The Province and Function of Law

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THE PROVINCE AND FUNCTION OF LAW

THE

PROVINCE AND FUNCTION OF

LAW Law as Logic Justice and Social Control A Study in jurisprudence

by

JULIUS STONE LL.M. (Leeds),

S.J.D. (Harvard), B.A., D.C.L.

Challis Professor of Jurisprudence

(Oxford)

and International

Law, University of Sydney; Solicitor of the Supreme Court, England; of the New Zealand and Victorian Bars. Formerly Lecturer in Law, University of Leeds; Assistant Professor of Law, Harvard Law School; Professor of Law Auckland University College, New Zealand. *

THE PROVINCE AND FUNCTION OF LAW Published by

ASSOCIATED GENERAL PUBLICATIONS PTY. LTD. Hunter House, Hunter Street, Sydney, N.S.W. Sole agents in United Kingdom Stevens & Sons Ltd., 119 & 120 Chancery Lane, London, W.C.2.

ALL

RIGHTs RESERVED.

Associated General Publications Pty. Ltd. take this opportunity of expressing their appreciation of the willng co-operation of all concerned in the technical production of this volume. It will be apparent that the production of a work of this magnitude, begun under war-time conditions and completed under equally difficult post-war conditions, could only have been possible as a result of a very special effort. We therefore take special pleasure in recording here our indebtedness to the management and staff of the Cresta PrintingCoy. Pty. Ltd., who placed their technical resources, experience and skill at our disposal, and to A. V. Nicholson who was wholly responsible for the setting of the linotype. Paper for this volume was made available by the Commonwealth Book Sponsorship Committee. ISRAEL HORWITZ, B.Sc. (Econ.), F.S.S., Ped. Dip. (Lond. Univ.)

Governing Director. Sydney, Australia.

DEDICATED to MY WIFE whose companionship and faith made this work possible and to my friend ALFRED CONLON whose qualities of mind have made it a bolder and a truer work.

PREFACE Anglo-American juristic interests have been largely concentrated, in the century since Austin, on the logic of the law, on the effort to view the precepts of the legal system in whole or in part as a logically self-consistent system. Increasingly, however, the attention of a restless world is being directed towards two other questions. One of these is the question of justice. What are the ideals to which the legal order ought to conform? -the central question of the theory of justice. The other question concerns law as a social reality. It inquires concerning the actual effects of the law upon men's attitudes and behaviour, and the effects of these latter upon the law. This brief series of questions sets the boundaries of the present work. The aim is to explore them for the common law of our own times, and to illuminate the answers by drawing fully on the reports, the statutes and juristic literature. And while the common law of England is the point of departure I have not hesitated to draw materials from the younger systems of the Dominions and the United States, sometimes (especially where English experience is sparse), in considerable measure. And I have admitted also materials from "foreign" law, when they could promote understanding of our own tasks. I can now see, as this work nears completion, that it may be viewed as an act both of revolt and submission. From the standpoint of the powerful nineteenth century Austinian tradition, in which most of us were trained, it is an act of revolt. This is not to say that the important developments in logical analysis of legal systems which Austin stimulated do not here find a place. On the contrary they occupy the whole of Part I where Austin's principal doctrines, as developed and modified by later thought, are discussed. The revolt consists rather in this, that I have striven to place such logical analysis in perspective, side by side with other great bodies of ideas which fill the literature of the first half of the twentieth century, and seem destined to dominate the second half. This act of revolt against older juristic trends is simultaneously an act of submission to modern trends in the social sciences. For the questions of justice and social meaning invite (or rather compel) the entry into the lawyer's purview of much vital knowledge accumulating in the social sciences. Neglect of this knowledge has too long given lawyers the illusion

vIII

PREFACE

of self-containment. And this illusion was kept only by sacrificing the fuller understanding and skills in law-making and lawapplying which the wider knowledge could bring. It is from these complementary impulses, then, that this work has grown over the last fourteen years. Research, teaching and practice in the very diverse conditions of England, Australia, New Zealand and the United States, have determined its structure and its contents. Whatever absolute degree of interest this work may hold, interest is likely to be relatively great among four main classes of readers. First, for legal scholars generally, it may present a systematic survey of common law juristic thought, at least from Austin onwards. It also aims to provide a critical assessment of the contemporary operation and growth of the principal common law doctrines. Second, for legal practitioners (especially those engaged on appellate and advisory work) it seeks to systematise and document, within the covers of a single volume, an otherwise hopelessly dispersed literature; and to provide, on major points, some guidance for further research. Third, this volume may have some interest as a new text book for undergraduate and post-graduate courses in jurisprudence and the social sciences. This aspect of tile volume merits, perhaps, some further remarks. Most teachers who have ventured beyond the analytical field of jurisprudence are aware of one central difficulty. How can we deal adequately with the vast and dispersed body of thought in the wider field, and yet keep the course orderly in arrangement and critical in approach? This volume is my own answer to this difficulty. Though there will, perhaps, never be a complete answer, I can add that I have already used the arrangement and contents of this book as a basis for final year LL.B. classes, and have found the difficulty reduced to tolerable proportions. To aid a critical approach I have tried to provide, in special footnotes, carefully selected references to original readings, usually at the beginning of each main topic. The bulk of the footnotes have a different object. I have hoped that they may be of use to colleagues in expanding any special topics in which they may be interested, or in criticising the views I have ventured to express in the text. I have thus far mentioned some of the possible interests in these pages of legal scholars, practitioners, teachers and students. But' while lawyers have urgent need to relate their problems to those of the moral, social and political theorists, the latter may have a converse need almost equally urgent. Thought of the greatest importance for them is embedded in the now considerable monographic and periodical literature of the law. The systematisation and criticism of juristic theory and of moral,

PREFACE

social and political theory, in their interrelations, is a main task here undertaken. The intellectual debts incurred in preparing this work are owed to many authors, and to teachers and colleagues in universities scattered over the common law world. To acknowledge them all would extend this Preface unduly, but some must here be given words. First, however, I must mention a debt which stands apart. My wife, to whom this volume is gratefully dedicated, has had a devoted hand in every stage of its preparation over the last fourteen years. Hers, in particular, have been the tasks of converting an illegible first draft, nearly twice the bulk of the finished work, into a typescript from which the last two drafts could be made; and a style diffuse and obscure into one more tolerable to the reader. Without her unwavering faith in the importance of the undertaking, and her encouragement for its conclusion, that point might have been indefinitely postponed. Among teachers and scholars my greatest single debt is to Roscoe Pound. The years I worked with him as a student, and then as a colleague, in the teaching of jurisprudence at Harvard, have left their mark. If I am here more critical of his position on some important matters than befits a disciple, it should not conceal the greatness of my continuing debt. This is apart from what I owo to his many articles and monographs, among which I must particularly mention the fifth edition of his Outlines of Lectures on Jurisprudence. I was privileged to assist in the preparation of that edition, and my own MS materials and references which I then garnered (many of theni now incorporated in the Fifth Edition) have proved invaluable to me in the present task. I am grateful too for Professor Pound's permission to use the rich materials of the Fifth Edition and the extracts from some of his other works. Among contemporary English jurists the reader will readily observe (for instance in Chapter VII) my heavy debt to Lord Wright. That debt differs from the one last acknowledged in that the creditor is not aware of it. It has been incurred through the printed word-through juristic essays (many of them now collected in his Legal Essays and Addresses) which have so illuminated his judicial opinions. Yet the debt is nonetheless great and unmistakeable. His works have been for me (as for many others) a bridge for legal thought, not only between nineteenth and twentieth century England, but also between the two greatest common law democracies. If, in the development of his many stimulating theses, I have fallen into error, I hope I have made it clear that the error is mine. Insofar as I have dared

x

PREFACE

to raise doubts as to his position on some matters, I would ask that this be viewed as a diffident emulation of his own example of fearless inquiry on all problems vital for the future of the common law. No work of this scope could even aspire to adequacy without, at some stage, the facilities of a library like that of the Harvard Law School. There, between 1931 and 1936, its foundations were laid and the bulk of the literature garnered and sifted. But the perilous task of final formulation and the study of recent work has had to be done away from the major law libraries of the world and amid the delays and irregularities of war-time book deliveries. It is therefore a particular pleasure to pay tribute here to the Fisher Library of the University of Sydney, to the Public Library of New South Wales, and to the Library Lending Service of the Commonwealth, and the Law School Library of the University of Sydney. Between them they have heroically fulfilled, to a remarkable extent, my often burdensome requisitions. On those Chapters devoted more especially to case-law I have benefited from the criticisms and suggestions of His Honour Judge Sugerman, then of King's Counsel at the New South Wales Bar, and a former colleague in the Law School of the University of Sydney; and Mr. R. Else Mitchell, LL.B., of the same Bar. They also read some part of the proofs and gave helpful advice concerning the Indexes. A great part of the heavy task of checking case citations was undertaken by Mr. S. Cohen, B.A., LL.M., of the Victorian Bar. The Chapters on law and logic (except Chapter VII) were read by Mr. J. H. Passmore, M.A., Senior Lecturer in Logic in the Department of Philosophy of the University of Sydney. Mr. P. H. Partridge, Senior Lecturer in Social and Political Theory in the same Department, devoted himself unstintingly to reading and criticising Chapters VIII to XXVII (except XX-XXIII). By his suggestions he saved me from some errors, and also guided me to works which made the treatment of other points more adequate. It is with special pleasure, too, that I acknowledge the debt to my former students, Mr. J. H. Wootten, B.A., LL.B., and Mr. S. S. W. Davis, LL.B., of the New South Wales Bar. Both of them after brilliant courses in Jurisprudence assisted me with enthusiasm, endurance, and skill, in checking the text and footnotes, and in preparing the Indexes. I must express my deep gratitude to all these colleagues, academic and professional, adding, in the style of my predecessors (and with no less sincerity) that for errors and inadequacies which remain I alone must accept responsibility. For the technical achievement in production of this volume within little more than a year from delivery of MS, despite

PREFACE

Xi

war-time shortages and industrial dislocations, great praise is due to the Publishers, Associated General Publications Ltd. Their willing allotment of plant and manpower to an enterprise which could, at best, yield little return in the ordinary business sense, was a welcome demonstration that not all publishers have succumbed to the commercial spirit of the age. I would add but one word more. In my own conception this work remains an interlocutory one. In what I may here have asserted or denied with confidence I hope I shall ever stand ready to feel more doubt, if cause is shown by further thought. In what I may here have doubted or questioned, I stand ready, also on cause shown, to be persuaded. The reader will do me a great service if he will approach these pages in a similar mood, so that for him, as for myself, they may provide a point de vue, and perhaps a point d'lan, but not a position to be attacked or defended for its own sake. Assuredly momentous days lie ahead for the common law, and lawyers will have a great share of responsibility in meeting the challenges they bring. Our future achievements as lawyers can spring, like those of the past, only from the earnest labours of many minds, and from a readiness to learn from errors, and to make them good as they are revealed by experience and reflection. Sydney

JULIUS STONE.

THE PROVINCE AND FUNCTION OF LAW

TABLE OF CONTENTS

xv

TABLE OF CONTENTS PREFACE

vii

TABLE OF CASES

............

TABLE OF STATUTES. CORRIGENDA.

xxxv

........

.li

............

Iviii

LIST OF ABBREVIATIONS .......

.

.lxiii

GENERAL INTRODUCTION CHAPTER I

THE PROVINCE OF JURISPRUDENCE REDETERMINED Page

§1. THE AUSTINIAN REVELATION ..

3..........3

§2. THE PRESENT SCOPE OF TAUGHT JURISPRUDENCE

5......5

§3. HISTORICAL JURISPRUDENCE AS A SUBJECT OF STUDY

7

§4. THE THEORY OF JUSTICE AS A SUBJECT OF STUDY ..

..

8

§5. LAW AND RELATED SOCIAL PHENOMENA AS A SUBJECT OF STUDY ......

12

§6. EFFECT OF THESE DEVELOPMENTS UPON THE TEACHING OF JURISPRUDENCE ....

13

§7. CURRENT DIVISIONS OF THE FIELD OF JURISPRUDENCE

16

§8. ECLECTIC SCHEMES OF DIVISION .......

16

§9. RATIONAL SCHEMES OF DIVISION .........

19

§10. TOWARDS A TWENTIETH CENTURY TRILOGY

..

..

..

..

..

24

§11. JURISPRUDENCE AS THE EXAMINATION OF THE LAW IN THE LIGHT OF OTHER DISCIPLINES ........

25

§12. THE BRANCHES OF JURISPRUDENCE ARE TO BE ASCERTAINED BY CLASSIFYING FOR LEGAL PURPOSES THE RESULTS OF THIS EXAMINATION ....................

27

§13. THE THREE BRANCHES OF JURISPRUDENCE

30

§14. RELATION TO THIS SCHEME KNOWLEDGE ........................

OF

....

EXISTING

BODIES

OF 32

§15. THEORY THAT EACH BRANCH OF JURISPRUDENCE IS APPROPRIATE FOR A PARTICULAR PHASE OF LEGAL DEVELOPMENT .............

36

§16. CRITICISM OF SUCH CYCLE THEORIES

38

§17. IMPORTANCE OF THIS REDEFINITION JURISPRUDENCE

..

...

OF THE FIELD OF ....

41

.xvi

CONTENTS

PART I

LAW AND LOGIC CHAPTER II

AUSTIN'S GENERAL JURISPRUDENCE Page 55

§1. LIFE AND BACKGROUND §2. AUSTIN'S RELATION TO CONTEMPORARY GERMAN LEGAL THOUGHT ..................

ENGLISH

AND 56

§3. AUSTIN'S SEARCH FOR A LOGICALLY COHERENT SCHEME

..

57

§4. PREMISSES OF AUSTIN'S SYSTEM: INDEPENDENT POLITICAL SOCIETY .........

58

§5. IMPORTANCE OF OBSERVING CRITICISING HIS ANALYSIS

AUSTIN'S

IN

PREMISSES ......

59

§6. CONFUSION OF SOVEREIGNTY AS A LOGICAL POSTULATE WITH SOVEREIGNTY AS A POLITICAL FACT .. .. .. ..

60

§7. AUSTIN'S OWN CONTRIBUTION TO THIS CONFUSION ..

61

§8. COMMAND AS A SEPARATE PREMISS ..

..

..

..

..

..

..

... ..

62

...

§9. GENERAL AND PARTICULAR COMMANDS §10. THE SANCTION

..

..

..

..

..

64 ..

..

64

§11. LAWS IMPROPERLY SO-CALLED ...................

65

§12. LAW PROPERLY SO-CALLED AND LAW STRICTLY SO-CALLED

66

§13. "COMMON" AND "NECESSARY" DISTINCTIONS

67

PRINCIPLES, NOTIONS ........

AND

§14. EXAMPLES OF "NECESSARY" NOTIONS AND CONCEPTIONS

68

§15. INFERENCES "NEARLY" INEVITABLE

69

..

...

§16. AUSTIN'S SCIENCE OF LAW AND THE SCIENCE OF LEGISLATION

70

§17. AUSTIN'S "LOGICAL ACID" AND LAW

...

71

....

77

..

CHAPTER III

ROGUIN'S SCIENCE OF LOGICAL POSSIBILITIES §1. BACKGROUND AND RELATION TO AUSTIN §2. NATURE AND PURPOSE OF ROGUIN'S PURE SCIENCE

78

§3. LOGICAL BASIS .........

79

§4. PREMISSES: THE CONSTANT ELEMENTS IN LAW ........

80

§5. INITIAL FACTS AND FACTS OF PRESTATION.

....

80

CONTENTS

xvii Page

§6. THE SANCTION ............................

81

7. RELATIONS BETWEEN TWO OR MORE SUBJECTS ........

82

§8. "PURITY" AND "UNIVERSALISM" OF ROGUIN'S SCIENCE

..

..

§9. DISPLAY OF LOGICAL POSSIBILITIES .. ... §10. THE "PURE JURIDICAL SCIENCE" AND THE NATURE OF ANALYTICAL JURISPRUDENCE GENERALLY ........

84

85 86

CHAPTER IV

KELSEN'S PURE SCIENCE OF LAW I. INTELLECTUAL BASIS SCIENCE OF LAW

AND SCOPE .....................

OF

PURE

THE

91

§1. BACKGROUND OF THE VIENNA SCHOOL ............

91

§2. LAW AND THE SPHERE OF THE NORMATIVE ..........

92

3. ABSOLUTE SEPARATION OF THE REALMS OF THE FACTUAL "IS", THE LEGAL "OUGHT", AND THE ETHICAL OR JUST .......... "OUGHT"

93

§4. SOURCE OF THE VALIDITY OF THE LEGAL "OUGHT": THE .... BASIC NORM

91

§5. NATURE AND ORIGIN OF THE BASIC NORM ITSELF ......

95

§6. DISCOVERY OF THE BASIC NORM A CONDITION PRECEDENT TO ANY APPLICATION OF KELSEN'S THEORY TO ANY LEGAL SYSTEM ............

95

II. PRINCIPAL DOCTRINES OF THE PURE SCIENCE OF LAW

96

OF

§7. THE BASIC NORM AS A SUPREME DELIMITATION .... COMPETENCE WITHIN A LEGAL SYSTEM

96

§8. DELIMITATION OF COMPETENCE BY INTERMEDIATE NORMS

97

§9. NORMS AS "DEPSYCHOLOGISED" COMMANDS

97

§10. DUTIES LIABILITIES AND RIGHTS

....

98

..... ....

§11. CONCRETISATION OF THE SYSTEM OF NORMS

99

§12. CONTRACT AS A CONCRETISATION OF NORMS ........

100

§13. LEGAL PERSONALITY AS A POINT OF OPERATION OF LEGAL NORMS' .......

102

§14. DISTINCTION BETWEEN PRIVATE UNTENABLE ...........................

103

AND

PUBLIC

LAW

§15. STATE, SOVEREIGNTY AND THE LEGAL ORDER ........

104

III. THE LIMITATIONS OF THE PURE SCIENCE OF LAW 105 §16. IMPURITY OF THE BASIC NORM

....

105

§17. SOCIOLOGICAL AND ETHICO-POLITICAL COMPONENTS IN THE BASIC NORM .............. 106 §18. THE BASIC NORM AND THE THEORY OF INTERNATIONAL LAW 107 §19. CURRENT CRITICISMS OF THE PURE SCIENCE OF LAW .. .. §20. IMPORTANCE OF NOT OVERLOOKING THE MERELY LOGICAL NATURE OF THE PURE SCIENCE OF LAW ....

108 110

xvmi

CONTENTS

CHAPTER V

HOHFELD'S FUNDAMENTAL LEGAL CONCEPTIONS Page Nl. LOWEST COMMON RELATIONS

DENOMINATORS

OF

ACTUAL LEGAL ......

§2. THE NEED FOR DIFFERENTIATION OF CONCEPTS

115

..

..

..

116

§3. THE JURAL CORRELATIVES AND JURAL OPPOSITES ..

..

..

116

4. RELATION OF HOHFELD'S WORK TO EARLIER ANALYSIS OF "A RIGHT" ........

117

§5. "POWERS" AND "LIBERTIES" DISTINGUISHED FROM "RIGHTS": WINDSCHEID AND SALMOND ........

119

§6. "A RIGHT" IN THE STRICTEST SENSE DISTINGUISHED FROM "A PRIVILEGE" ...........

120

§7. PRACTICAL CONSEQUENCES OF CONFUSION WITH "A PRIVILEGE" .....................

121

OF "A RIGHT"

§8. POWERS AND IMMUNITIES AND THEIR CORRELATIVES AND OPPOSITES ........

122

§9. RIGHTS IN REM (MULTITAL RIGHTS) AND RIGHTS IN PERSONAM (PAUCITAL RIGHTS) DISTINGUISHED .. .. 124 §10. "RIGHTS IN REM" (MULTITAL) ARE COMPOUNDED OF NUMEROUS SINGLE RIGHTS EACH WITH A CORRELATIVE DUTY: "RIGHTS IN PERSONAM" (PAUCITAL) CORRESPONDINGLY ....................

126

§11. LOGICAL SIMPLIFICATION OF LEGAL RELATIONS INVOLVES MULTIPLICATION OF WORKING CONCEPTS .. .. .. ..

127

§12. ACTIONS IN REM AND IN PERSONAM DISTINGUISHED FROM RIGHTS IN REM AND IN PERSONAM: CAN. . THERE BE .. . . . . EQUITABLE RIGHTS IN REM? . .. 128 §13. EQUITABLE AND LEGAL RIGHTS ANALYTICALLY DISTINGUISHABLE ONLY BY THE COURT OF ENFORCEMENT .. .. .. 130 §14. CRITICISMS OF HOHFELD'S SYSTEM: FROM THE ANALYTICAL STANDPOINT ........................ 131 §15. HOHFELD'S TRANSGRESSION INTO THE FIELD OF JUSTICE

..

133

CHAPTER VI

USES AND LIMITATIONS OF FORMAL LOGIC IN LEGAL REASONING §1. LOGIC CONCERNS IMPLICATIONS FROM PREMISSES, NOT THE TRUTH OF THE PREMISSES ................. 137 §2. LAW OF THE LOGICAL ANALYSTS AND LAW AS OPERATIVE IN SOCIETY ...........

138

..

138

§3. LOGIC AND COMPETING PREMISSES ............ ....

4. LOGIC AND THE LIMITS OF ANALOGY §5. LIMITS OF LOGICAL COMPULSION

..

.....

140 141

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CONTENTS

Page §6. EFFECT OF SOCIAL CHANGE AND CONSEQUENT LEGAL CHANGE ON THE LOGICAL RELATIONS BETWEEN LEGAL CONCEPTS AND PROPOSITIONS ..... 142 §7. THE ROLE OF SYLLOGISTIC LOGIC IN THE LAW: CRITICISM 144 ...... AND CONFIRMATION §8. ROLE OF SYLLOGISTIC LOGIC IN THE LAW: PERSUASION AND ORDERLY UNDERSTANDING .. ...

145

§9. NEED FOR A BALANCED VIEW OF THE USES AND LIMITATIONS .... OF SYLLOGISTIC ANALYSIS

145

CHAPTER VII

FALLACIES OF THE LOGICAL FORM IN LEGAL REASONING I. FALLACIES OF THE LOGICAL FORM IN INTERPRETATION OF THE FRENCH CIVIL CODE

....

149

§1. EFFECT OF CODIFICATION ON FRENCH LAW

....

149

§2. JURISTIC AND JUDICIAL PROCESSES AS LOGICAL DEDUCTION FROM THE AUTHORITATIVE PREMISSES OF THE CODE ..

151

§3. EFFECTIVE SCOPE OF LEGISLATOR'S WILL IN INTERPRETATION 152 §4. FICTIONAL NATURE OF INTERPRETATION LIMITS ........

BEYOND

THESE .. .. 154

§5. OPERATION' OF THE "JURISPRUDENCE OF CONCEPTIONS" OR "FICTIONAL EXEGESIS" UNDER THE CODE .. .. .. ..

156

§6. THE ROLE OF DEDUCTION FROM CONCEPTUAL CATEGORIES 158 UNDER THE CODE ....................... §7. TECHNIQUE AS A PART OF SCIENTIFIC RESEARCH"..

THE

PROCESS

OF "FREE ......

II. FALLACIES OF THE LOGICAL FORM IN THE UNCODIFIED MODERN ROMAN LAW ........ §8. THE ROLE OF THE PANDECTISTS

160

........

160

§9. THE JURISTIC MATHEMATICS OF CONCEPTS §10. THE HEAVEN OF JURISTIC CONCEPTIONS

158

....

160

...

162

§11. FREIRECHTSLEHRE AND INTERESSENJURISPRUDENZ

164

III. THE ENGLISH JUDICIAL ACHIEVEMENT IN RELATION TO SOCIAL CHANGE AND FALLACIES OF THE LOGICAL FORM ..... 166 §12. CAN THE COMMON LAW THEORY OF PRECEDENT RECONCILED WITH THE ENGLISH JUDICIAL ACHIEVEMENT?..........................

BE 166

§13. HOW FAR IS THIS ACHIEVEMENT BASED ON LOGICAL DEDUCTION FROM EXISTING PRINCIPLES OF LAW? . . . .

168

§14. UNCERTAINTY OF OPERATION OF SYLLOGISTIC LOGIC IN THE JUDICIAL PROCESS ........

170

§15. THE LEGAL CATEGORY OF MEANINGLESS REFERENCE

171

..

..

§16. THE LEGAL CATEGORY OF CONCEALED MULTIPLE REFERENCE

174

xx

CONTENTS Page

§17. LEGAL CATEGORIES OF COMPETING REFERENCE ......

176

§18. THE SINGLE LEGAL CATEGORY WITH COMPETING VERSIONS .............. OF REFERENCE

179

§19. COMPETING VERSIONS OF A SINGLE CATEGORY AS A NORMAL PRODUCT OF THE COMMON LAW JUDICIAL PROCESS ..

179

§20. THE LEGAL CATEGORY OF CONCEALED CIRCUITOUS REFERENCE: "DUTY" IN NEGLIGENCE AND REMOTENESS OF DAMAGE ............. .... §21. CIRCUITOUS REFERENCE: QUASI-CONTRACT §22. THE LEGAL CATEGORY OF INDETERMINATE REFERENCE .... §23. THE SYSTEM OF PRECEDENT ITSELF AS BASED ON A LEGAL CATEGORY OF INDETERMINATE REFERENCE, NAMELY, .... THE RATIO DECIDENDI OF A CASE §24. RELATION OF LOGICAL INDETERMINACY TO JUDICIAL CREATION OF LAW ...................... §25. SPURIOUS NATURE OF THE IDEALS OF LOGICAL CONSISTENCY OF LEGAL PROPOSITIONS AS A BASIS OF DECISION ....

IV. LOGIC AND JUSTICE IN RECENT ENGLISH ..-..-..-..-..-..-..-..-..PRECEDENTS

181 183 185 186 189 190

192

§26. PRECEDENT AS A PRACTICAL MEANS OF MARSHALLING PAST ... EXPERIENCE FOR PRESENT CHOICE §27. SCOPE FOR JUDICIAL CREATIVENESS IN THE INTERPRETATION OF LEGISLATION ...... §28. EFFECTS OF LACK OF CONSCIOUS ATTENTION TO THE NON. SYLLOGISTIC ELEMENTS IN JUDICIAL REASONING .. §29. SPECIAL EFFECTS ON JUDICIAL INTERPRETATION OF STATUTES ..... §30. EXAMPLES OF THE CONSCIOUSLY CREATIVE JUDICIAL PROCESS.. .......................... §31. NATURE OF THE LAW OF TORT IN RELATION TO CREATIVE JUDICIAL LAW-MAKING ........... §32. RELATION OF CONSCIOUS CREATIVENESS IN THE JUDICIAL PROCESS TO LOGICAL FORM AND LEGAL CERTAINTY ..

192 193 195 198 201 203 204

PART II

LAW AND JUSTICE CHAPTER VIII

NATURAL LAW I. NATURAL LAW TO THE SEVENTEENTH CENTURY

215

..

215

1. GREEK ORIGINS OF NATURAL LAW .............. §2. ROLE OF NATURAL LAW IN ROMAN LAW

...

216

§3. NATURAL LAW AND THE REFORMATION ........

....

217

H4. NATURAL LAW AND INTERNATIONAL LAW

....

218 ..

218

§6. NATURAL LAW AND EIGHTEENTH CENTURY REVOLUTIONARY THOUGHT ..........................

§5. NATURAL LAW IN MODERN EUROPEAN LEGAL GROWTH

219

§7. THE GROTIAN DEFINITION

220

§8. THE NATURE OF MAN ....

.... ........

220

xxi

CONTENTS

Page

§9. §10. §11. §12. §13. §14. §15. §16. §17.

REASON AND SOCIABLENESS .................. BACKGROUND OF THE GROTIAN FORMULATION .. .. .. .. NATURAL LAW AS A SYSTEM .................. NATURAL LAW AND POSITIVE LAW ............ .. THE TESTING OF POSITIVE LAW BY NATURAL LAW .. .. .. THE STRIKING DOWN OF POSITIVE LAW BY NATURAL LAW..

221 222 224 224 225 226

ENGLISH EQUITY AND THE NATURAL LAW TECHNIQUE

227

..

..

THE NATURAL RIGHT TO REBEL ................ THE NATURAL LAW SANCTION FOR THE STATUS QUO ....

11. NATURAL LAW IN THE EIGHTEENTH CENTURY.. §18. DIFFERENTIATION OF SEVENTEENTH AND CENTURY NATURAL LAW ..................... §19. CRYSTALLISAXION OF NATURAL LAW §20. THE SHIFT TO THE UTILITY PRINCIPLE

229 230 ..

230

EIGHTEENTH .... ...

230 232 233

III. GENERAL OBSERVATIONS ON THE CLASSICAL NATURAL LAW CRITERIA §21. §22. §23. §24.

INADEQUATE DEMONSTRATIONS OF NATURAL LAW .. .. .. SELF-EVIDENCE IS RELATIVE TO TIME AND PLACE .. .. .. SOCIAL IMPORTANCE IS INDEPENDENT OF DEMONSTRATION THE TWO-FACED OPERATION OF NATURAL LAW IN THE SOCIAL PROCESS ......

234 235 236 237

CHAPTER IX

METAPHYSICAL INDIVIDUALISM 1. THE FREE-WILLING INDIVIDUAL AS A NATURAL LAW 241 IDEAL ........ §1. THE KANTIAN DOCTRINE OF FREE WILL AND THE CATE...... GORICAL IMPERATIVE §2. "NATURAL LAWS" FLOWING FROM THE CATEGORICAL ......................... IMPERATIVE §3. NATURAL LAW INDIVIDUALIST WINES IN NEW METAPHYSICAL ......... BOTTLES §4. RELATION OF JUSTICE TO ETHICS: DIVERGENCIES AS TO THE .... ROLE OF LAW PROCEEDING FROM KANT

II. NATURAL RIGHTS AND THE FREE-WILLING INDIVIDUAL ....... §5. BLACKSTONE AND THE ANGLO-NATURAL RIGHTS OF MAN .. §6. NATURAL RIGHTS IN THE DECLARATION OF INDEPENDENCE AND BILLS OF RIGHTS ...... §7. FACTORS FAVOURING THE NEW CONTENT OF LIBERTY AND DUE PROCESS ........ §8. LIBERTY OF CONTRACT AS A NATURAL RIGHT OF THE FREEWILLING INDIVIDUAL .. ....... §9. DEVELOPMENT OF THE CONSTITUTIONAL DOGMA OF LIBERTY OF CONTRACT .... §10. UNREAL NATURE OF THE ABSTRACT CONCEPTION OF LIBERTY PROTECTED BY THESE VIEWS ........ .. §11. TRADITIONAL COMMON LAW AND LEGISLATIVE RESTRAINTS ON THE SUPPOSED NATURAL RIGHT OF LIBERTY OF CONTRACT: DIVERGENCIES BETWEEN ABSTRACT LIBERTY TO CONTRACT AND CONCRETE (RESIDUAL) LIBERTY ..

241 242 244 245

247 247 248 249 251 253 254

256

CONTENTS

xxn

Page

§12. INVIOLABLE PROPERTY AND INHERITANCE AS A NATURAL RIGHT OF THE FREE-WILLING INDIVIDUAL .. .. .. .. 257 §13. NO LIABILITY WITHOUT FAULT AS A "NATURAL" IMMUNITY OF THE FREE-WILLING INDIVIDUAL ............ 258 §14. PERSISTENCE OF METAPHYSICAL INDIVIDUALIST THOUGHT AT THE PRESENT DAY ......... 260 §15. REFLECTIONS ON THIS "TRUE" LAW FROM RECENT LEGAL TRENDS ........... 261 §16. INADEQUACY OF "IMPARTIALITY" AS A CRITERION OF JUSTICE ............................ 262 §17. BASIC AMBIGUITIES OF THE IDEAL OF THE "FREE-WILLING INDIVIDUAL" .......... 263

CHAPTER X

INDIVIDUALIST UTILITARIANISM I. PERSONAL AND INTELLECTUAL CONTEXT OF BENTHAM'S WORK ......... ..

..

..

§1. LIFE AND CHARACTER OF JEREMY BENTHAM .... §2. CONSPECTUS OF BENTHAM'S WORKS ON ENGLISH REFORM .. 3. INTELLECTUAL CONTEXT: REACTION TO NATURAL LAW .. §4. INTELLECTUAL CONTEXT: UTILITARIAN ETHICS .. .. .. .. §5. INTELLECTUAL CONTEXT: THE HEDONISTIC CALCULUS ....

II. ENGLISH SOCIAL, ECONOMIC AND LEGAL BACKGROUND OF BENTHAM'S WORK §6. GENERAL OBSOLESCENCE OF THE LAW AND THE INADEQUACY OF THE JUDICIAL SYSTEM FOR THE TASK OF REFORM .. 7. CRIMINAL AND PENAL LAW AND ADMINISTRATION .. .. .. .§8. REAL PROPERTY AND COMMERCIAL LAW ... §9. LAW OF MASTER AND SERVANT ........ §10. GENERAL SOCIAL AND POLITICAL ATMOSPHERE OF THE PERIOD .........

III. UTILITY AND THE CALCULUS OF PLEASURES AND ...................... PAINS THE INDIVIDUALIST TREND OF BENTHAM'S SYSTEM ...... DEFINITION OF UTILITY AS THE CRITERION OF GOOD LAW .... THE KNOWLEDGE OF PAINS AND PLEASURES .... THE EXTENSITY OF PLEASURES AND PAINS INTENSITY OF PLEASURES AND PAINS: VARIATIONS IN ....... SENSIBILITY OF PERSONS §16. INTENSITY OF PLEASURES AND PAINS: VARIATIONS FROM NATURE OF THE ACT .... §17. LAW AND OTHER SOCIAL CONTROLS .............. §18. DIRECTIVES OF THE PRINCIPLE OF UTILITY IN THE FIELD OF THE CIVIL LAW ............ §11. §12. §13. §14. §15.

IV. PHILOSOPHICAL OBJECTIONS TO BENTHAM'S HEDONISTIC UTILITARIANISM ........

267 267 269 270 271 272

273 273 274 275 276 277

278 278 280 281 282 283 284 284 285

288

§19. INCONSISTENCY OF HEDONISM WITH PSYCHOLOGY AND THE MORAL SENSE ........................ 288 §20. UNATTAINABILITY AND PERSONAL VARIABILITY OF THE GOAL OF MAXIMUM OF PLEASURE .. ... 289 §21. SPECIAL DIFFICULTIES IN APPLYING HEDONISM TO A SOCIETY RATHER THAN TO AN INDIVIDUAL ...... 291

xxusi

CONTENTS

Page

V. ACHIEVEMENT AND PROSPECTS OF BENTHAMITE .. .. UTILITARIANISM...........

292

§22. THE BENTHAMITE ACHIEVEMENT: CAVEAT ............................

DICEY'S VIEW WITH A

§23. PROPOSALS FOR A TWENTIETH BENTHAMITE UTILITARIANISM

CENTURY ..............

OF

REVIVAL

292 295

CHAPTER XI

SOCIAL UTILITARIANISM ....

§I. SOCIAL AND INTELLECTUAL CONTEXT §2. THE CONTRAST OF SOCIAL AND INDIVIDUAL UTILITARIANISMS 3. THE "LAW OF PURPOSE"

279

......

301 303

........

§4. INDIVIDUAL AND SOCIAL PURPOSES ............ §5. SOCIAL MECHANICS: COMPETITIVE POWER AND ASSOCIATION ........ .. .. .. ....

..

..

§6. SOCIAL MECHANICS: FORCE AND ITS SELF-LIMITATION ..

..

305

..

306

.307 ..

§7. LAW AS ONE MEANS OF SECURING THE CONDITIONS OF SOCIAL LIFE ........... ....... ..........

309

§8. MAIN WEAKNESSES OF IHERING'S THEORY ........

..

311

§9. IHERING'S WORK AS A BRIDGE TO TWENTIETH CENTURY THEORIES OF JUSTICE ....................

313

CHAPTER XlI

SOCIAL IDEALISM ....

1. BACKGROUND: THE CODE CONTROVERSIES

317

§2. BACKGROUND: PROBLEMS OF DISCRETION RAISED BY THE CODE ........ 318 §3. MAIN VARIATIONS ON THE KANTIAN APPROACH TO JUSTICE 319 §4. THE "IDEA OF SOCIETY" AND THE "PRINCIPLES OF JUST LAW"

320

§5. THE SPECIAL COMMUNITY (MODEL OF JUST LAW) AS A MEANS OF ORGANISING THE CONFLICTING INTERESTS IN A PARTICULAR CASE ... ............. 322 §6. THE CONCEPTION OF "MY NEIGHBOUR": LORD ATKIN'S VIEW IN DONOGHUE v. STEVENSON .... 323 §7. WEAKNESS OF STAMMLER'S SOCIAL IDEALISM ........

325

§8. STAMMLER'S CONTRIBUTIONS TO TWENTIETH THEORIES OF JUSTICE ....................

326

CENTURY

CHAPTER XIII

NEO-HEGELIAN CIVILISATION THEORY OF JUSTICE §1. BACKGROUND: THE HEGELIAN PHILOSOPHY OF HISTORY .. §2. RIDERS ON THE HEGELIAN VIEW OF HISTORY .. .. .. .. §3. BACKGROUND: RELATION TO JURISTIC PREDECESSORS .. ..

331 334 335

CONTENTS

xxiv

§4. RELATION OF LAW AND "CIVILISATION" ...........

OTHER

SOCIAL

CONTROLS

TO

Page

336

§5. "JURAL POSTULATES" OF A CIVILISATION AS THE CRITERION OF ITS JUST LAW ......

337

§6. AMBIGUITY OF THE CONCEPT OF CIVILISATION: RELATIVIST OR ABSOLUTIST? ....

338

§7. THE ABSOLUTIST ELEMENT IN THE CIVILISATION CRITERION

339

CHAPTER XIV

SOCIAL SOLIDARISM 1. LIFE AND BACKGROUND OF DUGUIT ..............

343

§2. BACKGROUND: DUGUIT'S VIEW OF THE TRANSFORMATION OF LAW IN MODERN SOCIETY .... 3. THE OBJECTIVE LAW

....

§4. THE OBJECTIVE LAW AND POSITIVE LAW ............

345 347 347

§5. THE OBJECTIVE LAW AND NATURAL LAW

...

348

§6. THE OBJECTIVE LAW AND SOCIAL FACTS

...

349

§7. THE OBJECTIVE LAW AS A CRITERION OF JUSTICE ......

350

CHAPTER XV

PRAGMATISM §1. BACKGROUND: RELATION OF PROFESSOR POUND'S THEORY OF JUSTICE TO HIS SOCIOLOGICAL THOUGHT .. .. ..

355

§2. LINKS WITH KOHLER, IHERING AND JAMES: CIVILISATION OF THE TIME AND PLACE AS MANIFEST IN HUMAN CLAIMS ..

356

§3. ADJUSTMENT OF CONFLICTING CLAIMS BY REFERENCE TO ALL THE INTERESTS PRESSING IN THE PARTICULAR CIVILISATION: LINKS WITH STAMMLER ....... 357 §4. JURAL POSTULATES DRAWN FROM THE HUMAN CLAIMS OR INTERESTS ACTUALLY PRESSING .. ...

359

§5. THE SCHEME OF INTERESTS PRESSING IN THE PARTICULAR CIVILISATION ........

361

§6. THE PROBLEM OF RETROGRESSIVE CIVILISATIONS ......

362

7. ELEMENTS OF CRYPTIC EVALUATION IN PROFESSOR POUND'S CRITERION ........ §8. PROBLEMS OF DEFINITION OF THE "CIVILISATION-AREA" AND THE "CIVILISATION-PERIOD" ...... §9 PROBLEMS OF THE TRANSITIONAL "CIVILISATION-AREAPERIOD"........ .... .. ............ .. §10. CHERCHEZ L'HOMME

........

363 365 366 368

CHAPTER XVI

LAW JUSTICE AND SOCIAL REALITY §I. THE INCONCLUSIVENESS EXAMINED

OF THE

THEORIES OF JUSTICE 37. 371

CONTENTS

xxy

12. METAPHYSICAL THEORIES AND POSITIVIST THEORIES OF Page JUSTICE.. .......................... 372 3. ABSOLUTIST AND RELATIVIST THEORIES OF JUSTICE.. ....

34.

GENERAL FORMULAE JUSTICE ....

AND

374

CONCRETE APPLICATIONS OF .. .. .. ..

§5. LANDMARKS OF THE TREK TO JUSTICE

...

374 375

PART III

LAW AND SOCIETY CHAPTER XVII

SCOPE AND NATURE OF SOCIOLOGICAL JURISPRUDENCE 1. NATURE OF THE INQUIRY INTO LAW IN SOCIETY.. §1. IS THERE A SEPARATE SOCIAL SCIENCE OF LAW? ..

..

..

..

391

..

