Social Control Through Law

Roscoe Pound was both the dean of the Harvard Law School for more than 20 years, from 1916 to 1936, and the dean of contemporary jurisprudence for a like period. Combining an academic proficiency in botany with a deep study of legal theory, he more or less invented the study of sociological jurisprudence. His 1942 seminal work, Social Control Through Law, posits a theory of law that was highly controversial in the early 20th century but has now become rather routine: that law is not derived from certain immutable principles that flow ineluctably from a few natural truths, but rather is relativistic, shaped by the time and context of historic forces. According to Pound, the principles of law evolve through time and are inherently intertwined with the legal, social, and political events of various periods.

This book, originally published in 1942 by Yale University Press and recently reprinted with a new introduction by A. Javier Trevino, offers little new information or perspective on contemporary dilemmas. The central tenet of this book and of all of Pound's writings—that law can be reduced to certain jural postulates that are then shaped by historic relativity—seems to be a strained form of reductionism today. In fact, even Pound was less confident of these postulates in 1959 than when he originally articulated them in Social Control Though Law, as he added two new cardinal principles then, only 17 years later. Moreover, the fundamental model on which Pound formulated his theories of social jurisprudence—that law is a pluralist force that efficiently adjusts relations and interests between all citizens in a fair and ordered manner—seems far less convincing than a model of law that reflects the dominant social, political, economic, and dispute-resolution interests of a few and that seeks to preserve the authority of those who dominate those systems.

According to Pound, as religion, family training, and formal education deteriorated in their ability to enforce morals and precepts of social interactions, law became the primary utilitarian mechanism for ensuring social control. But as law ultimately cannot be divorced from values, it is inevitable that the means for enforcing control are selected by those with the dominant values.

Despite a concerted and valiant attempt to categorize these multiple claims and interests as individual, public, and social, Pound failed to account for his own principle of historic relativism, both in the definition and in the weight of these listed interests. For a theoretician or clinician today, the list is both over- and underinclusive. It lacks the tension and relevance of the contemporary dilemmas, such as the competing interests of those who seek to treat persons confused by mental disabilities and those who seek to decide for themselves on the desirability of external interventions.

What does survive intact from Pound's sociological constructs are less the rules and methods for balancing interests than the context for rule formulation and interest recognition as well as the forces that guide these processes over time. Pound envisioned an emerging sense of cooperation and collaboration among various constituencies to formulate common interests. (In 1959 he added two new postulates that primarily reflected the status of labor-management relations in a postwar industrial society: job security for most workers and compensation for the predictable and unpredictable consequences of employment.) However, the reality at the turn of this century appears to be to the contrary. The competitive, individualistic, and arguably self-referenced advocacy, which characterized society at the end of the 19th century and which arguably characterizes the entrepreneurs and political leaders today, represents yet another historical shift from the atmosphere that informed Pound's new postulates and convinced him that a new dawn of interests and law-inspired adjustments was emerging.

This mistaken view of cooperation between agencies and entities of government, relying on a humanistic application of law to balance competing interests, is not reflected in the adamant insistence of the Supreme Court that state safety officials cannot be required to enforce federal gun control legislation, or that state officials should be held accountable for their regulation of the commerce of independent Indian nations. Nor does the recent imposition of harsh restrictions on legal aliens reflect a cooperative balancing of interests of local workers and new arrivals to the United States.

To be sure, the trends that characterize social control today are neither new nor arguably alarming. They may reflect little more than the context and relativism of today's history. But they surely do not support either the jural postulates that Pound discerned nor the role of law as a reasoned harmonizer of competing interests. Instead, they may simply reinforce the obvious: that social control through law is a tried and proven device to enforce whatever appear to be the dominant values of the moment. Thus a right to confine deviant and devalued persons can evolve into a right to care and treatment for those so confined, then be transformed into a right to refuse such treatment, only to dissolve into a right to be left without any care or comfort at all. It is the moment in history, not more, that declares and honors all such interests.