Roscoe Pound (1870-1964) Law School, Harvard University
The Classical Journal, Vol. 39, No. 1 (Oct., 1943), pp. 1-14
Man’s significant achievement is civilization, the continual raising of human powers to a higher unfolding, a continually increasing mastery of, or control over, external or physical nature and over internal or human nature. Civilization is an accumulative activity. Both its aspects, control of physical nature and control of human nature, are added to from generation to generation and the whole is an accumulation of ages. In the present, the progress of control over physical nature, of harnessing external nature to man's use, has been so rapid and has been carried so far beyond what had been taken to be the limit of human powers, that it has all but blinded us to the other side, the control of internal nature. But in truth the two are interdependent. It is the control over internal or human nature which has made possible the division of labor by which the harnessing of physical nature has been made possible. If men were subject to constant aggression from their fellows, if they could not safely assume that they could go about their daily tasks free from attack, there could not be the experiment and research and investigation which have enabled man to inherit the earth and to maintain and increase that inheritance. The accumulation from generation to generation would be dissipated if it were not for the check upon man's destructive instincts which is achieved through accumulated control of internal nature. But the control over external nature relieves the pressure of the environment in which man lives and enables the accumulated control over internal nature to persist and increase.
In the history of civilization the outstanding period, from the standpoint of control over internal nature, is classical antiquity, the Greek-Hellenistic-Roman civilization, which happily kept no small degree of continuity during the Middle Ages, and was revived at the Renaissance. This period is as marked for one side of civilization as the nineteenth century and the present are likely to be held in the future for the other side. Indeed, the civilization of ancient Greece, carried on in the Hellenistic era and established for the world by the organizing and administrative genius of the Romans, is a decisive element in the civilization of today.
Art, letters, oratory, philosophy, history writing, are an inheritance from the Greeks. Law, administration, politics, are an inheritance from the Romans. The Greeks even worked out the field tactics to which the military science of today has reverted. Greek and Latin are a preponderant element in the languages which derive from Western Europe. Thus they enter decisively into our thinking, writing, and speaking, and thus into our doing. The last of the Caesars fell a generation ago. But the principles of adjusting human relations and ordering human conduct worked out in theory by Greek philosophers and made into law by Roman jurists of the days of the first Caesars govern in the tribunals of today. Latin was the universal language from the establishment of Roman hegemony and of Roman law as the law of the world for at least nineteen hundred years. All modern literature in all languages is full of allusions to the classics; of allusions to persons and events and stories out of the poets and dramatists and historians of Greece and Rome. One who knows nothing of the great authors of antiquity is cut off from the great authors of the modern world as well. To take but one example, a generation which grows up without anyone knowing Horace, has missed something irreplaceable. To cease to teach the classics is to deprive the oncoming generation of opportunity of fruitful contact with a decisive element in the civilization in which it is to live. A generation cut off from its inherited past is no master of its present. What men do is conditioned by the materials with which they must work in doing it. On one side of our civilization these are for the most significant part materials bequeathed to us by the Greeks and the Romans.
But we are told that we are entering upon a new era. The past is to be canceled. We are to begin with a clean slate. Our accumulated control over external nature has gone so far that there remains only the task of making it available for universal human contentment. Then there will be no occasion for control over internal nature. The causes of envy and strife are to go with want and fear. Mankind will settle down to a passive enjoyment of the material goods of existence and will neither require nor desire anything more.
There are abundant signs of a significant change from the ideas and ideals and values which governed in the immediate past. It is not, however, a change to something wholly new. It is largely a reversion to something with which the student of classical antiquity is well acquainted; to modes of thought against which Socrates argued with the sophists, about which Plato and Aristotle wrote in founding a science of politics, about which Stoics debated with Epicureans, which Christianity put down, for a time at least, when it closed the skeptical and Epicurean schools of philosophy.
Whatever the confident self-styled advanced thinkers of today may be looking forward to, the immediate actual result is a cult of force. We seem to be listening again to Thrasymachus, who argued that the shepherd protects the sheep in order to shear them for wool and slaughter them for mutton, and in the same way the political ruler protects the governed in order to be able to despoil them. The sophists are coming into their own in ethics, and Machiavelli is hailed as a prophet in a realism which in law and in politics takes force to be the reality and those who wield the force of politically organized society, as the representatives of force, to be the actualities of the legal order and of the political order. A favorite phrase of the realist is "the brute facts"; a phrase used not in sadness that there should be such facts, but with a certain relish, as if brutality were the test of reality and the discovery of brute facts argued superior intelligence and discernment. In practice this makes force a test of significance. The significant things in the world are force and the satisfaction of material wants. Education must be shaped to the exigencies of these. Nothing else is to be taught or learned. Such a doctrine carried into practice, a regime to that pattern, would indeed give us a new world. But it would be new by reverting to a very old type.