391

§2. THE VIEW THAT A DISTINCT SCIENCE ("SOCIOLOGY OF LAW") EXISTS OR CAN EXIST SIDE BY SIDE WITH AN APPLIED STUDY OF LAW IN SOCIETY ("SOCIOLOGICAL JURISPRU. DENCE"): CRITICISM ........ 393 3. A DISTINCT SOCIAL SCIENCE OF LAW AS BASED ON THE POSTULATE THAT LAW IS AN INVENTION FOR THE REDUCTION OF SOCIAL DISORDER: CRITICISM ...... 396

II. MAIN STAGES IN THE GROWTH OF THE STUDY OF LAW IN SOCIETY ............ §4. JURISTIC FORERUNNERS: THE HISTORICAL SCHOOL ...... §5. EARLY SOCIOLOGY: MONTESQUIEU ...... §6. THE MECHANICAL ANALOGY IN NINETEENTH CENTURY SOCIOLOGY .......................... 7. THE BIOLOGICAL ANALOGY SOCIOLOGY ..........................

IN

NINETEENTH

399 399 400

401

CENTURY 402

§8. THE RISE OF PSYCHOLOGY AND THE RAPPROCHEMENT OF JURISTIC AND SOCIOLOGICAL STRAINS ..........

403

III. THE PRACTICAL OBJECTIVES OF THE STUDY OF LAW IN SOCIETY ....................... 406 §9. STUDY OF THE LAW IN ACTION ...... 406 §10. SOCIOLOGICAL STUDY AS A BASIS FOR LAW-MAKING AND EFFECTIVE LAW ENFORCEMENT .. .. .. .. ... .. .. 408 §11. STUDY OF LEGAL REASONING AND ESPECIALLY THE JUDICIAL PROCESS IN RELATION TO LEGAL DEVELOPMENT

..

..

410

§12. THE STUDY OF LEGAL HISTORY IN ITS SOCIAL CONTEXT .. 410 §13. STUDY WITH A VIEW TO THE INDIVIDUALISATION OF JUSTICE 411 §14. ESTABLISHMENT OF MINISTRIES OF JUSTICE .... 412

CONTENTS

xxvi

Page §15. SOME ACHIEVEMENTS IN THE DIRECTION OF THE PROGRAMME §16. LAW

IN BOOKS AND

REALIST GLOSS

LAW

IN ACTION:

412

THE AMERICAN 414

..

I. LAW AND SOCIETY IN RETROSPECT CHAPTER XVIII

LAW AND NATIONAL DEVELOPMENT I. BACKGROUND OF THE HISTORICAL SCHOOL'S CONTRIBUTION TO THE STUDY OF LAW IN SOCIETY 421 1. SAVIGNY'S LIFE AND WORK

....

§2. INTELLECTUAL AND POLITICAL BACKGROUND: ROMANTIC REACTION FROM NATURAL LAW

421

HISTORICO.... 423

§3. JURISTIC BACKGROUND: REVIVAL AND RECEPTION OF THE ROMAN LAW .... 424 4. JURISTIC BACKGROUND: THE ADAPTATION OF THE ROMAN LAW IN COURSE OF RECEPTION ....

426

§5. JURISTIC BACKGROUND: THE MODERN ROMAN LAW AND ITS ADAPTATION TO GERMAN NEEDS AND CHARACTER .. .. .. 428

II. LAW, THE SPIRIT OF A PEOPLE (VOLKSGEIST) AND .. .. ITS MATURITY ................ §6. THIBAUT'S CODIFICATION PROPOSAL, 1814. AND SAVIGNY'S REPLY: THE MAIN ISSUE ........ 7. THE "POLITICAL ELEMENT": AND THE VOLKSGEIST .......... §8. THE "TECHNICAL ELEMENT": CODIFICATION ..........................

LEGISLATION JURISTIC

CODIFICATION

MATURITY

AND

430 430 431 433

§9. DID SAVIGNY DENY THE EFFICACY OF CONSCIOUS CREATIVE LEGISLATION GENERALLY? ......

434

§10. RELATION OF SAVIGNY'S LATER WORK TO HIS PROGRAMME FOR DEVELOPMENT OF THE GERMAN LAW ........ ..

436

III. THE

HISTORICAL SCHOOL'S CONTRIBUTION .... SOCIOLOGICAL THOUGHT

TO

§11. THE DOCTRINE OF CONTINUITY: INEXORABILITY ..........................

THE

FALLACY

438 OF

§12. COMMON SOCIAL EXPERIENCE AND RESULTING ATTITUDES: ...... THE FALLACY OF THE VOLKSGEIST §13. THE MAIN CAVEATS ON THE VOLKSGEIST

DOCTRINE ....

438 439 442

§14. LIMITS ON EFFECTIVE LEGAL ACTION: THE FALLACY OF LEGISLATIVE IMPOTENCE ......

444

§15. THE DOCTRINE OF RELATIVITY AND DEPENDENCE OF LAW AND JUSTICE: THE FALLACY OF AUTOMATIC ENDORSEMENT OF THE PAST ........

445

§16. THE HISTORICAL SCHOOL AS PIONEERS OF THE STUDY OF LAW IN SOCIETY ........................

447

CONTENTS

xxvii

CHAPTER XIX

SOCIAL TYPES AND LEGAL TYPES Page

. CORRELATIONS OF SOCIAL AND LEGAL GROWTH IN 451 ..... GENERAL §1. MAINE'S BACKGROUND HISTORICAL SCHOOL

AND

RELATION TO THE GERMAN ...... ....

§2. THE STAGES OF SOCIAL DEVELOPMENT §3. FORMS OF LAW AND OF LEGAL GROWTH

..

§5. THE SOCIOLOGICAL TREND IN ENGLISH JURISPRUDENCE: PAUL VINOGRADOFF §6. AMBIGUOUS ELEMENTS IN THE SOCIOLOGICAL TRENDS ......................

HISTORICAL

453

.....

4. APPRECIATION OF MAINE'S CONTRIBUTIONS ........

456 ..

461

HISTORICAL ....

463

SCHOOL'S 464

7. IDEAS OR SOCIAL CONDITIONS AS CONSTANTS? ........ §8. SOCIAL FACTS AS THE CONSTANTS IN VINOGRADOFF'S SURVEY OF EARLY MARRIAGE ....... §9. HISTORICAL JURISPRUDENCE AND CONTEMPORARY SOCIOLOGICAL JURISPRUDENCE ........ I.

451

466 467 470

CORRELATIONS OF LEGAL AND SOCIAL CHANGE IN THE MODERN PERIOD ...... 471 §10. ORGANIC SOLIDARITY OF THE MODERN URBAN SOCIAL STRUCTURE: EMILE DURKHEIM .... 471 §11. THE COMPLEX ECONOMICALLY ORGANISED SOCIETY: NINETEENTH CENTURY LEGAL TRENDS IN FRANCE .. .. .. 473 §12. THE COMPLEX ECONOMICALLY ORGANISED SOCIETY: MODERN LEGAL TRENDS IN ENGLAND AND AMERICA ..

..

913. THE SOCIAL-PSYCHOLOGICAL FACTOR IN CORRELATION OF LEGAL AND SOCIAL TYPES .... §14. ABSENCE OF CORRELATION AS A FACTOR IN THE STUDY OF LAW IN SOCIETY: "THE CONTEMPORANEITY OF THE NON. CONTEMPORANEOUS" .... §15. SOCIAL CONTEXT OF THE TWENTIETH CENTURY "SOCIALISA. TION OF LAW" ....... §16. ELEMENTS IN MODERN "ORGANIC SOLIDARITY" DISRUPTIVE OF STABLE RELATIONSHIPS BETWEEN THE LEGAL AND SOCIAL ORDERS ......

475

476 479 480 481

II. LAW IN MODERN DEMOCRATIC SOCIETY CHAPTER XX

LAW AS ADJUSTMENT OF

CONFLICTING INTERESTS fl. DE FACTO HUMAN OF LAW .............

INTERESTS AS

THE SUBJECT-MATTER

§2. DE FACTO INTERESTS, LEGAL RIGHTS AND NATURAL RIGHTS: DISTINCTION .... 3. INDIVIDUAL, PUBLIC AND SOCIAL INTERESTS: MEANING OF THE DIVISION ........

487 489 490

xxviii

CONTENTS *

Page

491

§4. CRITICISM OF THIS CLASSIFICATION .............. §5. CONFLICTNG INTERESTS MUST BE PLACED ON THE SAME LEVEL FOR ADJUSTMENT ....................

493

§6. TRADITIONAL CONTROVERSY

494

AS TO PUBLIC POLICY

..

..

7. LORD WRIGHT'S VIEW OF THE RELATION OF PUBLIC POLICY TO JUDICIAL ADJUSTMENT OF CONFLICTING INTERESTS .. 496 §8. THE FENDER AND BERESFORD CASES AND THE NATURE OF 498 PUBLIC POLICY .............. §9. RESULTING RELATION OF "PUBLIC POLICY" TO LAW AND TO THE JUDICIAL PROCESS ....................

499

§10. THE MAIN INTERESTS PROTECTED BY RULES OF PUBLIC 501 POLICY .......

CHAPTER XXI

INDIVIDUAL INTERESTS OR

CONDITIONS OF INDIVIDUAL LIFE IN SOCIETY 1. MAIN CLASSES OF INDIVIDUAL INTERESTS

....

I. INTERESTS OF PERSONALITY

507

....

507

§2. PERSONAL PHYSICAL INTEGRITY: PHYSICAL INTERFERENCE 3. IMMUNITY OF THE WILL FROM COERCION §4. IMMUNITY OF THE MIND AND INJURY ..............................

NERVOUS

....

507 510

SYSTEM FROM 512

§5. IMMUNITY OF THE FEELINGS AND SUSCEPTIBILITIES AND THE CLAIM TO PRIVACY ........

514

§6. HONOUR AND REPUTATION: DEFAMATION ..........................

515

INTERESTS

IN

PLAY

IN

§7. FREEDOM OF BELIEF AND OPINION AND THEIR EXPRESSION

519

§8. INDIVIDUAL INTERESTS IN FAMILY AND CHILD ............................

522

RELATIONS: PARENT

§9. INDIVIDUAL INTERESTS IN THE FAMILY RELATIONS: .... HUSBAND AND WIFE

524

II. INDIVIDUAL INTERESTS OF SUBSTANCE. §10. CLAIMS TO CONTROL VALUABLE THINGS TO THE EXCLUSION OF OTHERS ....

527

§11. SOCIOLOGICAL MEANING OF PHILOSOPHICAL THEORIES OF PROPERTY ............................

529

§12. GENERAL CHANGES IN CLAIMS TO CONTROL CORPOREAL 532 THINGS .............................. ..

533

§14. INDIVIDUAL INTEREST IN THE ASSURANCE OF PROMISED ADVANTAGES: CLAIM TO COMPENSATION FOR INJURIOUS ...... RELIANCE

536

§15. PROMISED ADVANTAGES: CLAIMS TO ENFORCE BARGAINS AND AGREEMENTS AND THE DOCTRINE OF CONSIDERATION

538

§13. FREEDOM OF CONTRACT AND CHOICE OF VOCATION ..

..

xxix

CONTENTS §16. PROMISED ADVANTAGES: EXCEPTIONS TO THE DOCTRINE OF ........ CONSIDERATION §17. PROMISED ADVANTAGES: RECOMMENDATIONS OF THE LAW REVISION COMMITTEE AS TO CONSIDERATION .. .. .. .. §18. PROMISED ADVANTAGES: COUNTERVAILING INTERESTS ..

WITH

INCHOATE

OTHERS:

541 544

.. 545

§19. INDIVIDUAL INTERESTS IN ADVANTAGEOUS RELATIONS WITH ..... OTHERS: EXISTING ADVANTAGES RELATONS §20. ADVANTAGEOUS ............................ ADVANTAGES

Page

546 548 550

§21. THE "RIGHT OF ASSOCIATION" ..................

CHAPTER XXII

SOCIAL INTERESTS OR CONDITIONS OF SOCIAL LIFE OF INDIVIDUALS ..

§ 1. SOCIAL INTEREST IN THE GENERAL SECURITY

..

..

..

555

§ 2. THE GENERAL SAFETY, THE PUBLIC HEALTH, AND PEACE 555 ............ AND ORDER. § 3. SECURITY OF ACQUISITIONS AND TRANSACTIONS .........

561

§ 4. SOCIAL INTEREST IN THE SECURITY OF SOCIAL INSTITUTIONS

563

§ 5. SECURITY OF SOCIAL INSTITUTIONS: THE FAMILY ......

563

FAMILY

AND

THE

LAW

§ 7. SOCIAL INSTITUTIONS: THE FAMILY INHERITANCE .............................

AND

THE

LAW

§ 6. SOCIAL INSTITUTIONS: THE DIVORCE ..............................

OF 565 OF 567

§ 8. SOCIAL INTEREST IN POLITICAL INSTITUTIONS ........

569

§ 9. POLITICAL INSTITUTIONS: TAXATION AS A BASE ........

572

§ 10. POLITICAL STATE

INSTITUTIONS:

CLAIM TO IMMUNITY .........

§ 11.

SOCIAL INTEREST IN RELIGIOUS AND CULTURAL INSTITUTIONS

§ 12.

SOCIAL INTEREST IN THE SECURITY OF ECONOMIC ........................... INSTITUTIONS

FOR THE 573 577

......

578

§ 13. ECONOMIC INSTITUTIONS: TRADE UNIONS, COLLECTIVE LABOUR CONTRACTS: THE MINIMUM INDIVIDUAL LIFE .. .. 581 § 14. SOCIAL INTEREST IN THE GENERAL PROGRESS: ECONOMIC PROGRESS ........

582

§ 15. SOCIAL INTEREST IN ECONOMIC ECONOMIC CHANGE ........................

585

§ 16.

PROGRESS:

EFFECTS

OF

SOCIAL INTEREST IN ECONOMIC PROGRESS: PRESERVATION OF COMPETITION AS REQUIRING AFFIRMATIVE STATE ACTION 588

§ 17. SOCIAL INTEREST IN ECONOMIC PROGRESS: CONTEMPORARY RELATION TO THE COMMON LAW POLICIES ........ ....

589

§ 18.

SOCIAL INTEREST IN POLITICAL PROGRESS

....

590

§ 19. SOCIAL INTEREST IN CULTURAL PROGRESS

....

593

xxx

CONTENTS

§ 20. THE SOCIAL INTEREST IN MINIMUM STANDARDS INDIVIDUAL LIFE .........................

Page

OF

595

§ 21. RELATION BETWEEN THE CLAIM TO MINIMUM STANDARDS OF LIFE AND THE CLAIM TO THE PRESERVATION OF EXISTING ECONOMIC AND POLITICAL INSTITUTIONS ............ 598 § 22. SOCIAL INTEREST IN THE GENERAL MORALS .... 599 § 23. SOCIAL INTEREST IN THE CONSERVATION OF NATURAL RESOURCES ............................ 601

CHAPTER XXIII

FREEDOM AND CONTROL OF ECONOMIC ASSOCIATION I.

REGULATIVE AND BARGAINING ASSOCIATIONS AND THE RIGHT OF ASSOCIATION .. .. .. ..

607

§1.

COMPLEXITY OF THE INTERESTS INVOLVED IN PROBLEMS OF ECONOMIC ASSOCIATION ..................

607

§2.

CONTRAST OF THE PRE-NINETEENTH CENTURY REGULATIVE ASSOCIATION WITH THE MODERN COMPETITIVE OR BARGAINING ASSOCIATION ..................

608

§3.

TRANSITION FROM THE REGULATIVE TO THE COMPETITIVE ASSOCIATION ..........

609

§4.

THE LAW OF CONSPIRACY (COMBINATIONS) IN TRANSITION

611

II. ECONOMIC ASSOCIATIONS AND THE JUDICIAL "NEUTRALITY" §5. §6.

7. §8.

§9. §10.

GROWTH ....

OF

THE MOGUL CASE: CONFLICTS OF TRADERS INTER SE .. THE QUINN CASE AND PLANT V. WOODS; CONFLICTS OF WORKERS' ASSOCIATIONS WITH INDIVIDUAL NON-MEMBERS OR OTHER WORKERS' ASSOCIATIONS FOR BARGAINING STRENGTH.. ......................... SORRELL V. SMITH: CONFLICTS BETWEEN ASSOCIATIONS OF TRADERS FOR COMPETITIVE STRENGTH ... THE HARRIS TWEED CASE: CONFLICTS OF ASSOCIATIONS OF TRADERS AND THEIR WORKMEN AGAINST OTHER TRADERS ....... THE HARRIS TWEED CASE: CRISIS OF THE SINGLE FORMULA

612

616 619

620

622 THE HARRIS TWEED CASE: THE REIMPORTATION OF ASSESSMENTS OF ACTUAL CONFLICTS OF INTERESTS INTO THE FORMULA .......... 624

III. LEGISLATIVE ADJUSTMENTS OF THE CONFLICTING INTERESTS RAISED BY WORKMEN'S ASSOCIATIONS ..-.-.-.-.-.-..-.-.-.-.-.-.§11.

612

THE LEGITIMATION OF WORKERS' COLLECTIVE BARGAINING, STRIKES AND PICKETING .. .........

626 626

§12.

ECONOMIC ASSOCIATIONS AND THE SOCIAL INTEREST IN 628 ....... THE GENERAL SECURITY

§13.

ECONOMIC ASSOCIATIONS AND THE SOCIAL INTEREST IN THE SECURITY OF POLITICAL INSTITUTIONS .. .. .. .. 630

§14.

ECONOMIC ASSOCIATION AND THE SOCIAL INTERESTS IN NATURAL RESOURCES AND ECONOMIC PROGRESS .. .. ..

631

CONTENTS

§15.

xxxi

CONFLICTING INTERESTS BEHIND THE RISE OF COLLECTIVE Page BARGAINING IN THE UNITED STATES ... 633

IV. LEGISLATIVE ADJUSTMENTS OF THE CONFLICTS OF INTERESTS CAUSED BY THE RISE OF TRADERS' COMBINATIONS AND LARGE SCALE ENTERPRISE §16. THE RISE OF JOINT COMBINATIONS OF CAPITAL .. .. .. §17. CORPORATE CONCENTRATIONS OF CAPITAL: CONFLICTS WITH THE INTEREST OF SHAREHOLDERS AND THE CONSUMING PUBLIC ...................... §18. CORPORATE AND OTHER CONCENTRATIONS OF CAPITAL, IN RELATION TO THE CLAIMS TO EFFICIENCY AND PROGRESS THROUGH COMPETITION: THE AMERICAN ANTI-TRUST LAW §19. POSITIVE ACTION FOR THE ADJUSTMENT OF THESE CONFLICTS WITH ECONOMIC SECURITY, EFFICIENCY AND PROGRESS .64............64

637 637 638 640

III. SOCIAL, ECONOMIC AND PSYCHOLOGICAL FACTORS IN LEGAL STABILITY AND CHANGE CHAPTER XXIV

THE DEPENDENCE OF LAW 649 § 1. LAW AS ONE AMONG MANY TYPES OF SOCIAL PRESSURE § 2. INTERDEPENDENCE AND CONFLICTS BETWEEN STATE LAW 651 AND OTHER SOCIAL PRESSURES .................. § 3. DENIALS OF THE IDENTITY OF STATE LAW: COMTE'S ...... 652 MECHANICAL SOCIOLOGY § 4. DENIALS OF THE IDENTITY OF LAW: SPENCER'S EVOLUTIONISM 653 § 5. DENIALS OF THE IDENTITY OF LAW: THE SOCIALIST THEORY OF "WITHERING AWAY" OF THE STATE .. ... 654 § 6. DENIALS OF THE IDENTITY OF LAW: MERGER OF LAW IN THE "FACTS" OF SOCIAL SOLIDARITY .... 658 § 7. DENIALS OF THE IDENTITY OF LAW: THE ANARCHIST REJECTION OF LEGAL FORCE ...... 660 § 8. KINDS OF SOCIAL UNIFORMITIES: NATURAL UNIFORMITIES 661 § 9. SOCIAL UNIFORMITIES: IMITATION AND INVENTION .. .. .. 662 § 10. SOCIAL UNIFORMITIES: IMPOSED UNIFORMITIES .. .. .. ...665 § 11. PSYCHOLOGICAL ELEMENTS IN LAW AS A SOCIAL PHENOMENON 667 § 12. SOME OTHER TRENDS IN PSYCHOLOGICAL THOUGHT RELEVANT TO THE STUDY OF LAW IN SOCIETY ........ 669

CHAPTER XXV

SOCIO-ETHICAL PRESSURE OR SOCIAL "USE AND WONT" I. THE §l. §2.

MEANING STRUCTURE AND OPERATION OF SOCIO-ETHICAL CONVICTION ... 673 SOCIAL-PSYCHOLOGICAL EXPLANATIONS OF THE "OUGHT" 673 THEORIES OF THE "NON-LOGICAL" OR "NON.RATIONAL" .. 675 CHARACTER OF ETHICAL CONVICTION .........-

xxxas

CONTENTS

3. TRADITIONAL THEORY OF THE JUDICIAL PROCESS AS AN Page EXAMPLE OF RATIONALISATION ...... 677 §4. §5.

EMOTION OR REASON AS JUDGMENTS? ..........................

THE

SOURCE

OF "OUGHT" 679

STRUCTURE AND OPERATION OF SOCIO-ETHICAL CONVICTIONS: "USE AND WONT" OF THE GROUP ..

..

..

.....

..

681 683

§6.

THE ROLE OF RETRIBUTIVE IMPULSES

§7.

CHANGES IN SOCIO-ETHICAL CONVICTION OR SOCIAL "USE ............ AND WONT"

II. FACTORS OPERATING IN DETERMINING THE SELECTION OF SOCIO-ETHICAL CONVICTIONS

685 687

§8.

SIMPLE THEORIES OF DETERMINATION UNSATISFACTORY ..

687

§9.

PERSISTENT INFLUENCE OF THE ECONOMIC DETERMINIST VIEW ......

689

§10.

"INSTITUTIONAL" VIEW OF THE DETERMINATION .... ETHICAL CONVICTION AND LEGAL IDEALS

695

§11.

COMPLEXITY OF SOCIO-ETHICAL DETERMINATION ......

OF

697

III. DICEY'S "LAW AND PUBLIC OPINION" IN RETROSPECT

699

§12.

DICEY'S INSIGHT INTO THE NATURE OF "PUBLIC OPINION" 699

§13.

DICEY'S VACILLATION AS TO THE RATIONAL OR EMOTIONAL ORIGIN OF ETHICAL CONVICTIONS ................

700

CHAPTER XXVI

POWER AND THE COMPLEXITY OF LAW 1. POWER IN SOCIAL RELATIONS 1.

..............

705

POWER AS A BASIC SOCIAL PHENOMENON

....

§2.

SOCIAL-PSYCHOLOGICAL NATURE OF THE POWER RELATIONSHIP ............

§3.

DEPERSONALISATION POWER ...........

§4. §5.

AND

TRANSPERSONALISATION

705 707 OF 709

NAKED POWER AND TRANSPERSONALISED POWER .... CONTRASTED ...... FORCE OF AUTO-LIMITATION OF THE DOCTRINES

[1. THE SOCIOLOGICAL NATURE DEMOCRACIES

OF LAW IN WESTERN ....

§6.

CAN THE COMPLEXITY OF THE SOCIAL ASPECT OF LAW BE .... SIMPLIFIED? 7. LAW IN TERMS OF FUNCTION AND METHOD: PROFESSOR LLEWELLYN'S ANALYSIS ........ §8. THE CONSENT PRINCIPLE AND ITS RELATION TO POWER AND ..... LAW IN WESTERN DEMOCRACIES §9. MEANING OF THE ETHICO-IMPERATIVE NATURE OF LAW IN DEMOCRACY .......................... §10. "THE RULE OF LAW" AND THE SOCIO-ETHICAL CHECK ON .... POWER: ENGLISH AND AMERICAN FORMS §11. CONSTITUTIONAL CONVENTIONS IN RELATION TO POWER AND SOCIO-ETHICAL

CONVICTION

..

..

711 712 714 714 717 721 723 724 726

CONTENTS

xxxams

Page

§12.

SURVIVAL OF NAKED SYSTEMS ......

POWER IN DEMOCRATIC

LEGAL

III. POWER IN DEMOCRACY: HIERARCHICAL OR FEDERAL? ..............

..

..

729

§13.

STRUGGLE OF COMPETING POWER STRUCTURES ..

§14.

HIERARCHISATION AND STABILITY OF POWER STRUCTURES: .... CRITICISM

730

..

731

..

733

..

DEMOCRATIC POWER-STRUCTURES AS FEDERAL

15.

..

727

.. 729

..

GROUP.LIFE HIERARCHICALLY AND FEDERALLY VIEWED

§16.

IV. CHANGE AND REVOLUTION IN RELATION TO LAW.. §17.

REVOLUTION IN TERMS OF POWER

§18.

REVOLUTION IN TERMS OF SOCIO-ETHICAL CONVICTIONS

§19.

DISINTEGRATION

§20.

REVOLUTIONS

OF

CONFLICT OF

SOCIO-ETHICAL

DISTINGUISHED

IN

......

INSPIRED BY INSURGENT

735

LAW WITH ......

CONVICTIONS

COMPLEX INDUSTRIALISED SOCIETIES

735

....

..

SOCIAL CREEDS

....

737

739 741

V. DIVERGENCIES BETWEEN HUMAN BEHAVIOUR AND LAW IN MODERN SOCIETY ...... .. ..

742 .. 742 .. .. §21. VARIABILITY OF THE DEGREE OF DISCREPANCY §22.. NORMAL DIVERGENCIES OF JUDICIAL DECISIONS FROM RULES IN THE "BOOKS"

§23.

IN ANGLO-AMERICAN

NORMAL DIVERGENCIES OF LAW-OBSERVING FROM LEGAL RULES ......................

§24.

ABNORMAL DIVERGENCIES IN MAKING BEHAVIOUR ...........

LAW

..

..

744

BEHAVIOUR 746

LAW-APPLYING AND LAW.

748

CHAPTER XXVII

LAW AND SOCIAL CONTROL I. SOCIAL CONTROL AS AN INTEGRAL PROCESS .. 1. LESSER DIFFERENTIATION OF YOUNGER SOCIETIES ...................... §2.

SOCIAL

SHIFTING BOUNDARIES BETWEEN CONTROLS ............................

§3.

THE INTERDEPENDENCE OF LEGAL SOCIAL CONTROLS .........................

..

..

CONTROLS

753 LEGAL AND

AND

OTHER

EXTRA-LEGAL

......

758

§4.

DIRECT SOCIAL CONTROLS

§5.

INDIRECT SOCIAL CONTROLS: MASS IMPULSES AND STABLE

§6. §7.

B

..

.....

754 755

II. MAIN TYPES OF SOCIAL CONTROLS AND MECHANISMS IN LARGE GROUPS

GROUP CONVICTIONS

753

IN

.... .

......

758 759

INDIRECT CONTROLS: "RATIONALISATION" OF BEHAVIOUR BY A COMPLEX SYSTEM OF CO-OPERATION TO A GIVEN END

759

INDIRECT CONTROLS: UNPATTERNED SITUATIONS ......

760

xxxir

CONTENTS Page

§8. §9.

SOCIAL MECHANISMS: LABOUR

COMPETITION ..........

AND

DIVISION

762

LIMITED EFFECTIVENESS, CONCURRENCE, CONFLICT AND ALTERNATIVE AVAILABILITY OF CONTROLS ........

III. RELATION OF LAW TO OTHER SOCIAL CONTROLS

764

767

..

§10.

"CONTROL OF CONTROLS": THE JURISTIC BACKGROUND

..

767

§11.

DOES PARAMOUNTCY OF CONTROL THROUGH LAW ASSUME PRELIMINARY GENERAL AGREEMENT AS TO ENDS? .. ..

769

CAN ACCEPTABLE STANDARDS OF JUSTICE EMERGE FROM SOCIAL EXPERIENCE WITHOUT ADVANCE AGREEMENT? ..

771

§12. ,

OF

§13.

ASSURANCE

OF A MINIMUM

STANDARD

FOR

ALL

AS

A

GENERALLY AGREED BASIC END ................ §14.

773 DEGREES OF LEGAL CONTROL NECESSARY FOR THE ATTAINMENT OF A GENERAL MINIMUM STANDARD .. .. .. 774

IV. IS THE FURTHER EXTENSION OF SOCIAL CONTROL THROUGH LAW CONSISTENT WITH DEMOCRACY? §15.

COMPATIBILITY. OF EXTENDED LEGAL CONTROL RESPONSIBILITY OF RULERS ............

§16.

CAPACITY OF THE DEMOCRATIC ELECTORATE TO DEAL WITH THE ISSUES INVOLVED IN EXTENDED CONTROL ........

§17.

THE PROBLEMS OF INTELLECTUAL AND MORAL FREEDOM COMPATIBILITY OF EXTENDED LEGAL CONTROL WITH INDIVIDUAL ECONOMIC FREEDOM .............. THE SPHERE OF LAW AND THE SPHERE OF INDIVIDUAL INITIATIVE .. .......................

§18. §19.

V. THE MANSIONS OF JUSTICE ........... V§20. §21.

WITH 775

..

..

LAW AND MAN'S SOCIAL DESTINY ........ JUSTICE AS A RELATION BETWEEN WANTS, RESOURCES AND OUTLETS FOR DISSATISFACTION ..................

INDEX OF NAMES

..................................

BIBLIOGRAPHY OF WORKS CITED GENERAL

INDEX

*

....................

.................................

775

776 777 779 779

782 782 783

787 793 841

TABLE OF CASES

xxxvii

TABLE OF CASES NOTE: THE MORE IMPORTANT REFERENCES ARE GENERALLY INDICATED IN BOLD TYPE. Page Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth 571 (1943) 67 C.L.R. 116 ........................................... Adkins v. Children's Hospital (1922) 261 U.S. 525 .. 253-54, 409, 582. 591, 596, 637 577 Aldrich v. City of Youngstown 106 Ohio State 342 .......................... 122, 551, 586, 616, 619, 624 Allen v. Flood (1898) A.C. 1 .................... Amalgamated Society of Railway Servants v. Osborne (1910) A.C. 87 .. 630-33 594 American Mercury Incorp. v. Chase (1926) 13 F. (2d.) 224 ................ Amicable Assurance Society v. Bolland (Fauntleroy's Case) 4 Bligh (N.S.) 194 .. 500 571 Anderson v. Gorrie (1895) 1 Q.B. 668 .................................... 565, 567 Andrews v. Andrews (1940) P. 184 ................................. 456 ...................................... Anon. Y.B. (1416) 2 Hen. V, pl. 26 Anon. (1464) Y.B. 4 Edw. IV 8, Digby's transl............................ 227 455 Anon. v. Anon. (1389) Y.B. 13 Rd. II, Plucknett's ed...................... 460 Anonymous Case (1367) 41 Lib. Assisarum 11 ........................... 457 Anonymous Case (1536) 1 Dyer, 14a .................................... 626, 635, 636, 641 Apex Hosiery Co, v. Leader (1940) 310 U.S. 469 ............. 533 Archer-Shee v. Garland (1931) A.C. 212 .................................. 259-60, 581, 596 Arizona Employers' Liability Cases (1918) 250 U.S. 400 .... Arlidge v. Local Government Board (1915) A.C. 120, in C A. sub nom. Rex v. Local Government Board, Arlidge, ex parte (1914) 227, 264 1 K.B. 160 ............................................... 527 Attorney-General for Alberta v. Cook (1926) A.C. 444 ..................... 122, 504, 587 Attorney-General of Australia v. Adelaide SS. Co. (1913) A.C. 781 ..... 99, 560 Attorney-General v. Corke (1933) 1 Ch. 89 ..... 576 Attorney-General v. De Keyser's Royal Hotel Ltd. (1920) A.C. 508 .......... Attorney-General for N.S.W. v. The Brewery Employees' Union of N.S.W. 493, 570 and Others (The Union Label Case) (1908) 6 C.L.R. 469 ...... Attorney-General for Victoria v. The Commonwealth of Australia 493, 570 (1935) 52 C.L.R. 533 ...................................... 503 Attwood v. Lamont .(1920) 3 K.B. 50 .................................... 502 Ayerst v. Jenkins (1873) L.R. 16 Eq. 275 .................................

Bakelite Corporation, Ex parte (1929) 279 U.S. 461 ......................... 574 Baker v. Archer-Shee (1927) A.C. 844 .................................... 533 Baker v. Bethnal Green Corporation (1945) 1 All E.R. 135 ............ 178, 556 Baking Co. v. Bryan (1924) 264 U.S. 504 .................................... 409 Balfour v. Balfour (1919) 2 K.B. 571 ....................................... 526 Bamford v. Osborne (1940) 2 All E.R. 317 ................................. 409 Bank of Columbia v. Oakley 4 Wheaton 235 ................................. 251 Bannatyne v. MacIver (1906) 1 K.B. 103 .................................. 178 Barbier v. Connolly (1884) 113 U.S. 27 ................................... 250 Bartemeyer v. Iowa (1873) 85 US. 129 ................................... 250 Bates' Case (1606) 2 St. Tr. 371 .......................................... 572 Baylis v. Bishop of London (1913) 1 Ch. 127 ............................ 203 Bell v. Lever Bros. Ltd. (1942) A.C. 61 .................................. 186 Benham v. Gambling (1941) A.C. 157 ................ 196, 197, 202, 515, 523 Beresford v. Royal Insurance Co. Ltd. (1936) 2 All E.R. 1052; (1937) 2 K.B. 197 (C.A.) ; (1938) A.C. 586 .... 310, 496, 498-501, 600

xxxviii

Bernard-Calder] Page

601 Bernard v. Monongenela Gas Co. (1907) 216 Pa. 362, 65 Atl. 801 ............ 251, 252, 255 Bertholf v. O'Reilly (1878) 74 N.Y. 509 ......................... 563-64 Bevis v. Bevis (1935) 1 K.B. 22 ..................................... Black and White Taxi Co. v. Black and Yellow Taxi Co. (1928) 276 U S. 518 .. 217 196 Blackwell v. Blackwell (1929) A.C. 318 .................................. Blackwell v. Blackwell (1943) 2 All E.R. 579.............................526 Blunt v. Blunt (1943) 2 All E.R. 76; (1943) A.C. 517..............180, 566-67 550 Board of Trade v. Stock Co. (1904) 198 U.S. 236 523 Bolton v. Miller (1855) 6 Ind. 262 Bomford v. Osborne (1940) 2 All E.R. 317................................579 Bonham's Case (1610) 8 Co. Rep. 114.........................227, 229, 535 Bosch v. Perpetual Trustee Co. (1938) A.C. 463 ............................ 570 Boston Ferrule Co. v. Hills (1893) 150 Mass. 147..........................122 Bourhill v. Young (1943) A.C. 92 ................ 142, 170, 182, 324, 512-15, 558 Bowen v. Hall (1881) 6 Q.B.D. 333.....................................547 Bowerman v. Sheehan (1928) 242 Mich. 95, 219 N.W. 69....................560 Bowman v. Secular Society Ltd. (1917) A.C. 406.................499, 519, 577 Boyse v. Rossborough (1875) L.R. 6 H.L. 2..............................511 Bradley v. Peixoto (1797) 3 Ves. 324....................................504 Bradwell v. The State (1872) 16 Wall. 130...............................250 Brandon v. Osborne (1924) 1 K.B. 348................................... 512 Brennan v. Personnet (1912) 83 N.J.L. 20, 83 Atl. 948 ...................... 560 Bridges v. California (1941) 314 U.S. 252................................. 570 511 Bridgman v. Green (1755) 2 Ves. Sen. 627....... ........................ Brindle, Re The Times, 22 July 1943..................................... 569 Brockbank v. Whitchaven Rly. (1862) 7 H. & N. 834 ....................... 525 184 Brooks' Wharf v. Goodman Bros. (1937) 1 K.B. 534 ....................... 583 Brown v. Burdett (1882) 21 Ch. D. 667 .................................... 526 Brown v. Holloway (1909) 10 C.L.R. 89 ................................... 259 Brown v. Kendall (1850) 6 Cush. 292 (Mass.)............................. 764 Brown v. Walker (1856) 161 U.S. 591 .................................... 569 Brownbridge, Re (1942) 193 L.T. Jo. 185 ................................. 203 Brownlee v. Macmillan (1940) A.C. 802 (P.C.)........................... 598 Buck v. Bell (1926) 274 U.S. 200......................................... Budd v. Morning Telegraph Inc. (1934) 271 N.Y. Supp. 538, 24 App. Div. 142...........................................546, 547 572 Bull v. United States (1935) 295 U.S. 247 .................................. Bullen v. Wisconsin (1916) 240 U.S. 625...........................573, 601 Buller v. Crips (1704) 6 Mod. 29...................................276, 459 174 Bunbury v. Fuller (1853) 9 Exch. 111 ..................................... 512 Bunyan v. Jordan (1937) 57 C.L.R. 1 ..................................... Burnet v. Wells (1933) 289 U.S. 670...................................... 563 Burr v. Theatre Royal. ... Ltd. (1907) 1 K.B. 544............................ 185 Bushel's Case (1670) Vaughan 135....................................... 460 Butchers' Benevolent Association of New Orleans v. The Crescent City Live-Stock.... Co. (The Slaughter House Cases) (1872) 16 Wall. (83 U.S.) 36 ....................... 250, 251-53, 559 Butcher's Union Co. v. Crescent City Co. (1883) 111 U.S. 746.............. 252 Butterworth v. Butterworth (1920) P. 126...............................525

Calder v. Bull (1798) 3 Dall. 386 ........................................ 764 Calvin's Case (1610) 7 Co. Rep. 4.......................................227 Canterbury, Viscount v. Attorney.General (1842) 1 Ph. 306..................574 Cantrell v. Connecticut (1940) 310 U.S. 296 ............................... 522 Card v. Hope (1824) 2 B. & C. 661.......................................501

Carol, In re J. M. (1931)

1 K.B. 317

................................

Cartwright v. Cartwright (1858) 3 De G. M. & G. 982 ....................... Cassidy v. Daily Mirror (1929) 2 K.B. 331...............................517

523 502

TABLE OF CASES

[Catmull-Dransfield

xxxix Page

Catmull, Re (1943) Ch. 262 ............................................. 569 Caudrey's Case (1591) 5 Co. Rep. la, 8a .................................. 454 Chandelor v. Lopus (1625) Cro. Jac. 4 ................................... 458 Chandler v. Webster (1904) 1 K.B. 493 ............................. 178, 414 Chenery Corporation Case, see SEC v. Chenery Corporation. Cheney Bros. v. Doris Silk Corporation, 35 F. (2d.) 279 (C.C.A. 2d., 1929) .. 550 Chester v. Waverley (1939) 62 C.L.R. 1 ............................. 512, 513 Chicago, Milwaukee and St. Paul Railway Co. v. Minnesota (Minnesota Rate Case) (1889) 134 U.S. 418 ........................ 252 Christenson v. Thornby (1934) 192 Minn. 123, 255 N.W. 620 ................. 564 City of London v. Wood (1701) 12 Mod. 669 ............................. 227 Civilian War Claimants Assn. Ltd. v. King (1932) A.C. 14 .................. 574 Clark v. Inland Revenue Com. (1941) 2 K.B. 270, (1941) 192 LT. 31 (C.A.) .. 572 Clay's Policy Re (1937) 2 All E.R. 548 ................................... 539 Cleadon Trust Ltd., re (1938) 55 T.L.R. 154 (C.A.) ........................ 178 Cleaver v. Mutual Reserve Fund Life Assocn. (Cleaver's Case) (1882) 1 Q.B. 147 .......................................... 498499 Cleaver's Case. See Cleaver v. Mutual Reserves Fund Life Assocn. Cole v. Gibson (1756) 1 Ves. Sen. 503 ..................................... 502 Colgate v. Bachelor (1601) 2 Cro. Eliz. 872 ................................. 456 Commissioner of Income Tax v. Pemsel (1891) A.C. 531 .................... 578 Commonwealth v. Rutherford (1933) 160 Va. 524 ............................. 527 Consolidated Exploration Co. v. Musgrove (1900) 1 Ch. 37 ................. 502 Constantine S.S. Co. v. Imperial Smelting Corp. Ltd. (1940) 1 K.B. 812, (1942) A.C. 154 ................................... 169, 171-74, 197 Conway v. Wade (1909) A.C. 506 ........................................ 628 Coppage v. Kansas (1915) 236 U.S. 1 .................................... 635 Corelli v. Wall (1906) 22 T.L.R. 532 .................................... 514 Couldery v. Bartrum (1881) 19 Ch.D. 394 ................................. 540 Cowell v. Rosehill Racecourse (1937) 56 C.L.R. 605 ........................ 514 Cricklewood Property and Investment Trust Ltd. v. Leightons (Investment) Trust Ltd. (1945) 61 T.L.R. 202 .................. 178, 179, 185, 476 Crofter Harris Tweed v. Veitch (1942) A.C. 435 121, 174, 504, 547, 551, 586, 587, 614, 616, 617, 618, 620-626 747 Croston v. Vaughan (1938) 1 K.B. 540 ................................... 548 Cruttwell v. Lye (1810) 17 Ves. 335 ..................................... Currie v. Misa (1875) L.R. 10 Ex. 153 aff. (1876) 1 App. Cas. 554 ........ 543

Damron v. Doubleday Doran & Co. Inc. (1928) 231 N.Y. Supp. 444 .......... 515 Darnel's Case (1627) 3 St. Tr. 1 ............................................ 572 David v. Sabin (1893) 1 Ch. 523 ............................................ 172 Davies v. Davies (1919) 26 C.L.R. 348 ...................................... 491 Davies v. Powell Duffryn Ass. Collieries (1942) 1 All E.R. 657 .............. 196 Davis, In re (1920) 103 Nev. 703 ............................................ 533 Dawkins v. Lord Penrhyn (1878) 4 App. Cas. 51 ............................. 583 Day v. Savadge (1615) Hob. 85 ............................................. 227 Debbs, In re (1895) 158 U.S. 564 ............................................ 633 De Mattos v. Gibson (1859) 4 De G. & J. 276 ................................ 583 Denaby Collieries Co. v. Yorkshire Miner's Assn. (1906) A.C. 384 ............ 627 Denny's Trustee v. Denny (1919) 1 K B. 583 ............................... 503 De W iutz v. Hendricks (1824) 2 Bing. 316 .................................. 500 Dillon v. Public Trustee (1941) A C. 294 (P.C.) ..................... 494, 564 Di Santo v. Pennsylvania (1926) 273 U.S. 34 ................................ 596 Doe v. Calvert (1810) 2 Camp. 387 ........................................ 174 Doherty v. U.S. 94 F (2d.) 495 ............................................ 645 Donoghue v. Stevenson (1932) A.C. 562 ........ 178, 181-2, 186, 187-88, 203, 205 323-24, 555.58 Dransfield v. British Insulated Cables Ltd. (1939) 54 T.L.R. 11 .............. 202

xt Dr.-French]

TABLE OF CASES Page

Dr. Bonham's Case ...................................... See Bonham's Case Dr. Miles Medical Co. v. Park & Sons Co. (1910) 220 U.S. 373 .... 190, 205, 550 514 Du Boulay v. Du Boulay (1869) L.R. 2 P.C. 430 ........................... Dulien v. White (1901) 2 K.B. 669 ............................. 157, 512, 513 Duncan v. Cammel Laird (1942) A.C. 624 ................................ 574 Dunlop Pneumatic Tyre Co. v. Selfridge & Co. Ltd. (1915) A.C. 847 .. 179, 539-41 Dunlop Rubber Co. v. Dunlop (1921) 1 A.C. 367 ........................... 514 627, 628, 633, 636 Duplex v. Deering (1920) 254 U.S. 443 .......................

