THE SEARCH FOR THE “WORKABLE LEGAL PRECEPT” IN A CONTEXT OF INCOHERENCE AND UNCERTAINTY: REFLECTIONS ON ROSCOE POUND’S THEORY OF JUDICIAL EMPIRICISM FROM A EUROPEAN PERSPECTIVE

Abstract

In Roscoe Pound’s theory of “judicial empiricism”, the remit of the judge is the search for the “workable legal precept”: i.e., finding a solution, which is coherent with the legal framework as well as with a principle of “justice” in the specific litigation. Through this trial and error process, jurisdiction of the Courts concurs in the social engineering function of the law as a whole.

In Pound’s view the law is functional to the progress of “civilization”, which cannot be achieved but taking into account historical, technical and “ideal” elements. This implies that any rule-making or law enforcement, including the judiciary’s, should take place within a well determined cultural, theoretical and ethical framework.

Looking at Pound’s thought from a contemporary European perspective, the paper suggests a reading of Pound, which may lead to a clearer perception of the need to recover the historical, the technical and the ethical foundations of the law in the EU and the Member States.