P

Pound, Roscoe Early Life and Work

Joseph Postell Born in Nebraska, Pound received degrees in

University of Colorado-Colorado Springs, botany from the University of Nebraska, where
Colorado Springs, CO, USA he studied under Professor Charles Bessey, an
early Darwinian. Pound earned the University’s
first PhD in botany in 1898 and co-authored a
significant book on botany in Nebraska the same
Introduction
year. He was perhaps the best of many great
botanists to come from the University of Nebraska
Roscoe Pound (1870–1964) was the most distin-
during this period. (A rare lichen he discovered is
guished and influential American legal scholar of
still named Roscopoundia.)
the first half of the twentieth century. He served as
Pound then studied law at Harvard Law School
Dean of the Harvard Law School for 20 years,
for 1 year but never received a degree from the
from 1916 to 1936. During his tenure as Dean, he
institution where he would eventually serve as
built a world-class faculty and programs, trans-
Dean. Instead of completing his legal studies at
forming Harvard into the best law school in the
Harvard, Pound returned to Nebraska because of
country. Pound was one of the intellectual leaders
his father’s declining health. He taught law at the
of the legal realism school of thought and gener-
University of Nebraska from 1890 to 1903, where
ally advocated for a more progressive approach to
he utilized his background in science and botany
jurisprudence. Yet he also was a staunch critic of
to advance the philosophy of law. He helped form
Franklin Delano Roosevelt’s New Deal, in partic-
the Nebraska Bar Association in 1900 and served
ular its reliance on administrative bureaucracies to
in several government positions in Nebraska dur-
implement sweeping political reforms. As he
ing his tenure there, including Justice of the
increasingly criticized the program of modern
Supreme Court of Nebraska. He was appointed
American progressivism, Pound increasingly
Dean of the Nebraska Law School in 1903 but
found himself under attack by the same commu-
eventually moved to Northwestern Law School
nity of legal scholarship he earlier influenced so
where he taught from 1907 to 1909. From there
greatly.
he went to the University of Chicago to teach for a
year, before moving to Harvard Law School
in 1910.
Pound’s years in Nebraska were critical to his
development as a legal scholar. It was at this time
# Springer Science+Business Media B.V., part of Springer Nature 2018
M. Sellers, S. Kirste (eds.), Encyclopedia of the Philosophy of Law and Social Philosophy,
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2 Pound, Roscoe

that Pound sought to integrate the principles of and judges to discard a rigid, deductive frame-
botany and natural science into the American work for adjudicating legal issues in favor of a
philosophy of law. more flexible, sociological jurisprudence. This
contribution was the primary reason for Pound’s
notoriety as a legal scholar and his appointment as
Advocacy for Sociological Jurisprudence Dean of Harvard Law School.
Pound’s early work was therefore dedicated to
Pound is best known today as one of the founders revising American conceptions of the rule of law.
of legal realism – or what Pound called “sociolog- He saw this project as the chief means, and per-
ical jurisprudence.” In a series of canonical arti- haps the only means, of preserving the integrity of
cles published between 1907 and 1912, including the judicial branch. Pound worried that as judges
a three-part article on “The Scope and Purpose of increasingly applied outmoded legal principles,
Sociological Jurisprudence” in the Harvard Law they would see their powers for resolving disputes
Review, Pound criticized the traditional American transferred to executive tribunals.
natural-law and common-law approaches to juris- Beginning as early as 1907, Pound worried that
prudence. They were, he claimed, overly rigid, American law too inflexibly restrained govern-
deriving conclusions as deductions from first prin- mental power and that a day of reckoning was
ciples based on natural law and individual rights. coming for the judiciary. As he explained, “the
This “mechanical jurisprudence,” Pound paralysis of administration produced by our
claimed in a Columbia Law Review article bearing American exaggeration of the common law doc-
the title, should be abandoned for an approach that trine of supremacy of law has brought about a
allows circumstances to shape the principles reaction” (Pound 1907b, 139). “We have actually
needed to reach good results for society as a traveled a long way from the notions of a gener-
whole. Pound called for a new system of law ation ago as to the relation of courts and adminis-
that would place “the human factor in the central tration,” and “powers which fifty years ago would
place and relegate logic to its true position as an have been held purely judicial and jealously
instrument” for social justice (Pound 1908, 609). guarded from executive exercise are now decided
Pound’s “sociological jurisprudence,” as to be administrative only and are cheerfully con-
opposed to mechanical jurisprudence, would ceded to boards and commissions” (Pound 1907b,
decide particular cases on the basis of their effects 139).
on society as a whole. “With the rise and growth It was against this tendency of increasing
of political, economic, and sociological science,” administrative power that Pound focused much
he argued in 1907, “the time is now ripe for a new of his work between 1907 and 1940, including
tendency, and that tendency, which I have ven- his tenure as Dean of Harvard Law School. Dur-
tured heretofore to style the sociological tendency, ing this time, Pound became the chief critic of the
is already well-marked in Continental Europe” emergence of the American administrative state.
(Pound 1907a, 609).
Therefore, Pound insisted upon a more pro-
gressive understanding of law than most Ameri- Critic of “Administrative Absolutism”
can jurists held at the turn of the twentieth century.
Instead of using the law to uphold individual At an early point in his career, Pound became
rights and enforce limitations on government, obsessed with the problem of what he called exec-
Pound thought that law should advance social utive justice and administrative absolutism.
purposes, relying more on sociology and aiming Because of his sympathy with the progressive
at producing positive results for society as a whole objectives being sought by modern administrative
as opposed to deducing conclusions logically agencies, Pound admitted that the rise of execu-
from first principles. Pound’s chief legacy as a tive justice was a response to a legitimate concern.
legal scholar was his successful call for lawyers That concern was the American obsession with
Pound, Roscoe 3