Eagle Insurance Co. v. Heller (1927) 149 Va. 82 140 S.E. 314...................600 Eagle's Field v. Londonderry (1875) L.R. 4 Ch. D. 693....................174 Earl of Oxford's Case (1616) 1 Rep. in Chan. 1.........................227-8 Earle v. Kingscote (1900) 2 Ch. 585.................................199, 564 East Suffolk Rivers Catchment Board v. Kent ,(1941) A.C. 74; (1940) 4 All E.R. 527................................188, 203, 557, 575 Eastwood v. Kenyon (1840) 11 Ad. & E. 438..............................541 Edge v. Niccolls (1911) A.C. 693.......................................548 Edison v. Edison Polyform Co. 73 NJ. Eq. 136, 67 Ati. 392..................514 Edwards v. Porter (1925) A.C. 1 ....................... 150, 199, 203, 526, 564 Egerton v. Earl of Brownlow (1863) L.R. 4 H.L. 1 ................... 494501 Electric Bond Co. v. S. and E. Commission (1938) 303 U.S. 419...............645 Elsee v. Gatward (1793) 5 T.R. 143.....................................543 English Hopgrowers v. Dering (1928) 2 K.B. 174...........................587 Eshuggayi Eleko v. Government of Nigeria (1928) A.C. 459 .................. 509 Esposito v. Bowden (1875) 7 E. & B. 763.................................501 Ettenfield v. Ettenfield (1939) P. 377 rev. (1940) P. 96 (1940) 1 All ER. 293 (C.A.)........................................... 565 Euclid v. Ambler Realty Co. (1926) 272 U.S. 365 .................... 560, 603 Evans v. Heatheote (1918) 1 K.B. 418................................504, 587 Ewing v. Buttercup Margarine Co. (1917) 2 Ch. 1......................... 548 Exchange Telegraph Co. v. Gregory & Co. (1896) 1 Q.B. 147................ 550 Exner v. Sherman Power Const. Co. (1931) 54 F. (2d.) 510 ................. 560

Faviman v. Perpetual Building Society (1923) A.C. 74 ...................... 139 Fender v. St. John Mildmay (1938) A.C. 1, 33 T.L.R. 885 .... 178, 409, 494, 495

497, 498501, 502, 565 Fibrosa Case.-See Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. (The Fibrosa Case) (1943) A C. 32..................178. 180, 202 Fitch v. Dewes (1921) A.C. 158.......................................... 503 Fitch v. Sutton (1804) 5 East. 230....................................... 543 Five Knights Case, The.-See Darnel's Case. Flemington v. Smithers (1826) 2 C. & P. 292 ........................... ... 522 Flight v. Reed (1863) 1 H. & C. 703.................................... 542 Flint v. Lovell (1935) 1 K.B. 354................... ............. 196 Flynn v. Western Union Telegraph Co. (1929) 199 Wis. 124................ 516 Foakes v. Beer (1884) 9 App. Cas. 605 ................................ 539, 543 Fowler v. City of Cleveland (1920) 100 Ohi State Rep. 158, 126 N.E. 72 . 575 576, 577 Frederick v. City of Columbus 58 Ohio State Rep. 538 ...................... 577 French Marine v. Compagnie Napolitaine D'Eclairage et de Chaufnage par le Gaz (1921) 2 A.C. 494 ........................... 180

TABLE OF CASES

[Gallatin-Hedges

sh

Page Gallatin v. Corning Irr. Co. (1912) 163 Cal. 405, 26 Pac. 864 ................ 602 Garrett v. Taylor (1620) Cro. Jac. 567 ................................ 547, 548 Gee v. Pritchard (1818) 2 Swan. 402 .................................... 228 601 Geer v. Connecticut (1896) 161 U.S. 519 .................................. General Outdoor Advertising Co, v. Dept. of Public Works (1935) 298 Mass. 149 584 German Alliance v. Lewis (1914) 233 U.S. 389 ............................ 644Gilbert v. Stone (1647) Aleyn 35 ....................................... 511 * 496 Gilbert v. Sykes (1812) 16 East. 150 ..................................... Glendarroch, The (1894) P. 226 ......................................... 172 255 Godcharles v. Wigeman (1886) 113 Pa. St. 431 ........................... Good v. Cheeseman (1831) 2 B. & Ad. 328...............................543 Goodson v. Richardson (1873) L R. 9 Ch. App. 221 ......................... 128 Goodwin v. Robarts (1875) L.R. 10 Exch. 337.............................460 Gordon v. Street (1899) 2 K.B. 641.....................................174 Gordon v. United States (1864) 117 U.S. 697..............................764 Goshen v. Stonington (1822) 4 Conn. 209................................226 Gottliffe v. Edelston (1930) 2 K.B. 378...................................564 Granger Cases, The (1876) 94 U.S. 155...................................250 Grant v. Australian Knitting Mills Ltd. (1936) A.C. 85.................555-58 Gray v. Gee (1923) 39 T.L R. 429.......................................525 Great Western Ry. Co. v. Owners of SS. Mostyn (1928) A.C. 57...............199 Great Western and L.M.S. Rly. Cos. v. Smart 24 Rly. Canal and Road Traffic Cases 281......................................... 535 Green v. General Petroleum Corp. (1928) 205 Cal. 328, 270 Pac. 952........... 560 Greene v. Secretary of State for Home Affairs (The Greene Case) (1942) A.C. 284.......................................... 194 Greenwood v. Martin's Bank (1933) A.C. 51.............................. 526 Gregory v. elvering (1938) 293 U.S. 45................................... 573 Griffithis v. Conway Ltd. (1939) 1 All E.R. 685............................. 178 Groom v. Crocker (1939) 1 K.B. 194..................................... 406 Gutsell v. Reeve (1936) 1 K.B. 272..................................... 632 G.W.K. Ltd. v. Dunlop Rubber Co. (1926) 42 T.L.R. 376............. ...... 547

H. v. H. (1928) P. 206.................................................. 527 Haedrich, Matter of (N.Y. 1929) 134 Misc. 741............................ 563 Hague v. C.I.O. (1938) 307 U.S. 406 .................................. 521, 628 Hall v. Wilkins (1933) 33 S.R. (NS.W.) 220 .................... 9.......... 526 Hambrook v. Stokes (1925) 1 K.B. 141..................................512, 513 Hampden's Case (Case of the Ship Money) (1637) 3 St. Tr. 825 ............ 572 Hanson v. Wearmouth Coal Co. (1939) 55 T.L.R. 747...................... 177 Hardie v. Chilton (1928) 2 K.B. 306 (C.A.) ............................... 511 Harson v. Prentice (1897) 27 A.R. 677 (Can ............................. 523 Harrington v. Victoria Graving Dock (1878) 3 Q.B.D. 549 .................. 502 Harris v. Associated Manufacturers Ltd. (1938) 4 All E.R. 401 ................ 186 Harris v. Perry (1903) 2 K.B. 219 ....................................... 139 Hart v. Miles (1858) 4 C.N.S. 371 ..................................... 543 Hartley v. Rice (1808) 10 East 22....................................... 502 Haseldine v. Daw (1941) 1 All E.R. 525, rev. (1941) 2 K.B. 343........ .139, 144 167, 177, 192, .193, 353 Havana Cigar Co. v. Oddenino (1944) 1 C. 179........................... 548 Hawkes v. Saunders (1782) 1 Cowp. 289 .......... ....................... 541 Haywood v. Brunswick Building Society (1881) 8 QB.D. 403 ................ 583 Heap v. Id Coope and Allsop (1940) 2 K.B. 476 (C.A.) (1940) 3 All E.R. 6344......18.....................................202, 205 Heaven v. Pender (1883) 11 Q.B.D. 503.............................. 557-58 Hedges v. Tagg (1872) L.R. 7 Ex. 283.. .................................... 523

xhii Heiner-Jones]

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Heiner v. Scott (The Commonwealth Bank Case) 19 C.L.R. 381.............157 Herd v. Weardale.. .Co. Ltd. (1913) 3 K.B. 771...........................509 Hermann v. Jechner (1855) 15 Q.B.D. 561 (C.A.).........................502 Herne Bay Steamboat Co. v. Hutton (1903) 2 K.B. 683......................174 Herschtal v. Stewart & Ardern (1940) 1 K.B. 155...........................203 Heydon's Case (1584) 3 Co. Rev. 7b.....................................153 Heyman v. Darwins Ltd. (1942) 1 All E.R. 337.............................546 Higgins v. Smith (1939) 308 U.S. 473.....................................573 Hillas v. Arcos Ltd. (1933) 36 Com. Cas. 353..............................546 Hitchman Coal Co. v. Mitchell (1917) 245 U.S. 229 ....................... 633 Hobbs v. Winchester Corporation (1910) 2 K.B. 471........................560 Hodecker v. Striker 239 N.Y. Supp. 315..................................514 Hodges v. Webb (1920) 2 Ch. 129.......................................628 Holbrook v. Morrison (1913) 214 Mass. 209..............................533 Holden v. James (1814) 11 Mass. 396................................229-230 Hollywood Silver Fox Farm v. Emmett (1936) 2 K.B. 468...............533, 584 Homes v. Newman (1931) 2 Ch. 112.....................................175 Horer v. Graves (1831) 7 Bing. 735..................................... 502 Horwood v. Millar's Timber Co. (1927) 1 K.B. 305 (C.A.)..........256, 503-04 Hughes v. Williams (1943) 1 All ER. 535................................ 558 Hutton v. Jones (1909) 2 K.B. 444 (1910) A.C. 20........................... 517 Humphreys v. Black (1901) 2 K.B. 385.................................. 502 Hunt v. Ehrmann Bros. (1910) 2 Ch. 198.................................. 548 Hurst v. Picture Theatres Ltd. (1915) 1 K.B. 1 (C.A.)...................... 514 Hurtado v. California (1883) 110 U.S. 516................................ 250 Hutchinson v. Davis (1940) N.Z.L.R. 490 (C.A.)........................... 502 491, 494, 502 Hyman v. Hyman (1929) A.C. 601 ............................... Hynes v. N.Y.C.R.R. (1921) 231 N.Y. 229......................... 140-41, 177

Imperial Tobacco Co. v. Parslay (1936) 2 All E.R. 515...................... 587 Impositions, The Case of the.-See Bates' Case. Inland Revenue Commissioners v. Duke of Westminster (1936) A.C. 1 .... 572-73 International News Service v. The Associated Press (1918) 248 533, 549-550, 588 U.S. 215.....................................410, International Stevedoring Co. v. Haverty (1926) 272 U.S. 50................. 199 International Tea Stores v. Hobbs (1903) 2 C. 165 ......................... 583 Invercargill v. Patrick (1939) N.Z.L.R. 161 ................................ 503 523 Irwin v. Dearman (1809) 11 East 23 ..................................... Ives v. S. Buffalo Ry. Co. (1911) 201 N.Y. 271 ...................... 259, 408, 596

Jackson v. Union Insurance Co. (1874) L.R. 10 C.P. 125.................... 172 James v. British Insurance Co. Ltd. (1929) 2 K.B. 311...................... 496 Janson v. Driefontien Mines (1902) A.C. 484 .............................. 495 512 Janvier v. Sweeney (1919) 2 K.B. 316 .................................... Jebara v. Ottoman Bank (1927) 2 K.B. 254 .............................. 169 174 Jefferson v. Derbyshire Farmers (1921) 2 K.B. 281........................... Jehovah's Witnesses Case.-See Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth. Jones & Laughlin Case .. See National Labour Relations Board v. Jones & Laughlin Steel Corp. 196 Jones v. Badley (1868) L.R. 3 Ch. App. 363 ............................... 522 Jones v. Brown (1794) 1 Esp. 216, Peake 306, N.P.........................

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[Jones-Lochner

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Jones v. Jones (1916) 2 A C. 481 ........................................ Jorden v. Money (1854) 5 H.L.C. 185 ................................ Joslin, Re (1941) 1 All E.R. 302 ................................... Joy v. Kent (1665) Hardres 418 .........................................

547 537-38 565, 569 459

Kaufman v. Gerson (1904) 1 K.B. 591 .................................... Keeble v. Hickeringill (1706) 11 East 574n ................................ Keen, Re (1937) 1 Ch. 236 ............................................. Keir v. Leeman (1844) 6 Q B. 308 321 (1846) 9 Q.B. 370, 395 .............. Kennedy v. Broun (1863) 13 C.B.N.S. 677 ................................ King v. King (1943) 2 All E.R. 253 ..................................... King's Prerogative in Saltpetre, The (1606) 12 Co. Rep. 12 .................... Knickerbocker Ice Co. v. Steward (1919) 253 U.S. 149 ...................... Knightsbridge Estates Trust Co. v. Byrne (1940) A.C. 613 .......... 186, 202, Knupfer v. London Express (1943) 60 T.L.R. 310 ......................... Krell v. Henry (1903) 2 K.B. 740 ........................................ Krygger v. Williams (1912) 15 C.L.R. 366 ............................... Kubach v. Hollands (1937) 53 T.L.R. 1024 ................................

511 548 195 502 544 567 576 199 747 522 174 571 203

Lake v. Simmons (1927) A.C. 487 ....................................... 174 Lambe v. Eames (1817) L.R. 6 Ch. App. 597 .............................. 228 Lampleigh v. Braithwait (1615) Hobart 105 .............................. 544 Lancaster Motor Co. v. Bremith (1941) 1 K.B. 675 .......................... 189 Lane v. Cox (1897) 1 Q.B. 415 ............................................. 545 Langbridge's Case, Y.B. 19 Edw. III, No. 3 (Pike's transl.), in R. Pound and T. F. T. Plucknett, Readings on the History and System of the Common Law (1913) at 89 ...................... 457 Larrinaga v. Soci&td Franco-Ambricaine (1923) 29 Com. Cas. 1 .............. 179 Latilla v. Inland Revenue Commissioners (1943) A.C. 377 .................. 573 Lavy v. L C.C. (1895) 2 Q.B. 577 ............................................ 180 Lawton, Re (1940) Ch. 984 ................................................. 197 Leach v. D.P.P. (1912) A.C. 305 ..................................... 195, 564 Leathem v. Craig (1899) 2 I.R. 667 ....... .............................. 626 Leather Cloth Co. v. American Cloth Co. (1865) 11 H.L.C. 523 ............ 548 Lee v. Bude and Torrington Junction Ry. Co. (1871) L.R. 6 C.P. 576 ........ 461 Lee v. Muggeridge (1813) 5 Taunt. 36 .................................... 542 Lemieux v. Young (1908) 211 U.S. 489 ................................... 645 Leng (Sir W. C.) & Co. Ltd. v. Andrews (1909) 1 Ch. 763 .................. 503 Lennard's Carrying Co. v. Asiatic Petroleum Co. Ltd. (1915) A.C. 705 ...... 172 Les Affriteurs Runis Societi Anonyme v. Leopold Walford (London) (1919) A.C. 801 ....................................... 539 Levene v. Inland Revenue Commissioners (1928) A.C. 217 .................. 572 Liddle v. County Council (1934) 2 K.B. 101 .............................. 598 Lidington, Re (1940) Ch. 927 ........................................... 569 Lieberman v. Morris (1944) 69 C.L.R. 69 ............................ 491, 494 Liesbosch Dredger Co. v. Edison S.S. Co. (1933) A.C. 460 .......... 170, 182, 183 Liggett, B. (Liverpool) Ltd. v. Barclays Bank Ltd. (1928) 1 K.B. 48 ......... 178 Liggett's Case.-See Liggett, B. (Liverpool) Ltd. v. Barclays Bank Ltd. Lindsley v. Natural Carbonic Gas Co. (1910) 220 U.S. 61 .................... 122 Linlithgow v. N.B. Rly. (1914) S.C. (H.L.) 38 ............................. 154 Liversidge v. Anderson (1942) A.C. 206 .... 169, 185, 193-4, 195, 509, 571, 572, 725 Lloyd's v. Harper (1880) 16 Ch. D. 290 .................................. 539 Lochgelly Iron and Coal Co. v. M'Mullen (1934) A.C. 1 .................... 199 Lochner v. New York (1905) 198 U.S. 45 ................................ 501

xliv London-Morris]

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London & South Western Ry. v. Gomm (1882) 20 Ch. D. 562 ................ 504 Long Island R.R. Co. v. Department of Labor (1931) 256 N.Y. 498 .......... 596 Loucks v. Standard Oil Co. (1919) 224 N.Y. 99 ........................... 598 Louisville R.R. Co. v. Letson (1844) 2 How. (U.S.) 479 .................... 459 Lovibond v. G.G. of Canada (1930) A.C. 717 .............................. 573 Lowe v. Peters (1768) 4 Burr. 2225 ..................................... 502 Lozon v. Pryse (1840) 4 Myl. & C. 600 ................................... 561 Lumley v. Gye (1853) 2 E. and B. 216 ...................... 204, 54647, 627 Lynch v. Knight (1861) 9 H.L.C. 577 ......................... 512, 516-517, 525

McCord v. The People (1871) 46 N.Y. 470 ............................... 199 MeEllistrim v. Ballymacelligott Co-operative Agricultural and Dairy Society (1919) A.C. 548 .................................... 587 M'Gibbon v. Abbott (1885) L.R. 10 App. Cas. 653 ......................... 150 McIntyre v. Crossley (1895) A.C. 457 .................................... 406 618-620 McKernan v. Fraser (1931) 46 C.L.R. 343 ............................. 547, 588 MacLean v. The Workers Union (1929) 1 Ch. 602 ...................... McMillan v. Canadian Northern Rly. (1923) A.C. 120.......................176 McPherson v. Buick Motor Co. (1916) 217 N.Y. 382....................555.60 McQuaker v. Goddard (1940) 1 K.B. 687 .................................. 176 Machado v. Fontes (1897) 2 Q.B. 231..................................... 176 MacKenzie-Kennedy v. Air Council (1927) 2 KB. 517.................. 575, 576 Maddison v. Alderson (1883) L.R. 8 App. Cas. 467....................... 538 203 Malfroot v. Noxal Ltd. (1935) 51 T.L.R. 551 .............................. Manvell v. Thomson (1826) 2 C. and P. 303.. .............................. 523 Market Overt, The Case of (1596) 5 Co. Rep. 83 B ...................... 561, 562 185 Marrison v. Bell (1939) 2 K.B. 187, (1939) 1 All E.R. 745 .................. 165, 199 Marshall v. Industrial Commission (1931) 432 Ill. 400, 74 N.E. 534 .... 503 Mason v. Provident Clothing Co, (1918) A.C. 724 ........................... .... 517, 586, 624 Mayor of Bradford v. Pickles (1895) A.C. 587 .............. 517 Meldrum v. Australian Broadcasting Co. (1932) Vict. L.R. 425 .............. 515 Melvin v. Reid (1931) 112 Cal. App. 285 .................................... 596 Menzies v. Motor Finance Corporation (1940) 1 K B. 559 ................... 252 Meyer v. Nebraska (1932) 262 U.S. 390 .................................... Miles v. Wasner (State of Washington, 1931) unreported, cited 517 in 46 Harv. L. Rev. 133 ......................................... Miles Medical Co. Case .......... See Dr. Miles Medical Co. v. Park & Sons Co. 612 Miller v. Amalgamated Engineering Union (1938) Ch. 669 .................. 251, 255, 294 Millett v. People of State of Illinois (1886) 117 Ill. 295 .......... Millinery Creator's Guild v. Federal Trade Commission 109 F 550 (2d.) 175 (C.C.A. 2d, 1940) ...................................... 509 Millner v. Raith (1942) 66 C.L.R. 1 ..................................... 180 Mills v. Jennings (1880) 13 Ch.D. 639 .................................... Minnesota Rate Case. See Chicago, Milwaukee and St. Paul 252 Railway Co. v. Minnesota ........................................ 601 Missouri v. Holland (1920) 252 U.S. 416 .................................. 510 Mitchell v. United States (1941) 313 U.S. 89 .............................. Mogul Steamship Co. v. McGregor Gow & Co. (1889) 23 Q.B.D. 122, 185, 551, 587, 613-19 598 (C.A.) aff. (1892) A.C. 25 .............. 620, 622, 625, 626, 628, 638 Monk v. Warbey (1935) 1 K.B. 75 ....................................... 556 Monopolies, The Case of (1622) 11 Co. Rep. 84b ......................... 584 Montefiore v. Menday Motor Co. (1918) 2 K.B. 241 ....................... 501 Morgan, Re (1942) Ch. 345, sub. nom. Perrin v. Morgan (1943) A .C. 399 ................................................ 179, 198 561 M organ v. Ashcroft (1938) 1 K.B. 49 ...................................... 184 Morris, Re (1943) 43 S.R. (N.S.W .) 352 ................................ 494, 500 Morris v. Britannic Ass. Co. Ltd. (1931) 2 K.B. 125 ......................... 166 M orris v. Saxelby (1916) A.C. 688 .......................................... 503

TABLE OF CASES

[Morton-Paine xhr Page

..... ................... Morton Salt Co. v. Suppiger (1941) 314 U.S. 488 Moses v. Macferlan (1760) 2 Burr. 1004 .................................. Muller v. Oregon (1908) 208 U.S. 412 ................................... Mnnn v. Illinois (1876) 94 U.S. 142 .............................. 249, 250, Munro Brice & Co. v. War Risks Association Ltd. (1918) 2 K.B. 78 .......... Murphy v. N. Ireland Transport Board (1937) N.I. 22 ....................... Murray v. Charleston (1877) 96 U.S. 432 .................................. Mutual Film Corporation v. Ohio Industrial Commission (1914) 236 U .S.

230

..............................................

591,

585 460 409 252 171 200 562

599, 600

Mutual Life Co. v. Johnson (1920) 243 U.S. 96 ..............................

499

Naas v. Westminster Bank Ltd. (1940) A.C. 366; (1940) 1 All E.R. 485 (C.A.) 178 National Labor Relations Board v. Jones & Laughlin Steel Corp. (1937) 301 U.S. 1 .......................................... 635-37 National Skee-Ball Co. Inc. v. Seyfried (1932) 110 N.J. Eq. 18 ............... 546 Naylor v. Canterbury Racecourse (1935) 35 S.R. (N.S.W.) 28 .............. 514 Nebbia v. New York (1934) 291 U.S. 502 ......................... 584, 637, 644 Nelson v. Cookson (1940) 1 K.B. 100 ................................ 191, 202 Neville v. London Express Newspaper Co. (1919) A.C. 368 .................. 502 New Century... v. Northern Ireland... (1942) AC. 509 .................... 174 Newsholme Bros. v. Road Transport Co. (1929) 2 K.B. 356 .................. 180 New State Ice Co. v. Liebmann (1931) 285 U.S. 262 .. 409, 584, 615, 637, 644, 646 Newstead v. London Express (1940) I K.B. 377 ............................ 517 Newton v. Hardy (1933) 49 T L.R. 522 .................................. 526 New York C.R.R. v. White (1917) 243 U.S. 188 ........................... 259 Nisbett & Potts Contract, Re (1906) 1 Ch. 386 ............................. 129 Nixon v. Attorney-General (1931) A.C. 184 ............................... 574 Noble State Bank v. Haskell (1911) 219 U.S. 104 ........................... 645 Noel v. Ewing (1857) 9 Ind. 37 ......................................... 258 Nokes v. Doncaster Amalgamated Collieries (1940) A.C. 1014 .. 199, 257, 194-95 Nordenfelt v. Maxim Nordenfelt (1894) A.C. 535 .......... 257, 499, 502-04, 548 North West Mutual Life Co. v. Johnson (1920) 254 U.S. 96 ................. 499 North Western Salt Co. Ltd. v. Electrolytic Alkali Co. Ltd. (The Salt Case) 1914 A.C. 471 ................. A............ 503, 587 Nunemacher v. State (1906) 129 Wis. 190 ............................ 258-59

O'Brien, Ex parte (1923) 2 K.B. 361 ..................................... O'Connor v. Waldron (1935) A.C. 76 ..................................... Official Assignee of Cheah Soo Tuan v. Khoo Saw Cheow (1931) A.C. 67 ...... O'Gorman v. Hartford Ins. Co. (1930) 282 U.S. 251 .................... 535, Oliver v. Birmingham . . . Omnibus Co. Ltd. (1933) 1 K.B. 35 .............. Olmstead v. United States (1927) 277 U.S. 438 ......................... 515, Olsen v. Nebraska (1939) 313 U.S. 236 ................................ 253, Oppenheim v. Kridell (1923) 236 N.Y. 150 ................................ Osborne v. Amalgamated Society of Railway Servants (Osborne's Case) (1910) A.C. 87 ...................................... 501, Owens v. Liverpool Corporation (1939) 1 K.B. 394 (C.A.) ............ 170,

Paine v. Colne Valley Electric Supply Co., Ltd. (1939) 160 L.T. 124, 55 T.L.R. 181 .....................................

509 571 172 644 598 600 596 525 733 513

203

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504, 587 Palmolive Co. Ltd. v. Freedman (1928) 1 Ch. 264, (1929) 2 Ch. 333 .... 183, 186 Palsgraf v. Long Island R.R. (1928) 248 N.Y. 338; 162 N.E. 99 .......... 199 Panama R.R. Co. v. Rock (1924) 266 U.S. 209 ............................. 542 Panoutsos v. Raymond Hadley Corp. (1917) 2 K.B. 473 ..................... 179 Paradine v. Jane (1647) Aleyn 26 ....................................... 204, 538 Pasley v. Freeman (1789) 2 T.R. 51 ................................ Pasos of Ballater, Owners of the Steamship v. Cardiff Channel Dry Docks.. .Co. Ltd. (1942) 2 All E.R. 79 ....................... 558 544 Paynter v. Williams (1833) 1 C. & M. 810 ................................. People v. Marx (1885) 99 N.Y. 377 .................................. 252, 255 199 People v. Tompkins (1906) 186 N.Y. 413 ................................ Perrin v. Morgan.-See Re Morgan. Peterson, Ex parte (1920) 253 U.S. 300 .................................. 409 Peterson v. Western Union Telegraph Co. (1898) 72 Minn. 41 .............. 518 176 Phillips v. Eyre (1870) 6 Q.B. 1 ......................................... Pickett v. Walsh (1906) 192 Mass. 372, 78 N.E. 753 ...................... 618, 619 Pillans v. Van Mierop (1765) 3 Burr. 1663 .................................. 541 543 Pinnel's Case (1602) 5 Co. Rep. 117 ........................................ Piro v. Foster (1943) 68 C.L.R. 313 ................................ 181, 366, 526 99, 600 Pitts, In re, Cox v. Kilsby (1931) 1 Ch. 546 ........................... 525 Place v. Searle (1932) 2 K.B. 497 ....................................... Plant v. Woods (1899) 176 Mass. 492, 57 N.E. 1011 ......... 510, 588, 617-18, 690 Pledge v. Carr (1895) 1 Ch. 51 .......................................... 180 Pointer, Re (1941) 1 Ch. 60 ... ..................................... .527, 569 Polemis, Re (1921) 3 K.B. 560 ........................... 142, 179, 182-83, 186 Powell v. Pennsylvania (1887) 127 U.S. 678 .............................. 250 Prager v. Blatspiel Ltd. (1924) 1 K.B. 566 ........................... 168, 202 Pratt v. Cook, Son & Co. (1940) A.C. 437 ................................ 595 Priestley v. Fowler (1837) 3 M. & W. 1 .................... 144, 277, 690, 694 Printing Co. v. Sampson (1875) L.R. 19 Eq. 462 ................ 254, 257, 494, 562 Pugh, Re (1943) Ch. 387 ........................................... 569, 570 Pye, Ex parte (1811) 18 Ves. 140 ........................................ 542

Quantock v. England (1770) 5 Burr. 2628 ................................. 562 Quinn v. Leathem (1901) A.C. 495 ................. 121-22, 166, 551, 616-19 623, 624, 626-27 Quong Wing Case.-See Quong Wing v. Kirkendall. Quong Wing v. Kirkendall (The Quong Wing Case) (1911) 223 U.S. 59 .... 254

R. v. Denyer (1926) 2 K.B. 258 (C.C.A.) .................................. R. v. Donoghue (1927) 20 Cr. App. Rep. 132 ............................. R. v. Druitt (1867) 10 Cox C.C. 660 ..................................... R. v. Ewart (1906) 25 N.Z.L. R. 709 ..................................... R. v. Governor of Brixton Prison (1910) 2 K.B. 1056 ....................... R. v. Hilbert (1872) 15,Cox C.C. 82 ........................................ R. v. Justices of Kent (1811) 14 East 395 .................................... R. v. Kataja (1943) Vict. L. R. 145 ......................................... R. v. Kidman (1915) 20 C.L R. 425 ........................................ R. v. Kylsant (1932) 1 K .B. 448 ............................................. R. v. Manley (1933) 1 K.B. 529 (C.C.A.) .................................. R. v. Recorder of Boston (1940) 1 K.B. 290 ............................... R. v. Turner (Turner's Case) (1816) 5 M. & S. 206 ......................... Radcliffe v. Ribble Motor Services (1939) A.C. 215 .................

511 200 510 599 509 627 610 509 509 645 509 603 172 198, 203

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[Railroad-Sorrell

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RR. Retirement Board v. Alton RR. (1935) 295 U.S. 330.......596, 633, 693 Ralli v. Compania Naviera (1920) 2 K.B. 287.............................501 Ralston v. Hamilton (1862) 4 Macq. 397.................................561 Rann v. Hughes (1778) 7 T.R. 350.......................................541 Rawlings v. Rawlings (1919) 121 Misc. N.Y. 140..........................524 Read v. Croydon Corporation (1938) 55 T.L.R. 212 ........................ 557 Read v. Lyons (1945) 1 All E.R. 106 ...... 178, 190, 192, 203, 456, 476, 556, 581 Rentit Ltd. v. Duffield (1937) 3 All E.R. 117 ............................... 203 Reynolds v. Shipping Federation Ltd. (Reynold's Case) (1924) 1 Ch. 24 .... 624 Rhinelander v. Farmers' Loan and Trust Co. (1902) 172 N.Y. 519, 65 N E. 499 .. 581 Ribnik v. McBride (1927) 277 U.S. 350 ............................ 253, 596 Richardson v. Mellish (1825) 2 Bing. 229 ............................... 495 Roberson v. Rochester Folding Box Co. (1902) 171 N.Y. 538 .... 122, 410, 514 Robinson v. State of South Australia (1931) A.C. 704 ...................... 574 Rockhill Tennis Club v. Volker (1932) 331 Missouri 947, 56 S.W. (2d.) 9 .... 603 Rook v. Fairrie (1941) 1 K.B. 507 ...................................... 516 Rose v. Ford (1936) 1 K.B. 90; (1937) A.C. 826 ........................ 196-97 Rothwell v. Caverswall Stone Co. Ltd. (1944) 2 All E.R. 350 .......... 181, 202 Royal Choral Society v. Commissioners of Inland Revenue (1943) 2 All E.R. 101 ......................................... 578 Russel v. Men of Devon (1788) 2 Durn. & East 667 .......................... 577 Russell v. Amalgamated Society of Carpenters (1912) A.C. 42 .............. 504 Russell v. Russell (1924) A.C. 687 .................................. 564-65 Rylands v. Fletcher (1868) L.R. 3 H.L. 330 .......... 177, 178, 190, 260, 204, 388 556, 690, 694, 770

Salt Case, The. See North Western Salt Co. Ltd. v. Electrolytic Alkali Co. Ltd. Saltpetre Case. See The King's Prerogative in Saltpetre. 462 Satku v. Ibrahim (1877) Indian L.R. 2 Bombay 457 ........................ 563 Schneider v. Schneider (1930) 159 Md. 670, 152 Atl. 498 .................. 594 Scopes v. State 154 Tenn. 105 .......................................... 544 Scotson v. Pegg (1861) 6 H. & N. 295 .................................... 165, 199 Scott v. Independent Ice Co. (1919) 135 Maryland 343; 109 Atl. 117 .... 593 S E.C. v. Chenery Corporation (1943) 63 Sup. Ct. 454 ....................... Sedleigh-Denfield v. St. Joseph Society (1940) K.B. 2, (1940) 3 All E.R. 349 .. 177 533 Senior v. Braden (1935) 295 U.S. 422 ....................................... 634 Senn v. Tile Layers Union (1937) 301 U.S. 468 ............................ 199, 564 Seroka v. Kattenburg (1886) 17 Q B.D. 177 .......................... 544 Shadwell v. Shadwell (1860) 9 C.B.N.S. 159 .............................. 443, 723 Shelley's Case (1579-81) 1 Co. Rep. 936 ............................ Shenton v. Tyler (1939) Ch. 620 (C.A.) reversing (1939) Ch. 271 ........ 565 Ship Money, The Case of. See Hampden's Case. 563 Shonfeld v. Shonfeld (1933) 260 N.Y. 477, 184 N.E. 60 ..................... 515 Sidis v. Publishing Corp. (1940) 113 F. (2d.) 806 .......................... Sigley v. Hale (1938) 2 K.B. 630........................................180 184, 191 Sinclair v. Brougham (1914) A.C. 398.........................178, 543 Skelton v. L. & N.W. Rly. (1867) L.R. 2 C.P. 631 .......................... Slaughter-House Cases. See Butchers' Benevolent... v. Crescent City... Co. 150 Smart v. Smart (1892) A.C. 425 ......................................... Smith v. Birmingham Corp. (1939) 4 All E.R. 116.........................202 598 Smith v. Board of Examiners (1913) 85 N.J. Law 46....................... 561 Smith v. Clay (1767) 3 Bro. C.C. 646.................................... 174 Smith a. Hughes (1871) L.R. 6 Q.B. 597................................. 5 502 Smith v. Sorhy (1875) in (187778) 3 Q.B.D. 5 2n.......................... .. 173 Smith Wheateroft (1878) 9 Cb.D. 223 ....... 526 Snedakerv. King (1924) 111 Ohio State 225, 145 N.E. 15 576 Solnik v. The King (1943) N.Z.L.R. 203 .................................. 551, 579, 619-620, 625, 626 Sorrell v. Smith (1925) A C. 700 ................

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TABLE OF CASES Page

Sorensen v. Wood (1932) 123 Nebraska 348 ............................... 517 South Australia v. Commonwealth (The Uniform Tax Case) 200, 205 (1942) 65 C.L.R. .......................................... Southern Foundries (1926) Ltd. v. Shirlaw (1940) A.C. 701; (1940) 2 All E.R. 445 ..................................... 177, 538 199 Southern Pacific Co. v. Jensen (1916) 244 U.S. 205 ........................ South Wales Miners' Federation v. Glamorgan Coal Co. (1905) A.C. 239 .. 627 South West Bell Telephone Co. v. Public Service Commission of Missouri (1922) 262 U.S. 276 ........................................... 591 Sowler v. Potter (1940) 1 K.B. 271, better in (1939) 4 All E.R. 478 .......... 174 Speed v. Thomas Swift and Co. Ltd. (Swift's Case) (1943) 1 All E.R. 539 ..................................... 198, 558 Spencer v. Hemmerde (1922) 2 A.C. 507 .................................. 542 Sports... Agency Ltd. v. "Our Dogs" Publishing Co. Ltd. (1916) 2 K.B. 880 .. 550 Springboard Case, The. See Hynes v. N.Y. C.R.R. St. Louis Poster Advertising Co. v. City of St. Louis (1919) 249 U.S. 269 .... 603 Standard Oil Co. v. U.S. (1910) 221 U.S. 1...............................641 Stanley v. Powell (1891) 1 Q.B. 86................................259, 508 State Bank v. Cooper (1831) 2 Yerg. Tennessee 599..................29230 Stennett v. Hancock (1939) 2 All E.R. 578..............................203 Stewart v. Casey (1892) 1 Ch. 104......................................544 Stoney v. Eastbourne R.D.C. (1927) 1 Ch. 367 (C.A.).......................172 Strathcona S.S. Co. Case. See Strathcona (Lord) S.S. Co. v. Dominion Coal Co. Ltd. Strathcona (Lord) Steamship Co. Ltd. v. Dominion Coal Co. Ltd. (1926) A.C. 108 (P.C.).........................................546 Styler, Re (1942) 1 Ch. 387.........................................527, 569 Swift's Case. See Speed v. Thomas Swift and Co. Ltd. Swift v. Tyson (1842) 41 U.S. 1..........................................217 Sylvester, Re (1941) 1 Ch. 87.......................................527, 569

Taff Vale Railway Co. v. Amalgamated Society of Railway Servants (Taff Vale Case) (1901) A.C. 426 ................... 627, 678, 733 Tamplin (F.A.) Steamship Co. v. Anglo.Mexican Petroleum Products Co. (Tamplin Case) 1916 2 A.C. 397.................................. 202 Tarleton v. MeGawley (1804) Peake 205.................................. 548 Temperton v. Russel (1893) 1 Q.B. 715 .............................. 617, 626 Territory of Hawaii v. Anduha (1931) 48 F. (2d) 171 ....................... 509 Terry v. Hutchinson (1868) L.R. 3 Q.B. 599 ................................ 523 Thoe v. Chicago M. & St. P.R. Co. (1916) 181 Wis. 456..................... 764 Thomas v. Bradbury Agnew (1906) 2 K.B. 627............................. 127 Thompson v. B.M.A. (N.S.W.) (1924) A.C. 764............................ 588 Thorne v. Motor Trade Ass. (1937) A.C. 797........................ 511, 587 Thornhill v. Alabama (1940) 310 U.S. 88 .................................. 628 Tinline a. White Cross Ins. Assn. Ltd. (1921) 3 K.B. 327................... 560 Tithe Redemption Co. v. Wynne (1943) 1 K.B. 756 (C.A.)................. 174 Tolley v. Fry (1931) A.C. 333.......................................... 514 Townsendv. Yeomans (1936) 301 U.S. 441 ............................... 644 Trans.Missouri Freight Ass. Case. See U.S. TransMissouri W. Freight Association. Trego v. Hunt (1896) A.C. 7 ........................................... 548 Truax v. Corrigan (1921) 257 U.S. 312 .............................. 9, 591 True v.Amalgamated Collieries of W.A. Ltd. (1940) A.C. 537 .............. 632 Trueman v. Fenton (1777) 2 Cowp. 544..................2.................. 562 Tulk v. Moxhay (1848) 2 Ph. 777 ........................................ 583 Turner v.Stallibrass (1898) 1 Q.B. 56.................................... 543 Turner's Case. See . Turner. v. Tyson and Brother . Banton (1926) 273 U.S. 418 ........................ 578

TABLE OF CASES

[Ungley-White

xlix Page

Ungley v. Ungley (1877) 5 Ch.D. 887 ..................................... Uniform Tax Case, The. See South Australia v. Commonwealth. Union Label Case. See Attorney-General for N.S.W. v. The Brewery Employees Union of N.S.W. and Others. United Australia Ltd. v. Barclay's Bank Ltd. (1941) A.C. I ................ United Shoe Machinery Co. Ltd. v. Brunet (1909) A.C. 330 ......... 587, U.S. v. Balint (1922) 258 U.S. 250 ................................... ..... U.S. v. Bethlehem Steel Corp. (1941) 315 U.S. 289 ................. 256-7, U S. v. Cruikshank (1875) 92 U.S. 542 ................................... U.S. v. Hartford-Empire Co. (1942) 46 Fed. Supp. 541 (N.D. Ohio) ........ U.S. v. Hutcheson (1941) 312 U S. 219 ................................... U.S. v. Trans-Missouri Freight Association (1896) 166 U.S. 290 .............. U.S. v. Trenton Potteries Co. (1927) 273 U.S. 392 ........................ U.S. v. Univis Lens Co. (1941) 316 U.S. 241 .............................. Upton-on-Severn R.D.C. v. Powell (1942) 1 All E.R. 220 ..................... Usill v. Hales (1878) L.R. 3 C.P.D. 319 ...................................

