What Can the Law Hope For In the Age of Progressivism?

Roscoe Pound and the Progressive Path Less Traveled

Given his significance in 20th century American legal thought, it is stunning that Roscoe Pound is not more widely recognized by contemporary legal scholars.  He was the Dean of Harvard Law School, one of the foremost legal intellectuals of the 20th century, and his advocacy of “sociological jurisprudence” had a profound effect on the course of American jurisprudence.  Yet he is not widely studied in law schools today. One important reason for his neglect is that Pound’s views are extraordinarily difficult to discern.  He was not always a clear writer, and the subtleties of his thought are often difficult to decipher.

Scholars have long been perplexed about Pound’s legacy.  Most have simply concluded that Pound’s political views changed over time – that he moved from his early progressivism to the right, a tendency which became especially pronounced after the New Deal.

However, the evidence from Pound’s voluminous writings suggests that Pound was consistently progressive throughout his lifetime, but he is often misunderstood because his understanding of progressivism led him to oppose the direction in which American progressivism ventured throughout the first half of the 20th century.  Pound adopted the core tenets of progressivism but he did not think that progressivism should entail what he pejoratively called “administrative absolutism” or the “service state” (his term for what we often call the “welfare state” today).

The Ideal Element in Law is the only one of Pound’s volumes Liberty Fund has reprinted, but it is his most mature and perhaps his best work.  It is a masterful, if somewhat grueling, sweep of legal history.  It connects the history of ideas to the history of law in a way that few legal theorists of his day would have been capable.  Most importantly for today, Pound’s work illustrates a side of American progressivism that has long been neglected and forgotten.

The Paths of the Law

The Ideal Element in Law is based upon a series of lectures Roscoe Pound delivered at the University of Calcutta in 1948.  In the lectures he intended to uncover the philosophy behind changes and developments in the law.  Law is always aimed at achieving social control in order to arrive at some end or purpose.  This purpose, however, is set not by law but by philosophy. These “ideals” that govern the law – the ideal element in law – are just as much a part of the law as the law itself.  Thus, “No consideration of the ‘pure fact of law’ takes account of the whole fact if it omits these authoritative materials.” He saw his task as trying to explain the connection between ideas and the law over the course of Western civilization.

The ambition behind Pound’s undertaking is striking, and it seems at times to be overly ambitious.  The opening chapters are the most challenging.  Pound takes the reader through a survey of Western philosophy and law to the 19th century.  His purpose in these chapters is not always clear.  He jumps from Aristotle, Cicero, Aquinas and Grotius to Kant and Hegel with very little difficulty, but the reader is never entirely sure where Pound is going next.  One wonders how much greater the difficulty was for Pound’s audience at the Calcutta lectures!

The significance of these early chapters becomes somewhat clearer when Pound turns to the developments in philosophy and law in the 19th and 20th centuries.  The contrasts between natural law and the approach of the Neo-Kantians and Neo-Hegelians are highly important for understanding the intellectual controversies of the 20th century, and Pound’s treatment of the influence of Kant and Hegel on legal thought is a distinctive and impressive contribution.

In Pound’s typology, the followers of Kant and Hegel went in highly divergent directions – a bit surprising to political philosophers who think of Kant and Hegel as united by their rejection of ancient, medieval, and early modern thought.  Pound argues compellingly that one cannot fully understand American progressivism without attending to the differences between the two thinkers and their intellectual progeny.

Kant’s legal theory, which flows from his moral theory of justice, results in “A constitution allowing the greatest possible human freedom in accordance with laws by which the freedom of each is made to be consistent with that of all others.”  Kant, then, appears a proto-libertarian, and this is why Pound ultimately rejects his jurisprudence.  Pound argues, “What Kant saw and felt was the independence of our mental life….But there is no such individual independence in our economic or social life.”  Because we are economically and social interdependent, Pound argues contra Kant, we are not fully autonomous when we are merely left alone.

Pound explains that “Kant’s putting of the individual person at the center of juristic theory and the individual conscience at the center of ethical theory” led to Hegel’s break with him.  “Hegel saw that it was unhistorical and took the moral organism, as it used to be called, for the central point of his ethical theory.”  Hegel’s break with Kant led to the emergence of what Pound calls “social-philosophical jurists” at the end of the 19th century.

As the Hegelian view eventually predominated, the groundwork was laid for a break from natural law jurisprudence.  Hegel’s thought clearly emphasizes a historical evolution away from the old doctrines of natural law and negative rights.  Pound explains clearly Hegel and the Neo-Hegelians’ philosophy of history: “[Kohler] held that the idea which was unfolding or realizing itself in legal history was the idea of civilization.”  The Hegelian view was that history was the unfolding of a rational process towards a synthesis of subjective and objective will.  Government and law, therefore, should attempt to merge the individual and the community as history progresses, and no immutable and trans-historical principles should stand in the way.

But the 19th-century’s emphasis on individual liberty tinged the application of Hegelian thought to legal questions.  English Hegelians such as T.H. Green and Sir Henry Maine, Pound notes, “conceived that the history of law was a history of the gradual acquisition or recognition of individual liberty.”  They believed that history was moving in a positive direction, but they (wrongly, in Pound’s view) defined the end of history as the maximization of individual liberty or self-assertion.  This interpretation of Hegelianism influenced America through figures such as Herbert Spencer, who according to Pound “took abstract freedom of contract to be, as one might say, the ideal to which evolution continually tended.”

