SOCIOLOGICAL JURISPRUDENCE
THE
NEED
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SOCIOLOGICAL
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JURISPRUDENCE.
By Roscoe Pound. IF we may credit press reports, an eminent Canadian asserted recently in an address in London that "peace and order are more assured in Canada than in the United States. 1,1 I do not believe that this is so. But it is noteworthy that a conservative and experienced man of affairs should so believe, and that his state ment made on an occasion of some import ance should remain unchallenged. And it must be admitted that the law of the land has not the real hold upon the American people which law should have, and that there is a growing tendency to insist upon individual standards and to apply them in the teeth of the collective standard which is or ought to be expressed in the law. Illustrations of this tendency are abundant. From examination of the volumes in the National Reporter System, it appears that in 1906 over ninety new trials were directed by our highest courts of review in actions against employers for personal injuries because the verdicts were not sustained by evidence warranting a recovery. During the same year, over forty new trials were granted by these courts for the same reason in actions against railroad companies for personal injuries. How many verdicts were set aside by trial courts in such cases for the same reason, we do not know. Nor is there means of knowing in how many more such cases the verdicts returned would not have been rendered if the law had been zealously applied and enforced. But it is notorious that a crude and illdefined sentiment that employers and great industrial enterprises should bear the cost 1 "Lord Strathcona in his address referred to the increase of American immigration into Canada, declaring that many American farmers know that in the Canadian Northwest prospects are better, and that peace and order are more assured in Canada than in the United States." Nelson B. C. Times, July 2, 1907.
of the human wear and tear incident to their operations, dictates more verdicts than the rules of law laid down in the charges of the courts. Many jurors who evade an irksome service by affirming scruples against capital punishment are doubtless shamming. Yet the fact remains that a large proportion of the veniremen summoned in all recent trials for murder have testified under oath that they could not be trusted to investigate and determine issues of fact as sworn jurymen in a court of justice because their views as to punish ment differed from those of the law. In one of these trials a venireman told the court that where an act resulting in a murder was directed against society gen erally, there should be capital punishment, but that where only the citizen killed was the object of attack, such punishment could not be justified; and this theory was gravely discussed by the press without suggestion that there was anything amiss in refusal of a citizen to do his legal duty in the public administration of justice because he had thought out a new theory of punishment which the state did not recognize. The appeals to the so-called unwritten law, of which we have heard so much of late, are appeals from the clear and settled law to the individual feelings of the citizen, and no one seems to be deterred from following his own inclinations in such cases by the thought that it is his duty to subordinate those feelings to the general sense as formulated in the law.1 Much of this individual self-assertion against the law is due, no doubt, to the lack of a settled social standard of justice during 1 Since the foregoing was written, we have been afforded a good example in the Labor Day address of Mr. Gompers, in which, if correctly reported, he said " he would obey no injunction that deprived him of his rights." Chicago Inter-Ocean, September 3. T907-
