Pound when he was a champion of sociological jurisprudence, recognized the important role of stable, traditional elements in American law, and also the obvious fact that many areas of the law did allow courts to engage in certain and sensible decision making.12 Unlike Frank, Llewellyn enjoyed the friendship and, to a certain extent, the patronage of Pound, and was prepared to concede that the legal rules were, in the main, the cause of particular legal decisions. Still, Llewellyn was aware that American legal institutions could be encouraged to develop law that was more in keeping with twentieth-century needs. Llewellyn, then, like the mature Pound, appreciated both the traditional and organic as well as the evolutionary nature of the law, and Pound was determined to further efforts like Llewellyn’s and disparage those like Frank’s.13
These Indian lectures appear to have been intended as a summing of Pound’s jurisprudential perspective, and it is something of a tragedy that they never received wider circulation in America. By the time they were first published, Pound’s influence had begun to fade, but had they been widely disseminated, it is possible that his essentially conservative vision might have given some pause to those who sought in the 1950s, 1960s, and 1970s to use the courts to further radical social change, in the service of a renewed populism. The last few pages of this book, building on all that has gone before, comprise one of the best warnings against the tyranny of the majority, against the excesses of the welfare state, and against authoritarianism in general, that any legal scholar has ever penned.
In keeping with Pound’s concerns late in his life, the book is a stirring argument for the preservation of liberty, but it is also a humbling demonstration of the cosmopolitanism and sheer learning that characterized some of the early twentieth-century legal titans such as Holmes,14 Wigmore, and Pound himself. The breadth of their legal knowledge, especially when compared to legal writers of the late twentieth century, is nothing short of breathtaking. In these lectures Pound uses Greek, Roman, medieval, European, and American materials with an equal command, and it is obvious that he has been able to read many of the works on which he relies in their original languages. He gives us a picture of what a real legal scholar used to be able to do, and shames virtually all of us in the academy who look only to America (and post-1954 America, at that) for jurisprudential principles.
Whether or not Pound’s sociological jurisprudence, and his inspiration of the Progressives in the beginning of the century, led inevitably to Franklin Roosevelt’s New Deal, in The Ideal Element in the Law, Pound argues convincingly that the welfare state (or the “service state” as he calls it) cannot do everything. This book is, then, among other things, a powerful argument against redistribution, or what Pound calls the “Robin Hood” principle.15 From the beginning of his work in the law, Pound was skeptical of populism, its expressed desire for redistribution, and its attacks on established centers of wealth and power in society. In The Ideal Element, Pound devotes substantial space to expounding his lifelong view that the desire for equality should not be pushed so far that it ends up destroying liberty, and Pound hints darkly that we have already gone too far down that road. In these lectures he provides very good examples not only from political mistakes of European nations, but also from the common law doctrines themselves, as they have been skewed in American jurisprudence, most clearly in torts and contracts. What Pound said in 1948 still rings remarkably true in the early twenty-first century.
Pound must have demanded a great deal of concentration from those who heard these lectures, and even one who has the text before him or her will discover that keen attention and perhaps even multiple readings are required before Pound’s arguments emerge with clarity. By the time one finishes the book, though, Pound’s organizing principles should have become clear, and these lectures should easily be seen to be at least a tour de force, and, most probably, a landmark in modern jurisprudence. The Ideal Element in Law foreshadows or anticipates the celebrated works by Lawrence Friedman16 and Grant Gilmore17 on the “Death of Contract,” in which they described the manner in which twentieth-century American judges eroded the theories of bargain and exchange that dominated the nineteenth century. Pound’s treatment is more satisfying than Gilmore’s or Friedman’s, however, because Pound better understands the aspirational element of contract (the furthering of both human freedom and ordered liberty) that is missing in most contemporary analysis, and especially in the works of latter-day legal realists like Friedman and Gilmore.
The Ideal Element in Law relates the classical American efforts of Story and Blackstone to a two-thousand-year jurisprudential tradition, and its publication, at this troubled time, might make some modest steps back toward encouraging us to regard the practice of law as a calling instead of a business. While the book is accessible to anyone with an interest in law or philosophy, it ought to be required reading for anyone embarking on the professional study of law, because it gives an essential grounding in legal philosophy and legal history that are too often missing from the increasingly pragmatic American law schools.
In his prime (the period from about 1920 to 1960) Pound towered over the legal academy in a manner even greater than that of the most visible contemporary American law professors such as Richard Posner,18 Laurence Tribe,19 Alan Dershowitz,20 or Ronald Dworkin.21 Most of them have achieved fame through a fairly narrow series of endeavors either as professors, judges, or practitioners. Pound was all of those, as well as an inspired writer, lecturer, law school administrator, and almost tireless laborer on countless local, national, and international reform commissions.
Most academics have ignored Pound in recent years, and the flashiest late twentieth-century school of legal thought, the left-leaning “critical legal studies,” all but trashed him. With the availability of The Ideal Element in Law, this modest “summa” of a lifetime of jurisprudential work in the trenches and in the study, however, Pound’s indispensability to anyone who seeks to grasp the nature of American law should once again become clear. What Pound railed against as the “sporting theory of litigation,” the notion that litigation ought to be a ruthless tool to achieve partisan ends, now is everywhere in evidence in twenty-first-century America, extending even, in 2000, to the election of the United States president. A healthy dose of Pound’s wisdom, available in these lectures, might do wonders in reminding a new generation of American law students and lawyers how law ought properly to be used to preserve and protect American traditions, the rule of law, and liberty.
Stephen B. Presser Northwestern University School of Law
Ableman v. Booth, 20 How. 506 (1858) / 133
Adair v. United States, 208 U.S. 161 (1908) / 224
Adkins v. Children’s Hospital, 261 U.S. 525 (1923) / 219
Affolder v. N.Y.C. & St. L.R. Co., 339 U.S. 96 (1950) / 339
Albany St., Matter of, 11 Wend. (N.Y.) 149 (1834) / 12
American Ry. Express Co. v. Kentucky, 273 U.S. 269 (1927) / 12
Archer Harvey & Co. In re, 289 Fed. 267 (1923) / 266
Arizona Employers’ Liability Cases, 250 U.S. 400 (1919) / 16, 18, 254, 255
Arndt v. Griggs, 134 U.S. 316 (1890) / 12
Attorney General v. Corke [1933] Ch. 89 / 328
Attwood v. Lamont [1920] 3 K.B. 571 / 211
Baker v. Snell [1908] 2 K.B. 352, 355 / 328
Baldy’s