As this brief sketch of his argument suggests, Pound’s treatment of the development of philosophy and law is extremely helpful in revealing the intricacies of how political philosophy shapes law and policy.  For those who argue that Hegel is the intellectual founder of American progressivism, Pound helps to fill in the details of these intellectual developments.

Still a Progressive?

But the question remains: where does Pound fall in these intellectual disputes?  This question is of particular interest to readers of Law and Liberty because Pound was the teacher of Pierre Goodrich, the founder of Liberty Fund.  The conventional wisdom states that by the 1950s Pound had become a radical right-winger whose invective was matched only by his intellectual apostasy.

However, a careful reading of The Ideal Element in Law reveals that Pound was an intellectually-coherent progressive, though not a defender of the New Deal or the modern welfare state.  The final chapters of The Ideal Element in Law illustrate Pound’s ultimate position.   In these lectures Pound remained critical of natural law, stating that it was not appropriate for the changed circumstances of 20th-century life.  He argued that the natural law “has become increasingly inadequate to its tasks….It has, therefore, completely failed in the present century.”  Specifically, it produced “ill results from which administration of justice in America has been suffering for two generations.”  Because natural law declares that “rationally discovered universally valid precepts” govern the law, it led to rigid application of universal principles rather than flexible application of rules that could adjust to particular circumstances.

The other problem with natural law was its emphasis on abstract individualism, according to Pound.  In condemning the Supreme Court’s 1908 comparison of the employer-employee relationship with that of two neighbors bargaining in a rural setting, Pound gave thanks that “This artificial type of reasoning on the basis of a theoretical abstract equality and abstract liberty of contract, ignoring the facts of the economic order” has been abandoned by the courts.

The reason natural law and its emphasis on abstract individualism fail is that we are now interconnected in a complex modern society.  Pound noted, with approval, that in the late nineteenth century “abstract individualist theories begin to be replaced by theories which proceed not upon a principle of individual independence but upon a basis of the social interdependence of men.”  He endorsed this shift later in his lectures, arguing that “where the conquest of physical nature has enormously increased the area of human wants and expectations without corresponding increase in the means of satisfying them, equality ceases to mean equality of opportunity.”  As technology has progressed to give us greater mastery of physical nature, we have become more interconnected in a complex economic order.  This greater interdependence means that freedom and equality are no longer achieved through a “hands-off” approach by government.

Instead of natural law, the end of government should be established by the Neo-Hegelian concept of “civilization.”  As Pound explained bluntly: “The end is promoting, maintaining, furthering civilization.  The means is social engineering.”  Pound defined civilization as “the raising of human powers to constantly greater completeness, the maximum of control over external or physical nature and over human or internal nature.”  According to Pound, human beings are composed of the impulse for self-assertion and the social impulse.  Due to progress over time, “the social instinct prevails over the instinct of self-assertion.”  The task of government, Pound suggested, is to assist in this process: “Society does in this sense master the individual, and this is what is meant when we say that one side of civilization is conquest of internal nature.”

Thus, even in his later years Pound never abandoned his attachment to Neo-Hegelianism and the progressivism which grew out of it.  He rejected the natural law approach in favor of the idea of advancing civilization.  Yet this does not mean Pound viewed favorably the direction in which progressivism was tending in the post-New Deal era.  He claimed that there were two paths which progressivism could take: the “humanitarian idea” or the “authoritarian idea.”  Pound’s criticism of the New Deal and the “service state” grew from his suspicion that they potentially put America on the path of authoritarianism.  “An omnicompetent state,” he warned, “in contrast to politically organized society carrying on a regime of social control through orderly application of force…indicates a path in the development of society wholly divergent from that which had been followed in the West, which I am calling the authoritarian path.  The service state in its development seems to threaten to take this path.”

While Pound admitted that “It is a noble humanitarian conception that the misfortunes of each of us should be borne by all of us,” such a conception would eventually lead to lawlessness.  It would require the creation of a bureaucratic state that would necessarily do away with law.  However, he was careful to explain that he was “not preaching against a service state in itself.”  He acknowledged the need for an expanded role for government.  “What I challenge,” he concluded, “is carrying to the extreme the idea of regimented co-operation for the general welfare as the task of law, so that there ceases to be law.”  Such a conception is authoritarian because it “presupposes either a body of supermen administrators…or an all-wise majority or plurality, served by supermen administrators” who are not bound by the rule of law.

In the final analysis, then, Pound held firm to his progressive principles as he understood them.  The purpose of government, in his view, was not derived from natural law and limited to the prevention of injuries.  Rather, it was the advancement of civilization, a historical process in which both external and internal human nature would be tamed, so that the social instinct would come to prevail over individual selfishness and self-assertion.  What Pound rejected was the tendency of modern progressivism towards (in his view) an omnicompetent state and the authoritarianism that would necessarily result from the establishment of such a regime.  In its place, Pound advocated the “humanitarian ideal,” which would advance civilization by fostering citizens’ social impulse, the conquest of their internal natures.  The instruments of this humanitarian ideal would largely be judges who would be free to update common-law rules from the rigidity of the natural law, so that they could be crafted to meet new circumstances.

Pound is a fascinating thinker who reveals a different side of American progressivism – the side that arguably failed to win out.  His criticism of the New Deal and the service state were not based on a sudden conversion to conservatism but on the belief that American progressivism was going down the wrong path towards authoritarianism rather than humanitarianism.  The Ideal Element in Law is an important book for illuminating this tension in American progressivism as well as its masterful illustration of the development of law and philosophy over the past few centuries.