법철학서설.An Introduction to the Philosophy of Law by Roscoe Pound

법철학서설.An Introduction to the Philosophy of Law by Roscoe Pound
AN INTRODUCTION TO THE
PHILOSOPHY OF LAW
THE ADDRESSES CONTAINED IN THIS BOOK WERE
DELIVERED IN THE WILLIAM L. STORRS
LECTURE SERIES, 1921, BEFORE THE
LAW SCHOOL OF YALE UNIVERSITY,
NEW HAVEN, CONNECTICUT
Preface
This book is a written version of lectures delivered before
the Law School of Yale University as Storrs Lectures in the
school year 1921- 1922.
A metaphysician who had written on the secret of Hegel
was congratulated upon his success in keeping the secret.
One who essays an introduction to the philosophy of law
may easily achieve a like success. His hearers are not
unlikely to find that he has presented not one subject but
two, presupposing a knowledge of one and giving them but
scant acquaintance with the other. If he is a philosopher,
he is not unlikely to have tried a highly organized
philosophical apparatus upon those fragments of law that
lie upon the surface of the legal order, or upon the law as
seen through the spectacles of some jurist who had
interpreted it in terms of a wholly different philosophical
system. Looking at the[ Pg 10] list of authorities relied upon
in Spencer's Justice, and noting that his historical legal
data were taken from Maine's Ancient Law and thus came
shaped by the political- idealistic interpretation of the
English historical school, it is not difficult to perceive why
positivist and Hegelian came to the same juristic results by
radically different methods. On the other hand, if he is a
lawyer, he will very likely have been able to do no more
than attempt none too intelligently to work with the
complicated and delicate engines of others upon the
toughest and most resistant of legal materials. Until some
Anglo- American jurist arises with the universal equipment
of Josef Kohler the results of common- law incursions into
philosophy will resemble the effort of the editorial writer
who wrote upon Chinese Metaphysics after reading in the
Encyclopædia Britannica under China and Metaphysics and
combining his information. Yet such incursions there must
be. Philosophy has been a powerful instrument in the legal
armory and the times are ripe for restoring it to its old place
therein. At[ Pg 11] least one may show what philosophy has
done for some of the chief problems of the science of law,
what stands before us to be done in some of the more
conspicuous problems of that science today in which
philosophy may help us, and how it is possible to look at
those problems philosophically without treating them in
terms of the eighteenth- century natural law or the
nineteenth- century metaphysical jurisprudence which stand
for philosophy in the general understanding of lawyers.
ROSCOE POUND.
Harvard Law School,
October 25, 1921.