2 Roscoe Pound Jurisprudence

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  • + 2(,1 1/,1(Citation: 2 Roscoe Pound Jurisprudence 97 1959

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  • Chapter /0The Nature of Law

    57. The Question a Practical One. 58. Analytical Scheme of the Meanings and Constituents of

    Law. 59. The Analytical Doctrine. 60. Normative and Realist Analytical Theories. 61. The Doctrine of the Historical School 62. The Doctrine of the Nineteenth-Century Philosophical

    Jurists. 63. The Doctrine of the Sociologists. 64. Public Law, International Law, and the Analogy of

    "Law" in the Physical and other Sciences.

    2 Pound Jurisprudence-7 [ 97]1

  • Chapter 10

    The Nature of Law

    Section 57Er HE QUESTION A PRACTICAL ONE. Fromthe beginning the question, what is law?--the problem of the nature of law-has been

    la battle ground of jurisprudence. More thanone important book on jurisprudence is wholly occupiedwith this question. In recent times, there has been agrowing impatience with it. Bluntschli compared it toPilate's question, "What is truth?";1 and many whopropound it today, like Pilate, will not stay for an an-swer. Yet we cannot ignore so fundamental a question.Too much depends upon it in other connections. More-over, it is not merely academic. In at least six situationsit has been raised as a practical question in the ordinarycourse of litigation in American courts.

    1. In one type of case a state constitution or a state stat-ute having been construed by the highest court of the state andlegal transactions having been entered into on the faith of theinterpretation, the state court changes its view in later decisionswith the effect that the transactions will not be upheld in thestate courts. In such cases the federal courts, where otherwise

    I. 1 Bluntschli, Gesammelte kleine Schriften (1879) 1. Hart, Definition andTheory in Jurisprudence (1954) 70 Law Quart.Rev. 37.


  • The Nature of Law

    there would be "gross injustice" long followed the earlier rath-er than the later state decisions as to the law of the state.2What the Supreme Court of the United States has since pro-nounced "unguarded language" in some of these cases,3 wentfurther than the actual decisions and suggested that the laterstate decisions amounted to a state law impairing the obligationof contract. They suggested that the judicial construction, so faras contract rights under it were concerned, was to be consid-ered as much a part of the statute as the text itself, and that achange in the course of judicial decision affecting such contractrights was to be treated the same as an amendment of the statuteby an express legislative enactment.4 The proposition that sucha change in the course of decision in the state courts amountedto a "law impairing the obligation of contract" within Article I, 10 of the Federal Constitution has been repudiated. 5 But theSupreme Court of the United States still holds that "in determin-ing whether a state law has impaired a contract it must decidefor itself whether there was a contract, and whether the law asenforced by the state court impairs it.6 It is enough to suggest

    2. Rowan v. Runnels, 5 How. (U.S.) 134, 139, 12 L.Ed. 85 (1847); Gelpckev. Dubuque, 1 Wall. (U.S.) 175, 17 L.Ed. 520 (1863); Butz v. Muscatine, 8 Wall.(U.S.) 575, 19 L.Ed. 490 (1869); Douglass v. Pike County, 101 U.S. 677, 25 L.Ed.968 (1879); Anderson v. Santa Anna, 116 U.S. 356, 6 S.Ct. 413, 29 L.Ed. 633(1886); German Savings Bank v. Franklin County, 128 U.S. 526, 9 S.Ct. 159,32 L.Ed. 519 (1888); Los Angeles v. Los Angeles City Water Works Co., 177 U.S. 558, 20 S.Ct. 736, 44 L.Ed. 886 (1900).

    3. Taft, C. J. in Tidal Oil Co. v. Flanagan, 263 U.S. 444, 454, 44 S.Ct. 197,199, 68 L.Ed. 382 (1924).

    4. Ohio Life Ins. Co. v. Debolt, 16 How. (U.S.) 416, 14 L.Ed. 997 (1853);Gelpeke v. Dubuque, 1 Wall. (U.S.) 175, 17 L.Ed. 520 (1863); Butz v. Musca-tine, 8 Wall. (U.S.) 573, 583, 19 L.Ed. 490 (1869); Douglass v. Pike County, 101U.S. 677, 686-687, 25 L.Ed. 968 (1879)., See also Haskett v. Maxey, 134 Ind.182, 190-192, 33 N.E. 358, 360-361, 19 L.R.A. 379 (1892).

    5. Tidal Oil Co. v. Flanagan, 263 U.S. 444, 44 S.Ct. 197, 68 L.Ed. 382 (1924).The italics are supplied.

    6. Ibid. Citing as examples: Jefferson Branch Bank v. Skelly, 1 Black(U.S.) 436, 443, 17 L.Ed. 173 (1861); Bridge Proprietors v. Hoboken Co., I


  • 10. The Nature of Law

    the bearing upon this question of the later view of the Englishand American analytical jurists that the law is the sum of therules administered by the courts and that a law is such a rule.

