Roscoe Pound and the Negative Community

Roscoe Pound’s collection of essays, An Introduction to the Philosophy of Law, provides a historical and analytical account of the origins and evolution of our system of laws. From the philosophical beginnings of the Western system of law in Greece and Rome to the divergent tracks of the Continental and Anglo-American schools of legal application in the mid-twentieth century, Pound shows how law today is influenced equally by bygone traditions and the extenuating circumstances of modern economic life. Within the many rich ideas explored within the text lies a common thread of a sort of libertarianism- not a libertarianism that argues for the freedom of man from government, but instead a libertarianism that argues for a freedom of man within government. Pound’s philosophy approaches equally the socialistic worldview of the positivist analysis in the book, leading to interesting, and yet not contradictory, points of view on subjects ranging from contractual obligation, liability, the ideological basis of property and the wider subject of proper, fair application of law within our American society. The idea of a “negative community”, from which our society evolved and in which nothing is owned and all is communal, is one that shows the genesis of our concepts of law and property.

Pound begins his look at legal philosophy by examining the need for it in a society that depends on its rules in its day to day economic and social interactions. Within the building of a legalistic society, the transitional period between a negative society of communal living and an affirmative one of personal ownership, the ideology of natural- and by natural Pound refers to the state of true being that the Pre-Socratic Greek philosophers used- laws and rules are by necessity correctively changed and challenged by legal reason. “The technique”, that was used to evolve the traditional, mythologically based set of societal rules into a more stable system of law, explains Pound, “was one of legal reason; but it was a legal reason identified with natural reason and worked out and applied under the influence of a philosophical ideal”, in this case the ideal of stability and security within the budding society (Pound, p.10–11). The need for a stable form of governance between individuals in society is a need Pound readily admits, in fact, he goes so far as to say that law exists in order to “measure all situations by an idealized form of the social order of the time and place”, or, in other words, to effect as perfectly as the bureaucratic order of government can the ideals of society (Pp. 12). Where the function of legal philosophy fits in to this scheme is to attempt to reconcile the stoic, fixed ideal of law with the changing societal mores, and to find a rationalization for these changes that is palatable to the public and elite alike. Thus, legal philosophy is an integral part of the evolutionary process of law- it provides a meditative and theoretical background for the changes that law must undergo in a transitional society.

Pound further examines the function legal philosophy in society as he approaches the subject of the “end of law”, ostensibly the entire function of law itself- to make itself unnecessary by instituting such undeniably true tenets of legality as to make disobedience to them a societal impossibility. This was the desire of the Greeks, who saw law as “a device to keep each man in his appointed groove in society and thus prevent friction with his fellows”, a social strata reinforcement that was the zenith of kinship and caste related society, such that to deny these laws would be to deny one’s own culture (Pp. 34). Thus Heraclitus said that the public “should fight for their law as for their city wall”; their walls were to keep out invaders and their laws were to keep within their cultural and social standards. To allow one to fall, the other would not be far behind. To Heraclitus, the end of law is synonymous with the protection of it. Law simply is, and it should be protected as such. But this is more a result and consequence of his time in history than of any revolutionary and perfectly static theory of law, as Heraclitus lived many thousands of years before the advent of the division of labor, a recurring theme for Pound, who defines today’s quasi-capitalistic political economy as directly correlative to this revolution of production. For Heraclitus, however, society and life conformed more or less to the patterns of the past and thus a major change in them was unforeseeable. The end of law had already occurred for his culture, as it had evolved far enough from it roots as a negative community towards one of positive possession. Perhaps the lesson of Heraclitus is therefore not that he was foolish and wrong, but that we too run the risk of not being apprehensive of the future and what it may hold for us when we look to our utopian post-law worlds- whichever they may be.

Pound has his beliefs, though they are for the most part disguised within the objectivity of his prose and they tend, again, in the direction of libertarianism without reaching the point of blind ideology. Pound’s streak of realistic individualism is perhaps most clearly articulated on page 60, where he makes a rare leap of personal judgement on the entire ideology of judicial theory, Says Pound, “we need a theory [of law] which recognizes the administrative element as a legitimate part of the judicial function and insists that individualization in the application of legal precepts is no less important than the contents of these precepts themselves”. To Pound, then, the evolution of the affirmative society has necessitated a bureaucracy of administration that has legitimacy and authority, but, on the other hand, the individual interpretation of law, an individualistic approach to the entire legal sphere, must also have credence and legitimacy. It is almost as if, in our society of affirmative private ownership, we have had as res communes no longer land, material goods or autonomy, but the sphere of law, the rules by which we are all expected to abide, must still be seen as a negativist throwback, an element of our society we all have an interest and stake in. Therefore we can see in Pound’s philosophy a true and strong respect for the individual, and individualist interpretation of the res communes of law, tempered by a realism that understands the demands of modern society for an administrative rule of the publicly owned philosophical background to our society’s rules. And Pound also realizes the limits of law and its philosophical rationale- “organization and system are logical constructions of the expounder rather than in the external world expounded” (Pp. 72). So while he on the one hand exhorts the power and righteousness of the individual to interpret, apply and live by the rules of society, he also understands that these rules are not set in stone, and subject to change. In other words, Pound believes that there should be a great amount of individualism and personal latitude in how one approaches the res communes of law, all the while recognizing the imperative for society to use the power of governmental authority, given and granted by law, to enforce the immutable rule of law so far as it has not been revised within the parameters society has given it.