542

202 588 560 511 250 585 636 641 186 585 185 518

Vacher & Sons Ltd. v. London Society of Compositors (1913) A.C. 107 .. 124, 627 Van Beeck, Administrator v. Sabine Towing Co. Inc. (Van Beeck Case) (1936) 300 U.S. 342 ............................................ 636 Vandepitte v. Preferred Accident Ins. Corp. (1933) A.C. 70 .......... 199, 539 Vanheath v. Turner (1657) Winch. 24 ................................... 459 Victorian Railway Commissioners v. Coultas (1888) L.R. 13 App. Cas. 222 .. 512 Vicars, In the Estate of (1945) 45 S.R. (N.S.W.) 85, 62 W.N. (N.S.W.) 28 .... 573 Vrint, Re (1940) Ch. 920 .. ....................................... 569, 570

Wabash, St. L. & P.R. Co. v. Shacklet (1883) 105 Ill. 364 .................... 122 Waghorn v. Waghorn (1942) 65 C.L.R. 289 ................... 169n, 181, 366 Walker v. Bitlochry Motor Co. (1930) S.C. 565 ............................ 170 Howard deWalden v. Inland Revenue (1942) 1 K.B. 389, (1942) 1 All E.R. 287 .............................. 491, 572-73, 600 Walpole v. Canadian Northern Railway Co. (The Walpole Case) (1923) A.C. 113 ............................................... 176 Walpole Case. See Walpole v. Canadian Northern Railway Co. Ware & De Freville v. Motor Trade Ass. (1921) 3 K.B. 40 .................. 617 Washington Central Bank v. Hume (1888) 128 U.S. 195 ..................... 563 Wason v. Walter (1868) L.R. 4 Q.B. 73 ............................. 518, 590 Watts v. Malatesta (1933) 262 N.Y. 80, 186 N.E. 210 ....................... 600 Weber v. Nasser (1930) 61 Cal. App. Dec. 1259, 206 Pac. 1074 .............. 632 Weeks v. Tybald (1605) Noy 11 ......................................... 541 Weinberger v. Inglis (1919) A.C. 606 ............................... 547, 588 Wells v. Foster (1841) 8 M. & W. 151 ................................... 502 Wennall v. Adney (1903) 3 Bos. & P. 247 (C.P.) .......................... 198 West Coast Hotels Co. v. Parrish (1937) 300 U.S. 379 253, 254, 257, 263, 596, 637, 726 W. London... Bank v. Kitson (1884) 13 Q.B.D. 360 ........................ 174 Western Union Tel. Co. v. Brown (Circuit Court of Appeals, 8th District 1923) 294 Fed. 167 ................................... 518 W hite, Re (1941) 1 All E.R. 236 ..................................... 527, 569 W hite v. Bluett (1853) 23 L.J. Ex. (N.S.) 36 ................................ 541 W hite v. W hite 5 Barb. 474 ............................................... 258 White-Smith Music Co. v. Apollo Co. (1907) 209 U.S. 1 ...................... 549

I Wilkinson-Youssoupoff

TABLE OF T O CASES Page

W ilkinson v. Coverdale (1793) 1 Esp. 74 ................................. W ilkinson v. Downton (1897) 2 Q.B. 57 .................................... Wilkinson v. Osborne (1915) 21 C.L.R. 89 .................................. W illiams v. Bayley (1866) L.R. 1 H.L. 220 ................................. W illiains v. Jones (1865) 3 H. & C. 602 ...................................

W illiams v. M ississippi (1898) 170 U.S. 213 ................................. W illiams v. Moor (1843) 11 M. & W . 256 .................................... Wilson v. Amalgamated Society of Engineers (1911) 2 Ch. 324 ............. W ilson v. Carnley (1908) 1 K.B. 740 ....................................... Wilson v. Scottish Typographical Association (1912) S.C. 534 .............. W ilson v. Turner (1767) Buller N.P. 147 ................................... W ilson v. W ilson (1848) 1 H.L.C. 538 ...................................... W ilsons v. English (1938) A.C. 57 .......................................... W ing v. M ill (1817) 1 B. & Ald. 105 ....................................... Winsmore v. Greenbank (1745) Willes 577 ............................... Wolff Packing Co. v. Court of Industrial Relations (1923) 262 U.S. 522 ...... Workman v. N.Y. City (1900) 179 U S. 552 ............................... Wright v. Cedzich (1930) 43 C.L.R. 493 .................................. Wringe v. Cohen (1940) 56 T.L.R. 101 .................................... Wyatt v. Kreglinger and Fernau (1933) 2 K.B. 793 ....................... Wynne-Finch v. Chaytor (1903) 2 Ch. 475 ..................................

543 512 501 502 174

737 542 630 502 630 544 498 558 544 525 637 577 525 177 257 180

W. Yorks. Darracq Agency Ltd. v. Coleridge (1911) 2 K.B. 326 ............... 543 Young v. Bristol Aeroplane Co. (1944) 60 T.L.R. 536 ............... 180n., 189 Youssoupoff v. Metro-Goldwyn-Mayer Pictures Ltd. (1934) 50 T.L.R. 581 . 517, 518

li

TABLE OF STATUTES GREAT BRITAIN AUSTRALIA NEW ZEALAND....

.

UNITED STATES OF AMERICA

...

..

Iv

*. lvi

EUROPEAN STATES AUSTRIA FRANCE GERMANY

Ivii

SWITZERLAND

Ivii

MISCELLANEOUS ANCIENT LAWS AND

CODES

..

vii

liii

TABLE OF STATUTES GREAT BRITAIN Arranged in Order of Regnal Year. Page (1275). 3 Edw. I (Statute of W estminster 1) ............................... (1349) 23 Edw. III c. 3 (Statute of Labourers & Artificers) ................ (1357) 31 Edw. III c. 7 (Statute of Labourers) ............................... (1531) 23 Hen. VIII c. 3 (Attaints Act) ............. :....................... (1536) 27 Hen. VIII c. 10 (Statute of Uses) ................................ (1540) 32 Hen. VIII c. 1 (Wills Act) ........................... 258, 568, (1555) 2 & 3 Ph. & M. c. 11 (Weavers Act) ................................. (1566) 8 Eliz. c. 11 (Hats and Caps Act) ............................. 294, (1601) 43 Eliz. c 4 (Charitable Uses) ....................................... (1601) 43 Eliz. c. 12 (Policies of Assurance Act) ........................... (1603) 1 Jac. I c. 16 (Thames Watermen Act) ............................... (1603) 1 Jac. I c. 20 (Painting Act) ....................................... (1603) 1 Jac. I c. 24 (Sail Cloth Act) ...................................... (1623) 21 Jac. I c. 3 (Statute of Monopolies) ................................. (1623) 21 Jac. I c. 16 (Limitation Act) ......................... 542, 562, (1624) 21 Jac. I c. 17 (Usury Act) ....................................... (1624) 21 Jac. I c. 24 (Relief of Creditors Act) ............................ (1640) 16 Car. I c. 10 (Star Chamber (Abolition) Act) ...................... (1640) 16 Car. I c. 14 (Ship Money Act) .................................. 274, (1660) 12 Car. II c. 24 (Abolition of Old Tenures Act) ................ (1670) 22 & 23 Car. II c. 10 (Statute of Distributions) ...................... (1677) 29 Car. II c. 3 (Statute of Frauds) ........... .195-96, 561, 563, 600, (1700) 12 & 13 Will. III c. 3 (Privilege of Parliament Act) ................. 276, (1704) 3 & 4 Ann. c. 9 (Bills of Exchange Act) ........................ ..................................... (1709) 8 Ann. c. 21 (Copyright Act) (1721) 8 Geo. I c. 21 & c. 23 (South Sea Company Act ("Bubble Act")) .... (1755-6) 29 Geo. II c. 33 (Woollen Cloth Weavers Act) ...................... (1799) 39 Geo. III c. 81 (Unlawful Combinations of Workmen Act) .......... (1800) 39 & 40 Geo. III c. 90 (Disputes between Masters and Workmen Act) .. (1800) 39 & 40 Geo. III c. 106 (Unlawful Combinations of Workmen Act) .... (1802) 42 Geo. III c. 73 (Health & Morals of Apprentices Act) .............. (1813) 53 Geo. III c. 40 (Wages of Artificers Act) ........................... 608, (1814) 54 Geo. III c. 96 (Statute of Apprentices) ...................... 277, (1824) 5 Geo. IV c. 95 (Combination of Workmen Act) ................ 277, 612, (1825) 6 Geo. IV c. 129 (Combinations of Workmen Act) ........ (1828) 8 Geo. IV c. 17 (Test & Corporation Act) ............................ (1829) 10 Geo. IV c. 7 (Roman Catholic Relief Act) ........................ (1831) 1 & 2 W ill. IV c. 37 (Truck Act) .................................... 267, (1832) 2 & 3 Will. IV c. 45 (Representation of the People Act) ...... (1832) 2 & 3 Will. IV c. 71 (Prescription Act) .............................. 274, 293, (1833) 3 & 4 Will. IV c. 74 (Fines & Recoveries Act) ............ (1833) 3 & 4 Will. IV c. 103 (Children in Factories Act) ..................... (1836) 6 & 7 W ill. IV c. 114 (Felony Act) .................................. (1844) 7 & 8 Viet. c. 45 (Non-Conformist Chapels Act) ..................... (1844) 7 & 8 Vict. cc. 110-111 (Joint Stock Companies Act) ................. (1845) 8 & 9 Vict. c. 106 (Real Property Act) ............................... (1850) 13 & 14 Vict. c. 54 (Factories Act) ................................. 274, (1852) 15 & 16 Vict. c. 76 (Common Law Procedure Act) ............ (1854) 17 & 18 Vict. c. 31 (Railway & Canal Traffic Act) ...................

560 595 455 460 568 743 610 610 578 459 456 455 455 549 574 455 537 572 572 568 568 743 764 459 549 645 610 611 611 277 277 610 610 612 627 293 293 595 292 293 533 277 274 293 645 293 596 294 591

liv

TABLE OF STATUTES Page

(1854) (1855) (1857) (1864) (1864) (1870) (1870) (1871) (1871) (1872) (1873) (1873) (1874) (1875)

17 18 20 27 27 33 33 34 34 35 36 36 37 38

& 18 Vict. c. 90 (Usury Laws Repeal Act) ........................ 293 & 19 Vict. c. 67 (Summary Procedure on Bills of Exchange Act) .. 294 & 21 Vict. c. 85 (Matrimonial Causes Act) ....................... 565 & 28 Vict. c. 95 (Fatal Accidents Act) ..................... 524, 564& 28 Vict. c. 114 (Improvement of Land Act) ..................... 602 & 34 Vict. c. 75 (Elementary Education Act) ...................... 597 & 34 Vict. c. 93 (Married Women's Property Act) ...... 525, 539, 564 & 35 Vict. c. 31 (Trade Union Act) ............................. 627 & 35 Vict. c. 32 (Criminal Law Amendment Act) ................ 627 & 36 Vict. c. 94 (Licensing Act) ................................ 172 & 37 Vict. c. 66 (Judicature Act) ................................ 294 & 37 Vict. c. 66 (Supreme Court of Judicature Act) ............... 294 & 38 Vict. c. 62 (Infants Relief Act) ............................. 542 & 39 Vict. c. 86 (Conspiracy and Protection of Property Act) 627, 628, 630, 634. (1875) 38 & 39 Vict. c. 91 (Trade Marks Registration Act) ................... 548 (1876) 39 & 40 Vict. c. 22 (Trade Union Act Amdt.) ................. 627, 630 (1879) 42 & 43 Vict. c. 49 (Summary Jurisdiction Act) ...................... 172 (1880) 43 & 44 Vict. c. 42 (Employers Liability Act) ....................... 277 (1882) 45 & 46 Vict. c. 61 (Bills of Exchange Act) .......................... 543 (1882) 45 & 46 Vict. c. 75 (Married Women's Property Act) ........... 293, 564 (1885) 48 & 49 Vict. c. 72 (Housing for the Working Classes Act) .......... 199 (1888) 51 & 52 Vict. c. 42 (Mortmain & Charitable Uses Act) .............. 578 (1888) 51 & 52 Vict. c. 64 (Law of Libel Amdt. Act) ....................... 518 (1891) 54 & 55 Vict. c. 51 (Slander of Women Act) ......................... 517 (1893) 56 & 57 Vict. c. 61 (Public Authorities Protection Act) ....... 202, 575 (1893) 56 & 57 Vict. c. 63 (Married Women's Property Act) ................. 564 (1893) 56 & 57 Vict. c. 71 (Sale of Goods Act) ............................ 178 (1896) 59 & 60 Vict. c. 30 (Conciliation Act) .............. ..... 631 (1897) 60 & 61 Vict. c. 37 (Workmen's Compensation Act) ...... 277, 564, 596 (1898) 61 & 62 Vict. c. 36 (Criminal Evidence Act) ........................ 274 (1900) 63 & 64 Viet. c. 12 (Commonwealth of Australia Constitution Act) .. 57R (1900) 63 & 64 Vict. c. 48 (Companies Act) ............................... 645 (1900) 63 & 64 Vict. c. 51 (Moneylenders Act) ........................... 595-6 (1906) 6 Edw. VII c. 47 (Trade Disputes Act) ............. 628, 630, 634, 690 (1907) 7 Edw. VII c. 23 (Criminal Appeal Act) ............................ 744 (1907) 7 Edw. VII c. 27 (Advertisements Regulation Act) ................... 584 (1907) 7 Edw. VII c. 29 (Patents & Designs Act) ........................... 549 (1908) 8 Edw. VII c. 40 (Old Age Pensions Act) ..................... 596, 690 (1908) 8 Edw. VII c. 57 (Coal Mines Regulation Act) ..................... 560 (1908) 8 Edw. VII c. 59 (Prevention of Crimes Act) ........................ 411 (1908) 8 Edw. VII c. 69 (Companies Act) .................................. 645 (1909) 9 Edw. VII c. 22 (Trade Boards Act) ......................... 631, 690 199 (1909) 9 Edw. VII c. 44 (Housing & Town Planning Act) .................. (1909-10) 10 Edw. VII & 1 Geo. V c. 8 (Finance Act) ....................... 533 560, 596, 690 (1911) 1 & 2 Geo. V c. 55 (National Insurance Act) ............ 631, 690 (1912) 2 & 3 Geo. V c. 2 (Coal Mines [Minimum Wage] Act) ........ (1913) 2 & 3 Geo. V c. 30 (Trade Union Act) ........................ 630, 690 (1914) 4 & 5 Geo. V c. 59 (Bankruptcy Act) .............................. 595 199 (1916) 6 & 7 Geo. V c. 50 (Larceny Act) ................................. 631 (1917) 7 & 8 Geo. V c. 46 (Corn Production Act) ......................... 576 (1919) 9 & 10 Geo. V c. 50 s. 26 (Ministry of Transport Act) .............. 631 (1919) 9 & 10 Geo. V c. 69 (Industrial Courts Act) ......................... (1920) 10 & 11 Geo. V c. 5 (War Emergency Laws (Continuance) Act) 560, 629, 630, 728 (1922) 12 & 13 Geo. V c. 16 (Law of Property Act) ........................ 293 (1924) 14 & 15 Geo. V c. 37 (Agricultural Wages [Regulation] Act) ......... 633 199, 545, 602 (1925) 15 & 16 Geo. V c. 14 (Housing Act) ..................... (1925) 15 & 16 Geo. V c. 20 (Law of Property Act) ........................ 602 (1925) 15 & 16 Geo. V c. 23 (Administration of Estates Act) .......... 531, 569 (1925) 15 & 16 Geo. V c. 84 (Workmens Compensation Act) ............... 524 (1926) 16 & 17 Geo. V c. 60 (Legitimacy Act) .............................. 56t

TABLE OF STATUTES

IV Page

(1927) (1928) (1929) (1929) (1929) (1930) (1933) (1934) (1935) (1935) (1936) (1936) (1937) (1937)' (1937) (1937) (1938) (1938) (1938) (1938) (1938) (1938) (1938) (1939) (1939) (1940) (1940) (1941) (1941) (1941) (1943) (1944)

17 18 19 19 19 20 23 24

& 18 & 19 & 20 & 20 & 20 & 21 & 24 & 25

Geo. Geo. Geo. Geo. Geo. Geo. Geo. Geo.

V V V V V V V V

c. c. c. c. c. c. c. c.

22 26 17 23 34 43 53 41

(Trade Disputes and Trade Unions Act) 629, 630, 733 (Administration of Justice Act) ................ 274 559 (Local Government Act) ...................... 645 (Companies Act) ............................. 598 (Infant Life [Preservation] Act) .............. 186 (Road Traffic Act) ........................... 199, 535, 602 (Road & Rail Traffic Act) .......... (Law Reform [Miscellaneous Provisions] Act) 196, 564, 598 25 & 26 Geo. V c. 30 (Law Reform [Married Women & Tortfeasors] Act) 526, 564 199 25 & 26 Geo. V c. 40 (Housing Act) ................................ 573 26 Geo. V & 1 Edw. VIII c. 34 (Finance Act) ....................... 603 26 Geo. V & 1 Edw. VIII c. 49 (Public Health Act) ................. 573 1 Edw. VIII & 1 Geo. VI c. 54 (Finance Act) ....................... 1 Edw. VIII & 1 Geo. VI c. 57 (Matrimonial Causes Act) . 527, 566, 567 1 Edw. VIII & 1 Geo. VI c. 58 (Summary Procedure [Domestic 567 Proceedings] Act) .......................................... 558 1 Edw. VIII & 1 Geo. VI c. 67 (Factories Act) ...................... 408 1 & 2 Geo. VI c. 12 (Population [Statistics Act) .................... 1 & 2 Geo. VI c. 34 (Leasehold Property [Repairs] Act ............. .596 1 & 2 Geo. VI c. 45 (Inheritance [Family Provision] Act) 527, 532, 564, 565, 567, 569, 584, 596 573 1 & 2 Geo. VI c. 46 (Finance Act) ................................ 528, 602 1 & 2 Geo. VI c. 52 (Coal Act) .............................. 545, 595 1 & 2 Geo. VI c. 53 (Hire Purchase Act) ...................... 1 & 2 Geo. VI c. 63 ss. 37-9 (Administration of Justice 575 [Miscellaneous Provisions] Act) ............................... 93-4 2 & 3 Geo. VI c. 62 (Emergency Powers [Defence] Act) .......... 2 & 3 Geo. VI c. 82 (Personal Injuries [Emergency Provisions] Act) .. 558 632 3 & 4 Geo. VI c. 20 (Emergency Powers [Defence] Act) ............ 510 3 & 4 Geo. VI c. 21 (Treachery Act) ............................... 558 4 & 5 Gee. VI c. 12 (War Damage Act) ............................. 562 4 & 5 Geo. VI c. 24 (Liabilities [War-Time Adjustment) Act) ...... 573 4 & 5 Geo. VI c. 30 (Finance Act) .................................. 6 & 7 Geo. VI c. 40 (Law Reform [Frustrated Contracts] Act) . 186, 202 7 & 8 Gee. VI c. 31 (Education Act) ............................... 597

AUSTRALIA Commonwealth Conciliation and Arbitration Act, 1904-1934 .................. Australian Industries Preservation Act, 1906-1930 .......... 186, 407, 587, (1912) No. 27 (Claims against the Government and Crown Suits Act) (N.S.W.) 516, (1912) No. 32 (Defamation Act) (N.S.W.) ............................ (1936) No. 33 s. 165 (Companies Act (N.S.W.) ........................... (1938) No. 21 s. 2 (Life, Fire, & Marine Insurance [Amdt.] Act) (N.S.W.) ..

632 641 576 517 639 499

NEW ZEALAND (1908) (1908) (1908) (1908) (1910) (1928)

N o. No. No. No. No. No.

32 34 54 60 38 52

(Crim es Act) ............................................... (Crown Suits Act) ........................................... (Crown Suits [Amdt.] Act) ................................. (Family Protection Act) ................... 531, 532, 563, (Destitute Persons Act) ...................................... (Motor Vehicles Insurance [Third Party Risks] Act) ..........

509 576 576 570 525 558

Ivi

TABLE OF STATUTES Page

(1930) (1933) (1939)

No. 43 (Divorce & Matrimonial Causes [Amdt.] Act) ................ No. 29 s. 59 (Companies Act) ...................................... No. 31 (Social Security [Amdt.] Act) ..............................

527 639 581

UNITED STATES

Arranged in Order of Date. 407, 632-33, 640-41, 643, 744 Anti-Trust (Sherman) Act, 1890 ................. 633 National War Labour Board Act, 1917 .................................... 628, 634, 642, 644 Anti-Trust (Clayton) Act, 1920 ............................ 645 Securities A ct, 1932 ......................................................... 634 Anti-Injunction (Norris-La Guardia) Act, 1932 .............................. 634 National Industrial Recovery Act, 1933 ...................................... 634 Railroad Labour Act, 1934 .................................................. .645 Securities Exchange Act, 1934 ............................................ 645 Federal Deposit Insurance Corporation Act, 1934 ........................... 619, 635, 636 National Labour Relations (Wagner) Act, 1935 ................. 636 ............................................... Public Contracts Act, 1935 596, 637 Social Security Act, 1935 ............................................ 583, 64344 Fair Trade Practices (Robinson-Patman) Act, 1936 ................. 597 Railroad Retirement Act, 1937 ........................................... 597 Railroad Unemployment Insurance Act, 1938 .............................. 596, 636 Fair Labour Standards Act, 1938 .................................... .. 481, 557 Food, Drug and Cosmetic (Wheeler-Lea) Act, 1938 ................. Sundry Statutes and Constitutions of the American States are also Referred to, Principally as follows: 514-15 .......................................................... C alifornia 166 ............................................................. Louisiana 563, 593, 674 Massachussetts .............................................. 511, 526, 563, 576, 635 New York ....................................... 594 T ennessee ............................................................. 634 W isconsin .............................................................

LEGISLATION AND CODES OF EUROPEAN STATES .

AUSTRIA 423,

748

France, Civil Code of 151-155, 219, 224, 314, art. 4 ...................................... ............................................................ art. 5 154, arts. 739, 1141, 1249, 1252, 2076, 2102, 2119, 2279-280 ................. 152, ............................................... arts. 1121, 1384 .......................................................... art. 1134 arts. 725, 906, 1048, 1049, 184849, 1859-860, 1862-63 ...................... Code of Civil Procedure, arts. 14, 328, 723 ................................ .... ............................................. Penal Code, art. 127(1) Constitution 13-14 Sept. 1791 ............................................. 150, ............................................. Laws 16-24 Aug. 1790 ............. Decrees 27 Nov. and 1 Dec. 1790 ........................... Law 24 July, 1859 ...................................................... 514, Law concerning the Press, 11 May 1868 .............................

346 156 561 581 474 157 318 156 156 156 130 157 515

Austria, Civil Code, 1811 ............................

150,

219,

224,

FRANCE

TABLE OF STATUTES

Ivii

GERMANY A nti-Trust Law, 1923 ....................................................... C ivil Code 1900 ................................................. arts. 138, 242, 320 ....................................................... art. 226 ................................................................ arts. 528-29 ............................................................. art. 931 ................................................................ Com m ercial Code .......................................................... W eim ar Constitution ................................................. Prussia, Code of .........................................

Page

219,

............

647 317 318 519 595 561 159 441, 736 219, 423 224,

SWITZERLAND Civil Code, art. 1

.....................................................

MISCELLANEOUS

ANCIENT

314

LAWS AND CODES.

Alfred, Laws of (Wessex, 892.3 A.D.) ............................... 454, 458 Ethelbert, Laws of, Thorpe's transl. (Kent, circa 600 A.D.) .............. 454, 508 Constitutions of Clarendon, 1164, transl. in R. Pound, and T. F. T. Plucknett, Readings-on the History of Common Law ............................... 454 Gortyn, Laws of (circa 450 B.C.) transl. Robey, 2 Law Q. Rev. 135, 531 .. 455, 458 Hammurabi, The Code of (circa 2250 B.C.) trans]. Harper ....... 454-5, 457.8, 537 Henry I, Laws of (circa 1118) transl. Sayre, 45 Harv. L. Rev. 974.............455 Ine, The Laws of ...................................................... 454 Justinian's Corpus Iuris ... ................................ 425, 435, 456, 522 Magna Carta............................................................ 248 Manu, The Laws of (circa 200 B.C.) transi. Bululer (1886) 253............ 458 Salic Law (circa 496 A.D.) trans.. Henderson, Select Historical Documents of the Middle Ages 480 ......................................... 457.8, 508 Theodoric and Alaric, Breviaries of ......................... :.............. 435 Twelve Tables (circa 450 B C.) trans.. J. H. Wigmore in A. Kocourek and H. Wigmore, Sources of Ancient and Primitive Laws...... 455, 458, 507.8 Witbraed, The Laws of............................................... 454 Wesgothic Law, 1 Walter. Corpus ouris Germanica......................... 455 Schultzenrecht, The Old West-Frisian or Skeltana Riucht, 11th century, tranel. Fairbanks .............................................. 444, 454-5, 458

lix

CORRIGENDA Page 4, n. 5, line 9: For "719" read "721". 6, line 14: For "1934" read "1933". 10, n. 35, line 4: For (1882) read (1884). 12, n. 40: Substitute 'Holmes, 0. W., Jnr., "The Law as a Profession," (1886) 20 Am. L. Rev. 741, 742, in J. Hall, Readings in Jurisprudence 1938, 667.' 12-13, nn. 42, 45: Pound's article in 19 Green Bag begins at 107, not 607. 13, n. 45: The date of "Path of the Law" is 1897, not 1907. 14, n. 45, 1st line on page: For "(1930)" read "(1923)". 14, n. 45: Jackson's work cited is 1942, not 1940. 16, n. 52: For 56 Law Q. Rev. read 58 Law Q. Rev. 17, n. 53, line 5: For "(1931)" read "(1933)". 35, n. 132: For "(1930)" read "(1923)". 48, n. 5, line 6: For "Laws" read "Legislation". 49, n. 15: For "1883", read "1884". 55, n. 1, par. 2: Stone's book review cited is 1934, not 1933. 55, n. 1, par. 3: For "A. E. Cohen" read "H. E. Cohen". 58, n. 15: For "56 Law Q. Rev." read "58 Law Q. Rev." 60: The date of Hobbes' Leviathan is 1651. 66, line 3 of § 12: For "its" read "his". 72,.n. 76: For "(1943) 56 Law Q. Rev." read "(1942) 58 Law Q. Rev." 77, n. 1, line 5: For "(1929) 47 Harv. L. Rev." read "(1927) 41 Harv. L. Rev." and for "(1933)" read "(1934)". 83, n. 33: For "Recht" read "Rechts". 91, n. 1, line 8: For "144" read "444". 91, n. 1, par. 2: "A. E. Cohen" should read "H. E. Cohen", and his cited work is 1939, not 1937. 91, n. 1, par. 2, line 8: For "712" read "721". 99, n. 22, line 2: For "1936" read "1933". 122, n. 23: For "(1898) 23 Q.B.D. 59" read "(1889) 23 Q.B.D. 598". 140, n. 11: For "1 Mod. L. Rev. 1" read "1 Mod. L. Rev. 5". 141, n. 18: Read "the" before "Law". 144, para. 3: Transpose the names in "Daw v. Haseldine". 145, § 8, line 4: Insert second "i" in . "capriciously". 154, n. 27, line 3: For "1938" read "1939". 157, n. 44, last line: For "69" read "669".

Page . 163, 3rd line from end: For "den" read "dem". 173, n. 132, line 3: For "(1942)" read "(1940)". 177, n. 16, para. 2, line 2: For "3 Mod. L. Rev. 137" read "4 Mod. L. Rev. 139". 178, n. 166, line 1: For "G. L. Williams" read "R. G. McElroy and G. L. Williains". 178, n 166, 3 lines from end: Insert ";"

after "authorised". 179, n. 167, line 2: Stone's article is 1933, not 1935. 181, n. 178, 2 lines from end: For "(1945) 1 All E.R. 350" read "(1944) 2 All E.R. 350". 184, n. 200: For "Note" read "Restatenient on Restitution". 194, n. 246: For "Green" read "Greene". 194, n. 247, line 1: For "(1943)" read "(1942)". 195, n. 256, line 2: For "1" read "3". 195, n. 256, line 8: For "G. W. Keeton, Note (1941) 5 Mod. L. Rev. 173", read 'G. W. Keeton, "Liversidge v. Anderson" (1942) .5 Mod. L. Rev. 162 at 173'. 199, n. 280: For "(1943)" read "(1944)". 203, n. 310, line 6: For "(1939) 160 T.L.R. 24" read "(1939) 160 L.T. 124, 55 T.L.R. 181". 203, n. 310: Transpose sentences beginning "Only Lord Atkin", and "And see". 203, n. 310, three lines from end: For "185" read "179, 183". 206, n. 321, line 5: For "of" read "to". 210, n. 5, line 3: For "(1922)" read "(1921)" 212, n. 15: For "(1911)" read "(1901)". 215, n. 1, 4th line from end: For "(1934)" read "(1933)". 215, n. 2, line 2: For "(1910)" read "(1916) ".

219, line 8: Insert comma after "custom". 223, line 2: For "theologians" read "Theologians". 223, n. 31: For "d'oevre" read "d'oeuvre" 227, line 3: For "morals" read "values". 233, § 20, line 6: Insert "also" before "figures". 236, 11 lines from end: After "natural" insert "law". 237, line 16: Insert second "e" in "plebeians". 241, n. 1, line 5: For "(1889)" read "(1886)". 242, line 2: Read "reasoning" in Roman characters.

lx

CORRIGENDA

Page

Page

243, 3rd line from end of text: For "unborn" read' "inborn". 245, n. 16, line 2: For "(1889)" read "(1886)". 248, § 6, line 6: For "rights" read "Rights". 250, n. 42: Add at end after "678" "give the course of development". 250, n. 43: For "(1869)" read "(1872)". 253, n. 61, last line: For "336" read "236". 254, n. 67, line 5: For "56" read "59". 264, n. 123: For "(1916)" read "(1915)". 264, 8 lines from bottom of text: For "suum" read "suam". 266. See the Table of Contents for the main divisions of Chapter X. 267, n. 1, para. 2, line 8: For "(1820)" read "(1802)". 268, line 17: For "panoptican" read "panopticon". 272, line 13, and 273, n. 26, line 4: For "Esprit" read "L'Esprit". 274, n. 35, 3 lines from end: For "1830" read "1836". after bracket 12: Close 281, line "instrument". 284, n. 63, line 2: Omit "which". 285, line 8: For "practical" read "political". 290, para. 3: For "gasses" read "gases". 292, n. 100, line 1: For "Essays" read "Studies". 300, n. 6: For "herschenden" read "herrschenden". 300, n. 5, line 3: For "den" read "dem" and for "(1840)" read "(1844)". 331, n. 1: For "Theory" read "A Survey". 334, para. 2, line 1: For "Ifelegian" read "Hegelian". 334, n. 15, line 2: For "Nietszehe" read "Nietzsche".. 356, n. 5: For "(1909)" read "(1908)". 363, n 24, para. 2: For "Values" read "Value". 368, n. 38, line 1: For "des" read "der". 383, n. 14, line 1: For "Methods" read "Method". 384, n. 18, line 3: For "Law" read "law". 384, n. 20, line 2: For "53" read "531". 387, n. 40, line 2: For "1108" read "1102". 401, line 16: Insert note indicator "50" at end. 402, n. 55: For "1925" read "1935". 402, n. 59: For "bestizlisen" read "besitzlosen". 403, n. 62, line 1: For "Deutsche" read "deutsche". 403, n. 64, line 9: Insert ";" after "(1892)". 405, n. 75, line 1: For "Civilistische" read "civilistische". 406, n. 82: For "55 Am. Law Rev." read "44 Am. Law Rev". 406, n. 84, line 4: For "H. Levey" read "H. Levy". 406, n. 84, line 4: For "(1943)" read " (1934)".

406, n. 84, line 26, and 409, n. 96, line 12: For "J. Unger, Note" read 'J. Unger, "Common Employment"' 407, n. 89a, line 3: For "3" read "259". 408, n. 94, last line: For "157" read "257". 409, n. 97, last line: For "528" read "529". 409, n. 97, line 9: For "Hurwitz" read "Herwitz". 409, n. 97: Beutel's article is (1934) not (1935). 409, n. 98: See Corrigendum to pp. 1213, nn. 42, 45. 410, n. 99: "Five Hundred Criminal Careers" is 1939, not 1930. 410, n. 101, line 2: For "(1922)" read "(1921)". 410, n 101, line 1: For "(1922)" read "(1923)". 411, n. 103, para. 2, line 2: For "Choisis" read "Choisies". 411, n. 102, line 2: For "(2 ed. 1921)" read "(8 ed. 1921)". 412, n. 105, para. 2: See Corrigendum to p. 14, n. 45. 413, n. 108, line 5: For "(1931)" read "(1930)". 413, it. 114: For "Hales" read "Hale". 414, n. 122: For "4 Mod. L. Rev. 251" read "4 Mod. L. Rev. 241". 414, n. 125, line 4: For "H. Levey" read "H. Levy". 414, n. 127, line 5: For "(1939)" read "(1938)". 416, n. 136: For "1922" read "1923". 422, n. 6: For "See Roby, in Great Jurists of the World 387," read "See H. J. Roby, Intro. to the Study of Justinian's Digest (1884) clxxxclxxxiii, quoted Great Jurists of the World (1913) 587. 422, n. 2, para. 5: For "(1938)" read "(1939)". 430, n. 34, line 1: For "all gemein" read "allgemeinen". 453, n. 9, line 2: For "(1893)" read "(1883)". 455, n. 18: See Corrigendum to p. 215, n. 1, re Pound. 455, n. 17, 3rd line from, end: For "(1935)" read "(1938)". 457, n. 27, line 2: For "(1935)" read "(1938)". 460, n. 37, lines 2 & 3: For "1648" read "1448", and for "Gregor" read "F. Grigor". 461, n. 40: See Corrigendum to p. 215, n 1, re Pound. 495, n. 35: For "Davey L.J." read "Lord Davey". 499, n. 60, line 2: For "(1919) A.C. 59", read "(1894) A.C. 535". 501, n. 64, line 7: For "54" read "454". 502, 4 lines from end: For "MaximNordenfelt Co. v. Nordenfelt" read "Nordenfelt v. Maxim Nordenfelt". read "Andrew" 89: For 503, n. "Andrews".

1xi

CORRIGENDA Page

Page

504, i.

535, n. 142, line 2: For "R. J. Conley," read "R. G. Conley". 535, n. 142, para. 1, line 7: For "Nationalist" read "National-". 536, n. 10: Before "generally" insert "and". 537, n. 147, lines' 6-7: For "Note (1932) 48 Law Q. Rev. 493," read P. Collinet, "The Evolution of Con-

509, 509, 510, 514, 517, 519, 519, 525, 526, 527,

94, last line: For "796" read "781". i. 10: For "Griffiths J." read "Griffiths C.J.". n. 6, line 2: For "854" read "954". n. 16, last line: For "5 Mod. L. Rev." read "4 Mod. L. Rev.". n. 35, line 3: For "270" read "297". n. 59, line 6: For "(1933)" read "(1932)". i. 66, line 9: For "426" read "626". n. 66, 3rd line from end: Insert "e" in "birgerlichen". n. 103, line 4: For "worth" read "worth". n. 105: For "(1935)" read "(1936)". n. 111a.: For "(1936)" read

"(1939)". 533, n. 131, line 11: For "461" read "460" and for "1" read "3". 533, n.' 132, line 2: For "Archer'.Shee v.

Garland (1927) A.C. 844, (1931) A C. 212" read "Baker v. Archer. Shee (1927) A.C. 844, Archer-Shee v. Garland (1931) A.C. 212". 533, n. 131: After "Holdsworth" add "in

Note (1937) 53 Law

Q. Rev. 1".

534, n. 137, line 4: For "Bargaining," read "Bargain".

tract" (1932) 48 Law 493".

Q. Rev. 488,

538, n. 152: For "3 T.L.R. 51" read "2 T.R. 51". 548, n. 213: For "116" read "1116". 548, n. 216: Omit hyphen from "Maxim. Nordenleil". 549, n. 221, line 4: For "Hanson" read "Hamson". 549, n. 222: For "(1915)" read "(1918)". 564, n. 59: For "(Miscellaneous Provisions)" read "(Married Women and Tortfeasors)".

564, line 24: For "wifes" read "wife's". 596, n. 211: For "(1936)" read "(1935)". 634, line 4: For "Trade Union Act" read "Conspiracy and Protection of Property Act". 634, n. 134, line 4: For "(1934)" read

"(1935)".

ixii

LIST OF ABBREVIATIONS NOTE: FOREIGN WORKS, BEING CITED USUALLY ARE NOT HERE INCLUDED.

IN FULL,

Am. Pol. Sc. Rev. Am. L. Rev. Annals Am. Ac. Pol. Sc. App. Cas. App. Div. A.R. (Can.) Ati. Austr. Jo. Psych. Phil. Austr. L. Jo.

Law Reports, Appeal Cases, House of Lords since 1890 Adolphus and Ellis' Reports (Eng.) Aleyn's Reports (Eng.) All England Law Reports American Journal of Sociology American Bar Association Journal American Bar Association Report American Journal of International Law American Political Science Review American Law Review Annals of the American Academy of Political Science Law Reports, Appeal Cases, House of Lords, 1875-1890 Appellate Division Ontario Appeals Reports (Canada) Atlantic Reporter (U.S.) Australian Journal of Psychology and Philosophy Australian Law Journal.

13. & Aid. 13. & C. Barb. Bing. Utigh (N.S.) lbs. & P. Boston Univ. L. Rev. 13ro. C.C. Buller (N.P.) Burr. II.Y.B. of Int. Law

Barnewall and Alderson's Reports (Eng.) Barnewall and Creswell's Reports (Eng.) Barber's Reports (Arkansas) U.S. Bingham's Reports (Eng.) Bligh's Reports, New Series (Eng.) Bosanquet and Pullen's Reports (Eng.) Boston University Law Review Brown's Chancery Cases (Eng.) Buller's Nisi Prius Reports (Eng.) Burrow's Reports (Eng.) British Year Book of International Law

C.A. C.B.N.S. C.C.A. C. & M. C. & P. C.L.R. C.P.D. Cal. Cal. App. Cal. App. Dec. Cal. L. Rev. Camb. L. Jo. Camp. Ch. (preceded by date) Ch. App. Ch. D. Can. Bar Rev. Can. Jo. Econ. & Pol. Sc. Col. L. Rev. Co. Rep. Com. Cas. Conn. Cornell L.Q. Cowp. Cox C.C. Cr. App. Rep. Cro. Eliz. Cro. Jac. Curr. Legal Thought) Curr. L.T. ) Cush.

Court of Appeal (Eng.) Common Bench Reports, New Series (Eng.) Circuit Court of Appeals (U.S.) Crompton and Meeson's Reports (Eng.) Carrington and Payne's Reports (Eng.) Commonwealth Law Reports (Australia) Law Reports, Common Pleas Division (Eng.) California State Reports (U.S.) California Appeals (U.S.) California Appellate Decisions (U.S.) California Law Review Cambridge Law Journal Campbell's Reports (Eng.) Law Reports, Chancery Division since 1890 (Eilg.) Law Reports, Chancery Appeals (Eng.) Law Reports, Chancery Division (Eng.) Canadian Bar Review Canadian Journal of Economics and Political Science Columbia Law Review Coke's Reports (Eng.) Commercial Cases (Eng.) Connecticut State Reports (U.S.) Cornell Law Quarterly Cowper's Reports (Eng.) Cox's Criminal Cases (Eng.) Criminal Appeal Reports (Eng.) Croke's Reports temp. Elizabeth (Eng.) Croke's Reports temp. James I (Eng.)

Dall. De G. & J. De G. M. & G. Durn. & East

Dallas' Reports (U.S.) De Gex and Jones' Reports (Eng.) De Gex, M'Naghten and Gordon's Reports (Eng.) Term Reports, Durnford and East (Eng.)

A.C. (preceded by date) Ad. & E. Aleyn All E.R. Am. Jo. of Soc. Am. Bar Ass. Jo. Am. Bar Assn. Rep.

Am. Jo. Int. Law

Current Legal Thought Cushing's Reports (Massachussets)

1xii

ABBREVIATIONS E. & B. East Esp. Eq. Exch.