Biologists tell us that what they call giantism in an organism is a sign of decadence. When the organism has developed to giant proportions, the next step is decline and the ultimate step is fall. In the same way, there are times in the history of civilization when things seem to have become too big for men to manage them. They get out of hand. The social order ceases to function efficiently. There is a gradual breakdown, followed after a time of chaos and anarchy by a gradual rebuilding of a social order, which in tum may develop a bigness beyond human powers of management and so break down. It may be significant that today the air is full of grandiose schemes for world organization.
The Hellenistic world was in such an era. The greater and richer part of the civilized world had been swallowed up in the empire of Alexander. An age of independent city-states was succeeded by one of great military empires ruled autocratically. Later, the Roman hegemony, in which, as it culminated in the Empire, every free man in the civilized world was a Roman citizen, the law of the city of Rome had become the law of the world, and all political authority was centralized in the first citizen of Rome, was another era of the same kind. It is significant that the first citizen of such a state became a military autocrat. The mark of thinking of such times is likely to be disillusionment. Epicureanism arose in the period of the successors of Alexander, and grew increasingly strong in the Hellenistic era. It throve in the corresponding period of Roman history, the Empire from Augustus to Diocletian and Constantine. It was the most firmly intrenched of the Greek schools of philosophy, although it has contributed the least to the general progress of thought. It was so well fitted to a period of bigness and incipient decay that the Epicureans were the last school to give way before the rise of Christianity. When the schools of philosophy were abolished, they were the most widespread and tenacious of the anti-Christian sects.
Today, in another era of unmanageable bigness, we come upon tenacious give-it-up philosophies once more. Epicurus was wholly indifferent to the form of political organization of society. The real point in existence was to lead a happy life. If he lived under a wise ruler, the man seeking a happy life need have no fear of being disturbed. He could pursue a serene, untroubled existence. If the ruler was a tyrant, the wise man, like Br'er Rabbit, would "jes' lie low" and so escape the tyrant's notice and live an undisturbed life of happiness. Today what Epicurus put as happiness, current social philosophies put as security. The ideal is an undisturbed enjoyment of the means of satisfying material wants. Put concretely it seems to be a vested right in a life job with an assured maximum wage, fixed short hours, allowing much time for leisure at stated periods, a prohibiting of anyone from an overactivity which might give him an advantage, and compelling all to a regimented minimum exertion that would obviate the exciting of envy, and a guaranteed pension at the age of sixty, dispensing with the need of providing one's own reserve. This is the ideal existence Epicurus pictured-the condition of a happy life, the condition of perfect mental equilibrium, neither perturbed nor perturbable. In contrast, the last century identified security with liberty. Men sought security from interference with their activities. They sought to be secure against aggression so that they might freely do their part in the division of labor in a competitive economic order. They sought to be secure against governmental action except so far as was necessary to free them from aggressions of others. Now, instead of seeking to be secure against government, men expect to be made secure by government. But they expect to be secure in a new way; not to be secure in their activities but to be secure against necessity of activity, to be secure in satisfaction of their material wants with a minimum of required individual activity.
Very likely the change reflects the exigencies of a bigger and more crowded world. Possibly it is due in part to the development of luxury, leading to disinclination to the free competitive carving out of a place for oneself which the last century took for happiness. At any rate, freedom from worry about what one can achieve, renouncing of ambition to do things, and acceptance of political events as they may happen, go together as an accepted philosophy of wise living, as they did in the social philosophy of Epicurus.
Marxian economic realism has much in common with the Epicurean social philosophy. The static ideal of a happy life is to be attained as we get rid of classes. It is assumed that when property is abolished all competition between human beings will ease. Everyone will live undisturbed, without ambition, without envy, and so freed from strife. Once the class struggle has been brought to an end, Marx looked forward to the same social ethical result as Epicurus. But there is nothing in the history of civilization or in experience of human relations in a crowded world to warrant such assumptions. We may be sure that after property is abolished men will still want and claim to use things which cannot be used by more than one or by more than one at a time. It is not likely that there will always be enough at all times of every material good of existence to enable everyone at every moment to have or do all that he can wish, so that no contentions can arise as to possession or use and enjoyment . Nor is it likely in any time which we can foresee that there will be no conflicts or overlappings of the desires and demands involved in the individual life. Such ideas, however, seem to go with bigness such as the economic unification of the world has brought about in the present century.
