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All told this is a volume of absorbing interest, with a penetrating grasp on international realities, written in an inimitable style, and possessing all the virtues of candor and fairmindedness. University of Texas.
MALBONE W. GRAHAM.
MACIVER, R. M. The Elements of Social Science.
This book is a discussion of the more fundamental aspects of society, and is intended for trained students of social science, and not for beginners.
Its author is a professor of political economy in the University of Toronto, a man of fine scholarship, mature judgment, and broad grasp of the factors determinative of the evolution of society.
He understands as the elements of society the general social structure, the interests which effectuate it, and the evolutionary trend. I know of no other book which, in so small a compass, gives such a penetrating insight into the essential factors of evolution, or which gives such a broad, and comprehensive understanding of social trends.
The book contains the following chapters: The Nature of Society; The Stages of Society; Society and Environment; Interests and Associations; Structure of Society; The Evolution of Society; The Great Law of Social Evolution. University of Oklahoma.
POUND, ROSCOE. The Spirit of the Common Law. (Bos
ton: Marshall Jones Co., 1922. Pp. xvi, 216.) POUND, ROSCOE. An Introduction to the Philosophy of the
Law. (New Haven: Yale University Press, 1922. Pp.
307.) KRABBE, H. The Modern Idea of the State. (New York:
D. Appleton & Co. Pp. lxxxi, 281.)
For some twenty years Dean Pound has been carrying on a notable work for the development of American law
and legal institutions. However, nearly all of his writings have heretofore been scattered through numerous legal periodicals, and the publication of these two little books will make available certain of the more important results of his careful research and keen thought. Both were originally delivered as lectures; the first at Dartmouth, the second at the Yale Law School. That they are not addressed solely (or, in the case of The Spirit of the Common Law, even mainly) to the jurist is shown by the rather simple, even sketchy treatment, the absence of footnotes, and the lack of a bibliography in the first of the two.
The present structure of the common law is the result of a long process of development, and to its making have gone some six major elements: the Germanic and feudal substratum, derived from a period of "strict law"; the philosophy of the Puritans; the institutions and theories that came as a result of the struggle between the courts and the crown; the theory of natural rights; the influence of ideas adapted to the frontier and to pioneer modes of life; and finally the legal philosophy of the nineteenth century. Four of these have been of general influence wherever the common law is found; but two, the Puritan and the pioneer contributions have been largely or exclusively influential in the United States. All except one have been essentially individualistic-only the feudal ideas of relations and of status have been present to temper in some slight measure the rampant individualism of our legal order. Dean Pound believes that we are tending back toward such a situation. Maine's famous generalization to the effect that the progress of law has been from status to contract seems about to be reversed. Such a conclusion is, of course, a result of the author's sociological philosophy of the law.
By a process of judicial empiricism the law has gradually been brought into somewhat closer harmony with the conditions of the present time. Not content with recognizing that the courts make law, he advocates an extension of the freedom of action of the courts in this sphere of their functions. To the end that the ideas of the judges may be made thoroughly consistent with modern social and economic life, he favors the providing of official information agencies by which the courts can secure expert and unbiased information concerning the actual workings of the legal rules laid down by them. No principle of law is justifiable unless it bears good fruit.
The point of view expressed in the second of Dean Pound's two books is the same as that already set forth, but the point of departure and the mode of treatment are quite different. It is devoted primarily to an analysis of the principal philosophies of the law, past and present, with special regard to certain important legal problems.
He stoutly maintains that “philosophy has been a powerful instrument in the legal armory and the times are ripe for restoring it to its old place therein.” As in certain periods of the past, the time has come to build; no longer is there any need for analyzing and philosophizing about the law of the past periods of legal development. “We are called upon to formulate the jural postulates of the civilization of the time and place" in order to fit the law to that time and place and to further the development of that civilization.
He next takes up The End of Law. A brief summary of the chapter would be practically impossible and certainly of little value; a quotation from his concluding paragraph must suffice: "For the purpose of understanding the law of today I am content with a picture of satisfying as much of the whole body of human wants as we may with the least sacrifice. I am content to think of law as a social institution to satisfy social wants. . . . I am content to see in legal history the record of a continually wider recognizing and satisfying of human claims or wants or desires through social control;... a continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence-in short, a continually more efficacious social engineering.”
In discussing The Application of Law, he deals mainly with the question of the extent of judicial discretion that should be allowed. The author concludes that legislation simply cannot deal with all matters, especially those having to do with human conduct. Just as some sorts of work necessitate individual hand work, so many kinds of cases require the individual discretion of the judge for their proper settlement, and the attempt to fit all sorts of cases into an arbitrary, mechanical system has been and will continue to be a failure.
The remaining three chapters deal with the problems of liability, property, and contract. The author seems to be mainly interested in the need of revising certain phases of the law dealing with these subjects. Thus in the case of the law of liability there is a decided need to get away from the notion that liability can only arise from a definite act of will. We can “explain more phenomena and explain them better by saying that the law enforces the reasonable expectations arising out of conduct.”
In the case of the law of contracts, he finds that all of the four theories of contracts that are current today are inadequate, and that “revived philosophical jurisprudence has its first and perhaps its greatest opportunity in the AngloAmerican law of contracts."
As regards the law of property he advocates no definite reform. The system of individual private property seems, on the whole, to be for the best interests of society, but "we may believe this without holding that private property is eternally and absolutely necessary and that human society may not expect in some civilization, which we cannot forecast, to achieve something different and something better.”
Professor Krabbe, who holds the chair of public law in the University of Leyden, although he deals at some length with the nature and ends of law, has the point of view of the political theorist rather than that of the jurist. It is his major contention that the idea of the sovereignty of the state is an outworn concept. In place of a sovereign state, we have the sovereignty of law; a law that does not owe its binding power to a decree of a sovereign power but to its origin in the sense of right of the people. He holds, then, that a spiritual power has taken the place of a personal authority: "what is now in actual practice adorned with the
old name of sovereign is a man or an assemblage of men upon whom the law has laid a task.”
He is not so utopian but that he realizes that the law will in fact be shaped in large part by economic interests. A conflict of such interests is inevitable, and the only possible solution is the raising of the plane of the electorate and of its representatives to the point where they can judge such interests objectively and evaluate them with regard to principles of right.
The idea of law as being composed of logica! deductions from a system is to him anethema. Instead of dealing in logical deductions, the judge should apply principles of right. The immediate task of jurisprudence is "to further the development of law by establishing the content and mode of operation of the feeling for right.” Here he seems to fail to point out clearly the distinction between, and the inter-relations of right and interests, and he also seems to give too important a position to the emotions (see p. 194) in the making of law, at the expense of the intellectual element.
In dealing with the nature of the state, Professor Krabbe holds to the view that whereas the old view was that of a sovereign power ruling over a given group of subjects, the modern idea is that of a legal community, and the essence of the state is found in the operation of a peculiar and independent sense of right among a portion of mankind. Considerable space is devoted to the contention that the state is not a community of interests but that it simply "establishes the legal value of interests."
The final chapter deals with The International Legal Community. Here it is pointed out that so long as the old view of sovereignty was accepted, international law was not properly called law at all, but that, on the other hand, the modern idea of the state is quite consistent with the legal character of international law. International law is to be distinguished, from national law, not in respect to its source or foundation, but in respect to the community to which it applies. The incomplete and imperfect character of such law is due not to the fact that it rules over sovereign