The Spirit of the Common Law (Dartmouth Alumni Lectureships on the Guernsey Center Moore Foundation Season of 1921), by Roscoe Pound
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The Spirit of the Common Law (Dartmouth Alumni Lectureships on the Guernsey Center Moore Foundation Season of 1921), by Roscoe Pound
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The tenacity of the common law is first noted. After celebrating its triumphs and its ascendency over all forms of law with which it has come into contact, Mr. Pound says, “Superficially, then, the triumph of the common law seems assured.” But he fears that there are dangers to be met; the first is that of legislation, and he cites Maitland and Brunner as sounding the cry of danger from over-legislation. He does not think their fears, from this cause, well founded, however, but the danger he foresees is a new one. The people have in all times in the past been with the common law; now they are against it. Recent decisions uphold the freedom of the individual to contract; deny the rights of the people to “stand between a portion of our people and oppression.” He cites decision after decision to substantiate this statement, and he succeeds. But the cases he cites are all cases in which the lines are drawn with great distinctness between labor and capital. Is this not where the trouble lies? Is it the common law which is against the people, or is it that the courts for a time inevitably interpret the sentiments of the class from which the judges are drawn? To say “by which the judges are influenced,” might be too severe. The people were with the common law because the common law was with the people, and the common law has not changed. It has been contended, and with ability, that in the common law we have a weapon with which to defend every right of the people which has of late years been assailed. Mr. Pound himself asks, “What is the spirit of the common law?” And he finds it to be, in effect, the spirit of the people, and that it has within itself the means of bringing it in touch with the spirit of the people. He finds the weapon at hand to be the police power. If the police power were not at hand, there would be some other weapon. For the common law is the breath of the people, and while they live and breathe the common law will survive. It seems not so much the protection of individual rights, as Mr. Pound contends, that is so securely safe-guarded to-day, as the sacred rights of property; it is the subordination of the individual, singly and collectively, to the accumulated power of property, against which the people revolt. When the courts remember, what they temporarily seem to have forgotten, that laws were made first for the protection of the individual, secondly for the protection of property; that a man or a collection of men have supreme rights, and that the property they own has only secondary rights, the people will have come to their own again, and the spirit of the common law will once more be one with that of the people. –University of Pennsylvania Law Review, Vol. 54 [1906]
The Spirit of the Common Law (Dartmouth Alumni Lectureships on the Guernsey Center Moore Foundation Season of 1921), by Roscoe Pound- Published on: 2015-10-29
- Original language: English
- Number of items: 1
- Dimensions: 9.00" h x .55" w x 6.00" l, .73 pounds
- Binding: Paperback
- 242 pages
About the Author Roscoe Pound (Nathan) (1870-1964) was dean of Harvard Law School. Before that he was dean at the University of Nebraska School of Law. He is known as the father of the sociological jurisprudence movement and one of America's earliest leaders advocating for legal realism. He authored numerous books, including The Spirit of the Common Law, Law and Morals, and Criminal Justice in America.
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5 of 5 people found the following review helpful. Uncommon spirit By FrKurt Messick Roscoe Pound was Carter Professor of Jurisprudence at Harvard University in the first half of the twentieth century. This text, derived from a series of lectures given in the 1910s, has held up over time (its initial publication was in 1921, and has been reissued periodically ever since) as a touchstone of historical and theoretical explorations of what common law is and how it operates, both in the British and American contexts.Unlike constitutional law and other kinds of codified law from legislative bodies, the common law is more of a development from the masses, at least insofar as it connects with the judicial aspects of government which in turn recognises certain things as legal or illegal. Indeed, Pound sees the triumph of the idea of the supremacy of law over authority to be a victory of the spirit of the common law (specifically, he refers to the supremacy of the law over the Stuart monarchs in Britain, but also that common law practice has survived Renaissance, Reformation and the institution of Roman law).Pound looks at the common law in different phases - feudal underpinnings, Puritan influences, relationship between judiciary and the Crown/executive authority, philosophers such as Locke, and growing judicial practice in the trans-Atlantic context during the nineteenth and early twentieth centuries.Pound does have a distaste of law for law's sake, and warns against attitudes that are 'a natural result of measuring the law solely by standards drawn from the law itself.' He is strongly concerned with the idea that the law be accessible to all, regardless of background, education, or ability to pay - there should not be one law for the rich and another for the poor.Law is for the betterment of society, and the spirit of the common law has this at heart, according to Pound. This text of Pound's, an enduring favourite, is a good exposition of how and why the law is important for a well-regulated society, and how the spirit of the common law needs to be cherished, preserved and strengthened by the legal profession for the sake of whole community.
4 of 4 people found the following review helpful. Important Book, Poor Value Edition By Benjamin Brown This is not a criticism of Roscoe Pound's work but of the commercial packaging by Nabu Press. It is hard to say what is more offensive: Nabu Press' assertion that books from before 1928 necessarily contain typographical flaws (when the poor appearance of the text has a lot more to do with Nabu's reproduction techniques than the original printing), or its attempt to profit from work for which the copyright has expired and that rightfully belongs to the public. This product is available for free online and self-printing would likely be much less expensive than buying this copy. [...]
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