Along with the disillusioned or give-it-up philosophies of such a time there goes a changed attitude toward government. Instead of wanting to do things, men want to have things done for them, and they turn to government to do for them what they require for a happy life. But they have no wish to be active in government. They turn to absolute political ideas. Eras of bigness and autocracy have gone together. Today while we all do lip service to democracy there is a manifest turning to autocracy. The democracy is to be an absolute democracy. Those who wield its authority are not to be hampered by constitutions or laws or law. What they do is to be law because they do it. They are to be free to make us all happy by an absolute power to pass on the goods of existence to us by such measure of values as suits them.
Such ideas of a happy life, and of politically organized society as the means of assuring that happy life, require an omnicompetent government. They require a government with absolute power to carry out the plan of an undisturbed life of serenity, free from all envy, want, or worry, by control of all activity no less than of all material goods. The restless must be held down, the active must be taught to keep quiet in a passive happiness, those inclined to question the economic order must be taught to accept the regime of security in which their material wants are satisfied. Hence such a polity must of necessity take over education. Men are to be educated to fit into the regime of government-provided material happiness. Those things which will tend to achieve and maintain such a regime are to be taught. All else is to be given up. Either it will hinder the bringing about and making permanent of the new regime or it will tend to impair it when established. There is no place for any of it in the ideal regime.
Applied to international relations, the give-it-up philosophies must be wonderfully heartening doctrine for dictators. Applied to internal administration they are proving wonderfully heartening doctrine for bureaucrats. Can we doubt that a sense of helplessness in the Hellenistic era and again in the era of the later Roman Empire led to general acceptance of a philosophy that taught to let the government run itself or the governors run it in their own way? Can we doubt that a sense of helplessness in our time, a feeling of helplessness to make international relations conform to ideals, leads to acquiescence in theories of force; or that difficulty in an overcrowded world to make adjustments of private relations according to law achieve ideal results, leads to a theory of a law as simply a threat of state force and hence of law as whatever officials do in applying that force?
But if we are moved at times to feel helpless and give up to power and force, those who wield the force of politically organized society have no misgivings. They have supreme confidence that the omnicompetence of the state means the omnicompetence of the officials who act in the name and by the authority of the state, and are ready, assuming themselves to be ex-officio experts, to prescribe detailed regulations for every human activity.
We recognize such conditions when we look at them as they are manifest in the older parts of the world. We have not been prepared to see them as they have been developing gradually but steadily in our own polity. As a leader in American legal education has put it, it is simply a question of what we expect government to do. If we expect it to provide for all our wants by a benevolent paternal care and maternal solicitude, we must expect to surrender to it all responsibility and invest it-and that means those persons who carry it on-with all power. Such a regime is fostered by the exigencies of war. But it was growing long before the war and independent of war conditions. The give-it-up philosophies were taught and preached before and apart from the war. They have been urged by a strong group in both English and American institutions of learning and are propagated today by teachers who advocate an unrestrained administrative power over liberty and property.
What is happening, what is to happen, to the humanities in such a time?
In this connection we must note another characteristic of the time, namely, distrust of reason. In this respect also the thought of today is akin to that of Epicurus. We are taught by the psychological realists that consciously or unconsciously men do what they wish to do and then justify what they have done by reasons conjured up by a desire to be reasonable, which nevertheless are not the real determinants of their behavior. Consequently, by not distinguishing reason from reasons, reason comes to be regarded as a mere name for specious justifying to oneself of what one desires to do and does accordingly. Reason is taken to be illusion. The reality is taken to be the wish, achieved by force or by the force of a politically organized society. This is brought out notably in the difference between the biographies of the last century and those of today. The biographies of the last century were taken up with what their subject did and how he did it. They assume that he had reasons for what he did which were consistent with his purposes and professions, and that his mistakes were due to miscalculation, unless the evidence constrains a different conclusion. The biographies of today are taken up with their subject's hidden motives; if not very creditable, so much the better as the biographer sees it. The evidence does not disclose the motives. The assumed motives interpret the evidence. If the biographer can show that George Washington's motives may be made out to have been not always very creditable, it only goes to show that his actions were after all merely phenomena and to remind us that it is unscientific to apply our subjective ideas of praise and blame to phenomena.
At any rate, we can find one powerful antidote to such teachings in the humanities, and it is perhaps for that reason that the advocates of so-called realism would suppress the teaching of them. At the beginning of the present century the German Emperor objected to the education which, he said, trained the youth to be young Greeks and Romans instead of to be modem Germans. But the results of education to be Germans ought to give us pause if we think to make Americans by an education that seeks to make Americans to a pattern of a land given up to satisfaction of material wants provided by a regime of absolute government .
