­
ods employed in publicizing the claims and
xliv Social Control through Law
reforming the laws suppressing them. Riots ,
boycotts , strikes , protests , and other types of
"antisocial conduct" are largely incompatible
with Pound's efforts at social engineering
which demanded the "weighing," "balancing,"
and "ordering"一.the reconciliation and harmo-
mzmg一-of conflicting and over1 apping social
interests for achieving stabi1ity of the social
order.
VI
Pound's juristic thinking has not aged well
through the ye缸s. One reason for 由is is that,
like many persuasive intellectuals , Pound be-
C缸ne a victim of his own success. Indeed, at
the height of his long c缸'eer from the middle
of the first decade to 由e 1940s, his focus on
由e ends of law and his 时 ection of formalism
were readily embraced by many juris钮， inc1ud-
ing, and especially，也.e legal realists. 币llS gen-
eral acceptance of Pound's concepts within a
generation or so after they were proposed
made them outdated and "obvious." His ideas
quick1y became so commonplace and an in缸"
gral p缸t of the legal culture 也at 出ey soon
ceased to be seen as pioneering or heretica1.
白lÌs is not to say 由at Pound's sociological
 Transaction Introduction xlv
jurisprudence is devoid of concepts with en-
during value; it is to say that there have been
fewa忧empts to extend or revise his ideas. For
ex缸nple， research on the role of interests in
fo口nulating and administering law has been
virtually nonexistent.
Conceming 也is latter point, Pound was
again a victim, a victim of unpropitious timing.
Toward the end of his life when he published
his massiveJurisprudence, a five-volume work
consolidating 也e sociological interpretations
oflaw and legal ideas that had occupied Pound
throughout his career, a new model of society
was taking shape in sociology. The conflict
model, initially inspired by the works ofby C.
Wright Mills , Ralf Dahrendorf, Lewis Coser,
and other social theorists writing during 也e
late 1950s, began to supplant 由e consensus
or pluralistic model that had been popular since
World War 11. The conflict 由eorists 缸gued
for a critical analysis of society and its institu翩
tions. They tended to view society, not as be-
ing characterized by consensus and stability,
but by diversity, conflict, and coercion. They
also reg缸ded law, not as an instrument 也at
functions outside of interests to resolve con-
flicts between interests, but as a consequence
xlvi Social Control through Law
of the operation of interests. These two tenets
directly challenged the political and moral as-
sumptions of Pound's sociological jurispru-
dence and most especially his 由eory of social
interes钮， bo由 of which are premised on a plu-
ralistic model of society 曲时， rather benignly,
and perhaps also naively, assumes 也at the le-
gal order is created in society solely for the
purpose of adjusting relations and ordering
conduct. Jurists , legal sociologists , critical
criminologists, and other scholars influenced
by the conflict model-and severa1 of its vari-
an臼 stemming from the New Le丘 moveme时，
social-conflict theory, the Frankfurt School ,
the various Marxisms , and, since the late
1970s, criticallegal studies-have taken a radi-
cally different view oflaw and s∞iety. In gen-
eral , these critical theorists maintain that law
is not 由e product of the whole society nor
does it serve those interests 出at 缸e good for
the whole society. Rather, for them, law in-
corporates the interests of a power elite-
those specific persons and groups with the
power to translate their interests into public
policy. Thus , contr町Y to Pound's pluralistic
conception of politics, law does not represent
a compromise of diverse interests in society,
 Transaction Introduction xlvii
but supports some interests at 也e expense of
others. By the early 1960s Pound's 由eory of
socia1 interests was no longer given even pass-
ing consideration by sociologists and jurists.
What the legal phi1osopher Julius Stone re-
ferred to as "the Golden Age of Pound" had,
by that time, virtually faded into obscurity.
In addition , it must be said that wh i1e
Pound's theory of interests provides fai r1 y
objective criteria for assessing the legal orders
of the United States, Great Britain, and other
English-spe政ing countries from which he
drew his data, it offers far less for the com-
parative evaluation of countries uninfluenced
by Anglo-American common law.ηlUS， in the
age of the globa1 vi11age, Pound' s 由ωryseems
to be seriously lac.king in broad, multicultural
explanatory power. Fina11y, and in faimess to
Pound, it should be acknowledged that whi1e
he fai1ed to produce a c1e缸 body of tenets , a
rigorous set of methodologies or propositions
about legal theory, there is one dominant
intellectual theme 也at two of the most influ-
ential twentieth-century schools of jurispru-
dence-American legal re a1ism and critical
legal studies-trace direct1y to Pound: that the
law had cOme to be out of touch with reality.
xlviii Social Control through Law
VII

Social Control Through Law is a remark-

able book in manner and style. Here Pound
adopts an admonishing tone from time to time,
but his admonition is never overbearingωit
is always tempered by polite reg町d for the
positions of others. He gently (some may say,
t∞ gently) critiques 也e ideas ofHans Kelsen,
Oliver Wendell Holmes, the legal realists, and
others without mentioning them by name. Al-
though he forcefully, and often persuasively,
advances his ideas , Pound avoids crossing the
line into callous dogmatism and polemics.