    2. In another type of case federal courts were called on toadminister the law of a state and, finding the common law estab-lished therein but the rule in respect to some particular pointundetermined by the state courts, determined what in their judg-ment was the rule applicable at common law. After conveyanceshad been made on the strength of the decision, the question cameup in the state courts, which took a different view. The ques-tion being one of a rule of property, under the doctrine whichobtained in the Supreme Court of the United States from 1842to 1938 state decisions would ordinarily have been controlling.But by a divided court it was held that they would not be fol-lowed so as to impair the rights theretofore acquired. 7 Thedissenting opinion of Holmes, J. brings out clearly that thequestion was one of the nature of law and cited Gray's discussionof that question.'

    3. Again, where the federal courts were exercising juris-diction by virtue of diversity of citizenship, and so were admin-istering the law of a state, if that law was not in the form oflegislation as to the point in question and that point was one of"1general law," those courts except as to rules of property former-ly exercised an independent judgment as to what was the lawand did not hold themselves bound by the decisions of the state

    Wall. (U.S.) 116, 145, 17 LEd. 571 (1863); Wright v. Nagle, 101 U.S. 791, 793,25 L.Ed. 921 (1879); McGahey v. Virginia, 135 U.S. 662, 667, 10 S.Ct. 972, 34L.Ed. 304 (1890).

    7. Kuhn v. Fairmont Coal Co., 215 U.S. 349, 30 S.Ct. 140, 54 LEd. 228 (1910).8. Ibid. 370-371, citing Gray, Nature and Sources of the Law (1 ed. 1909)

    535-550. See Schofield, Swift v. Tyson, Uniformity of Judge-Made Law inState and Federal Courts (1909) 4 Ill.Law Rev. 533.

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  • The Nature of Law

    courtsY But the Supreme Court of the United States has givenup the doctrine,10 and the opinions in which the doctrine is dis-cussed make it clear that the basic question was the nature oflaw." Nice questions as to what the federal courts must taketo be authoritative forms of the state law have remained.' 2

    4. Another type of case has arisen in connection with theunhappy doctrine as to restitution where there has been mistakeof law. Where legal transactions have been entered into in re-liance upon judicial decisions which are afterward overruled, hasthere been a change of law or did the parties to the transactionact under a mistake of law? 11 It has been held that when acourt reverses its construction of a statute, this is to be treated

    9. Swift v. Tyson, 16 Pet. (U.S.) 1, 18, 10 LEd. 865 (1842); Salem Trust Co.v. Manufacturers' Finance Co., 264 U.S. 182, 191-192, 44 S.Ct. 266, 268, 68 L.Ed. 628, 31 A.L.R. 867 (1924). See Green, Law as Precedent, Prophecy, andPrinciple: State Decisions in Federal Courts (1924) 19 Ill.Law Rev. 217. As tocases where uniform state laws were involved and a particular state court de-parted from the general construction, see Burns Mortgage Co. v. Fried, 292U.S. 487, 493-497, 54 S.Ct. 813, 814-816, 78 L.Ed. 1049 (1934).

    10. Erie I. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).1I. Brandeis, J. in Erie R. Co. v. Tompkins, 304 U.S. 64, 78-79, 58 S.Ct. 817,

    822, 82 L.Ed. 1188 (1938); Butler, J. ibid. 85-86; Holmes, J. in Kuhn v. Fair-mont Coal Co., 215 U.S. 349, 370-373, 30 S.Ct. 140, 147-148, 54 L.Ed. 228 (1910),and in Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518,532-536, 48 S.Ct. 404, 408-410, 72 L.Ed. 681, 57 A.L.R. 426 (1928).

    12, It has been held that the federal courts must follow the rulings of theintermediate appellate courts of the state, although the highest court of thestate is not bound by them nor are coordinate appellate courts of the statebound to accept them. Also it is hinted that the course of holding in the courtsof general jurisdiction of first instance in the state must be followed by thefederal courts unless they are "convinced by persuasive data that the suprpmecourt of the state would decide otherwise." West v. American Telephone &Telegraph Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 LEd. 139, 132 A.L.R. 956(1940). Why not, then, the course of professional opinion in the state as shownby the local text book long in general use there?

    13. Cases of this sort are: Kenyon v. Welty, 20 Calif. 637 (1862); Harrisv. Jex, 55 N.Y. 421 (1874).

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  • 10. The Nature of Law

    as if there was an amendment of the statute.14 But this is sub-stantially the view taken in Gelpcke v. Dubuque,15 which hasbeen rejected.'6 So quaere.

    5. In still another type of case, a court having held a penalstatute unconstitutional, some person in reliance on the decision,acts in contravention of the provisions of the statute. Thereaft-er the court changes its view and holds the statute valid. Wasthere a violation of law in what was done before the last deci-sion? One court has said th