The concept of the negative community has a place within the entire Idea of law, and specifically within Pound’s work. First it is necessary to go to the text to see Pound’s explanation of it, in turn an interpretation of the theories of Pufendorf. Pound says Pufendorf argues “that there was in the beginning a ‘negative community’. That is, all things were originally res communes. No one owned them. They were subject to use by all” (Pp. 116). Pound agrees with this premise, expanding it with the help of Blackstone, who Pound writes “held that a principle of acquisition by a temporary power of control coextensive with possession expressed the nature of man in primitive times and that afterward, with the growth of civilization, the nature of man in a civilized society was expressed by a principle of complete permanent control of what had been occupied exclusively, including as a necessary incident of such control the ius disponendi (or right of property disposition)” (ibid.). These two philosophical interpretations of the pre-legal society are compatible with one another in that they both show a pre-ownership society in action. On the one hand, in a purely Pufendorf negative society theory, before the advent of private ownership, all society was in res communes. But from the more detailed analysis of Blackstone, a development of this idea, we see that there was indeed a concept of ownership in the negative society, but one that hinged on and was predicated on the concept of temporary ownership and use. The idea of permanent ownership and the solitary right to something was unheard until the emergence of the affirmative society. This evolutionary societal change is the key to understanding our current state of law and governance.

In the transitional period between a negative and affirmative community, there begins to become a need for a system of rules and laws that can assist these changes and hopefully find peaceful solutions to disputes of the new property and economic inter-relationship reality. The negative community, with its reliance on the communal ownership of land and means of production, has no need for a set system of law, and if there is any law it refers only to the basics of mutual respect that are integral to the simplest human interaction. Once the affirmative community, with its concept of private ownership and possession, comes to rear its head, is there a need for a more staid and detailed form of legality. This brings us back to the natural law/legal reason debate and integration in political theory, such that the theory begins to need to incorporate abstractions of reason and theory into what had traditionally been seen as natural truth, the being and true state of things and their natural properties. It is the idea of possession and the affirmative community that leads to the need for law proper.

Liability, property and contract are the facets of law Pound concentrates on, and we can see within each how these were unneeded in the negative community and were necessitated by the emergence of the affirmative community. Liability, first, because its beginnings as “a duty to buy off the vengeance to him to whom an injury had been done” evolved into “recovery of a thing certain, or what was originally the same, a sum certain, promised in such wise as to endanger the general security if the promise is not carried out” and has become, in our society, “to be based on an act, and it must be a culpable act” (Pp. 74, 75, 81). To put this another way, the law of liability was originally purely to prevent acts of violence from breaking out whenever the self-preservation or pride of an individual was challenged. From this came recovery, which was based more upon the economic and physical results of contractual promises. Here it is apparent that the affirmative community is coming to the fore, in that we see promises made in reference to property and possession, otherwise, what would be the use in recovery? Finally, we come to liability as regards to knowing, intentional activity that has an adverse affect on others. This has a direct correlation to the evolution of the affirmative community. In the negative community, there are no intentional damages to the individual from the individual, as the individual does not exist as the same entity as he does within the affirmative community. In the negative community, the individual is a part of the whole. There is no individual ownership, and thus the concept of the individual is different than ours, based as it is in the negative community on the community as a sum of the individuals within it.

Property is the conceptual genesis of the affirmative community and contract law is the logical continuance of this theoretical starting point. Property, private property, is an irreconcilable idea for the citizen of the negative community. All property is public, and the concept of property itself is somewhat foreign to the negative denizen, as all there is is public, and cannot be owned by any individual in society. But it is precisely the idea of private property, the idea that “control of an owner [of property], in order to be complete, must include not only the power to give inter vivos but also the power to provide for devolution after death as a sort of postponed gift” (Pp. 115), that is antithetical to the negative community. If one cannot own something for oneself alone, how can one transfer any possession or exclusive use of said article to one’s heirs after death? The answer lies in our modern ideal of property, based on the idea of discovery and production, in which what one finds is his by natural right, and what is produced belongs to either the producer, owner and employer, or both. Contract is a natural outgrowth of this theory. Contract presupposes a society in which all interactions are done with the backdrop of economic life having direct correlation with property and its production and usurpation. Contract also, of course, has a backdrop in tradition in culture, a backdrop of promises and the bond of one’s word. But what contract has evolved into in our society is far different than a simple handshake and honor pledge. Contract now becomes, “in a commercial and industrial society, a claim or want or demand of society that promises be kept and that undertakings be carried out in good faith, a social interest in the stability of promises as a social and economic institution.. The legal idea, so far as there is one, is not of obligation but of property right to the creditor” (Pp. 133–34, 138). Contract is a technique of the property class to honor each other’s debts and to keep the system of property alive, lest it be destroyed by its own deficiencies of logic and create an end to the affirmative society once and for all.

The negative community is where our society evolved from. With the beginning of the widespread acceptance of the idea of private property, society needed a clear cut and fixed system of rules. This was provided by the integration of conceptual natural law and legal reasoning. The resulting legal framework of society, with the function of legal philosophy within it being to rationalize those changes in law that naturally occur within a constantly evolving society, is one that has been with us for millennia, though, again, in different forms throughout the centuries. The affirmative community of private ownership brought with it many changes, among them the institution of administrative bureaucracies, a necessary evil from the philosophical perspective of Roscoe Pound. Individualism and the res communes of law, the only true public possession we all still share, are compatible in their likeness, that is, their similarities are that they are both based within the individuals ability to determine their reality. The negative community is a thing of the past, but perhaps, with the end of law, we will see its resurgence.