R. Pound’s Ideas on Legal Proof Patterns and the Modern Era

Abstract

The theoretical provisions on the laws of legal evidence formulated by the American lawyer, teacher and sociologist of law Roscoe Pound (1870–1964) in the work “The Ideal Element in Law” (1958) are considered. It is substantiated that the theoretical provisions of R. Pound are hardly justified in being considered as limitations of legal regulation; they rather fix a number of objective patterns immanent in the functioning of law as a special normative system, acting only through human activity, which will not lose their significance in the future. They are as follows: a combination in legal proof of the principles of formal and free assessment of evidence; the use in the process of legal proof of legal-factual fictions — irrefutable cognitive constructions, regarding which it is unclear whether they are true or false in a particular case, but accepted as established factual circumstances; the impossibility of establishing the truth in the process of legal proof. It is shown that the requirement to establish the truth in a legal matter (material, objective or any other) obviously goes beyond the limits of cognitive capabilities, and the circumstances to be proven can only be established with varying degrees of reliability, based on the available traces of a legal fact.