But I hear people say, the aggregate of knowledge has become so vast that teaching must be confined to those things that count in the world of today. There are translations of the classics available in English and those whose interests lead them to explore the writings of antiquity can find what they seek in those translations. It is a waste of the time that must be given to the things of today to study difficult dead languages in order to find what translations have made accessible in modern languages. The time is needed for the natural and physical sciences, which teach us how to harness more of external nature to producing the material goods of human existence, and to the social sciences, which are to teach us how those goods are to be made to satisfy human desires. Here we have three fallacious propositions: (1) that education is only the acquisition of knowledge, (2) that even the best translation is or can be a substitute for the original of a classic, and (3) that the social sciences are so far advanced that we may rely upon them for objective judgments of the social order and of the problems and phenomena of ethics and economics and politics and jurisprudence. We have to learn the formulas of the social scientists as we once learned the formulated dogmas of the natural and physical sciences. Let us look at these propositions.
Knowledge as such is worth little without knowing how to use it. It is likely to be so up-to-date that it is out of date tomorrow .Discrimination, reasoned judgment, and creative thinking must work upon knowledge to make it fruitful. No one can approach a mastery of all the details of knowledge in even the narrowest field. But he can attain the wisdom that will enable him to lay hold upon those details when and where he requires them and to make something of them. Without this, the study of up-to-date subjects as merely so many tracts of knowledge is futile. Very likely the supposed facts will have ceased to be so regarded by scientists as soon as they have been learned. The wise scholar, however, knows how to find them as they stand at the moment and appraise them for his purposes, and he can often do this although he approaches a subject in which he never had a formal course.
Wisdom is not gained by the use of translations. It is not acquired when students write confidently about Aristotle without having read or being able to read a line of him. It is not developed by slovenly use of language such as follows from never having been compelled to compare the same thought expressed in two languages and brought to see how different it may appear unless the translator is sure of the words no less than of the idea. What teacher of today has not seen confused thought bred of loose writing, due to lack of the disciplined use of words which is acquired by learning the languages from which even our scientific terminology is derived? What teacher has not encountered the type of student who wants to write a thesis on poetic usage and expects to use Pope's Iliad to show him the usage of Homer? Who has not met students of church history who cannot read the New Testament in the original, students writing on medieval philosophy and essaying to criticize a great thinker who cannot read a word of Thomas Aquinas in the tongue in which he wrote, students of legal history who cannot read Magna Carta as it was written, students of history who must take the significant historical documents at second or third hand? I have too often witnessed the pathetic struggles of would-be students of our legal history to handle the monuments of our law in the Middle Ages with no adequate grasp of the language in which they were written. I shall not soon forget the graduate student who thought he could read the Code of Justinian by the light of nature and was astonished to find that conventus did not, as he supposed, mean convent but meant agreement. Nor are such things confined to students. Who of us has not had occasion to feel for the earnest teacher who missed the fundamentals of his education in school and college and now is found struggling to gain what too late he perceives he sorely needs? A great injustice had been done to all of these by leading them to think they were acquiring an adequate foundation for what they desired to do, and leaving them to discover their mistake too late.
Even now, when the majority of those who go to our colleges have had some training in Latin, the teacher has learned to expect some almost incredible atrocities due to ignorance abetted by carelessness. In my last twenty years of law teaching I have become used to being told that in a proceeding in rem the rem must be before the court. I have ceased to be shocked when a college graduate tells me that son assault demesne is Anglo-Saxon, that in pais is Latin, and that non compos mentis is French. I can even keep a straight face when a law student, a college graduate, reading in the books about the doctrine of the Good Samaritan cases, asks me who the Good "Sarmatian" was. My friends in other lines tell me of the entomologist describing a new insect who thought confluenta was the feminine of conjluens, or the botanist who wished to coin a word for "downward-directed" and with no knowledge of Greek consulted a Greek dictionary and coined barithynetic – I suppose for katithynetic. I have been told of a student of dramatics who spoke of "Andromash," and we have all heard "chaos" pronounced "chouse" and "Chloe" pronounced "Shlowie" by those who held degrees in arts. Those who perpetrate such things lack much more than a knowledge of the classical languages. They have failed to learn what to do with the materials with which they must work. We may be sure that these slovenlinesses will not be the only ones of which they will be guilty. But what will there be when no one who studies history or law or entomology or botany or dramatics knows any better? It won't do to say, for example, that a law dictionary will tell the law student what he needs. One must know something even to use a dictionary. When it comes about that no one is taught in his teachable years the languages and literatures which are at the foundation of what we say and write, our terminology in every branch of learning must become chaotic, and loose writing lead to loose thinking, and a general loss of morale in scholarship, of which we see abundant symptoms already today.
