chapter  I
44 Pages

The Function of Legal Philosophy

WithMarshall L. DeRosa

Roman lawyers came in contact with philosophy in the transition from the strict law to the stage of equity and natural law, and the contact had much to do with enabling them to make the transition. The function of legal philosophy, writes Pound, is to rationally formulate a general theory of law which conforms to the interests, the general security first and foremost, of society. Thus in spite of formal reduction to writing it preserved the fluidity of primitive law and was able to afford a philosophy for Roman law in its stage of equity and natural law—another period of legal fluidity. Natural rights were deductions from a fundamental metaphysically demonstrable datum of individual free will, and natural law was an ideal critique of positive law whereby to secure these rights in their integrity. A period of legal development resulted which is strikingly analogous to the classical period of Roman law.