Moreover, while he usually writes in generali-
ties, and this is particularly the case with books
like Social Control Through Law which were
originally delivered as lectures , Pound, none-
也eless， exemplifies his rem町'ks with instances
of actuallegal practice. One contemporary as唰
pect of Social Control Th rough Law is aptly
demonstrated by our postmodem society and
its skyrocketing rate of litigation. Now that
由.e f:缸旧日al and religious institutions have lost
much of their influence，也e courts exert an
unprecedented degree of control over the pub-
lic and private lives of most Americans. To an
 Transaction Introduction xlix
extent perhaps unimagined by Pound, law re幡
mainsthep缸础nount agency of social control.
In sho此， Social Control Th rough Law is an
insightful, concise summ缸y ofPound's ideas
由砾， after more 也an half a century,. remains
su甲risingly fresh and relevant. It will doubt-
less continue to engage jurists, legal theorists,
and sociologists for many ye町s tocome.

A. JAVIERTREV的O
April1996
C\
~
Taylor & Francis
Taylor & Francis Group
http://taylorandfrancis.com
 SOCIAL CONTROL
THROUGH LAW

I
CIVILIZATION AND SOCIAL CONTROL
飞兀 TILLIAM JAMES is reported to
l' t' have said that the worst enemies of
any Sl向ject are the professors thereof. In
saying this he had reference to practical
activities such as medicine and law. In these
the practitioner is in constant contact with
the facts of life and of nature. He arrives at
his ideas from experience and must con-
stantly revise his ideas and recast his theo-
ries to meet the facts to which they must be
applied. The professor, on the other hand,
takes facts and life and nature from 由e
relations of others and assumes them as
something given him. He generalizes 仕om
them and formulates conceptions and theo-
ries from which he deduces further concep-
tions and theories , and upon them he builds
a body of teaching which is obstinate ,
resistant to the facts of life and nature and
very persistent , and seeks to make life and
nature conform to his theoretical model.
There is a warning for us who are busied
2 Social Control through Law
with the social sciences in this dictum. To
speak only of my own special 自 eld ， it is
certainly true as we look back that the
judges and practitioners of 他y years ago
were well in advance of the jurists and
teachers in what have proved to be the
significant movements in law. Everywhere
the science of law lagged behind the actual
course of legislation and judicial decision.
So far as it had practical e任马ct it obstructed.
Most of what we now complain of in the
judical decisions as to social legislation in
the last generation represented what was
taught as the up-to-date science of juris-
prudence. The pressure of unrecognized ,
partially recognized , unsecured , or insuf-
自ciently secured interests often put the
actual law of the nineteenth century well in
advance of the juristic theory of the time.
There are two elements in the body of
precepts which make up a system of law,
an imperative element and a traditional
element. The former is the work of the law-
maker. The philosopher commonly 0能rs
him guidance. But he is likely to think of
himself as invested with a power of com-
mand. The latter is the product of experi-
 Civilization and Social Control S
ence. At Rome it grew out of the experience
of jurisconsults in answering questions as to
actual controversies litigated in the forum.
In our law it has grown out of experience in
the decision of cases in the courts and the
endeavor of judges to 自nd in recorded judi-
cial experience the principles of deciø. ing
new questlOns ansmg m concrete contro-
versies. Thus we have law as command and
law as ascertainment and formulation of the
just on the basis of experience. Each seeks
to establish just precepts. Each , therefore , is
governed by some ideal. In the eighteenth
century, and with us in the fore part of the
nineteenth century, the ideal was provided
both for legislature and for judge by the
theory of natural law , a theory of a body of
ideal precepts of universal validity for all
peoples , all times , and all places , derived
from ideas of what an ideal man would do
and would not do , would claim and would
concede as the claims of others , and arrived
at by pure reason.
Philosophy was in its heyday as the guide
of law in the reign of naturallaw both in the
classical era of Roman law and in the law of
Europe and America in the seventeenth and
会 Social Control through Law
eighteenth centuries. Every law book had a
philosophical introduction, and great acts of
legislation often had a philosophical pre-
amble. But, apart from philosophical diffi-
culties with the theory, naturallaw failed to
maintain itself as a workable instrument of
making and finding the law. While it pro田
fessed to be ideal and universal, derived
from universal reason, it was in fact , as 1
have been in the habit of putting it, a posi-
tive, not a natural , natural law. It was an
idealized version of the positive law of the
time and place so that in practice the law
was made to provide the critique of itself.
