Journal of Law & Social Studies 2023

Journal of Law & Social Studies (JLSS)

Volume 5, Issue 2, pp 274-280
www.advancelrf.org

Roscoe Pound’s Theory of Justice& Mechanical Jurisprudence: A

Critical Evaluation

Amr Ibn Munir

LLB student,
International Islamic University, Islamabad.
Email: [email protected]

Abstract

This paper discusses what mechanical jurisprudence is, what it entails, what Pound
meant by the development of law being stagnated by strict and rigid body of rules by
means of stare decisis, what the “practical application test” is, whether Pound
advocated legal pragmaticism, what was Pound’s concept of legislation and the
development of law, what did Pound mean by justice according to law and justice
without law? The findings of this paper are that mechanical jurisprudence is the strict
and rigid systemized body of rules made by legislation and stagnated by the doctrine of
stare decisis. There are 2 types of justices, justice which has a pre-legal element
involved and justice with a legal element involved. That in the former, the judge is
applying the strict rigid principles of law and in the latter the judge uses his discretion
and applies the means of equity, natural justice, good conscience etc. That he was a
firm believer of a judge being a law discoverer rather than a law maker despite being a
positivist. We’ve understood with examples that the making and development of law is
not contingent on the change in human conditions of society, that logic is substituted but
not with the human condition, but rather with the means of equity, natural justice,
morality etc and that it is the natural development in any legal system. We’ve also
understood that Pound believes in the practical application test as he is legal
pragmatist but that such an application is impractical. The methodology in this work is
doctrinal.

Keywords: Jurisprudence, Roscoe Pound, Mechanical Jurisprudence, Practical Application Test,

Justice

Introduction

This paper discusses what mechanical jurisprudence is, what it entails, what Pound meant by the
development of law being stagnated by strict and rigid body of rules by means of stare decisis, what
did Pound mean by the “practical application test”, whether Pound advocated legal pragmaticism,
what was Pound’s concept of legislation and the development of law, what did Pound mean by
justice according to law and justice without law?

Pound’s Mechanical Jurisprudence

Roscoe Pound was a scientist, a PHD in botany in fact and one of America’s most famous jurists.
Rather than considering and deliberating law by using logic and syllogisms like all scientists
however, he instead believes that law should be the opposite. That, logic should not be used as the

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primary element in the making of law. Rather, it should be used as a secondary factor, as an
instrument in the making of law. He believes that the primary factor of making law should rather be
the human condition first. That whether, in making or developing this law, the human condition will
be considered and accordingly the legislation or judicial decision shall be adjusted to it. By human
condition, he means, the human conditions of society, the different social classes of humanity, the
poverty stricken, the wealthy, the middle class and the respective relationships between all three
classes should be considered so as to make sure that true social justice is achieved. This is what he
calls the theory of social engineering.

However, this is beyond the scope of this paper, so this much shall suffice for now.(Ibn Munir
2023)We shall instead focus solely on his “mechanical jurisprudence”. It is over where he discusses
what he calls “scientific law”. He observes that “scientific law is a reasoned body of principles for
the administration of justice, and its anti- thesis is a system of enforcing magisterial caprice,
however honest, and however much disguised under the name of justice or equity or natural law.
But this scientific character of law is a means, a means toward the end of law, which is the
administration of justice. Law is forced to take on this character in order to accomplish its end fully,
equally, and exactly; and in so far as it fails to perform its function fully, equally and exactly, it fails
in the end for which it exists. Law is scientific in order to eliminate so far as may be the personal
equation in judicial administration, to preclude corruption and to limit the dangerous possibilities of
magisterial ignorance.

Law is not scientific for the sake of science. Being scientific as a means toward an end, it must be
judged by the results it achieves, not by the niceties of its internal structure; it must be valued by the
extent to which it meets its end, not by the beauty of its logical processes or the strictness with
which its rules proceed from the dogmas it takes for its foundation” (Pound 1908) Hence, he
believes that there are two types of law, one is the scientific law, where the law is systemized set of
principles, a body of rules which is binding on the court so as to make sure that the administration
of justice is achieved. The second type of law is which is not a systemized set of principles or a
body of rules, but rather its opposite, it is not organized or systematic but rather what the court
believes to be law under the means of natural justice or equity.