the rule of law, an obsession that tied the hands of proposition recently maintained by the jurists of
executive and administrative actors too tightly. Soviet Russia that in the socialist state there is no
Pound explained that “nothing is so characteristic law but only one rule of law, that there are no
of American public law of the nineteenth century laws – only administrative ordinances and orders”
as the completeness with which executive action (Pound 1938, 343).
is tied down by legal liability and judicial review” To solve the problem, Pound advocated a
(Pound 1907b, 139). Consequently “judicial inter- series of sweeping reforms to the administrative
ference with administration. . .was an every-day process, including greater judicial review of
spectacle. Almost every important measure of administrative orders, greater procedural con-
police or administration encountered an injunc- straints on agencies, and a return of many deci-
tion” (Pound 1913, 2). sions to judicial rather than administrative
It was only natural that this overly legalistic tribunals. Many of Pound’s proposals were incor-
approach to administration would produce frus- porated into a bill conventionally known as the
tration and calls for reform. The hamstringing of Walter-Logan Act, which the US Congress passed
administration by lawyers and judges prompted in 1939 but could not enact over Roosevelt’s veto.
reformers to advocate wholesale transfer of power Eventually some of these reforms were
from courts to administrative agencies. This was included in the more moderate Administrative
the rise of executive justice, which Pound defined Procedure Act, which was passed in 1946. The
as the “attempt to adjust the relations of individ- Administrative Procedure Act remains one of the
uals with each other and with the State summarily, most significant pieces of legislation enacted in
according to notions of an executive officer for the the twentieth century and still shapes the way
time being as to what the public interest and a administrative agencies make policy in America
square deal demand, unencumbered by many today. Thus Pound’s chief public policy legacy
rules” (Pound 1907b, 145). This was “the most was his contribution to the American debate over
conspicuous feature of our American law,” Pound the legitimacy of administrative agencies during
believed (Pound 1924, 325). the 1930s and 1940s. Although Pound did not win
While Pound acknowledged the legitimate adoption of all of his proposals during that debate,
concerns that gave rise to executive justice, he he was a powerful advocate for the views of
argued that this approach and its administrative lawyers and judges who sought to preserve a
absolutism was a cure worse than the disease of place for the rule of law in the face of administra-
inefficient administration. Many lawyers and tion’s expansion.
judges agreed with Pound, and during the 1930s
the American Bar Association (ABA) mounted a
full-scale assault on the powers of administrative
Rejection of the “Service State”
agencies. Pound was one of the leaders of this
assault, and he was the author of the famous
Pound was roundly criticized by his contempo-
ABA “Report of the Special Committee on
raries and continues to be criticized by scholars
Administrative Law” in 1938. Pound’s report
today for his attack on executive justice and admin-
shocked many legal scholars, two of whom sin-
istrative absolutism. Many scholars conclude that
gled out this report and Pound’s influence as a
Pound was an opponent of the New Deal because
major factor in legal resistance to Franklin
he had abandoned his early progressivism for a
Roosevelt’s New Deal (Davis 1942; Jaffe 1942).
staunch conservatism (Wigdor 1974). Others sug-
As Pound summarized in that report, “the pres-
gest that Pound’s concern with executive justice
sure for administrative absolutism goes on and the
arose early in his career, alongside his call for a
[legal] profession must be vigilant to resist it”
progressive, sociological jurisprudence, and so his
(Pound 1938, 346). He called the modern admin-
rejection of the New Deal cannot be attributed to a
istrative process “administrative absolutism”
conversion to conservatism (Postell 2012).
many times in the report and likened it to “the
4 Pound, Roscoe

While scholars disagree as to whether Pound’s in his advocacy for sociological jurisprudence,
objection to the New Deal was rooted in a con- with his skepticism about the New Deal and
version to conservatism, there is little doubt that administrative justice, both his contemporaries
Pound became increasingly conservative later in and today’s scholars often conclude that Pound
his life, particularly during the late 1940s and became more conservative as he aged. Neverthe-
1950s. At that time, Pound came to reject not less, a close reading of his many books and arti-
only the growth of administrative power but also cles reveals a consistent theme: Pound’s belief that
the growth of government as such. He wrote arti- the law can be updated to meet the demands of a
cles and books condemning the rise of the “service new age, without turning to a pervasive
state” which seeks to solve citizens’ problems for administrative state.
them rather than protecting them from injury and
allowing them to pursue happiness privately
(Pound 1958). In a series of lectures delivered at
References
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