Ellis and Blackburn's Reports (Eng.) East's Reports (Eng.) Espinesse's Reports (Eng.) Law Reports, Equity Cases (Eng.) Welsby Huristone and Gordon's Exchequer Reports (Ong.)

F. (2d) Fed. Fed. Supp. Ford. L. Rev.

Federal Reporter, Second Series (U.S.) Federal Reporter (U.S.) Federal Supplement (U.S.) Fordham Law Review

H. & C. H. & N. H.L.C. Hardres Harv. L. Rev. Hob. Hobart How. (U.S.)

Hurlston and Coltman's Reports (Eng.) Hurlstone and Coltman's Reports (Eng.) House of Lords Cases (Eng.) Hardres' Reports (Eng.) Harvard Law Review

I.R. (preceded by date) Ill. Ind.

Irish Reports Illinois State Reports (U.S.) Indiana State Reports (U.S.) International Journal of Ethics Iowa Law Review

Int. Jo. of Ethics

Iowa L. Rev.

Jo. Comp. Leg. and Int. Law Jo. of Crim. Law Jo. Soc. of Pub. Teach. of Law Jo. Soc. Phil.

Hobart's Reports (Eng.) Howard's Reports (U.S.)

Journal of the Society of Comparative Legislation and International Law Journal of Criminal Law Journal of the Society of Public Teachers of Law Journal of Social Philosophy

K.B. (preceded by date) Ky. L.J.

Law Reports, King's Bench Division Kentucky Law Journal

(Eng.)

L.J. Ch. L.J. Ex. L.J. Ex. (N.S.) L.J. K.B. L.R. L.R.C.P. L.R. Ch. App. L.R. Eq. L.R. Ex. l.R.H.L. L.R.P.C. L.R.Q.B. L.T. L.T. Jo. Law and Cont. Prob. Law Magazine and Rev. Law Q. Rev. Lib. Assisarum

Law Journal Chancery (Eng.) Law Journal Eachequer (Eng.) Law Journal Exchequer, New Series (Eng.) Law Journal King's Bench (Eng.) Law Reports Law Reports, Common Pleas (Eng.) Law Reports. Chancery Appeals (Eng.) Law Reports, Equity Cases (Eng.) Law Reports, Exchequer (Eng.) Law Reports, English and Irish Appeals, House of Lords Law Reports. Privy Council Law Reports, Queen's Bench (Eng.) Law Times Reports (Eng.) Law Times Journal (Eng.) Law and Contemporary Problems Law Magazine and Review Law Quarterly Review Liber Assisarum, Year Books 1-51, Edw. IIl

M. & S. M. & W. Macq. Mass. Md. Mich. Mich. L. Rev. Minn. Misc, (N.Y.) Missouri L. Rev. Mod. Mod. L. Rev. Mod. Leg. Phil. Series Myl. & C.

Maule and Selwyn's Reports (Eng.) Meeson and Welsby's Reports (Eng.) Macqueen's Scotch Appeal Reports (Eng.) Massachussets State Reports (U.S.) Maryland State Reports (U.S.) Michigan State Reports (U.S.) Michigan Law Review Minnesota State Reports (U.S.) Miscellaneous New York Reports (U.S.) Missouri Law Review Modern Reports (Eng.) Modern Law Review Modern Legal Philosophy Series Mylne and Craig's Reports (Eng.)

lxiv

ABBREVIATIONS

N.E. N.I. (preceded by date) N.J. Eq. N.J. Law N.J.. ) N.W. N.Y. N.Y. Supp. N.Y. Univ. L.Q. Rev. N.Z.L.R. Nebraska Noy

Northeastern Reporter (U.S.) Northern Ireland Law Reports New Jersey Reports. Equity (U.S.)

Ohio

Ohio State Reports (U.S.)

P.

State

or St.

(preceded

by dlate)

New Jersey Reports. Law (U.S.) Northwestern Reporter (U.S.) New York State Reports (U.S.) New York Supplement Reporter (U.S.) New York' University Law Quarterly Review New Zealand Law Reports Nebraska Reports (U.S.) Noy's Reports (Eng.)

P.C. Pa. Pac. Pa. St. Peake Ph. Pol. Sc. Q. Proc. Am. Bar Assn. Proc. Am. Soc. Society Proc. Ass. Am. Law Schools

Law Reprts, Probate Divorce and Admiralty ivision (Eng.) Privy Council Pennsylvania State Reports Pacific Reporter (U.S.) Pennsylvana State Reports Peake's Reports (Eng.) Phillips' Report ( Sng.) Political Science Quarterly Proceedings of the American Bar Association Proceedings of the American Sociological Society Proceedings of the Association of American Law Schools

Q.13. (preceded by date) Q. B.D.

Law Reports, Queens Bench Division. 1891-1901 Queen's Bench Division, 1875-1890 (Eng.)

Rtep. Am. Bar Assn. Rep, in Chan. Report of N.Y. State Bar Assn.

Reports of the American Bar Association Reports in Chancery (Eng.)

(Eng.)

Report of the New York State Bar Association

S.C. (preceded by date) S.C. (H.L.) (preceded by date) SBE. S.R. (N. S.W.) S.W. St. Tr. Sup. Ct. Swan.

Court of Session, Cases, House of Lords (Scotland) Southeastern Reporter (U.S.) State Reports, New South Wales (Australia) Southwestern Reporter (U.S.) State Trials (Eng.) Supreme Court Reporter (U.S.) Swanston's Reports (Bg.)

T.L.R. T.R. Tulane L. Taunt.

Times Law Reports (Eng.) Term Reports (Bg.) Tulane Law Review Taunton's Reports (U.g.)

Rev.

Court of Session Cases

(Scotland)

Univ. of Chic. L. Rev. Univ. of Pa. L. Rev. Univ. of Toronto L. Jo. U.S.

University of University of University of United States

Va. Vaug.

Virginia State RepSt rts (U.S.) Vaughan's Reports (Eng.) Pes. Vesey's Reports (Eng.) Vesey Senior's Reports (EBg.) Victoriang Law Reports (Australia)

Ves. Sen. Vict. L. R.

W.N.

(N.S.W.)

Wall.

heaton Willes Winch. Wis.

YBB. Yale L.

Jo.

Chicago Law Review Pennsylvania Law Review Toronto Law Journal Supreme Court Reports

Weekly Notes Reports Ne Wallace's Reports (U.S.) Wheaton's Reports (U.S.) Willes' Reports (Eng.) Winch's Reports (Eng.) Wisconsin State Reports

Year Book (Eng.) Yale Law Journal

South Wales

(Australia.)

GENERAL INTRODUCTION

CHAPTER I

THE PROVINCE OF JURISPRUDENCE REDETERMINED

Page

§I. THE AUSTINIAN REVELATION

3....3

§2. THE PRESENT SCOPE OF TAUGHT JURISPRUDENCE ..

5.....5

3. HISTORICAL JURISPRUDENCE AS A SUBJECT OF STUDY

7....7

§4. THE THEORY OF JUSTICE AS A SUBJECT OF STUDY ..

8....8

§5. LAW AND RELATED SOCIAL PHENOMENA AS A SUBJECT OF STUDY ........

12

§6. EFFECT OF THESE DEVELOPMENTS UPON THE TEACHING OF JURISPRUDENCE ....

13

§7. CURRENT DIVISIONS OF THE FIELD OF JURISPRUDENCE

16

§8. ECLECTIC SCHEMES OF DIVISION

....

16

§9. RATIONAL SCHEMES OF DIVISION

....

19

§10. TOWARDS A TWENTIETH CENTURY TRILOGY

2-..t.........2

§11. JURISPRUDENCE AS THE EXAMINATION OF THE LAW IN THE ...... LIGHT OF OTHER DISCIPLINES

25

§12. THE BRANCHES OF JURISPRUDENCE ARE TO BE ASCERTAINED BY CLASSIFYING FOR LEGAL PURPOSES THE RESULTS OF THIS EXAMINATION.....................

27

§13. THE THREE BRANCHES OF JURISPRUDENCE

30

§14. RELATION TO THIS SCHEME OF .......................... KNOWLEDGE

....

EXISTING

BODIES

OF 32

§15. THEORY THAT EACH BRANCH OF JURISPRUDENCE IS APPROPRIATE FOR A PARTICULAR PHASE OF LEGAL DEVELOPMENT ............ §16. CRITICISM OF SUCH CYCLE THEORIES §17. IMPORTANCE OF THIS REDEFINITION JURISPRUDENCE

36

..

...

38

OF THE

FIELD OF .......

41

GENERAL INTRODUCTION CHAPTER

I.

THE PROVINCE OF JURISPRUDENCE REDETERMINED.' §1.

THE AUSTINIAN REVELATION. The English-speaking world

has moved uneasily into its second century of the teaching of jurisprudence. Within the ranks of those who have known the subject to be worthy of study, great progress has been made. The field opened up by Anglo-American legal scholarship is impressive. It is impressive even when compared with that of Continental Europe, though with one exception AngloAmerican initiative has operated from the rear of the advancing Analytical jurisprudence is, of course, the juristic forces. notable exception.' A movement which monopolised the field of English jurisprudence, for a half-century after Austin, scarcely came to self-awareness in Germany until the work of Binding in 1872,' in France until the work of Roguin in 1889,' and on the Continent generally until the work of Kelsen

I

This introductory Chapter appeared in the Modern Law Review (July and November, 1944) on the kind understanding of the publishers of that Journal that it was written for the present purposes. Certain minor additions and other changes have been made. 2 Even this might be challenged if the achievements of the Glossators and Commentators and the learning following F. von Savigny's System des heutigen riimischen Rechts (1840-1849) be given their due weight. The German influences on Austin himself (see A. B. Schwarz, "Austin and the German Jurisprudence of his Time" (1934) 1 Politica 178, and the list of Austin's books, in J. Austin, Lectures on Jurisprudence (3 ed. 1869), ix-xiii, and the heavy reliance of the English analysts at the end of the century on German scholarship, confirms this comment. See W. Markby, Elements of Law (5 ed. 1896) 155; T. E. Holland, Jurisprudence (Preface to 1 ed. 1880) (for heavy reliance on the Pandekten). The writer does not suggest that in many of its features analytical jurisprudence is not to be traced much further back. See for many suggestions and bibliography on this point: N. Isaacs, "The Schools of Jurisprudence" (1917) 31 Harv. L. Rev. 373, esp. 396.400; R. Pound, "The Scope and Purpose of Sociological Jurisprudence" (1911) 24 Harv. L. Rev. 591, 594.98; F. Berolzheimer, World's Legal Philosophies (1904 transl. 1912) ; F. Harrison, Jurisprudence and the Conflict of Laws (1919) c.i. The present Chapter is dealing with identifiable trends of the nineteenth and twentieth centuries. 3 Die Normen und ihre Uebertretung (vol. i, 1872, vol. ii, 1877). La Rgle de Droit (1889).

4

PROVINCE OF JURISPRUDENCE.

[CH. 1 § 1

and his school beginning the second decade of the present century.5 Clearly the Anglo-American contribution has been preeminently in the analytical field. This may, in part, explain the English lawyer's belief that analytical jurisprudence is "The Jurisprudence" as clearly and indubitably as Aristotle was "The Philosopher" for the medievals. For the purpose of training practitioners, at any rate, jurisprudence in England is still an approximation to Holland's "formal science of positive law". It consists more or less exclusively of the definition of legal concepts and precepts with a view to ascertaining the logical relations between them, -and to arranging them in an orderly system or systems." This stranglehold of the logical science of legal relations is not to be explained solely by its profitability, or by the enthusiasm of its devotees.' In part at least it is to be attributed to the social trends of its own age and of the age which preceded. It represented a systematising reaction from cen'turies of chaotic and fiction-ridden growth of English law assisted by only spasmodic parliamentary activity.! It reflected the young faith of the period in the newly democratised legislature. The 5 See H. Kelsen, Hauptprobleme der Staatsrechtlehre (1911). It is of some significance that these analytical trends on the Continent appeared quite independently of the English analytical school. For instance both Roguin and Kelsen underwent in their turn the ordeal of discovering somewhat belatedly that John Austin's work might have some relevance for systems they had enunciated as novel. See the somewhat amusing apologia for oversight in E. Roguin, La Science Juridique Pure, 3 vols. (1923), vol. i, 65n. On Professor Kelsen and Austin see E. Ehrlich, Fundamental Principles of the Sociology of Law (transl. Moll, 1936) 484; J. Stone, Book Review (1934) 47 Harv. L. Rev. 719, 725; H. Kelsen, "The Pure Theory of Law and Analytical Jurisprudence" (1942) 55 Harv. L. Rev. 44. In the latter article (at 54) Professor Kelsen tells us that "while the pure theory of law arose independently of Austin's famous Lectures on Jurisprudence it corresponds in important points with Austin's doctrine". 6 We are not here concerned with the different though related question of the place of logic in legal thought generally nor with other than formal syllogistic logic. See infra Chapter VII. Conversely shifts of juristic interest to other approaches have produced denials that analytical jurisprudence merits the name "science". See Willard, The Nature of Institutional Law (1882) 41; E. Ehrlich, Grundlegung der Soziologie des Rechts (1913) 384; Moll's transl. (1936) 474ff. The present writer has felt it necessary not to encumber the subject with discussion of the merits of the various claims to the hallmark of science. 7 On the lack of "enthusiasm" of the devotees of analytical jurisprudence see W. I. Jennings, "A Plea for Utilitarianism" (1938) 2 Mod. L. Rev. 22, at 33, and C. K. Allen, "Jurisprudence, What and Why" in Legal Duties (1931) 25, 27. And see infra Chapter II. Cf. on the dominance of the analytical approach in England J. W. Jones, "Aims and Methods of Legal Science" (1931) 47 Law Qu. Rev. 62, 62-63. 8 Cf. W. I. Jennings, "A Plea for Utilitarianism" (1938) 2 Mod. L. Rev. 22, 23. Cf. the similar suggestion that the later systematisation of the common law in America, relative to the modern Roman law on the Continent, is in part responsible for the long monopoly of the American jurisprudential field by

CH. 1 § 21

DOMINANCE OF AUSTINIANISM

5

analysts tacitly assumed what the Jacobins a generation before robustly voiced, namely, that the lawyers may well be kept to their logic-chopping, it being for the legislature to define the purposes of the law. It thus sprang by reaction from the preceding age. It also fitted perfectly the ideological assumptions of the nineteenth century. Bentham early stated the axiom that "every law is an evil for every law is an infraction of liberty",' and this laissez faire ideal, as has frequently been noticed, rationalised the early needs of an expanding industrial civilisation." From the actual trends of the era it appeared that the scope of legal interference was decreasing and was destined further to decrease to the indispensable minimum of the police state." By a paradox which has been posed elsewhere, the legislation of the period had for its main end the removal of legal regulation.' 2 But if the purpose of legislation was to reduce law to a minimum the inquiry into the actual operation of law in society or into the kheory of justice seemed of little importance. Attention to the eternal logic which underlay that minimum of legal regulation seemed a far more profitable enterprise.

§ 2.

THE PRESENT SCOPE OF TAUGHT JURISPRUDENCE.

It is by

no means suggested that English and American scholarship has limited itself to the analytical field." Such a suggestion would merit a quick rebuke from the shades of Maine, Holmes, Gray, Maitland, Vinogradoff, Pollock and Cardozo; and from the living exponents of the subject of whom it would be invidious to compile a list. What is asserted is that so far as the education of the lawyer is concerned, no other branch of jurisprudence has conanalytical jurisprudence in M. R. Cohen, "The Place of Logic in the Law" (1916) 29 Harv. L. Rev. 622. For some treatment of the reasons for this analytical backwardness see A. Kocourek, "Classification of the Law" -(1934) 11 N.Y. Univ. Law Q. Rev. 319, quoted in J. Hall, Readings in Jurisprudence (1938) 615, 621-22. a J. Bentham, Theory of Legislation (5 ed. 1887) 48. 10 See J. Stone, Law in the Modern State (1939). And see for an ingenious linkage of individualism with the command theory G. H. Sabine and W. J. Shepard in their Transl's Intro. to H. Krabbe, Modern Idea of the State (1919, transl. 1922) xxiii-xxv. 11 See e.g., the prophecy to this effect in W. G. Miller, Philosophy of Law

72-73. See A. V. Dicey, Relation between Law and Public Opinion in the Nineteenth Century (2 ed. 1914) 190-205; J. Stone, Law in the Modern State (1939) 5-6. 13 But see H. Oliphant and Hewitt, Introduction to Rueff, From the Physical to the Social Sciences (1929) xxvii, xxviii, where even this is suggested. (1884)

12

6

PROVINCE OF JURISPRUDENCE

[CH.1

I §2

solidated its position beside the analytical. In the undergraduate course at English universities the scope of available textbooks points with fair accuracy to the actual ground covered; that ground is analytical jurisprudence with some subsidiary treatment of historical jurisprudence. So far as the writer is aware there are only rare instances in which the limitations thus imposed have been effectively transcended." These limitations are not an accidental result of textbooks penned in another generation." In 1930 an outstanding younger English teacher, Professor Keeton, published a new volume entitled Elementary Principles of Jurisprudence, in which he devoted six pages, no more and no less, to the evolution of law in relation to society and the state, and seven pages to "the modern state"." As late as 1934 the late Sir Edward Jenks, the Doyen of English law teachers, published The New Jurisprudence which again did little to revolutionise the field of taught jurisprudence. Since Austin, wrote Professor Laski in 1925, "English lawyers have done little or nothing for the science of law"."' There have been stirrings in juristic writing since then, but comparatively little if anything still in the teaching of jurisprudence. And all this despite Lord Bryce's just observation in 1901" that "most recent authorities are now agreed that (Austin's) contributions to juristic science are really so scanty, and so much entangled with error, that his book ought no longer to find a place among those prescribed for students." In the United States jurisprudence has not yet become an established subject in the curriculum for the LL.B. degree; indeed it is not offered as a subject at all in nearly three-quarters of the recognised Law Schools." The work of Roscoe Pound has long given a predominant influence to the Harvard Law School in the field, and the graduate course there has perhaps been unrivalled in its scope elsewhere in the world. But even 14 Notable exceptions within the writer's own knowledge have been Dt. C. K. Allen's and Mr. J. W. Jones' lectures at Oxford. 15 Though the cumulative effect of such books as those of Markby, Holland, Sheldon Amos, Clark and Salmond are not easily shaken off. "I Even these mainly of a somewhat anachronistic character. 17 A Grammar of Politics (1925) 273-74. 18 2 Studies in History and Jurisprudence (1901) 182. 19 Out of the eighty schools recognised by the Association of American Law Schools in 1934, only twenty-two, including several Catholic Schools, offered any course named or equivalent to "Jurisprudence". See Directory of Association of American Law Schools (1934).

CH. I l§31

TEACHING OF JURISPRUDENCE

7

there jurisprudence was not, until 1934, a permissible subject for the LL.B. degree. Even to-day it is not a required subject." Although therefore the analysis which follows is primarily directed to the limited nature of the jurisprudence course in most British countries,21 its conclusions would apply a fortiori where it does not figure at all in the regular degree course, and to a less extent where it is not a required subject. 20 See & P. Simpson, "The New Curriculum" (1938) 51 Harv. L. Rev. 965, 982n. Nor is it required so far as I know at any other American School though its importance is stressed at several. Thus at the University of Chicago despite curricular requirements intended to stress the economic and social problems affecting the future of law, and despite the introduction of a course on "the sociology of law", the whole subject is optional. (University Announcement (194243) 379, 403). Again at Yale where the curriculum has similarly been the subject of bold experiment, and includes not only a half-year's orthodox course on jurisprudence, but also courses on the anthropological and sociological approaches to social control through law, and "Crime and Culture", none of these are required (Bulletin, School of Law (1940-41), 20-22). So at Northwestern University where as perhaps might be expected under Professor Kocourek's guidance, the emphasis would appear to be on analytical jurisprudence. (University Announcement (1939-40) ) ; and at Louisiana State University, where Professor Hall defines his subject in terms of Professor Pound's definition at Harvard. (University Announcement (1939)). So at the University of Michigan where one half course is devoted to (semble) analytical and another to (semble) sociological jurisprudence (University General Register (1941) 27). At Penn. sylvania there is merely an optional subject of Methods of Legal Thinking and Analysis (University General Announcement (1941) ) ; and at the University of California there was, in 1937, an optional course the prescription of which was non-committal as to its contents save that its textbook was apparently P. Vinogradoff, Common Sense in Law, sed qu. (Bulletin, School of Jurisprudence (1936-37) 22-23). The above list is intended to be representative and not exhaustive. The scope of the course available to students may also be affected by other factors, such as for instance the integration of legal and non-legal studies as projected at Harvard (S. P. Simpson, op. cit. at 972-973), and actually operating in another form at Chicago, or the conduct of seminars jointly by legal and non-legal instructors, or similar devices. (See e.g., the seminar on "legal history in relation to economic and intellectual history" at the Harvard Law School in 1942 (Announcement (1942)), and the course on the development of legal institutions at Columbia. It will be obvious that Professor Laski's praise (A Grammar of Politics (1925) 576-77) must not be read in too wide a sense. 21 A "jurisprudence" course for the LL.B. degree is compulsory at all British Universities known to me. But there are very wide variations in scope. So far as written prescription goes the course at the University of Toronto must be unique. It covered in 1938: "Theories of law and legislation; law reform and problems of comparative law; legal principles considered in the light of analysis, history, philosophy and the social ends to be served": and authors recommended included R. Stammler, Dakin (sic), L. Duguit, F. Giny, M. R. Cohen, R. Pound and H. Kelsen (University Calendar (1937-38) 82, 161. On the other hand at Cambridge, in 1939, the prescribed course appeared still to be analytical jurisprudence tempered by a historical view of the sources of law; and the postgraduate LL.B. course was even more restricted. (Student's Handbook (1938-39), 422, 547). Oxford gives no description of its "General Jurisprudence", but the books recommended indicate a range far less than Toronto and somewhat more than Cambridge. (Examination Statutes (1942) 125, 291). The London University course is divided between "legal theory", sources of law and analytical jurisprudence. With few other exceptions (among which the University of Melbourne may perhaps he mentioned) the pattern in British Universities approximates to that described in the text. I exclude, for lack of personal familiarity, Indian and South African universities.

8

PROVINCE OF JURISPRUDENCE

[CH. 1 § 4

§ 3. HISTORICAL JURISPRUDENCE AS A SUBJECT QF STUDY. Historical jurisprudence staked its claim to a place in the AngloAmerican legal curriculum with the work of Sir Henry Maine and The Common Low of Mr. Justice Holmes. It owes its undoubted respectability to-day to such varied but uniformly distinguished exponents as Maine, Maitland, Holmes and Vinogradoff, and to the seal which their scholarship placed on the more advanced German learning of the same type. Yet even historical jurisprudence, based as it is upon a mass of profound scholarship, has remained among the lesser doctrines so far as English law teaching is concerned. Until the publication of Vinogradoff's Historical Jurisprudence in 1920 it was regarded above all as a means of correcting the excesses and the more obvious deficiencies of Austin's imperative theory.2 " And this has largely continued to be the case, although Dr. C. K. Allen's textbook on the modes of legal 2 growth" has done much to give the historical branch an organic place in the teaching of jurisprudence." Saleilles at the turn of the century had noted the bankruptcy of the historical school on the Continent." In his words: To note after all is not to create: the one is the effect of history, the other is that of the social sciences, and all social politics which derive from them. History in its application to the social sciences must become a creative force. The historical school had stopped half way. In 1933 an English scholar felt able to write this epitaph upon

English historical jurisprudence." With the one great exception of Vinogradoff we lawyers have remained cloistered in our narrow walls, treading complacently the old paths. Insofar as the call has been heard at all it has been answered by the anthropologists and the historians.

§ 4.

THE THEORY OF JUSTICE AS A SUBJECT OF STUDY. The study of the purpose which men seek to achieve through law, 22 Cf. W. I. Jennings, "A Plea for Utilitarianism" (1938) 2 Mod. L. Rev. 22, 27. For a characteristic encomiun of historical jurisprudence on this ground see F. Harrison, Jurisprudence and the Conflict of Laws (1919) c.iii. 23 C. K. Allen, Law in the Making (1 ed. 1927, 2 ed. 1930, 3 ed. 1939). 24 Cf. in the United States, J. Goebel, Readings on the History of Legal Institutions. 25 R. Saleilles, "L'Ecole Historique et Droit Naturel" (1902) 1 Revue Trimestrielle de Droit Civil (1902) 80. Cf. for recent English comments on "the dead hand of the past", Lord Wright, Legal Essays and Addresses (1939) Preface. 26 W. A. Robson, "Sir Henry Maine To-day", in Modern Theories of Law (1933) 179.

CH. 1 § 4]

HISTORICAL JURISPRUDENCE

9

sometimes called "the theory of justice", or more ambiguously" "legal philosophy", has an even more precarious foothold in the legal curriculum. This cannot be due to later development; for it has an important continuous history from the very earliest days of western civilisation, and has been contributed to by many of the greatest minds of successive ages. And at the opening of the nineteenth century it constituted, through the teachings of the natural lawyers, a main preoccupation of both Continental and English lawyers. Blackstone, through his Commentaries and his lectures, had given it a place of honour at the common law's first elevation to the rank of University studies. Strangely enough, the decline of attention to the theory of justice in England is related precisely to the dominance of natural law thinking at the time when Bentham and Austin were preparing their systems. Both found themselves impelled to discredit natural law thinking, Bentham mainly because its intuitionism was an obstacle to his utilitarianism, Austin mainly because it was an obstacle to his analytical and imperative delimitation of positive law.28 Bentham's main reaction to his unprofitable days at Oxford was an attack upon it vigorously expressed in his Fragment on Government. He never relented from that attack." Austin followed in the same path.o So effective were their blows against natural law as a theory of justice that the theory of justice itself was stricken low and so far as English law teaching is concerned has not to this day fully recovered." Many have pointed out that Bentham did not understand the creative role of natural law during its dominant period in seventeenth and eighteenth century Europe; that that role deFor the reason indicated infra § 8. It is, of course, unnecessary to point out that while Austin and Bentham aided and abetted each other in all aspects of their work, still Bentham's utilitarianism is conceptually severable from his analytical and imperative theory of law, and that Austin's analytical and imperative theory is conceptually severable from his adoption of utilitarianism. Historical severability is a different matter. The best account of this matter is still in H. Maine, Early History of Institutions (1875) lect. xii, xiii. Cf. J. W. Jones, Historical Introduction to the Theory of Law (1940) 90-97. 29 Cf. Principles of Morals and Legislation (first published 1780, 1879 ed.), 17, n.1.; Theory of Legislation (first published 1802, transl. C. M. Atkinson, 27

28

1914) 9-12.

30 Lectures, 3 ed., lect. iv, v, esp. 145-157, 179-180. 31 Even J. Salmond, Jurisprudence (8 ed. 1930) 39-54, 139-145, deals with the theory of justice in a purely formal manner. Cf. generally G. Radbruch, "AngloAmerican Jurisprudence through Continental Eyes" (1936) 52 Law Q. Rev. 530. 32 Nor was Austin any clearer. Thus at one point (2 Lectures, (3 ed., 1869)

10

PROVINCE OF JURISPRUDENCE

[CH. 1 § 4

pended on substantial agreement as to the criteria of good law; and that the fictitious assumption of a higher law was functionally as little of the essence of natural law as a seal is functionally of the essence of a contract by deed. It may be said, too, that Bentham, protagonist as he was of the duty to legislate, and of utility as the criterion of good legislation, can scarcely have intended to oppose a study of the ends of law. A case might be made that even Austin stopped far short of condemning inquiries into the science of legislation; that indeed, like his teacher, he attributed great importance to it." History, however, is made more by the effects of words and acts than by the intention of speaker or actor. Bentham's scorn of the "unknown legislator"" produced inhibitions against inquiries into goodness or badness of law which are still with us. Austin's insistence that law is "positive" or not, and that if not, it is unworthy of the lawyer's attention, embedded iii English legal theory the conviction that law in the stage of becoming is not the affair of the lawyer." Whatever the merits of this rationalisation the result is clear. The theory of justice has never resumed its important place in English law teaching. The most that is usually vouchsafed to students has been a glimpse of the hedonistic utili1120n.) he identifies Blackstone's use of the concept with his own conception of the analytical study of positive law. At another point he defines it as "the human rules, legal and moral, which have obtained at all times and obtained at all places". 33 Thus he says (1 Lectures (3 ed. rev. Campbell 1864) 85) : "Now though the science of legislation (or of positive law as it ought to be) is not the science of jurisprudence (or of positive law as it is) still, the sciences are connected by numerous and indissoluble ties. Since, then, the nature of the index to the tacit commands of the Deity is an all-important object of the science of legislation, it is a fit and important object of the kindred science of jurisprudence". He consequently devotes the greater part of three lectures (almost seventy pages) to a demonstration of the principle of utility (lectures ii, iii and iv). And indeed at one point (2 Lectures, 1124) he suggested that law students should "bend their attention to General Jurisprudence, Legislation and all other sciences related to these which tend more directly to fit them for their profession or for practical politics". Further, at 1123, he refers without repugnance to "analogical inferences with reference to, the con. siderations. of expediency on which (the law) is built". Austin has been censured in high quarters for this lapse: see F. Pollock, "The Methods of Jurisprudence" (1884) in Oxford Lectures (1890) 17. 34 Theory of Legislation (transl. Hildreth, 5 ed. 1887) 102. 3 ''The science.of jurisprudence . . . is concerned with positive law or with laws strictly so called, as considered without regard to their goodness or badness". (1 op. cit. 176-177). This embedded conviction is seen for instance in Holland's approach. Cf. W. E. Hearn, Theory of Legal Duties and Rights (1882) 54: "The form and not the substance of law is the subject matter of jurisprudence". Austin himself suggested the classics and logic as preliminary to jurisprudence. For the rest he commended to lawyers only "moderate acquisitions, out of the domain of the law (enough to prevent bigotry)". And of such possible acquisitions he had "the strict sciences" mainly in mind. (2

CH. 1 § 41

STATUS OF THEORY OF JUSTICE

11

tarianism of Bentham himself supplemented by reference to Ihering's social utilitarianism. Moreover, insofar as the theory of justice has been taught at all it has been presented as a body of ideas beyond the proper scrutiny of the discreet lawyer, This rather than as a necessary part of his equipment." position is a logical corollary of a dominant Austinianism; it is also a practical corollary. For the mere labour involved in an intelligent study of Austin's system tends in itself to exclude all other inquiries. It has already been suggested that this long hegemony of Austinianism is in part to be explained by general characteristics of nineteenth century society. Anglo-Saxon conservatism, and the particularity of thought fostered by the case method, no doubt played some part. But the relative smoothness of English social and economic development, and widespread faith and contentment in contemporary tendencies was its substantial foundation. That faith and contentment began sooner and lasted longer in England than elsewhere. But even in England a growing confusion and discontent became manifest as collectivist legislation at the end of the century challenged some of the worst results of laissez faire, and even the ideal itself. There was a sense of pain and urgency in Dicey's treatment of collectivism in 1914" which was not present when he first published his Relation between Law and Public Opinion in 1905." From the clash between actual social trends and accepted ideas, there arose a new interest iii the jurisprudence of human purposes, and a new threat to the monopoly held by analytical jurisprudence. op. cit. 1124). Cf. Lord Macmillan, Law and other Things (1937) 277-78; but see 275. 36 Even the open-minded Lord Bryce in 1901 was still treating Bentham and the theory of justice as outside the scope of "the jurist" (2 op. cit. supra n.18 179) even though he counted judges and legislators among the possible bene.ficiaries of "a science of law" (2 op. cit. 190). And so non-legalistic a writer as Mr. Oakeshott still argued in 1938 ("The Concept of a Philosophical Jurisprudence" (1937-38) 3 Potitica, 202, 345, esp. 217-8) that it is not properly within the "theory of law". He relegates the inquiry to "theory of legislation". Dr. W. I. Jennings has observed that legal reform would have been greatly more advanced if Benthamite utilitarianism, with all its faults, had been seriously pursued as a theory of legislation ("A Plea for Utilitarianism" (1938) 2 Mod. L. Rev. 22, 35). The responsibility, it is believed, lies rather in the failure to find a sub. stantial place in the curriculum for the theory of justice as.a whole, including Bentham's hedonistic utilitarianism. Cf. G. Radbruch, cit. supra. n. 31; 540-545. 37 See the Introduction (2 ed. 1914) esp. xxi-liii, lx-lxii. 38 It is to be remembered this was seven years after the basic approach was settled for the purpose of A. V. Dicey's lectures at Harvard in 1898.

PROVINCE OF JURISPRUDENCE

§ 5.

[CH. I l§5

LAW AND RELATED SOCIAL PHENOMENA AS A SUBJECT OF

Moreover, the extension of the franchise, the growth in the range of legislative intervention and the appearance of the modern social sciences, created increasing awareness of the processes of social change. Juristic thought could scarcely go untouched by this ferment, and from Spencer onwards still another branch of jurisprudence gradually outlined itself-the study of the interaction between law and society, or "sociological" jurisprudence in all its varied forms. In time the modern stirrings of "sociological", "economic" and "psychological" jurisprudence followed closely after the rise of the English historical jurisprudence of Sir Henry Maine." It was in 1886 that Oliver Wendell Holmes, Jr., uncannily responsive as he always was to incipient trends of the time, declared to students at Harvard: "If your subject is law, the roads are plain to anthropology, the science of man, to political economy, the theory of legislation, ethics, and thus by several paths to your final view of life"." And in 1897 he had already prophesied that "for the rational study of the law the black letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics".4 Its formulation for the English-speaking world is to be found above all in the work of Roscoe Pound: STUDY.

Legal phenomena are social phenomena. Observation and study of them as such may well bear fruit for social science in general as well as for jurisprudence in particular. Why should not the lawyer make a survey of legal systems in order to ascertain just what claims or wants or demands have pressed or are now pressing for recognition and satisfaction and how far they have been or are recognised or secured? . . . and this should be

done consciously and avowedly, as befits the science of to-day without any cover of metaphysics or logic. 42

Yet in the same generation as Professor Pound was formulating his programme, the liberal-minded Bryce was still observing 30 I shall later suggest that there is here more than a mere coincidence in time. 40 "The Law as a Profession", reprinted (1897) 20 Am. L. Rev. 791, 792; J. Hall, Readings in Jurisprudence (1938) 667. 4 0. W. Holmes, "The Path of the Law" (1897) 10 Harv. L. Rev. 457, 469. Modern caveats on the decisiveness of the conclusions of such other disciplines (see e.g., M. R. Cohen, Law and the Social Order (1933) 191, in J. Hall, op. cit. supra n.40 at 800, 802-03), do not affect the main point. 42 R. Pound, "A Theory of Social Interests" (1921) 15 Proceedings American Sociological Society, 1. And see his early articles: "The Need for a Sociological Jurisprudence" (1907) 19 Grden Bag 607; "The Scope and Purpose of Sociological Jurisprudence" (1911) 24 Harv. L. Rev. 591, (1912) 25 id. 140. Cf. on the con-

CHt.

I

§ 61

LAW AND SOCIAL SCIENCES

13

that "the various ways in which economic and social problems have been dealt with . . . and in which commerce has been

regulated and crime checked" though "interesting and useful" was "not quite the kind of legal study that legal science should include.""

I 6.

EFFECT OF THESE DEVELOPMENTS UPON THE TEACHING OF

The revived interest in the theory of justice and the new interest in the operation of law in society, have been manifest for two generations in Anglo-American scholarship. The literature is already notable. Yet it is remarkable that neither of them has established itself in legal education on a basis of equality with analytical jurisprudence. No modern English or American scholar has yet thought it worth while to produce a textbook dedicated to a comprehensive treatment of the ethical" and sociological branches of jurisprudence." And though in these modern developments American scholarship is well in advance of the English, these JURISPRUDENCE.

tinent E. Ehrlich, Soziologie and Jurisprudenz (1903) ; Gnaeus Flavius (Kantorowicz), Der Kampf um die Rechtswissenschaft (1906) ; Page, "Professor Ehrlich's Czernowitz Seminar for Living Law" (1914) Proc. Am. Law Schools, 46. 4 2 op. cit. supra n. 18, 189-190. He thought the value of such study was in any case reduced by the difficulty of separating the effects of "legal enactments" from those of "the social and economic environment". One might give this to-day as a reason for attention rather than neglect. Lord Wright's Legal Essays and Addresses (1939) has been hailed, in this as in other respects, as an important event in the contemporary history of English juristic thought. The intervening years of the war still leave for future determination their full effect on juristic orthodoxies. 44 The field has, of course, been well opened up in the United States by writings such as R. Pound, "The End of Law as Developed in Legal Rules and Doctrines" (1914) 27 Harv. L. Rev. 195; "The End of Law as Developed in Juristic Thought" (1914) 27 id. 605; (1917) 30 id. 201; "A Comparison of Ideals. of Law" (1933) 47 id. 1; his Philosophy of Law, and in part his Interpretations of Legal History, passim; M. R. Cohen Law and the Social Order (1933); F. S. Cohen, Ethical Systems and Legal Ideals (1933). 45 Translated works such as F. Berolzheimer, World's Legal Philosophies, or E. Ehrlich, Fundamental Principles of the Sociology of Law, fail, for many reasons which need not here be retailed, to fill the gap. Dr. N. S. Timasheff'. Introduction to the Sociology of Law (1939) and Dr. G. Gurvitch's Sociology of Law (1942) though their appearance marked an important stage, face to some extent, the same difficulty, and in any case do not cover "sociological jurisprudence" in the Anglo-American sense. See generally infra Chapter XVII. Dr. C. K. Allen's Law in the Making, W. I. Jennings (ed.) Modern Theories of Law (1933) and Mr. J. Walter Jones, Historical Introduction to the Theory of Law (1940), though of limited scope, are welcome auguries for the future, and so is W. Friedmann's Legal Theory (1944) though this was not available in time for me to benefit before this volume went to press (November 1944). Cf. as to J. W. Jones' work, Lon L. Fuller, Book Review (1942) 55 Harv. L. Rev. Dr. Robson's Civilisation and the Growth of Law (1935) might possibly form another exception. Its scope however is even more limited. Of course monographs and articles within the field are legion, many of them of epoch-making importance. Such are B. N. Cardozo, Nature of the Judicial Process (1921); 0. W. Holmes, "Path of the Law" (1907) 10 Harv. L. Rev. 457; R. Pound, "The Need for a Sociological Jurisprudence" (1907) 19 Green Bag, 607; R. Pound, "The Scope and Purpose of Sociological Jurisprudence" (1911) 24 Harv. L. Rev.

14

PROVINCE OF JURISPRUDENCE

[CH.

I

§6

subjects are not, even in the United States, a normal part of the legal curriculum." The absence of textbooks covering adequately these branches other than the analytical, is not only evidence of the scope of what jurisprudence is taught: it is also a great impediment to closing the gap between what is taught and the best in modern scholarship. In the United States the obstacle is even greater than in England because of the difficulty of adapting the subject to the case method of teaching." While this deficiency remains it must be expected that sociological jurisprudence and the theory of justice will make but little contribution to the training of the lawyer. Pedagogy will continue to open with courteous genuflexions" to "sociological", "economic", "psychological", "philosophical" jurisprudence and the rest, and then proceed to the "real" business of logical analysis. The claims of such other branches are staked; but in terms of legal education the working of the claims has barely begun." 591; (1912) 25 id. 140; R. Pound, Interpretations of Legal History (1930). English writings like those of R. M. Jackson, The Machinery of Justice in England (1940) ; D. Seaborne Davies, "Child-Killing in English Law" (1937-38) 1 Mod. L. Rev. 203; D. V. Glass, "Effectiveness of Abortion Legislation in Six Countries" (1938) 2 id. 97, are but a few examples of promising developments in England. While sharing many of Professor S. P. Simpson's views ("English Law in the Making" (1940) 4 Mod. L. Rev. 121-131) the writer respectfully thinks that he has over-generalised from the limitations of Dr. Allen's work. Professor Pound as long ago as 1911 was at work upon a book entitled Sociological Jurisprudence (see Note (1911) 24 Harv. L. Rev. 591). The delay in its appearance has been a most grave deprivation for Anglo-American jurisprudence. Although Professor Pound's constant publications in parts of the field since that date have been some compensation, the intervening generation and a half (representing numerous generations of students) has been largely lost to this side of legal education. Similarly it might be noted that there was no English or American periodical until 1938 dedicated to either the ethical or sociological approaches to law, though many such journals had long appeared from the Continent and South America. Of course political, philosophical and sociological journals offered a forum; and the Modern Law Review was founded.in 1937 as a forum for these approaches. But the main proposition remained true until the recent appearance in the United States of The Journal of Legal and Political Sociology and Law and Contemporary Problems. 46 See supra n.19. 47 The publication of such a case-book, in which the author is co-editor, has been delayed since 1937 by Acts of God and the King's enemies. Professor Jerome Hall's Readings in Jurisprudence (1938) is a wholly admirable attempt to fill part of this need. The writer respectfully agrees with Dr. W. Friedmann's assessment of the importance of this volume. (See Book Review (1941) 3 Mod. L. Rev. 80). 48 After using the above figure of speech, I am reminded that Eugen Ehrlich used it in 1913 of continental juristic thought and teaching at that time. (Fundamental Principles of the Sociology of Law (Moll's transl. 1936) 15). 4 It is most significant that Dr. C. K. Allen, whose work in the nonanalytical field has been very prominent was unable after a square examination of the matter to travel beyond the analytical conception. The general result of his "Jurisprudence-What and Why" (Legal Duties (1931) Iff.) is as fruitless as his incidental observations are interesting. Jurisprudence is "the scientific synthesis of the essential principles of law" (19). The writer agrees with Dr. Allen's

CH. 1 § 6]

DEFICIENCIES OF TAUGHT JURISPRUDENCE

15

The state of the matter is well crystallised in the late Sir John Salmond's definition of the scope of his own work, perhaps the most tolerant of the English textbooks." The present treatise is primarily and essentially a book of analytical jurisprudence.