Hence, he is talking about how the courts have different judicial attitudes in certain cases and thus
apply their own unique sense of justice under the guise of natural justice or equity. Basically, when
the court rather than applying the law use their discretion and instead apply the doctrines of natural
justice and equity to guide their judicial conscience. We shall discuss this later on. Pound also
believes that the law takes on a scientific character because it is forced to so, to achieve the means
of an end. That end, being a systemized body of rules, which should be prevented. He believes that
our courts have relied too much on judicial decisions to develop law. That the doctrine of precedent
only develops law to a certain extent for a certain period, that principles are set, that a body of rules
is developed and afterwards, there is no more new development. These principles after being set are
no longer deliberated upon by the courts, hence there is no more development of law. He believes
there are periods of legal development. It starts with legislation by the legislators, where the
principle is first enumerated within the law. Later on, this principle is deliberated upon, discussed
upon and developed by the courts. After being developed however, the principle is than set. The
courts than no longer, deliberate or discuss the principle. They instead consider it the rule that it is
bound to follow and would follow it again and again.

Therefore, there is no further development. He believes that this causes the law to be become far too
mechanical. That is to say, rigid, unchanging, not evolving, not developing. He calls this the
“jurisprudence of conceptions”. This means that law is being developed solely for the sake of being
developed due to a rigid process of judicial decisions and judicial speculation. Where precepts are
being developed rather than practical results. He believes that judges rely on the body of rules to

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develop certain principles of law without taking into consideration whether such principles are
practical, that is to say applicable on the society at large. He instead believes that rather than law be
developed like this rigidly, the courts should consider the end product instead. That courts consider
whether the law being developed is applicable to the human condition in society. That rather than
using hard logic or rhetoric to set a legal principle, we should instead apply the human factor first,
that whether the law being developed can be applied automatically in society.

Hence, he only sees logic as a secondary tool, an instrument, a means to an end. That law is
developed due to social experience, to human conditions to society and that logic is merely one of
the tools in the realization of that. This is entirely reminiscent of Oliver Wendell Holmes Jr.’s legal
pragmatism. He observed that “the life of the law has not been logic; it has been experience. The
felt necessities of the time, the prevalent moral and political theories, intuitions of public policy,
avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a
good deal more to do than the syllogism in determining the rules by which men should be governed.
The law embodies the story of a nation's development through many centuries, and it cannot be
dealt with as if it contained only the axioms and corollaries of a book of mathematics.” (Holmes
1881) But of course, this is something that Pound entirely admits. He observes that “sociological
movement in jurisprudence is a movement for pragmatism as a philosophy of law; for the
adjustment of principles and doctrines to the human conditions they are to govern rather than to
assumed first principles; for putting the human factor in the central place and relegating logic to its
true position as an instrument.” (Pound 1908)

Hence, Pound is no doubt a proponent of the legal pragmaticism school of thought. He believes that
this is what sociological jurisprudence is meant to be and what it means to achieve. Indeed, quite
unusual for a scientist who usually believe in hard logic and rhetoric to enunciate any theory they
come up with two instead believe in the human condition being the first element to be considered in
the development of the law and for logic to be used another instrument towards achieving the same.
He calls this the “jurisprudence of results”. This he burrows from Rudolph Ihering’s jurisprudence,
where he considers that the first question should always be how will a rule or decision operate in
practice? Pound further discusses this in light of the legal developments of the Romans, the English
and also of the USA. How in all three cases, all of them substituted logic with something else and
that led to the profound development in law. The Romans used philosophical precepts, the English
used equity, while the Americans would rely on English case law and consider their applications
and consequences in society.

Hence, he believes this is where the development stops, where the conceptions are now fixed, the
principles settled, the premises settled, everything else becomes mere deduction from there. The law
than becomes a body of rigid rules and thus stops the development of law. Afterwards, comes than a
new period with new legislation where fresh new principles and new rules are legislated by the
legislator, but even than this is not a period of growth. This is but the reawakening of the judicial
accomplishment of the past. And it is from here where judicial activity will continue on the basis of
the principles enumerated within the legislation. Hence, he believes that logic should be substituted,
should be used as a secondary factor, an instrument, a means to an end and that first and first most
should be the human condition, whether, such a legislation or judicial decision will achieve a
practical result in society?