For example , when the British set up a
cou此 at Penang and had to administer
justice to a community which had no law, it
was held that the court was to be govemed
by natural law. But when Lord Westbury
in the Judicial Committee of the Privy
Council came to apply naturallaw to an ap-
peal 仕om such a court, it tumed out that the
universal natural law was the same even in
details as the law of England.
In the latter part of the nineteenth cen-
tury, with the breakdown of natural law,
we sought, particularly in the English-
 Civilization and Social Control 5
speaking world, to get on without phi-
losophy.τbere was the fact that certain
precepts were applied by the courts and had
behind them ultimately the sheriff and his
posse. They had received the guinea stamp
of the state, and were backed by the force of
politically organized society. Here was
something we could tie to. These precepts
were the pure fact of law. N othing that did
not have this guinea stamp and was not
backed by force was to be considered by the
scientific jurist. But we had to learn 仕om
也e courts and the practitioners that this
pure fact of law was an illusion. They could
not ignore an ideal element in law even if
the jurist had thrown it out. Whenever they
were called on to choose between equally
authoritative starting points for reasoning,
whenever they were called on to interpret
出e text of a legal precept, whenever they
were called on to apply a standard to con-
duct , the ∞urts went outside the jurisf s
pure fact of law and adjusted their determi-
nation to an ideal. Thus natural law had to
come back again at the beginning of the
present century, though not always with
也就 name and not this time as giving us a
6 Social Control through Law
universal code of ideal precepts. Its task
now was not to give us an ideal body of
universal legislation but to give us a
critique of the ideal element in the positive
law. Even if absolute ideals could not be
proved , it could ascertain and formulate the
social ideal ofthe time and place and make it
a measure for choosing starting points for
reasoning, of interpretation , and of applying
standards. As it was put, we could have a
natural law with a changing or a growing
content.
Thus there came to be a revival of phi-
losophy of law in the fore part of the present
century. About the same time sociology, the
science of society, founded by Comte a
hundred years ago , had made its place
among the social sciences and a sociology
of law sprang up alongside of social phi-
losophies of law. But here, too, the teachers
have been going their way with too little
knowledge of the problems with which the
administration of justice has to wrestle and
often with too little grasp of the experience
developed by reason which is formulated in
the traditional element of legal systems.
Hence we have had to develop a philosophi-
 Civilization and Social Control 7
cal science of law, a philosophical ju出『
prudence, and a sociological jurisprudence.
We call on philosophy, ethics , politics , and
sociology to help, but to help in what are
regarded as problems of jurisprudence. We
study law in all of its senses as a much
specialized phase of what in a larger view is
a science of society.
Philosophical juristic theories have been
worked out as solutions of particular prob-
lems of a time and then put in universal
form and made to do service for all the
problems of the legal order everywhere.
Wh at we require is not a philosophy of law
that seeks to force law into the bed of
Procrustes of its system , nor a sociology of
law that runs to methodology and seeks to
justify a science of society by showing that
it has its own special method by which then
all the phenomena of social life are to be
tried , but a sociology that knows how to use
philosophy and a sociological jurisprudence
that knows how to use social philosophy and
a philosophical s∞iology.
Looking back over forty years of the
present century we see that much has been
accomplished. Stammler revived what the
8 Social Control through Law
French call juridical idealism. If he did not
give us the solution he showed us the
problem. He sought to make us conscious of
the ideal element in the positive law and to
construct a theory of it, where nineteenth-
century natural law had sought a critique;
just as Kant before him had sought to estab-
lish principles of lawmaking where his
predecessors had sought to find a universal
code. Duguit gave us a theory of an urban
industrial society of the beginning of the
present century as a theory of the ideal
element of the law of today. His is a socio-
logical naturallaw. He conceived of every-
thing in law as deriving its validity from
and to be judged hy a fundamental principle
ofright-and-law. Following Comte he sought
to arrive at it by observation and verify it
by further observation. In fact , he did his
observing in Durkheim's book on the divi-
sion of labor in society. Dugui t' s vogue is
not what it was. But he has had a useful
influence. Gény showed us the importance
of the technique element in positive law and
gave us a Neoδcholastic theory of the ideal
element. His Science et techn句ue en droit
privé pωit扩 has by no means been appre-
 Civilization and Social Control 9
ciated as it deserves. It deals with what
seems to me a fundamental problem of
jurisprudence, namely, the measure of valu-
ing interests , and with two elements of law
which the analytical jurisprudence of the last
cen仙ry ignored , and treats them in an
original and suggestive way. Hauriou gave
us a 出eory of the organizations which are
significant agencies of social control in the
society of today. At bottom , his theory, a
N eo-Scholastic institutionalism, seems to
me an attempt to understand and construct
a theory of the labor organizations which
are the most active groups in the society of
today, and in 也e English-speaking world
have been coming to be the dominant ele-
ment both in employing extra-legal force in
a time when the state was supposed to have
a monopoly of force and in harnessing the
force of politically organized society to their
purposes. The multiplicity of what he calls
institutions-things established with a con-
tinuous existence apart from any persons
for the time being, certain of whose activi-
ties are organized without their personali-
ties being included , and setting up organs of
authority and procedures of their own-this
10 Social Control through Law
multiplicity of institutions , each carrying out
its own idea, is to replace the crowd of
individuals , each exerting his will in a
never皿ending conflict or competition, actual
or potential, which Kant sought to order. 1t
is significant that here we have a theory
which 自nds the unit elsewhere than in the
individual man, and that this theory has been
very generally accepted by writers on public
law at a time when that subject is crowding
private law even in the English-speaking
world in which the private-law view of
public law has been traditional. Before this
Ehrlich had shown us the significance in
society of relations and groups and associa-
tions and of their inner order as the basis of
the legal order. His idea of this inner order
of relations and groups and associations
should be compared with what the economic
determinist sees as imposition of the will of
the socially dominant class. His conception
of a complex of social facts involved in the
relations and associations which go to make
up human society deserves to be compared
with Duguit' s observed and ver诅ed fact of
social interdependence ìn an economic order.