. .

. But although the essential purpose

of this book is an analysis of the first principles of the actual legal system, this purpose is not pursued to the total exclusion and neglect of the ethical and historical aspects of the matter. These are treated, however, as subsidiary and are dealt with only insofar as it is thought necessary for the adequate treatment of the central subject matter. He concluded with an apologia for inflicting on the student even these incidental references to matters extraneous to logic.

As late as 1938 a then member of the Faculty of the London

School

of Economics, familiar with the pedagogical

practice of the University of Cambridge, the English provincial universities and the University of London, was impelled to say this: "The primary need is to take jurisprudence out of

the Austinian rut in order that there may be a few jurists of wide enough vision to survey some part of a vast territory"."' With that assessment the present writer's experience would on the whole agree. own comment that his word "essential" begs the question (20). It does so in a far graver sense however than that confessed. For what principles are essential also depends on the sense in which he here uses the word "law". He seems, with respect, to ignore the now indubitable distinction between law as a series of propositions giving rise to a rational science devoted to ascertaining their logical interrelations; and law as a phenomen having its effects upon and being affected by society which can only give rise to an empirical science. This oversight is manifest throughout the essay: it vitiates the strange conclusion (26-27) that what is needed to render analytical jurisprudence adequate for our times is merely "a greater Austin, no less patient in method, no less meritorious in method, but perhaps more ingratiating in manner". Cf. the biting observations of W. I. Jennings, "A Plea for Utilitarianism" (1938) '2 Mod. L. Rev. 22, 27-28, who also points out the grave discrepancy between the best English juristic scholarship and the everyday tenets of legal education. The discrepancy within Dr. Allen's work will be startlingly seen by comparing the above cited essay with the Introduction to the third edition (not the first) of his Law in the Making (1939), esp. 51-52. It is respectfully suggested that the position taken in the latter place is untenable unless Dr. Allen abandons the idea that the future of jurisprudence lies along the single track of a "greater" and more "ingratiating" Austinianism. And cf. the criticism of Dr. Allen's view in M. Oakeshott, op. cit. infra n.50 at 207. 50 Jurisprudence (7 ed. 1924) 9. Mr. Oakeshott, "The Concept of a Philosophical Jurisprudence" (1937-38) 3 Politica,202, 345, proposes to superimpose on the existing heterogeneity of branches, a comprehensive "philosophical jurisprudence", with the function of "supreme operative criticism" over the rest (355). This suggestion may be of service to philosophy as such: it seems with respect, a counsel of despair from the lawyer's viewpoint. 51 W. I. Jennings, "A Plea for Utilitarianism" (1938) 2 Mod. L. Rev. 22, 35. Dr. Jennings was trained at Cambridge, whence he went to the University of Leeds and then to London. Cf. the strictures by W. Friedmann, "Legal Theory and the Practical Lawyer" (1941) 5 Mod. L. Rev. 103. A reference to Sir Edward Jenks, The New Jurisprudence, first published in 1933 sheds light on the assess-

16

§ 7.

PROVINCE OF JURISPRUDENCE

[CH. 1 §§ 7-8

In the foregoing survey of its branches a certain division of the field of jurisprudence has been assumed based roughly on the order of reception in England and America in the last century. It was assumed for convenience merely. It does not represent any generally accepted division, nor indeed does it represent the rational division later to be proposed by the present writer. CURRENT DIVISIONS OF THE FIELD OF JURISPRUDENCE.

As a basis for such a rational division it is of some importance to survey briefly the main- divisions advocated in the literature. Here we move from the actual achievements of teaching and research, to the freer arena of Programrmschriften. The result, if anything, is even more disturbing. On their basis, indeed, it would not be too severe to describe jurisprudence to-day as a chaos of approaches to a chaos of topics, chaotically delimited. This chaos has tended to confuse rather than clarify the organic division of the subject; it has tended to multiply branches rather than relate them to each other. 2 At the risk of some distortion the main schemes of the last half-century can be placed under either of two heads. The first covers schemes which merely list the main approaches to jurisprudence manifest in the literature of their time; they may be termed the eclectic schemes. The second covers more ambitious attempts to divide the field on some basis related to the problems of the age. The classification § 8. ECLECTIC SCHEMES OF DiviSION. adopted by the most distinguished living Anglo-American teacher of jurisprudence may serve to demonstrate the eclectic ment. That volume describes the analytical method as still "the dominant method of jurisprudence". Professor Jenks, it may be noted, scarcely yielded even the courteous genuflexion to "critical" and "sociological" jurisprudence. See ibid. cc. ii and iii, esp. 65-67. He certainly gave little evidence in the work of having thought them worthy of study. See for instance at 139 his "demonstration" that jurisprudence is a material and not a formal science. 52 C/. the witty comment by A. H. Campbell, "A Note on the Word 'Jurisprudence' " (1942) 56 Law Q. Rev. 339, that so far as verbal usage is concerned, Polonius would have approved "jurisprudence" as the best subject in the world "either for tragedy, comedy, history, pastoral, pastoral-comical, historical-pastoral, tragical-historical, tragical-comical-historical, scene individable, or poem unlimited! But it makes things a little difficult for the student". And see M. Oakeshott, op. cit. supra n.50. I agree with the learned writer (21421) in detecting at least four confused uses of the term: (1) the treatment of law and its conceptions as illustrative of some philosophical doctrine; (2) use of "metaphysical" methods in studying law (e.g., 2 Bryce, op. cit., supra n.18); (3) relation of conclusions of jurisprudence to philosophical doctrines (e.g., C. K. Allen, Legal Duties (1931) 17) ; (4) what is here called the theory of justice.

CH. I

§i81

CURRENT CLASSIFICATIONS

17

approach." Professor Pound answers the exclusivist claims of analytical jurisprudence by taking the position that any systematic treatment of legal materials is within the scope of jurisprudence. He then distinguishes (1) the analytical branch devoted to a study of law as a body of logically interdependent precepts, (2) the historical branch, (3) the philosophical branch, and (4) the sociological branch. The first of these branches, it will later be agreed, is clearly supportable by the test of significance for juristic purposes. The second, or historical jurisprudence, can scarcely be parallel to it, since there may be an analytical historical jurisprudence, as well as a philosophical and a sociological historical jurisprudence." Vinogradoff's comment that "history cannot be contrasted with the theoretical study of law because it provides one of the essential elements of legal method", has never so far as the writer is aware, been adequately answered." Coming from a giant of the historical school itself, it cannot be ignored. As to philosophical jurisprudence, described by Professoi: Pound as "a study of the philosophical bases of (the law's) institutions and doctrines; an attempt to reach its fundamental principles through philosophy", even more serious objections Philosophy has very many can, with respect, be brought. branches, including ethics, political philosophy, aesthetics and epistemology. Each of these branches may, from the jurist's point of view, be significant rather by its difference from the others, than by the tenuous similarity which unites them all under the mantle of philosophy. To group together lines of juristic thought of quite varied purport merely because they all make use of philosophical doctrine is vain and may be confusing." 53 R. Pound, "The Scope and Purpose of Sociological Jurisprudence" (1911) 24 Harv. L. Rev. 591, 594-610; R. Pound, Outlines of Lectures on Jurisprudence (4 ed., 1928) 1; R. Pound, "Fifty Years of Jurisprudence", cit. infra, n.127. Cf. on the vague test of "systematic" J. Salmond, Jurisprudence (7 ed., 1924) 1. Cf. E. Jenks' division (The New Jurisprudence (1931) cc. ii, iii) into (1) Analytical. (2) Comparative, (3) Historical, (4) Critical and (5) Sociological, the last two in the quotation marks of distaste. Cf. J. C. Gray, Nature and Sources of the Law (1909) c. vii, limiting jurisprudence to the analytical but subdividing it into "Particular", "Comparative" and "General". 54 Cf. A. H. Campbell, op. cit. supra n.52 at 338. For examples see Salvioli, Storia del Diritto Italiano (8 ed. 1921) ; cf. C. H. S. Fifoot, English Law and its Background (1932) ; R. Pound, The Spirit of the Common Law (1921) ; R. Pound The Formative Era of American Law (1938). 5 1 Historical Jurisprudence (1920) 4. 56 Cf. the slightly different point made by P. Vinogradoff, op. et loc. cit.:

18a

PROVINCE OF JURISPRUDENCE

[CH.

1 li 8

It is apparent that this classification proceeds on the basis of the main approaches which had emerged, historically, at the date of writing. Professor Pound does not purport to justify it by any other test. Sometimes, however, a similar eclectic approach is concealed behind a faqade of rational organisation. Thus Professor Keeton in 1930" enumerated "Analytical Jurisprudence" dealing with existing systems of law, "Critical Jurisprudence", dealing with the future of systems of law, and "Historical Jurisprudence" dealing with past systems. He proceeds also to mention "Particular Jurisprudence", "General Jurisprudence", "Comparative Jurisprudence", together with "Economic Jurisprudence", leading to "Sociological Jurisprudence" and "Psychological Jurisprudence". The implication, at any rate, as to the last three, is that they are in some way parallel to the first. Despite the hint of a temporal division this gives no clear idea of any mutual coherence between the branches referred to. Moreover, it is misleading in some particulars. The contrast between Historical and Analytical and Critical Jurisprudence is scarcely a mere matter of past, present and future tenses.

There can, after all, be an analytical approach to a past system, as the Commentators and the Pandectists have shown. And there may be treatment of future systems by way of prediction which is not critical: the future, as modern American thinkers have stressed, has its "will be" as well as its "ought to be"." It must be apparent that the time criterion is not "As for philosophy its influence is all pervading and is bound to make itself felt in the treatment of any subject: it forms as it were the atmosphere of all scientific studies". "Collection", in short, is not "division". 57 Elementary Principles of Jurisprudence (1930) 411. Cf. at a date before the full rise of sociological jurisprudence Jethro Brown, Austinian Theory of Law (1906) 369, which suggests the historical, comparative-historical, comparative and particular approaches. 58 Thus while accepting the "prediction" theory of the nature of law, Professor Llewellyn insists on "the temporary divorce of the is and the ought for the purposes of study": K. Llewellyn, "Some Realism about Realism" (1931) 44 Harv. L. Rev. 1236, 1237. For the locus classicus of this "prediction" doctrine see 0. W. Holmes, "The Path of the Law" (1897) 10 Harv. L. Rev. 457. But see the comment of H. Kantorowicz on this doctrine as developed in later thought in "Some Rationalism about Realism" (1934) 43 Yale L. Jo. 1240, 1250. While it is unnecessary here to take a position on the main issue (see also infra Chapter XVI, and Intro. Note to Part III) the present writer would say that on this point the late Dr. Kantorowicz's remarks are more biting than convincing. He sees no distinction between defining law as what the courts do and defining science as what ihe universities teach. This., he himself admits, is a much weaker argument for common law countries than it is for the civilian. And in any case what the universities teach cannot alter the laws governing the course of inanimate phygical phenomena; whereas what the courts do constitutes

CH. I § 9.1

ECLECTIC SCHEMES

19

really related to the central problems of jurisprudence." Professor Keeton's reference to the time factor, indeed, does not improve Salmond's simple division into "Analytical", "Historical", and "Ethical", a division based like Professor Pound's on the labels of current scholarship.o § 9.

RATIONAL SCHEMES OF DiviSION.

The attempt to organise

the contents of jurisprudence according to the banner under which casualiteret per infortunam they first rallied, was bound to fail. By rational schemes, on the other hand, are meant schemes which seek to divide the subject according to the nature of the problems which are to be addressed. These problems are not necessarily limited to those dealt with in current literature; nor do they of necessity include all that is so included." Thus for the exclusiveness of a Holland "jurisprudence is wrongly applied to actual systems of law, or to current views of law, or to suggestions for its amendment, but is the name of a science. The science is a formal or analytical rather than a material one. It is the science of actual or positive law. It is wrongly divided into 'general' and 'particular' or into 'philosophical' and historical' "."' This supreme confidence of the

Anglo-Saxon analyst is rivalled only by the faith of his Continental counterpart, Kelsen, in the adequacy for the lawyer of the "pure science of law"." Those who are not so fastidiously exclusive in their love of form and purity are left with the prob. lems of substance. How can we render coherent the various approaches to legal theory produced by the problems of the modern age? at least a part of the laws governing human conduct. 59 Cf. the qualified use of the time factor in A. Kocourek, Introduction to the Science of Law (1930) 1-54. 0o J. Salmond, Jurisprudence (7 ed. 1924) 1. 61 Of course the idea of a rational division is found long before e.g., in Austin's distinction between "the science of law", and "the science of legislation" (2 op. cit. (3 ed. 1869) 1102, 1108) and Bentham's between "expository" and "censorial" jurisprudence (Principles of Morals and Legislation (1879 ed.) 322). So it will be found to be partly used in some of the classifications already considered, e.g., that of Professor Keeton, and of some to be later noted. 62 T. E. Holland, Jurisprudence (13 ed., 1924) 12-13. It has always puzzled the writer how the definition on p.9 ("the formal science of those relations of mankind which are generally recognised as having legal consequences"), is to be reconciled with that on p.13 ("the formal science of positive law"). The difficulty is the greater if "formal" is taken in its classical sense of "essential" on which see J. H. Drake, Jurisprudence a -Formal Science" V14) 13 Mich. L. Rev. 34, 36, quoted in J. Hall, Readings . . . (1938)

647-48.

See e.g., H. Kelsen "The Pure Theory of Law" (1934) 50 Law Q. Rev. 474ff. (1935) 51 id. 517. Cf. C. K. Allen, Law in the Making (3 ed. 1938) 52. 63

PROVINCE OF JURISPRUDENCE

20

[CH.1I

9

Most schemes under this head, however, have tended to be inclusive rather than exclusive. In a pioneering paper written in 1882 the late Sir Frederick Pollock distinguished the historical, comparative, analytical and practical methods applied to present law, and the "theory of legislation" and "ethical jurisprudence" applied to future law." And Lord Bryce followed in this line by distinguishing (1) the "metaphysical" or a priori method; (2) the analytical method; (3) the historical method; and (4) the comparative method. He dealt with the "metaphysical" or "a priori" method in a manner which suggested that he included therein an indiscriminate group of matters, similar to those included by Professor Pound He thought, along tinder "philosophical" jurisprudence." with most contemporaries, and contrarily to the present view, that the analytical method "starts from the actual facts of law" and shows "their relation to one another"." As to the other two, he pointed out that the historical method might be a branch of the comparative, and the comparative of the

hiistorical." Professor Kocourek as late as 1930 also uses a mixture of the temporal and rational criteria. He co-ordinates Legal History and Historical Jurisprudence with past time, Positive Law and Formal Jurisprudence with present time, and Proposed Legislation and Constructive Jurisprudence with future time." Many of the objections to Professor Keeton's analysis Professor Kocourek does, however, recogapply here also. nise a structural division cutting across the temporal one and quite independent of it." The Kelsenites admit of course, the propriety of study of the sociological effects, and even of the end ("the politics") of law: they do not, however, admit the activity to be of interest to the lawyer as such or as worthy of the name of jurisprudence. See ibid.: "There is to-day hardly a social science into whose province jurisprudence feels itself unfitted to enter, even thinking, indeed, to enhance its scientific status by such conjunction with other disciplines. The real science of law, of course, is lost in such a process". See however, N. S. Timasheff, "What is Sociology of Law" (1937) 43 Am. Jo. of Soc. 225, 230 on the alleged "conversion" of Professor Kelsen at the Congress of the Institut International de Philosophie de Droit et de Sociologie Juridique, Annuaire de L'Institut (1925) 60ff., 81-82. in Oxford Lectures (1890) 24. 64 "The Methods of Jurisprudence" (1882) By "practical" however, he understood merely the study of law in the practitioner's sense. 65 Pp. 174-78.

I have already referred to that supra. And see supra n.50. 06 P. 178. There are glimpses, but only partial ones of the role of logic. 67 Pp. 184-190. He was curiously untroubled by this interchangeability. Gs See the diagram on 53. 09 Introduction to the Science of Law (1930) 15.

CH. I § 91

RATIONAL SCHEMES

21

To this structural cross-division further objections may be taken. Professor Kocourek understands by Constructive Jurisprudence something very different from Professor Keeton's Critical Jurisprudence. By the former term Professor Kocourek intended to refer to a branch of jurisprudence which is concerned with "(i) the engineering problem of calculating the social effects of a proposed rule; (ii) the technical problem of stating the legislative proposal in such a way as will equate with the object sought without disturbing other parts of the legal structure"." It is indeed difficult to see, on this basis, why "constructive" jurisprudence is more nearly tied with the future than with the present. For its first branch involves the techniques of sociological jurisprudence, and its second those of analytical jurisprudence. Alongside Historical, Formal and Constructive Jurisprudence, but outside the time schema, Professor Kocourek placed Philosophy of Law. His account of its scope is not altogether consistent. At moments he seems to say that philosophy of law is devoted to the theory of justice,n especially at the point of legislation;" it would then correspond to what I shall later

call the theory of justice, or what Bentham called censorial jurisprudence. However, it is by no means clear that he does not include as well any branch of philosophy whatsoever, which has significance for the law." If the latter be the case a further remark later to be made would be applicable." The full implications of rational classification, however, are best seen in schemes like those of Hohfeld and Wigmore. Hohfeld as long ago as 1914 suggested the following divisions: (1) Historical or genetic; (2) Comparative or eclectic; (3) Formal or analytical; (4) Critical or teleological; (5) Legislative or constructive; and (6) Dynamic or functional." There still remained here a fundamental lack of unity in the criterion determining the divisions. Some of them, such as "Legislative" being determined by the practical result sought, some such as "Formal" by the method employed, namely logic, some such as "Comparative" by the nature of the materials ired.. As has 71

Pp. 39, 43. P. 46.

72

P. 49.

73

See e.g., the reference to the unitary and pluralistic schools on 51.

74

See infra § 14.

70

75 Fundamental Legal Conceptions (1923)

338-63.

22

PROVINCE OF JURISPRUDENCE

(CH.

I §9

been wittily remarked: "A man in a restaurant once ordered cherry pie, mince pie, peach pie and lemon pie. The waiter quietly asked: 'What's wrong with the apple pie?'"" Furthermore, the category "historical" is open to the doubts above indicated: and analogous doubts would affect the "comparative" and "dynamic" categories. An even more extreme example of this search for a rational division is to be seen in Dean Wigmore's stimulating design" in which he breaks with current terminology as well as with current thought. He would divide nomology (the science of law as a whole) into nomoscopy, nomosophy and nomopractics." Nomoscopy is to ascertain the facts of legal science, whether present facts (nomostatics), past facts (nomogenetics) or concurrent facts of other sciences (nomophysics). Nomosophy is to test legal rules either by logic (nomocritics), by ethics (nomoethics) or by economics (nomopolitics). Finally, nomopractics is to deal with the making and ehforcing of legal rules, either by courts (nomodikastics), by legislature (nomopoietics) or by execution (nomodrastics). The small influence of this distinguished lawyer's scheme upon the history of jurisprudence will not surprise anyone who remembers the fate of most of Jeremy Bentham's verbal inventions. Embedded in this scheme, however, is a most valuable conception. Nomosophy, which deals with the justification of legal rules, is to test them by logic, by ethics and by economics. If ethics were to include its cognate discipline of political philosophy, and if economics had included all the social sciences, this very head of Nomosophy might have provided a simple and useful division of the whole of jurisprudence. To this we shall shortly return. Professor Morris R. Cohen, one of the few distinguished philosophers who have addressed themselves to this problem proposed, in 1933, a return to a more simple scheme." Positing that law can be viewed as setting up rules which command obedience and control conduct, he continued: "What sort of 76 N. Isaacs, "The Schools of Jurisprudence" (1917) 374.

31 Harv. L. Rev. 373,

" See H. Wigmore, Problems of Law, quoted A. Kocourek, op. cit. supra n.59 at 63-65). 78 I exclude, for simplicity's sake, Nomodidactics, dealing with the teaching of the facts of legal science. 79 Law and the Social Order (1933) 240, in J. Hall, Readings in Jurisprudence (1938) 805.

CH. I § 91

"SOCIOLOGY" AND "PHILOSOPHY" OF LAW

23

science of such norms is possible? There are at least three approaches to such a science, which we may characterise as legal history, legal sociology and normative (or teleological) jurisprudence." The importance of distinguishing legal history from jurisprudence of any sort has been fully canvassed in the literature, and has been mentioned above. It is difficult, with respect, to understand how the learned writer could appear to overlook it. It is equally difficult to understand the omission of any reference to analytical jurisprudence. The other two branches suggested, however, march along with Dean Wigmore's division of Nomosophy, and with part of the division hereafter to be proposed. Dr. N. S. Timasheff in a late work" makes a number of interesting refinements. He apparently recognises the analytical historical and comparative branches of jurisprudence.' Side by side with Jurisprudence, which he characterises as "idiographic", he would place two other disciples. One the learned author terms "the Sociology of Law", which is the subject of his work. This he is at great pains to distinguish from "Sociological Jurisprudence". The stated difference is that "sociological jurisprudence" is concerned to examine how far human behaviour conforms to rules of law, and how far the law is transformed by human behaviour; whereas "the sociology of law" is a "nomographic" science, devoted to framing the "laws of a scientific nature concerning society in its relation to law","' and "its content depends only to a small extent on the changes in concrete legal regulations. It is related to Jurisprudence (above defined) as biology is related to botany and zoology". Whereas, therefore, the writer regards "sociology of law" as a separate science, he would regard "sociological jurisprudence" as he defines it, as merely "a functional approach to the above three branches of jurisprudence". He even denies that it is entitled to rank as a separate fourth branch of jurisprudence. Dr. Timasheff's third discipline he calls "philosophy of law", the scope of which is "the integration of legal phenomena into an entity assumed to be known", the structure of the entity 80 Introduction to the Sociology of Law (1939, Harvard Sociological Studies, vol. iii) c.ii. 81 P. 28, n.7. 82 Ibid. 19.

PROVINCE OF JURISPRUDENCE

24

[CH..

I 10

not being verifiable by scientific methods. It includes notably but not exclusively the evaluation of ultimate ends to be attained by law. This is not the place to discuss the philosophical basis of the learned writer's distinction. A case will later be made for the abandonment of the omnibus category of "philosophy of law"." So also the view is taken by the present writer that the categories "historical jurisprudence" and "comparative It is impossible to jurisprudence" should be abandoned." assess Dr. Timasheff's reasons for preserving them, for he offers none." As for his suggestion" that "sociological jurisprudence" in this sense is merely "the functional method" applied to "analytical jurisprudence", it seems best to await his novel account of analytical jurisprudence which will make possible so highly skilled an operation." The proposed distinction between "sociological jurisprudence" and "sociology of law" will be considered later."

§ 10.

TOWARDS A TWENTIETH

CENTURY TRILOGY.

Jurispru-

dence, in effect, wrote the late Professor Vinogradoff in 1920, must face the problems of law in its own way by such help as it can derive from those branches of special knowledge which have a direct bearing on legal questions." He then devoted four chapters to the topics: "Law and Logic", "Law and Psychology". "Law and Social Science", and "Law and Political Theory". indicating some of the possible interactions under each respective head." Two assumptions behind this treatment seem to the writer to provide the nearest approach to a satisfactory basis Infra § 14. infra H§ 13ff. 85 In his article "What is the Sociology of Law" (1937) 43 Am. Jo. of Soc. 225, 226, the learned writer does purport to give indications of the scope of these branches. There he reduces the branches to two, the "analytical" and "historical", relegating comparative jurisprudence, as the present writer does, to analysis, etc.. applied to several systems. 83

84 See

86 P.

28, n.7.

It certainly is impossible on the orthodox definition of analytical jurisprudence which he adopted two years before (op. et lc. cit. supra n.85). See ibid 230, where even he seems to admit that it is impossible. I have not been able to reconcile these various assertions. His suggested "theoretical" jurisprudence (ibid. at 226) is presumably Austin's "general" jurisprudence, su6 specie obscuritatis. 88 Infra, Chapter XVII. 89 1 Historical Jurisprudence (1920) 5. 90 Ibid. 1.95. Cf. the approach within the sociological field in H. Cairns. Law and the Social Sciences (1935) and the introduction thereto by RoscoePound, at xiv. 87

CH.

I

§Il11

"JURISTIC EXTRAVERSION"

25

for redetermining the province of jurisprudence in the twentieth century. They are: first, that jurisprudence is the examination of law in the light of other disciplines than the law;" and second, that jurisprudence must make its own classification for legal purposes of the fruits of such examination. And five years later Professor Laski used the striking metaphor that jurisprudence was or should be, "the eye of the law", giving lawyers their "insight into the environment of which it is the expression and relating the law to the spirit of the time"l. 2 The present thesis is that such ideas if kept as a central guide lead to a coherent and practical and essentially teachable view of the field of jurisprudence. '§ 1

JURISPRUDENCE AS THE EXAMINATION OF THE LAW IN THE

Jurisprudence, then, in the LIGHT OF OTHER DISCIPLINES. It is the present hypothesis, is the lawyer's extraversion. lawyer's examination of the precepts, ideals and techniques of the law in the light derived from present knowledge in disciplines other than the law. It is an attempt, which must always remain imperfect, to fulfil for the law the object strikingly posed by the late Mr. Justice Holmes of showing "the rational connection between your fact and the frame of the Universe. To be master of any branch of knowledge you must master those which lie next to it"." On the one hand, all the major branches which are generally admitted to the halls of jurisprudence are admissible by this test. Analytical jurisprudence is admissible as essen92 J. Bentham (Principles of Morals and Legislation (1876 ed.) 323) spoke truer than his own development of his words would indicate when he said: -Jurisprudence is a fictitious entity; nor can any meaning be found for the word but by placing it in company with some word that shall be significative of a real entity". The above criterion completes the description, and it is submitted, gives an answer to Dr. C. K. Allen's apparent view ("Jurisprudence-What and Why" in Legal Duties (1931) 12ff.) that there can only be one branch of jurisprudence and that adjectives are out of place, since you cannot separate "the kinds" of jurisprudence until the "jurisprudence" itself is isolated. By the above definition jurisprudence is isolated. But from the very terms of the definition it is apparent that it can have no existence apart from its various branches. 92 A Grammar of Politics (1925) 377. Cf. the proposals of J. Hall, "A 2-2-2 Plan for College-Law Education" (1942) 56 Harv. L. Rev. 245, esp. 251-56, 264ff. and 1). Riesman, Jr, "Law and Social Science" (1940) 50 Yale L. 1. 636, as to law training as a whole. 20 Am. L. Rev. 741, 742. This is 93 "The Law as a Profession" (1886) parallel to H. Kantorowicz's definition of sociological jurisprudence (Rechtswissenschaft und Soziologie (1911)) as a survey of the relation between law and other social spheres. Cf. N. S. Timasheff, "What is Sociology of Law" (1937) 43 Am. Jo. of Soc. 228ff. Cf. Lord Macmillan's lawyer looking "out of the window" (op. cit. infra n. 107 at 138). For a recent example of the effects of failure to go beyond the juristic litera-

26

PROVINCE OF JURISPRUDENCE

[CH. I §It

tially a critique of law in terms of logic." The "logical form" is not "fallacious" within its own proper universe of discourse. It is only outside this universe of discourse that Holmes' "cynical acid" would wash the fallacy of the logical form along with the observer's moral presuppositions from the predictions of law." Historical jurisprudence is admissible insofar as it purports to interpret the development of law in terms of some theory of history. Also on this test sociological jurisprudence is clearly not misnamed, for it reviews the law in the light of sociological knowledge, however that be defined. And insofar as economics, psychology, anthropology and the rest be regarded as disciplines distinct from sociology, they may each properly be credited with a respective approach to jurisprudence. The same is to be said of philosophy in its various branches, including notably the normative branches of ethics and politics. 6 On the other hand, the various branches excluded front jurisprudence, by a consensus clearer than the reasons basing it, are justifiably excluded on this test. Thus the rebukes heaped upon "medical jurisprudence", "dental jurisprudence", and "equity jurisprudence"," are shown by this test to be justified by reasons other than the juristic ipse dixit." "Equity jurisprudence"" is not jurisprudence for the reason that it is merely an exposition of a branch of the law by the measure of the lawyer's own yardstick.'o On the other hand, ture on a subject, see Dr. C. K. Allen's neglect of the work of the anthropologists on custom (Law in the Making (3 ed. 1938) c.i) on which see the strictures by S. P. Simpson, op. cit. supra n.45 at 124-25. 9 See for discussion of this, infra Intro. to Part I, n.18, Chapters VI and VII. 95 0. W. Holmes, "The Path of the Law" (1897) 10 Harv. L. Rev. 457, 462, in Collected Papers (1920) 174. And see infra Intro. Note to Part IV, § 2, n.18. 96 See however, infra § 14. 97 See e.g., T. E. Holland, op. cit. (13 ed.) 4; G. W. Keeton, op. cit. supra n.57, 2. 1. Thus the only reason T. E. Holland offers as to equity jurisprudence is that "an exposition of existing law is quite another thing from a science of law" (p.5). The stricture on "medical jurisprudence" is usually made without reason (see e.g., G. W. Keeton, op. cit. 4; T. E. Holland, op. cit. Sn, who at the same time smites "architectural", "dental" and "opthalmic jurisprudence") ; or with only question-begging reasons, for instance, that it is not "scientific" (see J. C. Gray, Nature and Sources of the Law (1909) c.vii). 9 See e.g, J. B. Ames, Equity Jurisprudence. As has frequently been pointed out this would perhaps be the only proper use in the original Roman sense of jurisprudentia. With respect, however, the writer would disagree with Professor Keeton's proposition (op. cit. 2) that its use in this sense to-day is intrinsically right though historically wrong. It is surely rather intrinsically wrong though historically correct for a former time. See on this literary question, which, however, seems of slight importance, A. H. Campbell, op. cit. supra n.52. 100 Cf. almost the same point in M. R. Cohen, Law and the Social Order (1933) 243.

CH. I § 121

THE QUADRISYLLABULAR COMPLIMENT

27

what is called "medical jurisprudence" does not merit the name, because it is not an examination of the law in the light of medicine, but a mere extraction from the law of those parts useful for a medical man to know. It does nothing to or for the law which it abstracts.' So again this hypothesis gives a satisfying account of the problem whether historical jurisprudence is to be distinguished from legal history. The answer turns upon the nature of the historical discipline itself. Insofar as history is only the recording and recounting of events, there can be no historical jurisprudence but only legal history. For the law is then not examined in the light of history; it merely constitutes some of the events which make up the historian's narrative or description.' It is the law examined in time-sequence, rather than in logical sequence: but in any case, it does not merit the title of jurisprudence. Insofar, however, as history is a synthesising and interpretative discipline, the application of its discoveries and generalisations to law clearly merits the title "Historical Jurisprudence". For it adds arrangement and meaning to the bare facts of law narrated in time sequences."' If the above claims are just it will be readily seen why past disputations as to the claims of the science of legislation, historical jurisprudence, psychological jurisprudence and others to the "quadrisyllabular compliment", yield much heat and little light. For in the absence of an adequate criterion, such as that tacitly assumed by Vinogradoff, the ejection of some claimants and the admission of others could only be on the basis of the doorkeeper's "hunch".

§ 12. THE

BRANCHES OF JURISPRUDENCE ARE TO BE ASCERTAINED BY CLASSIFYING FOR LEGAL PURPOSES THE RESULTS OF

To confirm the admission to jurisprudence of the reflections upon law from the several bodies of knowledge above indicated, is not to admit the propriety of dividing THIS EXAMINATION.

101 There might indeed be "equity jurisprudence" and a "medical juris. prudence" in the true sense. A study, for instance, of the effect of gout upon the exercise of the Chancellor's discretion in the seventeenth and eighteenth centuries would be both. Cf. by analogy, Zinsser, Rats, Lice and History which deserves on thq same principle the title of medical sociology. 102 Cf. J. Michael and M. J. Adler, Crime Law and Social Science (1933) 55. W3 Sed qu. whether the two activities are really severable in kind. See, however, C. K. Allen, Legal Duties (1931) 13. There is an illuminating discussion in M. Oakeshott, op. cit. supra n. 50, 208-10. A. J. Toynbee's view would certainly yield a powerful historical jurisprudence (A Study of History, 1934-).

28

PROVINCE OF JURISPRUDENCE

[CH. I § 12

jurisprudence into as many corresponding branches. In other words, it does not follow from the endorsement of the claims of analytical, historical, philosophical, sociological, psychological jurisprudence and the others that each of them represents a separate branch of jurisprudence.'o At this point it is important to say that the question of classification of the branches of jurisprudence is not to be regarded as merely, or even mainly, a matter of logic. Several different classifications may, as a matter of logic, be equally satisfactory. Even if a particular division be open to objection by the logician the more crucial question would still be whether the classification adopted is such as to permit coherent exposition, free from excessive duplication, or atomisation, and in a manner relevant to the problems which are to face the student in the world he enters.' It is for these reasons that it is necessary to reject forthwith a classification of jurisprudence which would devote a separate branch to each of the external disciplines which is to be applied to the law. Such a classification would perpetuate overlapping and atomisation. Moreover, on such a basis the point may well quickly arrive when, as a matter both of logic and convenience, jurisprudence would be better considered as a mere aggregation of branches from the respective external disciplines. Logic, history, sociology, ethics, political theory, political philosophy, political science,0 o epistemology, aesthe104 It will be clear therefore, that the writer would not regard the division of Professor Vinogradoff's above cited Chapters, or of H. Cairns, Law and the Social Sciences (1935) as in any way definitive. There is furthermore no inconsistency between the present thesis and the call for correlation of law with the social sciences generally. So the writer would agree, for instance, with E. T. Mitchell, "Social Ideals and the Law" (1937) 46 Philosophical Review 113, that "the law needs philosophy to restore itself that direction, clarification and background which it appears to have lost"; but at the same time he would suggest ihe abandonment of the separate category of "philosophical jurisprudence". The writer respectfully agrees with Professor Paton's comment (22 Can. Bar Rev. 484 (1944) h propos of proposals by Dr. Gurvitch and Dr. Timasheff for various distinctions between "sociology of law" and sociological jurisprudence, that there is a danger of this theoretical debate continuing to absorb excessively juristic attention. And see infra Chapter XVII, § 2. 105 At the risk of its other edge being turned against us by the surviving Austinians we might quote in support Austin, 2 Lectures (Campbell's ed. 1869) 1124: "He who would know anything well, must resolve to be ignorant of many things". Of course in learned writing as distinct from pedagogy the unintdgrated approach has an important role. See e.g., for English law, D. Hughes Parry, "Economic Theories in English Case Law" (1931) 47 Law Q. Rev. 183; W. A. Robson, "Legal Conceptions of Capital and Income", London Essays in Economics 251ff. 100 It is not proposed to enter here into the debates as to the nature of and boundaries between these topics. For a recent discussion of this see A. D. Lindsay, The Modern Democratic State (1943) 27-37.

CH. 1 § 121

PRACTICAL PURPOSE OF CLASSIFICATION

29

tics, economics, psychology, ethnology, anthropology, geography and sociology, would each simply include within itself a chapter on law. The inconvenience for the law student of such an outcome is patent. It would require him to master each external discipline as a whole before being introduced to its reflections on the law. However desirable, that is clearly an impossibility. Further, such a disintegration of jurisprudence would not be welcomed by workers in the external disciplines concerned. It has been pointed out that the relation between law and outside disciplines is by no means a one-sided one. For instance, political scientists and philosophers have resort to legal concepts and institutions for assistance within their own fields.'o' Even in the sociological field the record of juristic activity contains some remarkable presages of later social science.' Furthermore, such a development could only perpetuate the game of battledore and shuttlecock between jurisprudence and other disciplines, whereby some of the gravest problems, for instance, of the theory of justice, have found no resting place anywhere. For the still largely esoteric nature of law and legal machinery means that only scholars with adequate legal training can appreciate the problems they raise. Ethicists and political and other social scientists will tend to stop their inquiries at the point when their concrete application to the law begins.' The surrender of the identity of juristic activity would tend to destroy a source of instruction which may 10 Cf. for instance, the contents of such a recent work as Dr. A. D. Lindsay's Modern Democratic State (1943) 217-229, and esp. 43-44 on the nature of associations. Cf. J. W. Jones, op. cit. 208-209; E. T. Mitchell, "Social Ideals and the Law" (1937) 46 Phil. Rev. 113; Lord Macmillan, Law and other Things (1937) 122; and as to the non-lawyer and esoteric legal materials see 2 Bryce, Studies in History and Jurisprudence (1901) 177-78. 10 There may be instanced the conception of "diffusion" of social inventions prominently examined by jurists working on the reception of Roman law in modern Europe, long before. that -conception was adopted into social science (see H. Cairns, The Theory of Legal Science (1941) 37ff.) ; the insistence on the non-rational element in the origin and development of legal and socio-ethical principles by Savigny and his followers (see infra Chapter XVII); the inductive nature of social judgments as foreshadowed in juristic study of the judicial process and judicial precedent. Among many other possible examples the role of Maine's theories of legal development in stimulating conflicting theses of the anthropologists (see infra Chapter XIX) is also to be remembered. 109 Cf. F. S. Cohen, Ethical Systems and Legal Ideals (1933) 2. Insofar as Professor Ehrlich's argument (op. cit. supra n.6) seems tenable to-day the above agrees with it. It may be added that this problem of mutual parasitism (or is it cross-fertilisation?) is not limited to jurisprudence in its relations with the other social sciences. It also presents itself in their relations inter se. Cf. A. D. Lindsay, op. cit. 51.