Pound’s Theory of Justice

Pound believes that law is not an essential element in the administration of justice. (Pound 1913) He
professes that justice is divided into 2 types, justice which has a pre-legal element involved and
justice with a legal element involved. He believes that “justice may either be administered

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according to the will of the individual who administers it for the time being, or it may be
administered according to law.” (Pound 1913)

The first type is judicial, where the norms, guides are applied when justice is administered. The
second type is administrative. This is where justice is administered by the will or intuition of
someone due to him having the discretion to do so as he is not bound by any fixed rules. When
Pound talks about the non-legal element in the administration of justice, he discusses that the judge
either uses his discretion or natural justice or equity and good conscience or certain and permissible
rules of relaxation of rules with reference to the requirement of individual cases and circumstances
or the equitable application of law, of free search on the right (Pound 1913). He then proceeds to
discuss how history has used both types of administration in justice, the judicial and the
administrative elements, moving between both, particularly in the 19 th-20th centuries. He then
critiques both types of administration of justices, how administration of justice according to law
leads to more uniformity, standards being created and how it ensures better balancing of interests
but at the same time, it could become too rigid due to having strict unchangeable rules.

While considering administration of justice without law, he sees it ideal for a simple agricultural
society where economic existence is simple, where the will of the people can be easily ascertained
and applied to. It should be noted however that he cautions against such a notion, especially in a
developed economic and industrial society. In such a case, he believes that there are too many
complex developments made in society, such that there needs to a standard of uniformity, a body of
rules that should be adhered to. He believes that courts administering the will of the people in
certain cases are no different than the olden notion of administering the will of the King in each and
every case. However, he still feels that even in such a developed economic society, justice without
law is needed so as to combat the rigidness and strictness that comes as a result of justice with law.
He then gives an example of the development of equity in England, how it arose when the British
common law was too rigid or strict to be applied in every case. From his point of view, “equity
began as reaction towards justice without law”. (Pound 1913)

Hence, from the discussion above, we can assume that Pound was a firm believer of the Judge being
a discoverer of law rather than a law maker (Munir 2013) as he feels that discretion should be used
sparingly, that there should be proper law administered in a society, particularly a mature one and
that the judge may use his “intuition” or “will” when he is not bound by strict and fixed rules and
therefore has discretion to do so. Now we can understand that for Pound, justice can be
administered with a legal element or “non-legal element” as he likes to call it, however what he
calls a non-legal element is quite simply the judge applying principles of law when the law cannot
be resorted to, that is to say, when there is a new type of case, unprecedented, where the judge may
resort to other means such as natural justice, equity and good conscience etc to decide the case.

Critique

Let us first discuss whether Pound’s criticism on what he calls “mechanical jurisprudence” is
justified? By mechanical jurisprudence, we mean the hard and rigid systemized body of rules which
are first enumerated within legislation and then developed by the judges in cases. Well, to a certain
extent, he is correct. Logic is not always correct. Law is not just a logical process. It ultimately does
require the touch of morality, natural justice, equity etc. There are numerous examples of this. The
doctrine of equity for example. Equity was developed as a means to combat the extreme rigidness
of the strict common law system of England. However, it by no means replaced the common law
system. In fact, it only served as an alternative for common law should there be no remedy available
in the common law before later on merging with the common law. This is clearly seen in the
equitable maxim, “equity follows the law”. (Ibn Munir 2022)

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Hence, saying that equity came as a result of non-satisfying justice among the people by the
common law is indeed correct to a certain extent, but it was by no means due to a complete change
in the human condition. While, it’s true that equity developed multiple new remedies but most of all
it developed the already existing law as well. Thanks to equity, the principles of contract, tort, due
process etc developed even more. It did not at all create new law but merely developed the already
existing one. And when he talks about America, he forgot to see that fact that America would’ve
applied English case law anyway as it was a former British colony and thus inherited the common
law legal system. And like all of Britain’s old colonies, they would undoubtedly apply the case law
of the country from which they not only inherited the legal system but also from where the common
law legal system originated as well so as to receive guidance and develop their own legal system as
well. But let us not forget about the Romans. They too undertook the same evolution of law from
rigid strict laws to be supplemented by the principles of equity. (Riccobono and Nathan 1925)

