Word: pound
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Dates: during 1950-1959
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Against them, Roscoe Pound has tried his best to emphasize that law is something more than a variant form of sociology. In a book published last week, Justice According to Law (Yale; $2.50), the 81-year-old dean of U.S. legal scholars summarizes his defense of legal values that once seemed as unassailable as free-enterprise economics or a classical education...
...Subjective Factor. One of Pound's great fears is that belief in "the justice of the courts" is being undermined. Where 19th Century judges scorned to adapt their abstract reasoning to experience and social change, the "realists" of today, stimulated perhaps by hasty readings in Marx and Freud, challenge the worth of any standard except experience. ". . . [Some] assert [the law] is a camouflage of reason covering up ... individual personal prejudices or wishes . . . because human judges cannot keep purely subjective factors from influencing and indeed determining their action...
...realists' argument Jurist Pound has a confident rebuttal: "To judges well brought up in the common-law tradition the main body of its precepts speak alike no matter what their individual social or economic backgrounds . . . The judges who have made American law did not find an easy retreat from the hard work of the judicial office in a theory of a psychological impotence of judges to reach impersonal results...
Basic Definitions. What bothers Pound much more is that basic definitions of law and justice are now more obscured than ever. The law, he writes, has three distinct and necessary meanings: i) "a regime of social control"; 2) "the body of authoritative guides to ... decision"; 3) "the judicial process." The realists, Pound holds, destroy the whole purpose of the law by scrapping the second meaning-"a taught tradition of experience developed by reason and reason tested by experience...
...realists, says Pound, thrive in the atmosphere of the "service state" (i.e., the welfare state), because in its ponderous administrative machinery there is a dangerous blurring of administrative and judicial functions. When an. administrative agency acquires judicial functions in this way, the temptation is to shape laws in line with a stated policy, not merely to interpret them. To restrain these agencies there are few checks, no "taught tradition . . . Some today say that the law is power, where we used to think of it as a restraint upon power...