Jurisprudence of Interests, American

Arthur Bentley

Arthur Bentley, not trained as a lawyer but highly educated, authored a book in 1908 entitled The Process of Government. He advocated a behavioral approach. In two chapters dealing with law and the judiciary, Bentley advanced his view, following Jhering, that one can best understand the legal process, not conceptually, but as the activity of judges and lawyers asserting and mediating between the interests of competing individuals or groups. In this process, legal theory plays a minor role.

For Bentley, a legal theory could be at any level of abstraction, from the philosophical down to a particular theory of, say, tort law. Theory was therefore equivalent to the “legal reasons” for a decision. In Bentley's view, the judge actually decided the case by balancing the competing interests and then finding an appropriate theory to rationalize the decision. To understand the law, the scholar must principally study the activity rather than the theory. This would include study of the techniques with which interests are asserted and the ways in which group interests are formed, systematized, and ultimately accepted, rejected, or compromised.

Roscoe Pound

Bentley's work greatly impressed Roscoe Pound, who was the leading American legal theorist of the first quarter of the twentieth century. He developed a legal philosophy that he preferred to call sociological jurisprudence. The jurisprudence of interests was a [Page 867]central part of this philosophy. Pound rejected the formalistic theories of natural law, legal positivism (also known as analytic jurisprudence), and historicism. Like Bentley, he recognized that legal doctrine often did not determine the outcome of cases, especially American common law cases. He suggested that legal scholars should take advantage of the newly emerged science of sociology to help understand the relationship of law to other social phenomena. Pound viewed law instrumentally, as a technology that one could use to further the ends of society. He called the use of this technology social engineering.

The idea of competing interests could serve Pound in both descriptive and normative ways. The interests, which Pound described variously as demands, desires, wants, claims, or expectations, exist independently of the legal system. Individuals and groups assert them in legislative, administrative, and judicial processes. When they are recognized or “secured,” they become legal rights and duties. Interests can therefore become the analytic framework for the study of law by sociologists, economists, and psychologists. Scholars can try to determine how interests are related to psychological, economic, and other social phenomena.

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