Hence, rather than human condition, this was the natural evolution of the law. The law going from a
strict and rigid set of systemized body of rules to being supplemented with morality, equity or the
principles of natural justice is not a new proposition. It was always the natural evolution of a legal
system. It is not entirely incumbent upon the conditions of society itself to be involved in the
development of law. A society’s conditions could be that of a particular racial group being
discriminated and the law would provide that no particular racial group is to be discriminated on the
basis of their race. Take the example of the Civil Rights of Act of 1965. It would seem after this, the
African-American community should not have been subjected to any form of racial discrimination
at all. But here we are in the 20th century, where a person like George Floyd became a victim of
police brutality. We can also take the example of the Apartheid State of South Africa as well. The
legislation in such a state provided for a massive number of discriminatory policies against the
black African community. And yet, there was no legislation against it.

Despite these types of social conditions existing, the law never developed. The court did not apply
morality, equity or natural justice. They were guided by discriminatory laws and did not feel the
need to change it or apply the means of morality, equity or natural justice. Apartheid only came to
an end when there was widespread revolution which overtook it. And let us not forget the nazi
regime. Once more, despite the fact social conditions were that of a totalitarian regime with
violation after violation of human rights and dignity, the law did not develop at all. There was no
application of morality, equity and natural justice. That only came to be after the nazi regime was
defeated in World War II and many nazi officers were tried in the famous Nuremberg trials.

Hence, the judges did not even consider the conditions of society during these terrible times. They
did not conduct any “practical application test” of a statute when interpreting the statute neither did
the legislature for that matter. And how exactly would one test the practical applicability of a
particular statute and its interpretation as done by the judges via judicial reasoning? Would the
judges have people fill out petitions on how they feel this law should be interpreted? Would the
judges have to call out people and interview them for their thoughts and feelings of the case? One
might argue that public pressure influences cases as well. Indeed, this is true to a certain extent,
however, public pressure does not influence each and every case. (Epstein and Martin 2010) There
will always be someone or some particular group in society being unsatisfied on a particular
decision by a court. A very glaring example of this is the famous O.J. Simpson trial. To this day,
there are many opposing views particularly by the African Americans and White Americans on both
the criminal and civil verdicts.(Anastaplo 1997) We can even take an example of our own country.

The case of “Malik Muhammad Mumtaz Qadri v. The State” (PLD 2016 SC 17) is still the subject
of debate today. Many still consider him a hero for what he did and lament that his death sentence
should not have been upheld by the Supreme court, while others say that his death sentence was
rightly upheld and his act of murder was not at all justified. In both cases, the courts did not fall to

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public opinion or pressure. They simply interpreted and applied the law as is the job of any court of
law. Of course, by no means am I saying that public pressure or opinion cannot influence a judicial
decision, it certainly can and there are numerous examples of it such as the famous case of “Roe v.
Wade”(410 U.S. 113 (1973)) being overturned by “Dobbs v. Jackson’s Women Health
Organization”.(No. 19–1392) The pro-choice supporters had a field day. I am merely saying that it
is not always the case as seen in the examples I have discussed hereinabove. Interpretation of law
by means of judicial reasoning is not a scientific process or scientific experiment being performed.
The judges have to see all the facts of the case, the applicable law, interpret and apply said law in
the instant case. They do not necessarily see the conditions of society for their decisions. They will
either see what the law says or would uses sources of law where the case is such that there is no
answer in the law. Lastly, the notion that the doctrine of stare decisis can lead to rigidity in the law
is correct to a certain extent. Law cannot further develop if judges keep on applying past precedents
to every case.

However, this is also dependent on the fact of new or similar cases coming to a court. Stare decisis
is applied on the same cases. The emphasis is on the same. It can lead to the development of law
that can be used for years to come. Examples can be of the various equitable remedies, or the
precept of promissory estoppel etc. And of course, should there be an error in precedent, the judge
is not bound to follow it. Not to mention, a precedent can be overruled or even distinguished in the
instant case. (Munir 2014) Of course, the reason he forgets to mention the fact that precedent can be
overruled is due to the fact that in the USA, the Supreme Court has a fixed bench of 9 judges who
always hear the case. Hence, a precedent cannot be overruled by the same court in the USA except
in appeal to the appellant court. In the case of the USA however, they can review their judgments.