30

PROVINCE OF JURISPRUDENCE

(CH. 1 § 13

be as important, for instance, for the political philosopher as political philosophy is for the lawyer. If this complete distintegration is not to take place consistently, a partial and unreasoned disintegration is also to be avoided."'o Jurisprudence, for its own purposes, must find its own categories. Then, bearing in mind throughout that it is dealing with reflections from external disciplines upon the law, it must arrange those reflections under its own categories. § 13. THE THREE BRANCHES OF JURISPRUDENCE. The proposal now to be made is of an elementary nature. It is made with the diffidence fitting for any new comment on a problem to which distinguished minds have repeatedly addressed themselves. The writer only ventures to make it because of the importance which .1his problem has for the future of jurisprudence. It has already been observed that the lag between the present social environment and jurisprudence as taught, is not due to the lack of scholarly interest in twentieth century legal problems. On the contrary, these problems have, for three generations, engaged some of the ablest minds; and a formidable volume of literature is already in existence. It is the lag between scholarship and pedagogy which breaks the chain. In the writer's view, this lag between scholarship and pedagogy is largely due to the absence of adequate textbooks of the new scholarship; and no adequate textbook is possible until an effective framework is found. To meet this need it is suggested that a twentieth century course in jurisprudence ought to have the three following main branches."' 110 Thus while the work of J. W. Jones (see e.g., his Historical Introduction to the Theory of Law (1940) and his "Aims and Methods of Legal Science" (1931) 47 Law Q. Rev. 62) are, with respect, important contributions to juristic scholar. ship in the non-analytical field, they face the gravest difficulties for use in the teaching of jurisprudence because of this partial disintegration. Thus in the last mentioned paper, Professor Kelsen's work is discussed in apparently the same universe of discourse as that of Stammler, Kohler and other writers devoted to the theory of justice (see esp. 84ff.). i11 Alio intuitu the division "pure theory of law", "sociology of law" and "philosophy of justice" has been clearly made by Kelsen. See e.g., the recent incidental statement in H. Kelsen, "Pure Theory of Law and Analytical Juris. prudence" (1942) 55 Harv. L. Rev. 44, 54. This is substantially the division here adopted: though Kelsen makes it in order to exclude the two latter from the field of jurisprudence; the present writer in order to regularise and consolidate the place of all three. Professor Kelsen's object in making this distinction has clearly often been to discredit sociological jurisprudence and the theory of justice as appropriate fields of juristic study. See e.g., his language

CH. I § 13]

THREE BRANCHES OF JURISPRUDENCE

31

(1) Analytical Jurisprudence."' This would largely conform to the traditional subject of that name, but its limited nature should be recognised. It is merely an analysis of legal terms, and an inquiry into the logical interrelations of legal propositions (often in legal usage termed "precepts"). It seeks to ascertain how far they form a logically self-consistent system. chiefly by inquiring what axioms will permit them to be so viewed, partly or wholly."' It has been well described as "the logic of the law"," and has been compared in its nature to "the mammoth labours of Whitehead and Russell in demonstrating that all the propositions of pure mathematics are merely complicated forms of a few simple tautologies of formal logic"."' (2) Sociological (or Functional)" Jurisprudence.'" This would be devoted to observing and interpreting in "The Pure Theory of Law" (1934) 50 Law Q. Rev. 474, 480, 483. G. Radbruch's position (supra n. 31) is nearer to the present. 112 For further discussions of the nature of this study see infra Chapters II-VII. na The co-ordinate character of the analytical and sociological branches was clearly asserted by Professor Ehrlich nearly two generations ago (op. cit. supra n.16 at 384ff., c.xx). Cf. N. Hohfeld's "functional jurisprudence" (Fundamental Legal Conceptions (1923) 357) which he would devote to "actual study of existing conditions . . . the accurate ascertainment of facts . . . the compilation and publication

of fundamental

data and statistics . . .

drawing . . .

sound

conclusions from the latter . . ." The effect of failure to distinguish this branch from the sociological has been responsible for at least one great controversy in American scholarship. See Jerome Frank, Law and the Modern Mind (1930), notably its attack on the work of Professor Beale, and c/. on this controversy M. J. Adler, op. cit. (1931) 31 Col. L. Rev. 91, 104: "There is no reason why there should not be a science of law in both of these two senses of the term: but the two sciences are quite different things. All the trouble comes from confusing them. The science of law as official action is an empirical observational science; it includes a study of sociological and psychological phenomena as well as knowledge of the law in the second sense . . . None of its scientific propositions can be more than probabilities . . . In this respect it is like any other empirical science. On the other hand, the science of law in discourse is a purely formal science, like mathematics: its subject matter is entirely propositional: its only instrumentality is formal logic. It deals with certainties and nothing else. The contrast may also be put as one between the material aspect of correspondence or non-correspond. ence of legal propositions with what actually happens; and the formal aspect of the logical relations between the whole series of propositions". Cf. on the general distinction, Ritchie, Scientific Method (1923) 9-14. So in the writer's opinion, Professor Goodhart's "Determining the Ratio Decidendi of a Case" (1930) 40 Yale L. Jo. 161 is a contribution to analytical jurisprudence. His censure of Professor Oliphant's view that it is what the judge does and not what he says he does that matters, seems however, an unwarranted attempt of the analyst to judge in the sociological field by the analytical standard. 114 A. Kocourek, Introduction. to the Science of Law (1930) 26. Cf. M. Oakeshott, op. cit. supra n.50 at 207. n1 F. S. Cohen, Ethical Systems and Legal Ideals (1933) 236. Mr. Cohen's unqualified attribution of this activity to the late Dean Wigmore seems a little sweeping to one familiar with the constant reference to social contexts and justice in the Treatise on Evidence. 116 See on recent usage N. S. Timasheff, op. cit. supra n.45; F. S. Cohen, "The Problems of a Functional Jurisprudence" (1937) 1 Mod. L. Rev. 5-26. 11 This would constitute the "empirical science" of law par excellence in

32

PROVINCE OF JURISPRUDENCE

[CH.

I

§ 14

and generalising upon the effect of law upon men and of men upon law. It would be somewhat narrower than the programme of "the sociological school" of Roscoe Pound, for that programme generally includes within itself a theory of the purpose of law as well.... It would be somewhat broader than "sociological jurisprudence" as recently determined by Dr. N. S. Timaslieff since it includes the task of generalising as well as observing and interpreting in terms of "causation".... or its substitute-concept.1 0 Its task has recently been defined as "the formulation of statements asserting invariant or almost invariant relationships among the facts in its specific field", namely, "human behaviour as influenced by or in relation to, the social factor of disorder."1 2 1 (3) Theories of Justice (or Critical or Censorial or Ethical..) Jurisprudence. This branch would be devoted to an evaluation in terms of theories of "what ought to be" of the contents or objects or effects of law. It would include but transcend the traditional field of the theory of justice;12 and its exact scope and relations to the sociological inquiry will depend on the particular theory of justice under discussion. the terminology of J. Michael and M. J. Adler, op. et loc. cit. Cf. M. J. Adler, "Law and the Modern Mind: A Symposium" (1931) 31 Col. L. Rev. 91, 102. 11s See e.g., R. Pound, "A Theory of Social Interests" loc. cit. supra n.42 at 44 (1921) ; and c/. an earlier statement of Mr. Justice Holmes subject to the same comment in "Law in Science and Science in Law" (1927) 12 Harv. L. Rev. 443, 462. And so is B. N. Cardozo's Nature of the Judicial Process (1921) passim, on which see B. H. Levy, Cardozo hnd the Frontiers of Legal Thinking (1938) 61; M. J. Aronson, "Cardozo's Doctrine of Sociological Jurisprudence" (1938) Jo. of Soc. Phil. Cf. J. Stone, "A Critique of Pound's Theory of Justice" (1935) 20 Iowa L. Rev. 531-50. See also on the much debated "divorce" of the "is" from the "ought" Intro. to Part III infra. H. Kelsen uses the term "philosophy of justice". W. N. Hohfeld (Fundamental Legal Conceptions (1923) 35157) seems to contemplate not only a separate branch of "teleological jurisprudence" but also the inclusion of proposals for law reform under his "functional" branch. 210 N. S. Timasheff, op. et loc cit. supra n.45. 220 For some of the difficulties of this concept see H. Cairns, The Theory of Legal Science (1941) 64-68, 105-08, 112-28. 121 H. Cairns, op. cit. supra n. 120, 9-10; and this despite the assumption, ibid. 11, that Mr. Cairns' theory is to unify the corrected field of analytical jurisprudence along with all others. As to the "disorder" focus of this definition see infra, Chapter XVII, § 3. 122 For instances of these respective usages see respectively G. W. Keeton, op. cit. supra n. 57, 2; J. Bentham, Principles of Morals and Leigislation (1876 ed.) cc. xvii, xxi, 324; J. Salmond, Jurisprudence (7 ed. 1924) 4. Cf. also "the science of legislation" (1 Austin, Lectures (3 ed. 1869) 177 and passim) ; "deonto. logical jurisprudence" (Bentham), "the philosophy of law" (semble in J. Hall, Readings in Jurisprudence (1938), but see infra n. 126. For recent pleas for the theory of justice in practical legal training see H. D. Lasswell and M. S. McDougall, "Legal Education . . ." (1943) 52 Yale L. J. 202, esp. 209-210; G. Radbruch, supra n. 31, esp. 544; D. Riesman, Jr., supra n, 92, at 639ff., 650-52. s23If I understand him aright Mr. Cairns (The Theory of Legal Science (1941)) comes to the conclusion that clarity requires a "sharper dichotomy"

CH. I

§i 14.1

RECLASSIFICATION OF TOPICS

§ 14.

RELATION

OF

THIS

SCHEME

TO

EXISTING

33

BODIES

OF

I have deliberately avoided the invention of new terms. All of these terms are familiar; the scope of each is approximately agreed, and the propriety of their inclusion within the province of jurisprudence is generally, if not universally, accepted. The novelty lies in the present submission that everything of major significance within the accepted field of. jurisprudence, under whatever name it now masks, falls naturally and without strain under one or other of the above divisions.

KNOWLEDGE.

Thus psychological jurisprudence is clearly concerned with one aspect of the operation of law upon men and of men upon law. It is of little advantage and productive of some confusion to constitute it a separate division parallel in some way to analytical, or even sociological, jurisprudence. The case of "philosophical jurisprudence" is even more instructive. Inasmuch as philosophy includes logic and epistemology, it has produced theories such as that of Kelsen which are precisely of the analytical branch above defined."' Inasmuch as it also includes ethics and political philosophy, it has produced theories of what is just law, such as those of Rudolf Stammler, which fall precisely under that devoted to the theory of justice. Philosophically speaking both Kelsen and Stammler are NeoKantian. That description is entirely apt quoad philosophy. Quoad jurisprudence, however, the apparently common debetween sociological jurisprudence (his "social science jurisprudence") and the theory of justice (his "evaluation of values") (142) ; and that a science of justice (his "science of ethics and law in combination" (143) is possible though he thinks it should remain as a distinct realm (145). His conclusions agree with the above though I would not always follow his reasoning. I cannot in particular see how the admission that a complete descriptive science of law would have to regard, as part of the facts, the value-judgments which are a part of human behaviour, could justify the introduction of "the evaluation of values" into the subject-matter of the learned writer's "science". The "values" held, by all means, must enter as part of the facts described; but why the "evaluation of values"? For modern use of the description "teleological jurisprudence" see W. N. Hohfeld, op. C. 351; M. R. Cohen, Law and the Social Order (1933) 241; E. N. Garlan, Legal Realism and Justice (1941) passim. And cf. M. R. Cohen, "The Social Sciences and the Natural Sciences", in W. F. Ogburn and Goldenweiser, The Social Sciences and their Interrelations (1927) 446ff., in J. Hall, Readings in Jurisprudence (1938) 730ff. "Normative" is also sometimes used in this sense. See e.g, M. R. Cohen, Law and the Social Order (1933) 241, in J. Hall, Readings in Jurisprudence (1938) 898, and see on this writer's view, infra Intro. Note to Part IV. For a recent continental interest in this as a separate inquiry see Le But du Droit (1938) published by the Institut International de Philosophie du Droit et de Sociologie Juridique. 124 Cf. the recognition of this affinity in H. Kelsen, "The Pure Theory of Law and Analytical Jurisprudence" (1942) 55 Harv. L. Rev. 44, 54. See also J. W. Jones, "Aims and Methods of Legal Science", loc. cit. supra n. 110, 84-85.

34

PROVINCE OF JURISPRUDENCE

[CH.

I

§ 14

scription is a snare for the law student,' 5 who too often (be it acknowledged) must pick up his philosophy ambulando."' Again, political science, or the collection and systematisation of knowledge concerning politically organised society, is traditionally a branch of philosophy. Yet clearly the branch of jurisprudence which will gain most from the impact of political science is that branch-the sociological-which deals with the interaction of law and men. No purpose is served by classifying it under a separate head of philosophical jurisprudence.127 Conversely, political philosophy pertains to justice and must make its contribution in that place, and not under an omnibus head of philosophical jurisprudence."' The close relation (some would say identity) between logic and epistemology strongly supports this classification of "the pure theory of law". 125 See for instance the title of a recent work, W. Ebenstein, Die RechsThe danger is reduced philosophische Schule der reinen Rechtslehre (1938). if "neo-Kantian" is qualified by "logicist". See e.g., R. Pound, "Fifty Years of Jurisprudence" (1937) Jo. Soc. of Pub. Teach. of Law, 17, 26. But then after all the significant element from the legal point of view is the logicism and not the Neo-Kantianism. Professor Pound usually places Kelsen with the analysts. W. Friedmann, Legal Theory (1944) 64, c. xii and passim seems vulnerable in this respect, esp. since late in the work (411) he adopts what is substantially the present writer's proposed division published that year in the Modern Law Review. 126 This is the writer's principal dissent from Professor Jerome Hall's recent That learned writer still classification (Readings in Jurisprudence (1938)). takes "Philosophy of Law" as a main branch. He includes under it Historical Jurisprudence, despite H. Kantorowicz's telling point that Savigny's work was "chiefly a sociological description". ("Savigny and the Historical School of Law" (1937) 53 Law Q. Rev. 334 quoted ibid. 106). Semble, he regards the term as covering common ground of philosophy and law. For the most part however he seems to identify philosophical jurisprudence with what is here called theory of justice and his work constitutes the nearest approach which has been found to the division which the present writer has advocated. 127 As when Professor Pound speaks of a revival of "philosophy of law" as lying behind both the social-philosophical and the sociological trends in jurisprudence. (R. Pound, "Fifty Years of Jurisprudence" (1937) Jo. of the Soc. Pub. Teachers of Law, 26). Or when ibid. 31 he suggests "three ways of organising legal materials (1) to look for organising principles in history; (2) to work out organising principles by philosophical ideas; (3) given certain Cf. his precepts to analyse the organising principles underlying them. 24 Harv. L. "Scope and Purpose of Sociological Jurisprudence" (1911) Rev. 591, 604, where he attributes to ."the philosophical jurist" the study of "the philosophical and ethical bases of law" (italics supplied). The supporting citations do not limit the term to the teleological field; but Professor Pound's own subsequent treatment suggests such a limitation (606-607). So does the scope of his Introduction to the Philosophy of Law (1922). Contrast Lasson, System der Rechtsphilosophie (1882) para. 2, cited ibid., at 604: "The problem of the philosophy of law is to comprehend the existing law in its rational internal connection and its connection with the other orderings and phenomena of life". Cf. N. S. Timasheff, Introduction to the Sociology of Law (1939) 30: "The philosophy of law was and will probably remain the preliminary investigation of problems which are not yet mature for scientific solution". He then proceeds to speak of the evaluation of ends as one field of philosophy of law which will remain independent. 12s The thesis of Mr. Oakesbott's articles cit. supra n.50 that "philosophical jurisprudence" should be the co-ordinator and "operative criticism" of all the discrete branches of jurisprudence, as philosophy itself is for the concepts of everyday knowledge, is not inconsistent with the present scheme. It is, however, submitted that such a "philosophical jurisprudence" can only be advanced

CH. I § 141

MERGER OF HISTORICAL JURISPRUDENCE

35

Perhaps the most radical effect of the present proposal upon current classification would be the disappearance of historical jurisprudence as a separate branch."' In the writer's view, insofar as historical jurisprudence inquires into "the historical origin and development" of the law, its institutions and doctrines,' it is of necessity but a part of sociological jurisprudence as above defined. This point was made long ago by the late Professor Kantorowicz concerning Savigny and his followers as well as by Professor Ehrlich;

31

it is obviously the case

for most of Maine's work. The separate identity of historical jurisprudence up to the present seems due to the fact that it appeared on the Continent early in the nineteenth century as a part of the romanticist revival and in reaction from the universalist and creative juristic thought of the preceding natural law period: whereas sociological jurisprudence only emerged clearly with the rise of the social sciences in the second half of the century as a reaction against the formalistic juristic thought of the analysts, and against the determinism whether ethical, idealist, political, biological or economic which captured the historical school."' This order of appearance is no reason for keeping separate what functionally should be unified. 13 3 It scarcely seems necessary to multiply examples further. It is believed that nothing of significance within the actual field of jurisprudential writing would be excluded by this simpledivision. Such a division would, on the other hand, conduce not only to clarity, but to a closer nexus between the teaching of jurisprudence and the main problems of the present age. within the tradition and scope of philosophy itself as it exists for the time being. The task of marshalling the materials for the lawyer's understanding in some such intelligible arrangement as that in the text would still remain. Cf. C. K. Allen, Legal Duties (1931) 17, on the main point, who seems however, to stop half-way in his analysis. See also J. W. Jones, article cit. supra, n.110 at 214-215 for some discussion of the relation between ethics and metaphysics in nineteenth century philosophy of law. 129 The writer would respectfully agree, in result at any rate, with Dr. C. K. Allen (Legal Duties (1913) 13). He would agree also as to the similar disappearance of "comparative" jurisprudence as a separate category. 130 R. Pound, Outlines of Lectures on Jurisprudence (1928 ed.) 1. 131 See supra n.126. Cf. E. Ehrlich, op. cit. supra n.6, c.xx, esp. 478ff.; M. Oakeshott, op. cit. supra n.50 at 211. The latter writer well points out that its presuppositions reject the conception of "identity" (autonomy) which bases the view of law as a body of logically consistent propositions. 132 Cf. R. Pound, Interpretations of Legal History (1930) 12ff. 1as It is not surprising therefore, that Dr. Robson's call for a revival of historical jurisprudence ("Sir Henry Maine To-day" (1933) in Modern Theories of Law, 179) reads more naturally as a call for a really active and comprehensive

36

PROVINCE OF JURISPRUDENCE

[CH. 1 § 15

It would conform so far as "sociological jurisprudence" is concerned, with the long advocacy and the felt tendency towards. correlation or "unification" of the social sciences."' And finally, it is believed that only some such simple re-arrangement of the field promises an escape from the present impasse in which all branches of jurisprudence are treated as but ancillary to analytical jurisprudence.

§ 15.

THEORY THAT EACH BRANCH OF JURISPRUDENCE Is APPROPRIATE FOR A PARTICULAR PHASE OF LEGAL DEVELOPMENT.

The objection that would exclude from the sphere of jurisprudence all but "the formal science of positive law" has long since been answered,"' and has been the subject of some comment in the foregoing pages. In those which follow it is proposed to deal with more serious objections to the threefold division of jurisprudence here -proposed. These arise from certain questions in the relationship of jurisprudence to law, and to the social, economic and political conditions underlying the law of a particular time and place. They were formulated as long ago as 1917 by an American scholar'. with an ingenuity and learning which commands attention still. He concluded his thesis as follows: There is a place for each school of jurisprudence in connection with the particular law out of which it grows, just as each grammar is fitted to the language that it best describes. 1 37 There are perhaps permanent and universal elements in grammar and in jurisprudence . . . but it is as unsatisfactory to teach English law with German jurisprudence as to teach the English language with German grammar. . . . The Jurisprudence of sociological jurisprudence. Dr. N. S. Timasheff's suggestion ((1937) 43 Am. Jo. of Soc., 233) that historical jurisprudence be maintained as a check upon sociological jurisprudence is open to the comment that what he really means is that sociological research should (and indeed how could it be otherwise?) continue to address itself to the phenomena of the past as well as the present. It does not warrant a separate branch of historical jurispridence. Cf. also as to the general place of this aspect, 0. W. Holmes, "The Path of the Law" (1897) 10 Harv. L. Rev. at 469-70, 472-74. 134 See e.g., recently k. Mannheim, Man and Society in an Age of Reconstruction (1940) 27.32; H. Cairns, Law and the Social Sciences (1935)14. 135 See notably Sir Frederick Pollock in "The Methods of Jurisprudence" (1882) in Oxford Lectures (1890) 24ff.; P. Vinogradoff, Historical Jurisprudence (1920) 1-99; H. Maine, Ancient Law (1861) (Pollock's ed. 1916, 6-7) ; H. Maine, Early History of Institutions (1874) lect. xii, xiii. Mr. Justice Holmes' position on the point needs no. citations. 136 N. Isaacs, "The Schools.of Jurisprudence' (1917) 31 Harv. L. hev. 373, whose recent death is a loss to legal scholarship. There are signs of similar assumptions, but in far more acceptable form mnW. Friedmann, Legal Theory (1944) esp. c. xv, 137 Citing curiously enough, T. E. Holland, op. cit. c.i, which proceeds really on another ground.

CH.1I

151

. CYCLE THEORIES OF LAW

37

modern American life has not yet been written, yet enough has been said and done to show that to represent the needs of our day, it must deal with law in a manner that will do justice to the social change and discoveries that lie immediately behind it. But in accepting the programme of the sociological jurist of the Constructive School for to-day, we do not close our eyes to what Dicey calls the 'cross-currents from the past and future systems, that save us from the tyranny of ideas'. Granted the predominance of a school to-day in America, we neither regret its absence in the past nor prophesy its continued endurance here or imitation abroad. May we not accept the doctrine of the relativity of jurisprudence? And, kindly scoffing, he pitied the mind which should be asked to survey the branches of jurisprudence suggested by Hohfeld. "For the 'schools' are inconsistent with each other,

sometimes consciously, sometimes unconsciously. They are the products of different times- and places, and differ, not only in their points of view, methods and tendencies, but in their fundamental concepts, their problems and purposes-in a word, in the subject matter of their studies". "8 This would seem to negate in advance the possibility of any such threefold field of study as has been here proposed. For the suggestion is, as the writer understands it, that one

branch of jurisprudence alone is appropriate to the major interests and needs of a particular age. The study of other branches will not be worthwhile so far as that time' and place is concerned. The wheel has thus turned full circle. Whereas the analytical jurists would deny place to any other branch but

the analytical; this learned writer denies place for other than sociological jurisprudence. But there is a difference. The analysts tended to believe that their exclusive claim was valid for all times and places; this learned writer makes his claim only for twentieth century America and readily admits that other times and places may properly'indulge other tastes and interests. This challenging conclusion loses some of its terrors when the supporting argument is examined. 3 e. It takes its starting P. 375. All the more challenging since it would appear to have been based on some suggestive generalisations in R. Pound, WIhe Scope and Purpose of Sociological Jurisprudence", loc. cit' supra n.45. These however, were rather incidental and in any case were not pushed to anything like the point above indicated. That learned writer clearly recognised the concurrent relevance of all the approaches in the present age. See his "Fifty Years of Jurisprudence", 135 19

loc. cit. supra n.127.

38

PROVINCE OF JURISPRUDENCE

[CH. 1 §i16

point in an elaboration of Maine's observation that in time, the devices of legal growth proceed in the order, Fictions, Equity and Legislation. Each of these, said th%writer,"o is connected with a peculiar point of view resulting from the state of the law at the time; and the state of the law proceeds in great cycles. First, there exist a number of definite legal propositions, termed for simplicity, Codification. In this stage, the interests of the legal specialists are turned to word-study. "New cases, hard cases, can be met only by intensive word-study, perhaps by word-stretching or legal fictions".... This produces the Stage of Glossation or Word Study and Legal Fictions. Next in reaction to this ("it matters little how it is brought about")"' comes a stage of principle-study as distinct from word-study, of equity and natural law in Rome, in England and on the Continent. This is the Stage of Commentation or Principle-Study and Equity. Finally, as the principles become exhausted there comes the Stage of Conscious Modification or of Legislation. The effect of this is to establish a new set of definite legal propositions and cause a return to the Stage of Codification. Whereupon the cycle begins again. To this cycle of conditions of the law there corresponds, according to the learned writer, a cycle of jurisprudential approaches. With due allowance for the vagaries of time, place and people, he submits that in the Stage of Glossation juristic activity is on its expository side exegetical, that is word-study and manipulation; and on its critical side comparative. So in the Stage of Commentation it is on its expository side analytical, studying logical principles, and on its censorial side philosophical, constructing ethical principles to which law should conform. Finally in the Stage of Legislation and Codification its expository jurisprudence, inspired by awareness of change, is historical,and its censorial jurisprudence is constructive, that is, directed to giving the power to change. The present writer remains the more confident in his answer in remembering that the late Sir Frederick Pollock concluded a similar correlation of legal change and jurisprudential emphasis with the following words: "The prevalence of one or another method of jurisprudence depends in the first place on the historical conditions of legal systems and institutions. But there is no reason why in England, Germany, or America, we should make ourselves the slaves of such conditions, or why one method should be cultivated to the exclusion of others". Pollock, op. cit. supra n.33, 19-36, esp. 34-35. 140 Op. cit. 378, summarising his article "The Law and the Law of Change" 65 Univ. of Pa. L. Rev. 665, 674-79, 748-63. 341 P. 378. 142 Sed qu.

CH. I l§161

§ 16.

CYCLE THEORIES OF LAW

39

The present writer would make several defences were this heavy barrage of the cycle theory turned upon the present proposal. First, granting the validity of the theory, its learned proponent himself admits that, even when one school of jurisprudence dominates in response to its age, cross-currents of the other schools are always present. If this be so, then even on his own theory, the task would remain of providing in each age the necessary framework for understanding the more important approaches. Two of the branches which the present work would preserve, the analytical and the theory of justice, are in some degree unavoidable at all periods. The third branch, which we have called the sociological, is not clearly distinguished by the learned writer from the theory of justice. But it would appear from the above extracts that lie would not question its importance relatively to twentieth century America or even England. If it were necessary to take a further position, it would be submitted that the cycle theory of Professor Isaacs is twice vitiated. First, it proceeds on an assumption of the autonomous development of juristic techniques which is obsolete and inconsistent with modern sociological thought; second, the panoramic analysis of legal history by which it is supported is not convincing. . As to the first vice. The entire theory assumes that juristic thought varies with the law of the time and place. So far so good. But it also assumes that the law has a life cycle of its own. It is only by reference to the life cycle of the law that a cycle is imputed to jurisprudence; and only -on such a basis could the learned writer illustrate (as he does) the stages of the life cycle from various systems of law, without decisive reference to the social, economic and political characteristics of the time and place. This is what is referred to as the assumption of the autonomous development of juristic techniques. The assumption cannot be correct. If law has a life cycle it cannot be a self-determined cycle. For it is elementary doctrine of the social sciences that law is conditioned by the social, political and economic environment as well as by human thought processes. And indeed that such thought processes themselves are largely conditioned by the same environment. CRITICISM OF SUCH CYCLE THEORIES.

40

PROVINCE OF JURISPRUDENCE

(CH. 1 l§16

It is boldness enough to correlate kinds of social, political and economic conditions with stages of legal development. It is, however, in the nature of black magic to postulate a recurring relation in a set order between kinds of law and kinds of jurisprudence, neither of which can claim title as an independent variable. In view of the first vice, the second one consisting of weak demonstration, was to be expected. In the formidable sweep of history which the learned writer covers, it may well be that some weak links in the cyclical chain were inevitable. But the signs of strain go far beyond this, and cast the entire hypothesis into grave doubt. Some of them are enumerated in the footnote.' For all these reasons, theref ore, no objection to the Analytical-Theory of Justice-Sociological division of jurisprudence based upon the cycle theory can stand. If, then, in our s43 It is difficult, for instance, to follow the demonstration that Justinian's codification proceeded from a turbulent social change comparable to that in 19th century England or late 18th century France and Germany, or 20th century America (381-83). The supposed precedence of historical to critical jurisprudence (383) cannot really be established for most known systems. No Cujas preceded or even accompanied Justinian's codification; Maine's work followed rather than preceded codification; only in Germany and in the United States could the supposed order be'supported. The suggestion on 386 that Cujas and Alciate are to be deemed to. be the historical side of the jurisprudence of the French period-of codification is itself worthy of the stage of word-study and fictions, and seems, in any case, inconsistent with the interpretation of Cujas given on 392. Again it is most difficult to understand how the learned writer, in associating the philosophical schools with Commentation, can make Kant, Trendelenburg, Duguit, Kohler, and the rest contemporaneous with the pre-legislative stage. Insofar as he does not conveniently overlook such writers, Professor Isaacs would no doubt place them under the constructive jurisprudence of the Legislative Stage. But is there any such vital difference between the direction of inquiry (as distinct from the views taken) by such writers and those of Grotius or Pufendorf? With respect, the discrimination suggested seems based on circuitous reasoning. The association of analytical jurisprudence with the stage of Commentation is in itself not objectionable, but can it really be said, as Professor Isaacs seems to say, that it is not at least as closely associated with the stage of Legislation and Codification. If it be arguable, as the author thinks it is (398) that Austin's work was not of the legislative period, it is equally so that he is not of the period of commentation. The author is willing to explain Bentham as "the jurist of the legislative period which ensues after his death" (382). Why should not Austin have a similar indulgence? The continuous relation he suggests between Austin and Blackstone back to Hale seems fanciful: it no more indicates a common method than Stammler's use of the Burgerliches Gesetzbuch On the other hand who can deny that the rise of analytical jurisprudence in Germany coincided in the nineteenth century with the rise of legislation and codification? Or that that of the continent generally coincided with a period of codification and written constitution making? Again, what better example is there of the Comparative-Censorialmethod than the body of the ius gentium created by the Roman praetor? Yet our author places this kind of activity in the period of Glossation (or word-study) when in actual fact its work was done during the period of Commentation (or principle-study) ; when indeed "the period of the ius gentium" is a synonym for the period of devotion to principles rather than words, the spirit rather than the letter, the intention rather than the formula.

CH. 1 § 171

RIVALRIES OF THE SCHOOLS

41

age at least, these three approaches are concurrently important, the fact that each sets its own problems and purposes, and has its own points of view,'" are reasons for giving the student a baptismal induction to all, rather than a bath of oblivion in one.' And apprehension which might be felt for the complicated approach of Hohfeld's six divisions, and Wigmore's ten divisions, seem to have little application to the simple three-fold Qivision adopted in the present work. § 17.

IMPORTANCE

OF THIS

REDEFINITION OF THE FIELD OF

This Chapter has been penned in constant fear of the Scylla of the naive and the Charybdis of the esoteric. At times it seems to be offering an over-simple answer where greater minds have offered only a complex and qualified answer. At others it seems to be offering disputations about labels as a contribution to one of the most serious problems of legal education. Roscoe Pound has recently pointed out,'" that fifty years ago juristic activity lingered obstructively behind the work of judges and practitioners in the adjustment of the law to new and pressing interests. So far as juristic writing is concerned this has probably ceased to be the case in England, ind in lesser degree in the United States; no one has done more to bring about that change than Professor Pound himself. To-day the graver danger, especially in British countries, lies elsewhere, though it remains a sad commentary that Eugen Ehrlich's complaint concerning continental juristic science in 1913, is still largely a valid complaint in contemporary England. 4 7 The lag between teaching and learned writing in jurisprudence has already been mentioned. It is grave enough in itself. But its full gravity goes far beyond the interests of the legal profession, and can only be measured when the lag between such teaching and the proper demands of twentieth century society upon the young lawyer and future judge is also JURISPRUDENCE.

N. Isaacs, op. cit. 375. C/. the general tenour of 2 Bryce, Studies in History and Jurisprudence (1901) 1721f., esp. 207-08. 146 Social Control Through Law (1942) 2. 147 See his Fundamental Principles of the Sociology of Law (Moll's transi. 1936) c. i, passim and esp. 7-12. Cf. S. P. Simpson, "English Law in the Making" (1940), 4 Mod. L. Rev. 121, and its vigorous criticism of English juristic science as illustrated in C. K. Allen's Law in the Making (3 ed. 1938). On American trends see K. N. Llewellyn, "On . . . Teaching American Private Law" (1941) 54 Hary. L. Rev. 775. '44 145

42

PROVINCE OF JURISPRUDENCE

[CH. 1 § 17

measured. In an age of rapidly extending social control through law, we are still teaching, for the most part, a jurisprudence which fitted the needs of a laissez faire society. In an age when bitter disagreement concerning human purposes and concerning the nature of society, permeates the whole field of law, we are still teaching a jurisprudence based on an assumed general agreement or at least indifference in these matters. In an age when man is constrained to bring disciplined thought to bear upon the control of himself individually and in the mass, we are still, for the most part, indulging the assumption that the really significant question about the law is whether it can In an age be viewed as a logically self-contained system. unrivalled for fluidity and rapid change even in basic legal conceptions, we are still teaching jurisprudence as if the law were static, capable of being dismantled and restored at leisure."' Or if we profess the purer analytical science, we are seeking those logical verities, which must necessarily, insofar as they claim absolute validity, be removed toto coelo from the urgencies of the age in which we live.' 9 The final abandonment of the rivalries of the juristic approaches to law..o would be a modest beginning in reducing the stress between what society demands of its lawyers and what legal education helps them to give. The time seems to 148 For the penetrating suggestion that some of the impetus behind modern concentration upon analytical jurisprudence arises from the wish to escape from these urgencies, see R. Pound, "Fifty Years of Jurisprudence", loc. cit., supra n.127 at 28. And cf. on English jurisprudence, H. J. Laski, A Grammar of Politics (1925) 575-78: "The poverty of English jurisprudence since Austin is the measure of the inadequacy of our law to meet the swift changes of our social situation" (577). G. Gurvitch, supra n. 31 misses this point. 149 Professor Hohfeld made his plea to American Universities on similar grounds and with a clear programme as long ago as 1914 ("A Vital School of Jurisprudence and Law" (1923) in Fundamental Legal Conceptions (1923) 332, esp. 332-38, 365). The passage of time has only increased the urgency of his plea; and perhaps simplified and clarified the programme. 150 For introduction to these conflicts see among a mass of literature: 0. W. Holmes, "The Path of the Law" (1897) 10 Harv. L. Rev. 457; J. Salmond, Jurisprudence (6 ed. 1920) 1.8; Sir Frederick Pollock, Essays in Jurisprudence and Ethics (1882) 1.18; P. Vinogradoff, Historical Jurisprudence (1920) vol. 1, Iff.; Gareis, Introduction to the Science of Law (transl. A. Kocourek 1911) 13-24; N. Isaacs, op. cit., supra n.136, 373; W. J. Jones, "The Aims and Methods of Legal Science" (1931) 47 Law Q. Rev. 62; J. Stone, "A Critique of Pound's Theory of Justice" (1934) 20 lowa L. Rev. 531-37; K. N. Llewellyn, "Some Realism about Realism" (1931) 44 Harv. L. Rev. 1237ff.; H. Kantorowicz, "Some Rationalism about Realism" (1934) 43 Yale L. Jo. 1240ff.; E. Ehrlich, Principles of the Sociology of Law (1913) passim. I tend to agree with F. S. Cohen (Ethical Systems and Legal Ideals (1933) 24) in the same sense, who attributes the conflict to "crypto-idealism". But the struggle for "world domination" by one single approach still flares up even as I write. Mr. Cairns (The Theory of Legal Science (1941) 11) if I understand him aright on this point, thinks of his "social science jurisprudence"

CH. 1 § 171

LEGAL THEORY AND LAWYERS' RESPONSIBILITY

43

have arrived to face the difficult task of gaining what insights we can from all the approaches to legal theory.' as destined to swallow up not only current "sociological jurisprudence" but also analytical jurisprudence which he regards as taking too little account of social phenomena (11). There is to be a "unified theory" (ibid.). Elsewhere the learned writer speaks of his new "normative science" yielding a "complete restatement" of "legal concepts" which is still to be born, the concepts being themselves "translatable" into genuine hypotheses (78-89). The present writer is not able to follow some of these claims in their full implications; nor to see how their wide ambit is to be reconciled with the more moderate claim on 81 that it is the conduct of jurists in elaborating precepts, and not the precepts themselves which are to be part of the subject of his science, which he there calls "a general theory of law". Cf. M. Oakeshott, op. cit. supra n.50 passim. But Mr. Oakeshott's proposal for the superimposition of a new comprehensive "Philosophical Jurisprudence" to serve as "operative criticism" of the rival branches seems itself open to comment. And so is G. Radbruch's claim (cit. supra n. 31, at 536) as to "the real philosophy of law". 1s1 Whatever the merits of Mr. H. Cairns' position (The Theory of Legal Science (1941) 5ff.) in terms of research methodology (to which the writer will devote some attention later) it seems to have little value for the problems of pedagogy. His position is that "modern legal research" has been driven to give to jurisprudence an excessive urge to be useful in improving the administration of justice, and has thus turned it from a truly scientific approach. He thinks this has come about as an attempt to ward off the contempt in which jurisprudence was held in the nineteenth century, typified by Dicey's observation that it "stinks in the nostrils of the practising barrister" (5-6). He thinks that jurisprudence cannot become a social science until it abandons its emphasis on legal reform, and thus leaves itself free to seek "invariant or almost invariant relationships among the facts" in its field, without the artificial restraints of relevance to legal reform, and after clarification of its basic postulates. It cannot become legal science until it ceases to be merely legal technology (8.9). The present writer's thesis, however, is that the fruitfulness of juristic writing, be its subject legal "technology" or legal "science" (and Mr. Cairns admits at 9 that even the former may have had some success), is gravely curtailed by the gap between juristic thought and the legal education of the future practitioner, judge and lawyer-legislator. Mr. Cairns' argument really pertains to the proper definition of the third main branch of jurisprudence here detected as usefully distinguishable for pedagogical purposes. It will be more fully considered in Chapter XVII, H§ Iff.

PART I

LAW AND LOGIC

Page

INTRODUCTORY NOTE CHAPTER

II. AUSTIN'S GENERAL JURISPRUDENCE

CHAPTER III.

47

..... ..

ROGUIN'S SCIENCE OF LOGICAL POSSIBILITIES ............

CHAPTER IV. KELSEN'S PURE SCIENCE OF LAW ..... CHAPTER

V. HOHFELD'S FUNDAMENTAL LEGAL ...... CONCEPTIONS

CHAPTER VI. USES AND LIMITATIONS OF FORMAL LOGIC IN LEGAL REASONING .. ..

55

77 91

115

1.37

CHAPTER VII. FALLACIES OF THE LOGICAL FORM IN LEGAL REASONING ... ...... .. 149

PART I LAW AND LOGIC INTRODUCTORY NOTE. *This Note is not a summary of Part I. Parts I, II, and III of this volume are devoted respectively to the following three main questions which, as seen in the first Chapter, may be asked concerning the law: (1) What are the definitions and premisses which will permit us to view the contents of the legal order (i.e., the legal propositions (or precepts) or any part of them) as a logically (in the syllogistic sense) self-consistent system? (2) What is the ideal, or what are the ideals, to which we ought to seek to make the legal order conform? What ought it to do for the men whose conduct it governs? (3) What are the actual effects of the law upon the attitudes and behaviour of the men whose conduct it governs, and what 'are the effects of these attitudes and behaviour upon the legal order? In the present Part we are concerned with the first question.

§ 1. JUSTICE AND SOCIAL FACTS IMMATERIAL. Usually as with John Austin (Chapter II) this approach treats the law as a body of stable propositions and inquires exclusively into the logical relation between these propositions. It is concerned with "the logic of the law" in this sense.' Sometimes, however, as with Hans Kelsen (Chapter IV), the technique element in the law is also brought within the scheme. But in any case it is quite immaterial for the analytical inquiry (1) what are the reciprocal effects of these propositions and of men's attitudes and behaviour; (2) whether the propositions are good or bad in relation to our ideals of what the law ought to do. In brief, law is treated as isolated from society for the purpose of analysis, synthesis and classification. §2.

RANGE OF LOGICAL INQUIRIES. At one end of the scale the logical

analyst may seek a scheme whereby he may exhibit the entire body of law as a single syllogistic system, deduced from one single "postulate" or "axiom" or "basic norm" or set of such. In such an enter. prise every proposition of law must be derivable therefrom. Hence it would follow that each would be logically consistent with every other: we would have a logically monist system. This was, for the most part, the aim of John Austin. At the other end of the scale the analyst may be prepared to use different postulates for different branches of the law, or to limit " Cf. A. Kocourek, Introduction to the Science of Law (1930)

26.

48

INTRODUCTION TO "LAW AND LOGIC"

himself to only one branch of the law without inquiring whether his postulates will fit another.2 He may be satisfied with an analysis of the rules as to "malice" in torts without troubling about those in the criminal law.3 Moreover the analyses which seek to test the total coherence of the law are themselves of two kinds: "particularist" and "universalist" (what Austin termed "particular" and "general" jurisprudence.)' In the "particularist" kind to which most of Austin's work as well as that of Hohfeld (Chapter V) belongs, the jurist will seek a scheme into which the propositions of the law of a particular country will fit. In the "universalist" kind, of which Hans Kelsen (Chapter IV) and also Ernst Roguin (Chapter 1II) are good examples, a logical scheme is sought which is capable of application to all legal systems or to an indefinite class of them. Between the two is what is often termed "comparative jurisprudence" but should more accurately be termed analytical jurisprudence applied in correlation to the propositions of several legal systems.' Austin's use of the Roman and English systems is a well-known example. "Comparative" schemes are quite different from "universalist" ones, though there is often a temptation for the comparative analyst, like Austin, to assume that what is common to two or more systems is applicable to all.6 2 It is only as to such inquiries that it is correct to say with M. J. Adler ("Law and the Modern Mind: A Symposium" (1931) 31 Cot. L. Rev. 91, 104) that "the logical structure of law in discourse is pluralistic: the law as a body of propositions is an aggregate (not a system) of partially incompatible and diverging theories or doctrines. They are like so many different postulates and their derivative theorems, related as alternative analyses of the same subject matter". Cf. R. Pound, "Classification of Law" (1924) 37 Hary. L. Rev. 933, 939: "One may have in view a system of analytical jurisprudence-a universal analytical scheme of all law. But such a classification is not of necessity the best arrangement of an actual body of law . . ." For further refinements see ibid. 3 The most famous instance is perhaps the phenomenal number of works in England, America and the Continent on the nature of "possession" all of them involving ultimately the logical arrangement of the rules on this subject of the old Roman Law and the common law 4 For a discussion of this distinction in the English literature, see C. K. Allen, "Jurisprudence-What and Why?" in Legal Duties (1931) 5-11. 5 In addition to comparison for building logical systems, there may also be comparison of the actual operation of the law in several systems. This is a vital part of the sociological inquiry into law for it is in some degree a substitute for the lesser availability of scientific "controls" in the social science as compared with the natural sciences. See e.g., for a recent example of such work, D. V. Glass, "The Effectiveness of Abortion, Laws in Six States" (1938) 2 Mod. L. Rev. 97. See P. Lepaulle, "The Function of Comparative Law with a Critique of Sociological Jurisprudence" (1922) 35 Hare. L. Rev. 838 (a plea for comparative Cf. R. Pound, study of legal systems as an essential sociological method). "Scope and Purpose of Sociological Jurisprudence" (1911) 24 Harv. L. Rev. 591, 596; Bergbohm, Jurisprudenz und Rechtsphilosophie (1892) 353n. *For these reasons, the present writer abandons comparative jurisprudence as a main branch (see supra Chapter I). Cf. M. Oakeshott, "The Concept of a Philosophical Jurisprudence" (1937-38) 3 Politica 202, 209. In the writer's view the most telling contrary argument is the limited number of competent comparative lawyers which prevents specialisation. Such a state of affairs is not satisfactory. Sociological jurisprudence requires a sufficient number of comparative lawyers to permit of specialisation. In the United States the problem is less -serious because of the multiplicity of separate legal systems and the necessarily comparative training of the ablest lawyers. 6 Cf. infra Chapter II, §§ 13-15.

