Keith Mack
Roscoe Pound's The Spirit of the Common Law is a series of lectures from the early 20th century that reflect the optimism of the time about improving the administration of justice through conscious, intelligent action. Pound criticises the pessimistic attitude of lawyers who believed that attempts at conscious improvement were futile or dangerous. He argues that the heterogeneous, urban, and industrial nature of America at the time demanded rational improvements to the legal system and a departure from outdated legal paths.
| Characteristics | Values |
|---|---|
| Time period | Second decade of the 20th century |
| Theme | Faith in the efficacy of effort |
| Theme | Belief that the administration of justice can be improved by conscious intelligent action |
| Comparison | Roscoe Pound's views vs. Blackstone's complacent attitude |
| Comparison | Blackstone's view that law reform would be dangerous vs. Pound's view that it is necessary |
| Historical context | End of a period of legal growth |
| Historical context | Transition from the optimism of Blackstone to the pessimism of Lord Eldon |
| Risk to administration of justice | Timid resistance to rational improvement |
| Risk to administration of justice | Obstinate persistence in outdated legal paths |
| Consequence | Movement towards administrative justice through boards and commissions |
| Consequence | Unlimited discretion and inadequate judicial restraints |
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What You'll Learn
Puritanism and the Law
Puritanism emerged as a religious reform movement within the Church of England in the late 16th century. Puritans believed that the Church of England was too similar to the Roman Catholic Church and should eliminate ceremonies and practices not rooted in the Bible. They held that they had a direct covenant with God to enact these reforms.
The Puritan movement found support among the new professional classes, particularly lawyers and merchants, who were discontent with economic restraints. Puritan theology, rooted in the writings of Reformed theologians John Calvin and Heinrich Bullinger, asserted that God's promise of eternal life to Adam and Eve in return for perfect obedience was termed the "covenant of works". After the fall of man, original sin corrupted human nature, and every person was a sinner deserving of damnation.
Puritanism had a significant impact on the law, particularly in the New England colonies, where they established a virtual Puritan commonwealth. Their entire political and social system was built on the Puritan religion, with strict laws governing every aspect of life, including family relations and dress codes. Puritan leaders in New England promoted education for both religious and civil reasons and worked towards universal literacy, requiring heads of households to teach their families and servants basic reading and writing to understand the Bible and colonial laws.
Puritans believed that the state should protect and promote their religion, influencing politics and social life. They sought to kill off Quakers due to differences in belief systems, which eventually led to the development of freedom of religion. Puritan-controlled governments in England and Colonial America closely regulated alehouses, and laws in Massachusetts banned certain activities deemed "abominable". Puritan rule also impacted the arts, with bans on theatre and puppet shows during their reign.
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The Courts and the Crown
The relationship between the courts and the Crown has been a complex and evolving dynamic throughout the history of common law. The spirit of common law, as discussed by Roscoe Pound in the early 20th century, reflects a pivotal moment of transition and contrasting perspectives on legal reform.
At the end of the 19th century, there was a sense of complacency among lawyers like Blackstone, who believed that the law was close to perfection and that attempts at conscious improvement were futile or even dangerous. This viewpoint was soon challenged as industrial and societal changes rendered old legal paths obsolete. The emerging urban and industrial landscape of America demanded rational improvements and adaptations to the legal system, which faced resistance from some sectors.
The courts' interactions with the Crown during this period were influenced by these shifting legal philosophies. The concept of "The Spirit of the Common Law" captures the belief in the potential for conscious, intelligent improvement and evolution within the legal system. This perspective stood in contrast to the pessimistic outlook of Lord Eldon, who feared that law reform would destabilize the constitution.
The courts' relationship with the Crown was inevitably impacted by these differing views on legal reform. The resistance to change and the persistence in following outdated legal paths could have led to an administrative justice system that relied on boards and commissions with vague powers and insufficient judicial restraints. This deviation from established legal and political institutions underscored the complexities of maintaining a dynamic and responsive legal system while navigating the tensions between the courts and the Crown.
In conclusion, the spirit of common law, as reflected in the courts' interactions with the Crown, encompassed a range of sentiments during this transformative era. The tension between tradition and reform, pessimism and optimism, and resistance and evolution shaped the legal landscape and the dynamic between the courts and the Crown. Roscoe Pound's lectures capture this pivotal moment in legal history, highlighting the ongoing struggle to balance stability and progress in the pursuit of justice.
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The Rights of Englishmen and the Rights of Man
The "Rights of Englishmen" are rights and liberties derived from English common law. The rights were included in colonial charters and popularised by the struggle against Governor Edmund Andros's rule in the Dominion of New England during the 1680s, as well as the publication of John Locke's "Two Treatises of Government" in 1690. After the Glorious Revolution of 1688, colonists identified the English Bill of Rights and other new legislation as the foundation of English liberty, safeguarding against tyranny at home and abroad, with laws that governed both king and Parliament.