Let us now move onto his theory of justice. For Pound, justice is the end means of law. He believes
that justice can be achieved with and without law. That the judge can administer justice according
to law, being bound to strict rules of law. In the event he is not bound to strict rules of law, he may
use his discretion, apply principles of natural justice, equity and good conscience etc. Hence, Pound
despite being a strict positivist does not subscribe to the view that the judge is a law maker. He
believes that the judge either applies the law or he uses his discretion when he cannot apply the law.
And by discretion he means, that he considers natural justice or equity and good conscience of
which he is a big admirer and more. Thus, he is a believer of the judge being a discoverer of law
rather than a maker of law. This is very strange considering that he is a positivist. However, his
notion of justice without law is nothing more than a judge falling back towards history, towards
sources of law such as customs, norms, principles, natural justice, equity etc in order to interpret
and apply the law. The judge is not there to administer justice. He has but one job to interpret and
apply the law and to resort to the sources of law when the statute is silent.

Conclusion

We’ve now discussed and understood Roscoe Pound’s mechanical jurisprudence and what it entails.
We’ve understood that Pound believes that law cannot be developed purely by logic alone and that
it needs to be substituted for the human conditions in society. That Pound believes that law can be
developed purely on the basis of the change in human conditions in society. That a rigid system of
law developed purely by the doctrine of stare decisis does not develop law at all and instead
stagnates it. We’ve also understood that Pound believes that justice is divided into 2 types, justice
which has a pre-legal element involved and justice with a legal element involved. What he calls
justice with law and justice without law. That in the former, the judge is applying the strict rigid
principles of law and in the latter the judge uses his discretion and applies the means of equity,
natural justice, good conscience etc. That he was a firm believer of a judge being a law discoverer
rather than a law maker despite being a positivist. We’ve understood with examples that the making
and development of law is not contingent on the change in human conditions of society, that logic is

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substituted but not with the human condition, but rather with the means of equity, natural justice,
morality, good conscience etc and that it is the natural development in any legal system. We’ve also
understood that Pound believes in the practical application test as he is legal pragmatist but that
such an application is impossible in application. And that he has certain misconceptions about the
doctrine of stare decisis.

References

Anastaplo George, The O.J. Simpson Case Revisited, Loyola University Chicago Law Journal, Vol
28, Issue 3, Spring 1997, Article 3, pp. 461-504.

Dobbs v. Jackson’s Women Health Organization, No. 19–1392.

Malik Muhammad Mumtaz Qadri v. The State (PLD 2016 SC 17)

Munir Muhammad, Precedent in Pakistani Law, (Oxford: University Press, 2014).

Munir, Amr Ibn, Equity in Pakistan: Origin, Evolution and Application from the Time of The
British India till Today.

Munir, Amr Ibn, Roscoe Pound’s Theories of Interests and Justice: A Critical Appraisal.

Munir Muhammad, “Are Judges the Makers or Discoverers of Law: Theories of Adjudication and
Stare Decisis with Special Reference to Case law in Pakistan”, Annual Journal of
International Islamic University Islamabad, vol. 21 (2013), pp. 7-40.

Malik Muhammad Mumtaz Qadri v. The State (PLD 2016 SC 17)

Munir Muhammad, Precedent in Pakistani Law, (Oxford: University Press, 2014).

Pound Roscoe, “Justice According to Law”, Columbia Law Review, vol. 13, no. 8 (Dec., 1913), pp.
696-713.

Pound Roscoe, “Mechanical Jurisprudence”, Columbia Law Review, Dec., 1908, Vol. 8, No. 8
(Dec., 1908), pp. 605-623.

Riccobono Salvatore and Nathan Edward, Outlines of the Evolution of Roman Law, University of
Pennsylvania Law Review and American Law Register, Vol. 74, No. 1 (Nov., 1925), pp. 1-
19.

Roe v. Wade (410 U.S. 113 (1973)

Wendell Holmes Jr. Oliver, The Common Law, (Little, Brown, And Company 1881), p. 1.

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