His idea of the reaction of living law, as he
 Civilization and Social Control 11
calls it, upon generalizations and formulas~
and of precepts and formulas which no
longer reflect the inner order of significant
relations and associations , should be com-
pared with the view of the skeptical realists
who can see nothing but individual be世
havior tendencies of individual judges. He
made a significant beginning of a sociologi-
cal comparative law or a comparative
sociological jurisprudence which is palpably
developing.
It is instructive to compare Ehrlich and
Hauriou with ideas which obtained in an-
tiquity as well as with the ideas of the
nineteenth century. The Romans seem at
one period to have thought of the individual
man as a group. They could conceive of a
one-individual household. One might be
pat，旷àmilias， patriarchal head of a house-
hold consisting of himself only. This, of
course , goes back to a kin-organized society
in which the kin group was the unit，企om
which the society of antiquity was emerging
or had but lately emerged. In a society in
which the individual is the unit we have
been brought up to think of a group or
association as an aggregate of individuals;
12 Social Control through Law
and in law we had thought of an association
as an arti自cial individual. It was as hard for
the last century to think of a group or asso-
ciation as it was for antiquity to think of a
single individual. That we must think once
more of relations and groups and associa-
tions, Gierke and Ehrlich and Hauriou make
us realize. Indeed ，孔1arx' s theory of class
struggle set thought of another type in the
same direction. Durkheim' s sociology and
Dugui t' s doctrine of social interdependence
through division of labor, where individual
independence and the significance of the free
individual will had been the central idea of
the science of law in the nineteenth century,
point also toward the rise of what might be
called an institutional order, something with
which the 1talian idea of the corporative
state , in which the legal unit is not the indi-
vidual but the 0αupational group, must also
be compared. All of these , from di能rent
standpoints , are theories of the urban ,
industrial s∞iety of today put universally.
These attempts to draw for us an a∞urate
picture of society as it is must necessarily
precede the philosophical critique of the
received ideal which is part of the positive
 CivilÌzation and Social Control 13
law. They are necessary in o.rder t o. give us
what idealized beco. mes the picture t o. which
we refer o. ur pro. blems o.f adjωti略 relatio.ns
and o.rdering co.nduct. When so.me o.ne o.f
these o.r so.me o.ne o.f like kind which super-
sedes them beco.mes the received , autho.rita-
tive picture , traditi o.nally taught t o. la~yers
and received by the pro.fessi o.n and So. by the
judges and administrative 0.白cials ， it will
beco.me the ideal element fo.r the time being
in the positive law. It is instructive t o. see
h o.w ideals o.f the so.cial o.rder, made t o. serve
fo.r ideals o.f the legal o.rder and carried into.
detail as an ideal element in law, have
gradually changed with changes in the so.cial
o.rder they po.rtray. Medievallaw functi o.ned
in a relatio.nally o.rganized so.ciety in which
the end o.f law seemed t o. be a harmo.nio.us
maintaining o.f the so.cial status qω. Medieval
society, like the so.ciety o.f the Greek city白
state, had n o. place fo.r free co.mpetitive selι
assertio.n. An ideal o.f this so.rt o.f so.ciety
may be seen persisting lo.ng after 出e
breakdo.wn o.f the relati o.nally o.rganized
feudal so.ciety. Slo.wly after the sixteenth
century an ideal o.f a so.ciety o.f 仕eely co.m-
peting independent individuals gro.ws up