The "Rights of Englishmen" became a divisive issue among colonists as the ratification of the Declaration of Independence approached, as they debated which particular rights were significant. The Founding Fathers of the United States asserted that they claimed nothing more than the liberty and privileges of Englishmen, as they would have had they remained among their brethren in Great Britain. This concept of the "rights of Englishmen" also had an impact in British America, with the Law Lords deciding in 1608 that Scotsmen born after King James I united Scotland and England had all the rights of Englishmen.
The "Rights of Englishmen" were considered a foundation of American law, with Supreme Court Justice Joseph P. Bradley asserting that the rights of Englishmen were the rights that had been wrested from English sovereigns throughout history. The rights included the liberty and privileges of English subjects to be taxed internally only if they had representation in Parliament, as well as the right to defend life, liberty, and property.
The "Rights of Man" refer to a philosophical treatise written by Thomas Paine in 1791, which presents a defence of liberal democracy and a critique of monarchical and aristocratic governments. The work was influenced by Enlightenment philosophy and played a significant role in shaping political thought during the American Revolution and the French Revolution. While I cannot find a direct comparison between the "Rights of Englishmen" and the "Rights of Man", it is clear that both concepts advocate for individual liberties and rights, with the "Rights of Man" taking a more revolutionary and democratic approach.
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The Philosophy of Law in the 19th Century
The natural law tradition, with roots in classical Greek, Roman, and medieval thought, asserts that the grounds of legality are partly moral in nature. The famous maxim 'lex iniusta non est lex' (unjust law is not law), attributed to various figures including Cicero, Saint Augustine, and Aquinas, encapsulates this view. This tradition, associated with the work of Ronald Dworkin, challenges the notion that the moral content of norms determines their legality.
On the other hand, legal positivism, championed by thinkers like Jeremy Bentham, John Austin, and Hans Kelsen, emerged as a fierce challenger to the natural law tradition since the early 19th century. Positivists argue that the conditions of legal validity are exclusively a matter of social or non-moral facts. They contend that a community's legal norms are shaped solely by the beliefs, desires, and conduct of its members, marking a departure from the command model of law.
During this period, the common-law theory also gained prominence. This theory shifted the focus from statutes to the operation of courts and their relationship with the community. It elevated the role of judges and lawyers in constructing a philosophical theory of law, introducing the concept of adjudication. Judges, according to this theory, discerned or discovered common law from past cases, treatises, and common experience, rather than acting as lawmakers.
The 19th century witnessed a rich exploration of philosophical traditions and theories of law, setting the stage for further developments in the field. The ideas of notable figures like Bentham, Austin, Kelsen, and Dworkin would go on to shape and influence legal philosophy well into the 20th century and beyond.
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Feudalism
In the context of common law, feudalism played a crucial role in shaping the legal system, particularly regarding land ownership and rights. During the formative period of common law, the English economy was largely agricultural, and land was the primary form of wealth. Land ownership was structured hierarchically, with the king at the top, followed by aristocratic "tenants-in-chief", intermediate tenants called "mesne", and finally the tenant "in demesne" who occupied the property. Each piece of land was held under specific conditions, requiring certain services or payments from the tenants. For instance, an armed knight might have to serve for a set period each year, or the feudal lord might have the right to take the land if a tenant died without heirs.
The concept of feudalism became widely recognized in the 18th century through works such as Montesquieu's "De L'Esprit des Lois" and Henri de Boulainvilliers's "Histoire des anciens Parlements de France". Enlightenment writers often criticized feudalism as a relic of the "Dark Ages", using it to denigrate the French monarchy and promote their political agendas. By the time of the French Revolution in the late 18th century, feudalism was facing opposition from the rising "middle-class" commoners who favored autocratic rule under a central authority.
The military aspects of feudalism began to wane around 1500 due to the emergence of professional armies and the impact of the Black Death, which reduced the nobility's hold over the lower classes. However, remnants of the feudal system persisted in various forms. In France, feudalism was officially abolished following the French Revolution in 1789, and similar decrees were issued in other parts of Europe, such as the Kingdom of Naples, Sicily, and Lombardy-Venetia, in the 19th century. Despite these abolitions, some argue that the term "feudalism" has been overused and stripped of its specific meaning, making it less useful for understanding societal structures.
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Frequently asked questions
'The Spirit of the Common Law' is a book by Roscoe Pound that discusses the dangers of timid resistance to rational improvement and persistent adherence to outdated legal paths in heterogeneous, urban, and industrial societies.
Roscoe Pound argues that the real danger to the administration of justice is in the timid resistance to change and the stubborn persistence in following legal paths that are no longer practical in modern, diverse, urban, and industrial societies. This resistance has led to a form of administrative justice through boards and commissions with vague powers, unlimited discretion, and inadequate judicial restraints, which contradicts the principles of legal and political institutions.
'The Spirit of the Common Law' by Roscoe Pound reflects the legal thoughts and attitudes of the late 19th and early 20th centuries. Pound criticizes the complacent belief that no improvements are needed in the legal system, an attitude exemplified by Blackstone, and the subsequent pessimistic view of Lord Eldon, who feared that law reform would threaten the constitution.
