'From Savigny through Sir Henry Maine': Roscoe Pound’s Flawed Portrait of James Coolidge Carter’s Historical Jurisprudence

Abstract

In Roscoe Pound's scathing 1909 review of Law: Its Origin, Growth and Function, American jurist James Coolidge Carter's magnum opus, Pound asserted that Carter's conception of law "comes from Savigny through Sir Henry Maine." Frederich Karl von Savigny and Sir Henry Maine were the most prominent representatives of the German and English historical schools of jurisprudence, respectively. For his part, Carter was the leading representative of historical jurisprudence in the United States. Other scholars, following Pound, have similarly linked Carter to Savigny and Maine, especially to the former. Moreover, various authors have noted the great effect these European jurists had on American legal thought in general in the late nineteenth century. However, few studies have closely analyzed the impact Savigny and Maine had on Carter or other particular American legal thinkers. Because Carter's perceived debt to these giants of jurisprudence has significantly influenced how others have viewed him, and American historical jurisprudence generally, it is important to examine the precise extent and nature of this debt. This working paper argues that Carter did not simply borrow his jurisprudence from Savigny and Maine, but rather conceived it largely on his own. The paper then explores how Pound's mistaken assumption that Carter's thought was essentially equivalent to Savigny's led him to paint an influential but flawed portrait of Carter as a rigidly logical jurist in the natural law tradition. By pigeonholing Carter as a Savigny-inspired "metaphysical historical jurist," Pound blinded himself to various ways in which Carter's thought was actually compatible with his own "sociological" approach.

Keywords: James Coolidge Carter, Savigny, Henry Maine, historical jurisprudence