On Pound's Legal Elements Theory

Pound alleged that law must be stale and yet it could not stand still. From the late of nineteen century to the early twentieth century, American society was dramatically changed. Law was already behind the times, and legal theories was obviously rigid. Pound criticized those rigid legal theories, especially Langdell's legal formalism, and put forward his own "sociological jurisprudence".Pound's sociological jurisprudence is full of complexity. If just stick to one topic, we will probably confused, and cannot understand the logic connection among these topics. So this paper focuses Pound's legal elements theory, by which constructing a simple framework. Pound said the term'law'had many senses and law was to meant the authoritative materials by which controversies were decided and thus the legal order was maintained in judicial practice. The sense of the term law was made up of precepts, technique, and ideals. Precept element and ideal element formed the authoritative materials as the principal meaning of the law. Technique element was the legal way with which law acted on the cases. Technique element is of importance for judicial decision, but it is still a procedural element, not the focus of this paper. It will therefore focus on the precept element and ideal element of these two elements.Precept element is an important part of legal elements, composed of rules, principles, conceptions and standards. In Pound's opinion, precept element was inseparable from the support of power, but it did not simply rely on power. What is the real basis of the precept element's authority? There is no clear answer in Pound's theory. He believed that if we could adjust well conflicting and overlapping human demands by law, then would better to act by conforming to law. Pound thought many judges had great discretion at many places in the history. But the discretion was restricted more and more, while it was the future that justice would be mostly according to precepts. Nonetheless, discretion was inevitable and necessary to judicial decision.Ideal element is the body of philosophical, political and ethical ideals that refers to legal ends. The body of ideals is not as universal as the natural law and becomes local. Those ideals ultimately depends on the picture of the social order at a certain time and place. Ideal element includes the utilitarian principle of maximization of social wealth, legal postulates and social shared culture, directions and purposes. Pound hoped that ideal element could guide judicial practice and restricted the discretion. Meanwhile this hope reflected that Pound was worry about the broken of the social consensus.