We are told, however, that those things which are not indispensable must in education in a democracy give way to those which are indispensable. As to this one must make three observations. In the first place, it assumes that democracy requires a common training for all, a training in the mechanic arts and the sciences behind them, and in social sciences on the model of the physical sciences. No one is to be allowed an opportunity of development outside of this program of preparation for material production and politics. Secondly, it assumes that education is complete on leaving school, and hence that there need be no preparation for scholarly self-development of an element needed in any other than a stagnant or enslaved population. Third, it assumes that the social sciences are or can be such as the physical and natural sciences are; that ultimate truths as to economics and politics and sociology are impartible by teaching, and that knowledge of these truths is essential to a democratically organized people.
I have no quarrel with the social sciences. I am now in my forty fourth year of teaching jurisprudence, and for forty of those years have taught it from the sociological standpoint. I have urged the importance of ethics and economics and politics and sociology in connection with law in forty years of law-school teaching. But I do not deceive myself as to those so-called sciences. So far as they are not descriptive, they are in continual flux. In the nature of things they cannot be sciences in the sense of physics or chemistry or astronomy. They have been organized as philosophies, have been worked out on the lines of geometry, have been remade to theories of history, have had their period of positivism, have turned to social psychology, and are now in an era of neo-Kantian methodology in some hands and of economic determinism or psychological realism or relativist skepticism or phenomenological intuitionism in other hands. They do not impart wisdom; they need to be approached with acquired wisdom. Nothing of what was taught as economics, political science, or sociology when I was an undergraduate is held or taught today. Since I left college, sociology has gone through four, or perhaps even five, phases. Indeed, those who have gone furthest in these sciences in the immediate past were not originally trained in them. They are not foundation subjects. They belong in the superstructure.
Notice how extremes meet in a time of reaction to absolutist political ideas. In an autocracy men are to be trained in the physical and natural sciences so as to promote material production. They are to be trained in the social sciences so as to promote passive obedience. In an absolutist democracy men are to be trained in the physical and natural sciences because those sciences have to do with the means of satisfying material wants. They are to be trained in the social sciences because those sciences have to do with politically organized society as an organization of force whereby satisfaction of material wants is to be attained. As an important personage in our government has told us, the rising generation must be taught what government can do for them. The relegation of the humanities to a back shelf, proposed by the Kaiser at the beginning of the present century, has been taken over to be urged as a program of a democracy. Such ideas go along with the rise of absolute theories of government throughout the world. An omnicompetent government is to tell us what we shall be suffered to teach, and the oncoming generation is to be suffered to learn nothing that does not belong to a regime of satisfying material wants by the force of a political organization of society. It is assumed that there is nothing in life but the satisfaction of material wants and force as a means of securing satisfaction of them.
America was colonized in a similar period of absolutist political ideas-in the era of the Tudor and Stuart monarchy in England, of the old regime of which the rule of Louis XIV was the type in France, of the monarchy set up by Charles V in Spain, of the establishment of the absolute rule of the Hapsburgs in Austria. England of the Puritan Revolution shook these ideas violently and at the Revolution of 1688 definitely cast them off for two centuries. The colonists who came to America settled in the wilderness in order to escape them. When we settled our own polity at the end of the eighteenth century, we established it as a constitutional democracy, carefully guarded against the reposing of unlimited power anywhere. Moreover, these early Americans, because they did not believe in an omnicompetent government or superman rulers, set up institutions for liberal education. Within six years after their arrival in the wilderness in the new world, the founders of Massachusetts set up a college in order that there might continue to be a learned ministry after their ministers who had come from the English universities were laid in the dust. As our country expanded in its westward extension across the continent, state after state in its organic law provided for a state university in order that liberal learning might be the opportunity of every one. It was not till our era of expansion was over and one of industrialization began that state institutions for mechanical education were more and more established. But these for a generation did not greatly disturb the humanities. The movement to displace them is a phenomenon of the era of bigness.
Outward forms of government are no panacea. We can't do better than we try to do. If we are content to lapse into a revived Epicureanism, if we are content to seek nothing more than a general condition of undisturbed passivity under the benevolent care of an omnicompetent government, we can very well leave education to the sciences which have to do with providing the material goods of existence and those which teach us how the government secures or is to secure them for us. If we are not content with being, as Horace put it, pigs of the drove of Epicurus, but seek to live active, human lives, even at some risk of envy and strife and wish for things unattainable, we must stand firm against projects which will cut our people off from the great heritage of the past and deny them the opportunity of contact with the best that men have thought and written in the history of civilization.