but rather encompassing an understanding of the organic and evolutionary relationship among all plant life.
Pound’s training as a natural scientist, and as a Darwinist under the influence of Bessey, predisposed him to see the law in terms of organic growth and to understand that only those parts of the law should survive that were useful. This was a perspective he never abandoned, as readers of this book will understand. But readers will also not be surprised to learn that while Pound understood the fact of organic change in botany and law, he never wavered from a conviction that in both fields of study there were constant principles which determined change, a constant striving toward stability and equilibrium, and a constant existence of underlying truths which could be revealed by careful observation, classification, and analysis.
Just as Pound had learned botany in the field, he learned several institutions of the law firsthand, as he helped to form the Nebraska Bar Association in 1900; served, in the capacity of an appellate judge, as the youngest member of the Nebraska Supreme Court Commission (a reform panel created to eliminate the backlog of cases in the Nebraska Supreme Court) from 1901 to 1903; and, from 1904 to 1907, served as a commissioner on uniform state laws for Nebraska, in which position he began his efforts to modernize American law. Pound was appointed dean of the Nebraska College of Law in 1903, and instituted many of the same reforms in legal education he had observed at Harvard, including close study of cases and the Socratic method of teaching. Pound also changed the course of study of the law from two to three years at Nebraska, and required every student who matriculated to be a high school graduate. At about the time Pound became dean, all that was really necessary to be admitted to practice law in Nebraska was that one be able to read, but Pound was in the forefront of a movement to make the bar more professional in character, the better to perform the job of improving the law Pound believed essential.
In August 1906, Dean Pound addressed the annual convention of the American Bar Association in St. Paul, Minnesota. His talk was titled “The Causes of Popular Dissatisfaction with the Administration of Justice,” and was his first major exposition of what would become known as sociological jurisprudence. Because his talk advocated what appeared to be major changes in the law and legal practice, in order to take advantage of modern science, it struck many of Pound’s listeners as radical, and some objected to its publication. Nevertheless, others who heard the talk or read the text understood that Pound was one of the most significant contemporary legal thinkers, and it immediately catapulted Pound to national notice. One important result of the talk was an offer from the dean of the Northwestern University School of Law, John Henry Wigmore, to join Northwestern’s faculty. Wigmore, the author of the most famous American legal treatise, Wigmore on Evidence,3 was, when he hired Pound, the leading American legal scholar, and Wig-more had brought Northwestern to the forefront of national efforts to improve law and legal institutions.4 Pound taught at Northwestern from 1907 to 1909, then at the University of Chicago for a year, and then accepted an appointment at Harvard in 1910.
To return to Harvard seems to have been Pound’s goal since his untimely exit before he could receive his law degree, and once back at Harvard, Pound continued his work in legal reform, most significantly in criminal law and civil procedure. Pound believed that many legal practices of pleading and trial conduct could be improved, made simpler, and made more sure and certain. During the latter part of Pound’s dean-ship at Harvard, however, he sought to distance himself from the more extreme of the legal realists, who were building on his sociological jurisprudence to argue for giving judges much more discretion to decide cases, and to argue that it was time to abandon the notion that the law contained within itself timeless moral and philosophical truths. The most radical of their number, Jerome Frank, argued that established legal rules, reason, and timeless truths played no role in formulating judicial decisions, which were actually, according to Frank, after-the-fact rationalizations designed to disguise judges’ naked personal policy preferences.5 Pound’s disagreement with the legal realists became increasingly more strident, as he concluded that their efforts would undermine the organic character of the law, and lead to arbitrary and dangerous judicial behavior.
Following his service as Harvard Law School’s dean, in 1936 Pound became the first University Professor at Harvard, and thereby was permitted to teach in any of the school’s academic units. By that time he had practically become the voice of jurisprudence for the entire country. His administrative duties ceased, but his efforts at scholarship remained strong, and many of his most significant books were published after his retirement as dean.6
Pound delivered the lectures that comprise The Ideal Element in Law at the ripe old age of seventy-six. They still reflect Pound’s early training in botany, and his emphasis on the importance of classification, but they also illustrate Pound’s early-developed attention to the organic nature of the legal system, its constant principles, and its vitality. These lectures are clearly those of a mature thinker at the height of his powers, speaking to us from an earlier and, in some ways, a wiser era. The lectures were delivered in 1948, six years before Brown v. Board of Education (1954),7 and they are blessedly free of the arrogance of the kind of imperative legal theory that began with that case. In Brown, for the first time, the United States Supreme Court, profoundly influenced by the kind of legal realism practiced by Frank, wholly embraced social science (in that case the nascent discipline of social psychology) as a guide for refashioning constitutional law. Brown based its decision to end racial segregation in the nation’s public schools not on the basis of the original understanding of constitutional provisions, nor on the basis of established legal doctrines, but rather on the work of a group of social psychologists who had argued that racial separation resulted in educational disadvantages for black children. In doing so, the Supreme Court made no real pretension of exercising the traditional passive role of judges, or of following the taught legal tradition, but boldly embarked on a program of essentially legislative change that would eventually extend to ordering modifications of state criminal procedure, the abolition of the practice of allowing prayer and Bible readings in public schools, and, finally, to prohibiting states from outlawing abortion.
While all of that was in the future when Pound wrote The Ideal Element in Law, there were, at the time, plenty of advocates urging the activist role for the courts which was eventually manifested by Brown and its progeny. These lectures are best understood, then, as part of Pound’s broader efforts to defend the taught legal tradition, the common law method of adjudication in particular, and the Anglo-American jurisprudential tradition in general, as the best guarantor of liberty. Pound saw those urging the courts to undertake a program of radical social change, and in particular, the legal realists who disparaged the decisive role of legal doctrines in determining the outcome of court cases, as a real danger to American legal institutions.
The most important theme in these lectures, then, is Pound’s sustained attack on these legal realists. Pound tended to rework the same materials over many decades, subtly spinning out the implications of his arguments. These lectures are a much more fully developed expression of the ideas that Pound had quickly penned in a 1931 essay.8 That essay had been designed to rebut the wilder claims of some legal realists, most notably Jerome Frank, the author of a best-selling (for a work on the law) volume called Law and the Modern Mind.9 As indicated, Frank had argued that certainty in any field of the law was an illusion, and that those who argued that the legal doctrines led to sure results, were simply victims of a frustrated childhood desire to have an omnipotent father. This purported insight of Frank’s, which he borrowed from Freudian psychology, was used by Frank expressly to criticize Roscoe Pound, whose defense of the certainty in commercial and property law Frank derided as the “prattling” of a “small boy” in search of a perfect father. Readers of The Ideal Element will note the clear and elegant manner in which Pound skewers Frank’s theories, and suggests the immature and silly nature of Frank’s analysis.10
But if Pound has harsh words for psychological legal realists such as Frank, it is nevertheless true that The Ideal Element in Law also seeks to further the work of and to praise the efforts of some of the calmer legal realists, such