RANGE OF LOGICAL INQUIRIES

49

Analytical jurisprudence may further comprehend the analytical study even of past or dead, or partly dead systems. For instance, much of the work of the Glossators, the Commentators and the Pandectists was of this nature.7 Analysis of past systems is subject to similar limitations to that of a living body of law and these are considered in Chapter VI. 8 Similarly, though logical analysis may, as with Hans Kelsen (Chapter IV), claim to derive the postulates for its scheme from philosophical sources, or to justify it philosophically, this is no reason whatever for classing it under a separate branch called "philosophy of law",9 much less does it seem useful, as Austin did, to call analytical jurisprudence "the Philosophy of Positive Law".o § 3. LIMITATIONS OF LoGICAL INQUIRIEs. The analytical branch of jurisprudence in all its varieties is thus concerned with the relations between legal propositions, regardless of their relevance to the actual world, or the justice of their contents. It is a rational as distinct from an empirical study." With great respect it is better to avoid such metaphors as "the chemistry of law", "the pure mechanics of law", "the anatomy of law", "osseous framework" and the decomposition of "premisses . . . into their final atomic elements",' 2 or "the grammar of the law", " the map of a body of law""' or "the anatomy and physiology of law"." Analytical efforts which aspire to universalism, or to selfconsistency of a country's entire law, may make a greater contribution to more systems. But more modest efforts may contribute more to particular parts of a particular system at a particular time.' 6 Thus the scrutiny in terms of logic of the meanings of "malice" in the Anglo-American law of torts, or of the mental element in mistake, may have more immediate value for Anglo-American law than more basic inquiries into the ultimate nature of an act in the law. It is often thought that the more modest logical inquiry is nothing but a careful lawyer's treatment of the law, since lawyers use syllogistic logic in their work. And it might be thence concluded 7

Cf. infra Chapter VII, §§ 8.10.

8 It is sometimes included under "historical jurisprudence", but that branch

is here abandoned for reasons similar to those as to "comparative jurisprudence". Cf. almost, J. Bryce, 2 Studies in History and Jurisprudence (1901) 195. o For analogous reasons to those given above, this work abandons that term altogether. The fact that logic usually ranks as a branch of philosophy does not affect the matter. 10 The alternative title to his Lectures on Jurisprudence. 11 This terminology is used by J. Michael and M. J. Adler, Crime, Law and Social Science (1933) xi. Cf. M. J. Adler, "Law and the Modern Mind: A Symposium" (1931) 31 Col. L. Rev. 91, 102ff. As to the wider meaning of logic, see infra, n.17, and Chapter VI, § 31. 12 A. Kocourek, op. cit. supra n.l., 21, 26. 13 T. E. Holland, Jurisprudence (7 ed. 1895) 7. " 2 Austin, Lectures (3 ed. 1869) 1117. 15 W. E. Hearn, Legal Duties and Rights (1883) 5. 1o Cf. 2 Austin, op. cit. 1112: "Particular jurisprudence is the science of any actual system of law, or of any portion of it. The only practical jurisprudence is particular." (Italics inserted). Cf. R. Pound, cited supra n.2. Cf. A. Kocourek, op. cit. n.l., 26. This learned author seems however, to restrict all analytical jurisprudence, without warrant, to such particularism.

INTRODUCTION TO "LAW AND LOGIC"

50

that such limited analysis is legal reasoning and not jurisprudence." But the logic used by lawyers and judges is logic tempered, qualified, supplemented and even nullified, by many other factors considered in Chapters VI and VII. Legal techniques do not proceed, in fact, according to the syllogistic pattern. It follows that the testing of the law by reference merely to the mutual consistency of propositions is an application to the law of a strictly extra-legal discipline, namely, formal logic." § 4. USES OF ANALYTICAL JURISPRUDENCE. The uses of analytical jurisprudence have been frequently defined and redefined; and they naturally vary somewhat with the particularist jurist's scheme. John Austin is still the best salesman for the commodity in general. 9 First, he thought that it would aid the student of law in understanding what "naturally appears an assemblage of unconnected rules". Professor Kocourek has developed the point thus in .the light of the vast multiplication of rules and materials since then: 20 17 Such seems the basis of the taunt against Holland's Jurisprudence that it required a new edition for each change in the existing law. See N. Isaacs, "The Schools of Jurisprudence" (1918) 31 Harv. L. Rev. 373, 398. is This is so whether the insular (particular) or the universalist (2 op. cit. 1107) trend in Austin and his followers is regarded (see infra Chapter II); whether the system produced be that of a Holland, apparently requiring new editions with each important change in the law, or that of a Kelsen, whose system aspires to validity independent of the state of the law to which it may be applied. (See infra Chapter IV.) Insofar as F. Pollock, Essays in Jurisprudence and Ethics (1882) lect. i, esp 8ff., 18ff., seems to negative this, it is submitted respectfully that thought in the field of logic and the law since 1882 has not supported that lamented and distinguished writer. So also it is submitted that Hohfeld's assumption (Fundamental Legal Conceptions (1923) 351) that whereas the test of logic applied by analytical jurisprudence is "intrinsic" to the law, that of justice is extrinsic to the law, is surely not tenable to-day. In the sense that an inquiry into justice (if not merely intuitive) introduces non-legal propositions, it is clearly extrinsic. On the other hand, the inquiry into logical relations is intrinsic to the law in that it does not introduce such non-legal propositions. Yet it is still extrinsic in the more important sense that its judgments of consistency or inconsistency are not themselves legal propositions; just as the judgment of justice or injustice is not. The followers of Kelsen usually recognise that the logic they use in their "science" is extrinsic to the law itself. See J. W. Jones, HistoricalIntroduction to the Theory of Law (1940) 232. It is a matter for great admiration that the late Sir Edward Jenks was able to devote a chapter to the nature of analytical jurisprudence without once referring to "logic" of any kind. (E. Jenks, The New Jurisprudence (1933) c.ii.). It is obviously only the formal logic which bears this relation to analytical jurisprudence. On the newer so-called "experimental" or "humanistic" logics in relation to law, see for brief statements J. Dewey, "Logical Method and Law" (1924) 10 Cornell Law Q. in J. Hall, Readings in Jurisprudence (1938) 343ff., and M. R. Cohen, "The Place of Logic in the Law" (1916) 29 Harv. L. Rev., 622, 636ff.

19

2 Austin, op. cit. 1117.

Austin was at pains to refute the objection that

such a study would incapacitate the student for practice. The refutation has unfortunately borne repetition to our own times. He cites in support (1117) Savigny, Hale, Mansfield and curiously enough, Blackstone's commendation of the study of "the law of nature", by which term says Austin "he seems to mean the very study which I am now commending". His point that "without some familiarity with foreign systems no lawyer can or will appreciate accurately the defects or merits of his own", (1119) though made as an argument for comparative study is really an argument for analysis itself; for as we shall see (infra Chapters VI and VII) the logical constructions of the law are distinct from and comparable with the law itself. 20 Op. cit. n.l., 26. Cf. the identical point in 1 Austin, op. cit. 438; W. N. Hohfeld, Fundamental Legal Conceptions (1923) 349ff, and infra Chapter VI.

VALUE OF LOGICAL INQUIRIES

51

The historical materials of our law are already so vast that no human mind can know more than fragmentary parts of the whole: there are literally hundreds of thousands of legal rules. There has been up to the present no official way in which these rules could be gathered together in larger and larger groupings. It has been necessary to attempt this by means of textbooks in special departments of the law and by similar devices. All these devices need to be aided by a structural view of the law as a whole including two chief elements; (1) the osseous framework of the law properly articulated on a juristic 21 basis; and (ii) the typical methods for the solution of legal problems. This, it will be seen, suggests a function of analytical jurisprudence also stressed by Austin,2 2 but which has perhaps become paramount in the minds of modern analysts, 28 namely, the classification and simplification of the law itself. Hohfeld thought that "the clarifying and refining of our legal terminology" would eliminate "unnecessary confusion, friction and waste", was "an indispensable prerequisite to any substantial improvement of our future legislation", to decreasing the bulk of the law, "making its rules more intelligible to the public at large, and rendering them more easily capable of ascertainment and application by lawyers, courts and other public 24

offteers".

A third use which has been claimed for analytical jurisprudence is as a mental training. This claim has two branches. One is that it is "as well (or nearly as well) fitted as mathematics to exercise the mind to the mere process of deduction from given hypotheses". Furthermore, with regard to an accurate and a ready perception of analogies, and the process of inference founded on analogy . . . the basis

of all just inferences with regard to mere matter of fact and existence-the study of law (if rationally25 pursued) is, I should think, better than that of mathematics.26 We shall stress repeatedly that law in the citizen's, lawyer's or judge's sense, cannot be identified with a logically self-consistent body of propositions, however ingenious. 2 7 As the same time it is important to remember that the use of formal logic in law, and even its abuse, may be found without any attempt to render the entire system self-consistent. Analytical jurisprudence involves essentially such a postulate of self-consistency, either in the whole body of the law or in some substantial parts of it. But analy21 22

Semble "logical" is here meant.

See e.g., 2 op. cit. 1112, on its relation to legislation; and "Codification and Law Reform" in 2 ibid. 1129. 23 See e.g., A. Kocourek, op. cit. 26. 24 Op. cit. supra n.17, 350. Cf. on this point, F. Pollock, Essays in Jurisprudence and Ethics (1882) 257ff. 2 He went on to instance the process of "analogical inferences with reference to the consideration of expediency on which it is built". He never so far as the writer is aware, shows how this can be within the logical ambit of his analytical jurisprudence. 26 Austin, ibid. 1123. He also likened it to "mental gymnastic§"; and C. J. Keyser, "On the Study of Legal Science" (1929) 38 Yale L. Jo. 413, has termed it "mathematicism". C/. 2 Bryce, Studies in History and Jurisprudence (1901) 172ff. 27 Infra Chapters VI and VII.

52

INTRODUCTION TO "LAW AND LOGIC"

tical jurisprudence apart, logical deduction and construction is one essential element, though admittedly only one, in legal technique. Logic is essential though it is not enough. Business men need arithmetic, but a mere competence in arithmetic would be but a poor assurance of success in business. Analytical jurisprudence as the logic (in this scholastic sense) of the law serves, therefore, a useful purpose. Its main tasks are to detect and define the terms actually employed; to state the axioms actually employed; to examine whether legal propositions ostensibly deduced from them do follow in logic; and to inquire what definitions and axioms might yield a maximum of self-consistency in the body of legal propositions.2 8

§ 5.

GENERAL ARRANGEMENT OF THIS PART.

As indicated in the Preface

the writer has not covered in this Part any considerable part of the ground of existing textbooks on analytical jurisprudence, such as

those of Holland and Salmond. Little overlapping will be found if this work is used concurrently or successively with those. For the present Part examines the main logical structures rather than the detailed findings of the analysts. Nor does it purport to deal with more than a selection, which however, it is believed, raise the principal problems.2 9 Chapter II examines the mixture of universalism, comparative study and particularism in Austin's main position. It has been curtailed because of the full discussion in many existing books. Chapter IV deals more fully with Hans Kelsen's universalist logicism, and

enters into considerable criticism of his system, which is an excellent illustration of the limited results which can be achieved, and which alone ought to be claimed, for analytical systems. Ernst Roguin's science of logical possibilities (Chapter III) illustrates an analytical system intended to guide legislators as to possible solutions, rather

than to illogicalities in existing rules. And Wesley Newcomb Hohfeld's fundamental legal conceptions (Chapter V) illustrate a type of particularist logical analysis held close down to the problems of a particular legal system, and put to the valuable use of testing the self-consistency of existing law. The final Chapters of this Part (VI

and VII) will stress the value of logical testing, and at the same time, point to the abuses and harmful fictions which arise when logical deduction or consistency are erected into a sufficient criterion of what is or ought to be the law. 28 C. J. Keyser, op. cit. supra n. 26, 413. Some broader aspects of the role of logic in law will, of course, be examined in Chapters VI and VII. 29 For a recent brief account of the German allgemeine Rechtslehre see W. Friedmann, Legal Theory (1944) 144-45. The French analytical trend is considered infra Chapters III, VII, §§ Iff.

CHAPTER II

AUSTIN'S GENERAL JURISPRUDENCE

Page

1. LIFE AND BACKGROUND

55

§2. AUSTIN'S RELATION TO CONTEMPORARY GERMAN LEGAL THOUGHT ..

ENGLISH .......

AND 56

§3. AUSTIN'S SEARCH FOR A LOGICALLY COHERENT SCHEME

..

57

§4. PREMISSES OF AUSTIN'S SYSTEM: INDEPENDENT POLITICAL SOCIETY .5....5 §5. IMPORTANCE OF OBSERVING CRITICISING HIS ANALYSIS

AUSTIN'S

PREMISSES ....

IN 59

§6. CONFUSION OF SOVEREIGNTY AS A LOGICAL POSTULATE WITH SOVEREIGNTY AS A POLITICAL FACT .. .. .. ..

60

..

61

§7. AUSTIN'S OWN CONTRIBUTION TO THIS CONFUSION .. §8. COMMAND AS A SEPARATE PREMISS

..

.. ... ...

§9. GENERAL AND PARTICULAR COMMANDS

62 64 64

§10. THE SANCTION ................ §11. LAWS IMPROPERLY SO-CALLED

65

......

§12. LAW PROPERLY SO-CALLED AND LAW STRICTLY SO-CALLED

66

§13. "COMMON" AND "NECESSARY" DISTINCTIONS

67

PRINCIPLES, NOTIONS AND ......

§14. EXAMPLES OF "NECESSARY" NOTIONS AND CONCEPTIONS

68

§15. INFERENCES "NEARLY" INEVITABLE

69

....

§16. AUSTIN'S SCIENCE OF LAW AND THE SCIENCE OF LEGISLATION

70

§17. AUSTIN'S "LOGICAL ACID" AND LAW

71

..

...

CH. II

55

§1

CHAPTER 11.

AUSTIN'S GENERAL JURISPRUDENCE' § 1.

LIFE AND BACKGROUND. John Austin who, more than a century ago, founded English jurisprudence as a subject of serious legal study, was also the first exponent of modern analytical jurisprudence.' It is true that many of the discoveries of the analysts are to be found from century to century embedded in the rich literature of the law of all peoples, and especially of the Roman people and those peoples who inherited the Roman law. With Austin, however, the subject becomes differentiated from moral and political speculation.3 His 4 main surviving work consisting of his Lectures on Jurisprudence with other literary remainders, was posthumously collected by his wife. After call to the Bar and legal studies at German Universities, some experience of the army, and of equity draftsmanship, Austin wrote his Lectures for the University of London. The foundation of a Faculty of Law in the University of London in which his system would form a main basis of instruction was one of Austin's most cherished hopes. His tenure of the Chair proved abortive, for professors were still paid out of fees. In due course, but not before' his

1 It is not proposed to take up the detailed conceptions of Austin in this Chapter. Most of these will be discussed comparatively in the course of the Chapters on Roguin, Kelsen and Hohfeld (Chapters III, IV and V). There are discussions in the standard text-books: T. E. Holland, Jurisprudence (13 ed. 1924); J. Salmond, Jurisprudence (9 ed. by J. L. Parker, 1937) of which the earlier editions by the original author should be referred to; W. Markby, Elements of Law (1871) (6 ed. 1905). The following selected bibliography on the subject of this Chapter is suggested: J. Austin, Lectures on Jurisprudence (3 ed. 1863, rev. and ed. R. Campbell, 1869) is the one referred to herein unless the contrary is indicat',d. LIFE AND BACKGROUND: Sarah Austin's Preface to J. Austin, op. cit.; W. S. Holdsworth, Some Makers of English Law (1938) 256-64; A. B. Schwarz, "John Austin and the German Jurisprudence of his Time" (1934) 1 Politico 178. READINGS IN AUSTIN: J. Austin, 2 op. cit. 1072ff.; Jethro Brown, The Austinian Theory of Law (1906) 1-115, Excerpts from Austin and Excursus B, 271-88, and Excursus E 331-54. Cf. Campbell's Student's Edition of the Lectures (11 ed. 1909). CRITIQUES OF AUsTIN: J. C. Gray, Nature and Sources of the Law (1909 2 ed. 1921) H1 1.19; P. Vinogradoff, Common Sense in the Law (1914) 35; F. Harrison, Jurisprudenceand the Conflict of Laws (1919, first pub. 1878-79) cc. i, ii; R. Pound, "Progress of the Law, Analytical Jurisprudence" (1927) 41 Harv. L. Rev. 178ff.; C. A. W. Manning, "Austin To-day" in I. W. Jennings (ed.) Modern Theories of Law (1933) 180, 184-90, 195-206, 213-16; J. Stone, Book Review (1933) 47 Harv. L. Rev. 721, 725-26. And see infra Chapters I-V. For a recent general survey of the state of writing on sovereignty see A. E. Cohen, Recent Theories of Sovereignty (1939) ; A. D. Lindsay, The Modern Democratic State (1943) cc. viii-x. 2 For certain qualifications see supra Chapter I, § 1. s. Cf F. Harrison, Jurisprudence and the Conflict of Laws (1919) c.i, esp. 10-22, on which however, see my reservations infra § 6. 4 (1 ed. 1832, 2 ed. 1861) with a sequel volume (1863), (3 ed. rev. and ed R. Campbell, 1869).

[CH. II § 2

AUSTIN'S GENERAL JURISPRUDENCE

56

death, Austin's dream that his system might be included as a regular part of English legal education was realised.'

§ 2.

AUSTIN'S

RELATION

LEGAL THOUGHT.

TO

CONTEMPORARY

ENGLISH

AND

GERMAN

We are told by his devoted wife, Sarah Austin, in

her Preface, that Austin felt unable to escape the language of an equity pleader, even in letters to his future wife. His Lectures are little improvement on this more delicate writing. The substance is dull, their formulation involved and repetitious, often hedged about with qualifications, interrupted with excursus into frequent trivialities, the style heavy, prosaic, unrelieved for the most part either by metaphor, felicity or novelty of words or idiom. Austin claimed for himself only one virtue-devotion to logical analysis, and exact statement. Within the intellectual ambit of the time that claim is justified. The careful student is rarely in doubt as to what Austin meant, though he may often be able to improve his mode of saying it. Jeremy Bentham, whose disciple Austin mainly was, both on the side of analysis and on that of the theory of justice, spent much of his lifetime in exposing the logical absurdities, obscurities and fictions which hid the living law of England at the close of the nineteenth century. In form and substance,' that law was the product of centuries of law-making activities by lawyers and judges from the twelfth century onwards, with only sporadic and unsystematic legislation. In these centuries the whole character of English society had changed out of recognition. Yet, in theory, jidges did not legislate and the law was still substantially the law of medieval feudal England. In practice, of course, it was already substantially adapted to the new world.7 The gap between theory and practice was bridged by a conglomerate structure of logical absurdities, obscurities and fictions against which both Bentham and Austin reacted so violently. Bentham, as we shall later see, reacted mainly to the substance by a lifetime's campaign for legal reform. Austin reacted mainly to the form by a determined effort to extract logical order from the illogical chaos. His analytical system was one part of this reaction and his work for the codification of English law was another. Austin had spent several years of study in German universities before- he began to lecture, and the range of his library in Roman and Civil Law confirms the considerable influence of the Roman law system. He drew upon them greatly for illustration of detailed conceptions. But even more important, his contact with the German exponents of the Roman law who reached their greatest power in the middle of the nineteenth century under the name of the Pandectists," must have quickened his impatience with the unsatisfactory form of English law. The Pandectists worked on the Corpus luris of Justinian which in itself represented an unrivalled aspiration to, and achieve5

For comments on his influence see supra Chapter 1. 6 As to its substance see also infra Chapter X, §i 6-10. 7 A. V. Dicey, Relation between Law and Public Opinion in England (1905) lect. v; J. Stone, "Law" in 1840 and After (Auckland 1940). 8 See infra Chapters VII, §§ 8ff., XVIII. See also A. B. Schwarz, op. cit. supra n.1, 178 (a most important study).

CH. II § 2]

LIFE AND BACKGROUND

57

ment of logical form and consistency. The Corpus luris, and the Digest particularly, which was the bulkiest part of it, had in addition been subjected to rigid logical scrutiny and criticism by the Glossators and the Commentators from the twelfth to the sixteenth century.' A young lawyer whose staple training had been on Coke's Institutes, Blackstone's Commentaries and the chaotic reports of that day must have. been aroused by such contacts, to deep dissatisfaction with the form of English law. Lacking, like his teacher Bentham, the historical spirit, he attributed the chaos not to centuries of piecemeal, though often sweeping change, but rather to loose thinking; and again like Bentham, he regarded natural law not as a powerful instrument of such change,10 but as the arch-example of such looseness. He made the divorce of law from natural law, ethics and other kinds of social rules, a main task of his new science. This in turn fitted excellently into the pattern of study of the Roman law which he must have observed in Germany, a pattern so devoted to pure logical analysis that it was later to be dubbed by Ihering "the jurisprudence of conceptions"."

§ 3.

AUSTIN's SEARCH FOR A LOGICALLY COHERENT SCHEME. That the paramount design in Austin's mind was that of logical testing is clear enough from his own work. He quoted with approval Savigny's words of praise about the Roman lawyers, whose

method of proceeding has a certainty which is found nowhere else except in mathematics: and it may be said without exaggeration that they calculate with their ideas

.

.

.

In every

.principle they see a case to which it may be applied; in every case, the rule by which it is determined; and in the facility with which they pass from the general to the particular and the particular to the general, their mastery is indisputable." Austin drew the conclusion that "mastery of principles, consistency" and clear arrangement were the secret of these virtues. And in the same context, citing Leihniz, he in effect said that insofar as there were imperfections in the Roman law they were due to the imperfections of the ancient principles of which existing rules were but "the logical consequences". And he states as the main use of his own

analytical jurisprudence, that the student might perceive the various relations of (the laws) of various parts: the dependence of its minuter rules on its general principles and the subordination of such of these principles as are 9 Loc. cit.

10 Both Austin and Bentham tended to the fallacy of purporting to disprove the natural lawyers' conclusion by an argument from their own imperative premisses. Thus Austin criticises Ulpian's definition of legal knowledge as "the knowledge of things divine and human; the science which teaches men to discern the just from the unjust"; and of law as "the science of the good and equitable", "the creature of justice" (Dig. 1, 10). Such definitions, says Austin (2 Lectures, (5 ed.) 217) affirm that "law is the creature of justice, which is as much as to say that it is the child of its own offspring". Austin, however, does correctly cite Lord Mansfield's work as an instance of the influence of this running together of law and morals. See also infra Chapters VIII, IX and X. 11 See infra Chapter VII, § 9. 12 2 op. cit. 1117.18.

[CH. II § 4

AUSTIN'S GENERAL JURISPRUDENCE

58

less general or extensive, to such of them as are more general and run through the whole of its structure." This view of the analytical task is implicit throughout most of Austin's work, though admittedly he is rarely explicit on the matter. At one' 4 of the few points where he does consider it, he appropriately enough draws comfort from Leibniz, saying: "With regard to lawyers in particular . . . the study of the rationale of law is as well (or

nearly as well) fitted as that of the mathematics to exercise the mind to the mere process of deduction from given hypotheses". It is too clear to warrant citations for most modern analytical writers, who even when like Kocourek, they arrogate the adjectives "legal" or "juristic" to their analysis, in the context surely mean simply "logical"."

§ 4.

PREMISSES

OF

AUSTIN'S

SYSTEM:

INDEPENDENT

POLITICAL

SOCIETY. John Austin therefore sought the starting-points, or postulates or premisses, from which he thought the content of the law could most adequately be deduced. He began' 6 with a concept of an independent political society, that is, a body of men who habitually yield obedience to some determinate person or number of persons from among them, which determinate person or number of persons do not habitually yield obedience to any other human authority. He added that it must not fall short of a number "which cannot be fixed with precision, but which may be called considerable or not extremely minute" or "not inconsiderable".x, This definition suffices to distinguish the society in which Austin is interested-that is, the society which is capable of "law" in Austin's sense-from all other societies. It distinguishes society from the traditional family or clan, since the head of the family or clan is, except in the most primitive groupings, subject in the exercise of his power to the overriding authority of the larger tribe or people. It distinguishes society from other organisations such as churches, trade unions and political parties, since their claim to obedience is again subject, in theory at any rate,'" to overriding power, and is moreover in any case usually limited to particular purposes, whereas the claim of Austin's posited superior is not so limited. Furthermore it distinguishes the societies in which Austin for his purposes professes to be interested from less developed societies in which, as the historians, and the anthropologists have pointed out, it is rarely if Is

F. von Savigny, Vom Beruf unsrer Zeit . . . (1814)

c.iv, 30, as cited 2

Austin, Lectures (3 ed. 1869) 1116. 2 op. cit. 1122-23. 15 The rendering explicit of this nature of analytical jurisprudence in Hol-

14

land and Salmond is what really seems to be troubling Professor A. H. Campbell, "A Note on the Word 'Jurisprudence'" (1942) 56 Law Q. Rev. 334-39. The distinction between "legal exposition" and "analytical jurisprudence" which the learned writer seeks to make by the terms "practical study" and "theoretical inquiry", is, it is submitted, only possible on this basis. See also A. Kocourek, "Classification of Law" (1934) 11 N.Y. Univ. Law Q. Rev. 319, 322. And see supra Intro. to Part I. 16 1 op. cit. 226ff., lect. vi. 17 Ibid. 237, 239. Notice Austin's hesitancy from his variety of adjectives, and see on the sound sociological basis of his intuition, infra Chapter XXV. is But see infra Chapter XXVII.

CH. 11 § 41

SEARCH FOR LOGICAL CONSISTENCY

59

ever possible to detect any determinate person or persons to whom the community habitually renders obedience. This definition of the kind of society in which Austin is interested will be seen immediately to consist of three principal elements: (1) A group of men defined by reference to specific territory which they ordinarily inhabit, constituting the Society; (2) Certain men .amongst this group constituting the Sovereign, who render -no habitual obedience to others; (3) The rest of the group, constituting the subjects, the bulk of whom render habitual obedience to the Sovereign." A group of men in which all these three elements are present constitutes in Austin's phrase "a society political and independent", or, better, an independent politically organised society. Austin sets an immediate and important limit to his logical system by admitting that he is not interested in "law" emanating from any other kind of society than this one.

§ 5.

IMPORTANCE OF OBSERVING AUSTIN'S PREMISSES IN CRITICISING His ANALYSIS. It is indeed of the utmost importance to realise that

these and other limitations arising from the premisses of Austin's system are self-imposed. Austin does not say"o that the most important thing about society is that it consists of sovereign and subjects; nor indeed does he say that such a society is better than others. He is only saying that his system of logical analysis of law presupposes such a society. It is therefore beside the point to criticise Austin, as many have

done, on the ground that the sovereign-subject distinction is not the most important aspect even of modern societies; or that it does not

satisfactorily explain all that goes into the process of law making, or that it takes "very little account, if any, of social phenomena".2 1 The apologists for Austin, known as the neo-Austinians, were disturbed by the fact that in a democracy all power ultimately should derive from the people. They sought to amend Austin by calling his "sovereign" merely a "sovereign organ", and the state itself "the sovereign". But this was to take Austin out of his own universe of discourse, and to

do him a grave injustice and a grave disservice to clarity of thought.2 2 19 See infra § 5 and Chapter IV, § 15 as to whether Austin is using "persons" concretely or abstractly. 20 At any rate it is not necessary for him to say it in order to support his general position. It is true that he occasionally lapses into more ambitious claims. 21 See among more recent examples H. Cairns, The Theory of Legal Science (1941) 11. 22 See e.g., J. Brown, Austinian Theory of Law (1906) 286. For a recent instance see R. Pound, Social Control Through Law (1942) 26-27. Bryce's treatment of Austin, for instance, seems affected by failure to appreciate the necessary limitations of an inquiry into law as a logical system (2 Studies in History and Jurisprudence (1901) 178-84). Conversely it seems accidental and unimportant that it should be possible to sublimate the command concept into a sociological insight, for instance, that "command" is a "useful figure of speech" representing the "probabilities of unpleasantness" which face a person violating a rule (F. S. Cohen, Ethical Systems and Legal Ideals (1933) 254). "It is nonsense" says Dr. Lindsay 4op. cit. 222-23) "to say that in a democracy even of Austin's time the fundamental social fact which makes law possible is that electors command and those who have the franchise obey"; and a fortiori to say the same to-day concerning obedience by minors, criminals and lunatics to the electors. But it is submitted with respect that the nonsense is not so much Austin's, as his apologists. Cf. ibid. 223ff.

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[CH. 11 § 6

A fortiori it is beside the point for the legal historians23 and anthropologists" to take exception to Austin on the ground that his system does not adequately account for the phenomena of undeveloped societies. Austin never intended to deal with any aspect of any other society than the kind he postulated. It is quite proper for the historian, and the anthropologists, or the sociological jurists, to say that they are not in the least interested in Austin's system, because they do not think that the matters with which it deals are of significance, or that it does not aid them in understanding what they regard as significant." It is not proper to criticise its validity or usefulness in terms either of societies or of purposes which lie outside its own postulates.2 ' Even if, as Professor Manning points out," the modern democratic state and its laws were found to be entirely at odds with all the assumptions made by Austin that would not invalidate Austin's theory. It might, as indeed perhaps it already has done, largely destroy any remaining utility. For Austin's theory is not a description of an actual state nor of actual law. The only result of such a discrepancy would be that the modern democratic state would not be a "political society" in Austin's sense, nor would he he discussing its law.

§6. CONFUSION OF SOVEREIGNTY AS A LOGICAL POSTULATE WITH SOVEREIGNTY AS A POLITICAL FACT. This warning is the more essential since Austin's formal doctrine of sovereignty, as a basis for logical arrangement of a legal system, has become embroiled in the literature with another theory of the same name which differs toto coelo from it. Both the English philosopher HobbeS28 and the Frenchman Bodin 2 0 also tendered theories of sovereignty. But their theories dealt with the substance of social relations. They were dealing with the sociological fact of the struggle for power-with the hypothesis that in political life "clubs are trumps", and with the attempted application of mechanical science to social relations.8 0 In both cases these writers were contributing a theory of the social and political actualities of their day-to the self-assertion of national states against the disintegrating universal Church and Empire, and to the internal problems facing the young centralised royal power in France and England." Their theses constituted evaluations of political and social conditions, and programmes for political and social action. They used, as Austin later did, terms like "sovereign", "independent", "command", "sanction", "positive law", but only as the incidental 2

24

See e.g., H. Maine, Early History of Institutions (1874) cc. xii, xiii. See e.g., B. Malinowski, considered infra Chapter XXVI, §§6f.

As e.g., E. N. Garlan does in Legal Realism and Justice (1941) 6. I agree with W. Markby, Elements of Law (1871, 6 ed. 1905) 8, at least in result on this point. 27 In 1. W. Jennings (ed.), Modern Theories of Law (1933) 197. 25 Hobbes, Leviathan (1615). 2 Bodin, Six Livres de la Ripublique (1577). Bodin was a royal official. 25 20

30

See A. D. Lindsay, op. cit. supra n.1, c.iii, and cf. it with c.ix.

Hobbes wrote in the context of the disorders of the English civil war; Bodin in that of the royal struggle with restive feudal vassals. Cf. also the accounts in J. W. Jones, Historical Introduction to the Theory of Law (1940) 79-90 33

CH. II § 6]

PREMISSES

61

terminology of an exposi and critique of the social process itself." It was the contribution of Frederic Harrison that he demonstrated acutely and convincingly the parallels between Austin's terms and concepts and those of Hobbes and Bcidin.3 3 The very success of the demonstration, it is believed, was unfortunate. For it confirmed the tendency to think of the Austinian theory of law, in the same universe of discourse as Hobbes' theory of the state. But the Austinian theory of law, as Mr. Harrison himself observed, is a formal theory from which has been abstracted all reference either to actual political and social conditions or to desirable political and social conditions. It presupposed, this learned writer said: "(1) that the lawyer is considering sovereignty only on the side of force; and (2) that . . . the force it exerts (is) unlimited". And it assumed furthermore a highly civilised community in which there is "except in moments of anarchy: (1) a perfectly defined centre of sovereign power; (2) where the spheres of positive law and of moral obligation are habitually treated as separate. . . ."" It must be apparent that any body of knowledge based upon such patently artificial presuppositions is not a body of knowledge about any actual society. Mr. Harrison admitted this. But he still insisted, as the neo-Austinians insist, that it is a body of knowledge of which the contents are "law". "They (the Austinian definitions) belong to law"" though he admits that "they cannot be carried beyond the world in which they spring" (sic) .3 What is here respectfully submitted, is that those definitions do not even belong to "law" in the sense that what is produced by the use of them necessarily corresponds to what is, or will be, or ought to be applied as law in any actual community." These definitions and the deductions from them belong to one dream of arranging a body of law in a logically interdependent system. It "belongs" neither to any actual society, nor to any actual law, but to the critique of legal propositions by reference to their logical consistency.

§ 7. AUSTIN'S OWN CONTRIBUTION TO THIS CONFUSION. In short, Austin's stress on "the universal, unlimited and illimitable despotism" of the sovereign which so distressed the neo-Austinians and Mr. Harrison himself,38 is, properly understood, a formal postulate which in itself neither threatens democracy, insults primitive communities, nor supports the case of Hobbes, Bodin and Machiavelli for the

growth of a supreme central power.3

)

Cf. e.g., A. D. Lindsay, op. cit. 64-73. :1 F Harrison, Jurisprudence and the Conflict of Laws (1919) 1-36. 34 Ibid. 35-36. 35 Cf. ibid. 21-22. 3 P. 28. 37 See infra Chapters VI and VII for fuller development of this position. The learned writer's failure to observe this is the more striking in that on other pages (e.g., 62-63, 70), he pointed out that "most of the analytic groupings of Austin have only an abstract or logical value, and that they are usually inapplicable to the concrete purposes of technical law"; that the organisation of law on i basis of "abstract logic seems arbitrary and quite illusory", and the attempt to force it "a mischievous form of pedantry". 3s Ibid. 26. 39 I agree with C. A. W. Manning, op. cit. in all these regards. With 3

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[CH. II li 8

Dr. Lindsay has made almost the distinction which is here stressed. He distinguishes as perfectly valid and useful that aspect of Austin's sovereignty which postulates that there must be in any society which has law in his sense an authority, be it single or composite, such that particular laws can be deduced or derived from it or related to it.4 0 The difficulties, he points out, have arisen because Austin thought of this authority in terms of a determinate person or persons, instead of leaving that matter, as he well might have done, quite open. This led him to confuse with the notion of "authority" the notion of "power" in the concrete sense. This in turn led him to such strange adventures as the search for the determinate persons or body of persons who were sovereign in the American Union. He thought he found it in the constitution-amending authority, being a special majority in Congress, in state legislatures and a constitutional convention. As to this it has been bitingly commented that "this remarkable body of persons has only issued twenty commands in one hundred and fifty years, and no one can render- personal4 1 obedience 42 to such" a body, nor indeed does anyone know who they are. As soon in short as Austin went beyond the postulational nature of his own conceptions, and sought instead of an "authority", some "person" or "persons" who wielded "power", he had moved outside his own proper sphere of discourse. The difficulties which the neoAustinians felt in relation to democracy proceeded from their taking this incidental weakness of Austin as his central thesis. His main purpose and contribution, despite occasional lapses 43 was' to suggest a framework for viewing law as a logically self-consistent system; it was not to provide a theory of how power was or ought to be, distri'buted in society."I

§ 8. COMMAND AS A SEPARATE PREMISs. The definition of the kind of society with whose law he is concerned is not of itself a sufficient basis for Austin's system. It was also necessary for him to define great respect I find J. W. Jones' treatment, op. cit. c.iii, as open, impliedly at least, to the objections voiced against Mr. Harrison's. 40 The Modern Democratic State (1943) 217-22. 41 Or it may he added "habitual"! 42 Ibid. 224. Of. G. H. Sabine and W. J. Shepard, op. cit. supra Chapter I, n. 10, at xxv-xxvii. He, of course, frequently forgot himself so far as to attack thought, like 4 that of Montesquieu, directed to the substance of social relations. Mr. F. Harrison (op. cit. 21-22) calls him to account in this respect. C. A. W. Manning's treatment "Austin To-day" in Modern Theories of 44 Law (1933) 180, seems, with respect, to hover unhappily between a due apprecialion of Austin's self-limitations and an unwillingness to accept them. On the one hand his main theme agrees .with 'the above, that neo-Austinian qualifications on Austin's doctrine and the historical-anthropological criticisms of them, are unnecessary and misleading, since "to psycho-analyse an abstraction seems to me a palpable impossibility" (196) ; and the "sovereign number" is with Austin a collective abstraction for authority under the constitution and the "subjects" similarly (195-196, and passim). But that acute writer still himself insists on arguing that Austir's conceptions give "the essence of (the assumed) situation of fact" in modern societies (198), that it gives the "sharp instantaneous picture" of law and society, the "absolute standard of reference" foi law from which all "relativist" or changing studies like that of sociological jurisprudence must start (218-19) ; that Austin's analysis was in a special position to be regarded as "the eye of the law" (221). When Professor Manning suggests that thought about law which does not build on Austin is like thought about engineering which

CH. II § 81

POLITICS AND LOGIC

63

which of the phenomena of that notional society is, for Pis purposes, properly to be regarded as law. It is true that his sovereign would, by definition, be able to invoke the assistance of the bulk of the community in enforcing his will. He would have in Austin's words "the power of affecting others with evil or pain, and of forcing them through fear of that evil or pain to fashion their conduct" according to his wishes. It does not necessarily follow, however, that law would be identified by reference to that power. Obedience might conceivably be the result of blind faith or hypnosis, or mere learned (as distinct from innate) psychological submission tendencies. It will later be seen that this last is actually a main source of obedience.4 5 It is first necessary to observe that, in the present view, Austin's definition of law as "a command relating to the general conduct of the subjects, to which command such sovereign authority has given legal obligation by annexing a sanction or penalty in case of neglect", is logically independent of, and not derived from, his definition of the state, the sovereign and the subject." They are co-ordinate premisses which Austin asks us to grant him: one is not deduced from the other. The sovereign is able to back his wishes by force; by the definition itself he is not bound to do so. Austin, in other words, does not explain why, in his postulated "society, political and independent", the bulk of the community do obey the sovereign. That, he would say, is a matter beyond his ken as an analytical jurist. On the other hand, he is quite definite as to why certain wishes of the sovereign do import a legal obligation. The reason is because the sovereign has attached to the wish a sanction or conditional evil; and because by definition the sovereign has the power, by reason of support by the bulk of the community, to inflict that evil. It is obvious that it cannot be the law which holds society together and keeps the sovereign in his place."7 It is rather the fact that the sovereign can maintain his place which gives the law its character as such. Law as Austin defines it, clearly presuppose's a sovereign, but in logic it presupposes only superior power and not of necessity supreme power, in the one who commands. Conversely ignores considera;ions of numbers and space relationships, and is an attempt to build "law without law" (219), he is indulging a presumption about Austin essentially cognate to those he has attacked in others. This is that Austin's conceptions are in some undisclosed way the units of the legal structure; and that his system of deductive logic has a special virtue for 'discovering "law". The fact that Austin himself occasionally indulged this erroneous impression, is no reason for its perpetuation a century later. 45 See infra Chapter XXVI. 41 We are not concerned in this work to follow out the neo-Austinian modifications of this definition either by calling Austin's sovereign the "sovereign organ" of the ultimate sovereign state or people (see supra § 5, and J. Brown, op. cit. Excursus A and B), or by taking the courts as the immediate law-enforcing .(J. C. Gray, Nature and Sources of the Law (1909) § 191) or lawenforcing and law-recognising agency (J. Salmond, Jurisprudence (1902 ed.) I 5), or the agency by reference to which law is to be identified. In connection with them, however, there should be borne in mind the imporitant rider attached by modern thought, that there may be great differences between What rules courts apply and what ruljs they say they apply. See infra Chapters XVII, § 16, and XXVI, §§21-24, and cf. F. S. Cohen, Ethical Systems and Legal Ideals (1933) 11-15. See also supra §§ 5ff. and the brief recent account in W. Friedmann, Legal Theory (1944) 141-143. 47 Cf. from the sociological viewpoint, infra Chapter XXVII.

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[CH. II § 10

law as Austin defines it is one way in which the sovereign power can be exercised; but logically, by the definition of sovereignty, it is not the only way. The postulates involved in Austin's definition of law are then (1) an independent politically organised society including the sovereign and a body of subjects; (2) a wish expressed by the sovereign to the subjects; (3) a penalty attached by the sovereign to disobedience to the wish.48 This makes clear that though the definition of law rests upon the definition, of the sovereign it also cntains new elements and is not merely deduced from that definition.

§ 9. GENERAL AND PARTICULAR COMMANDS. Upon the second and third of these elements Austin imposed with painstaking labour but with only incomplete success a number of refinements. Chief among these was the requirement that the wish must prescribe a course of conduct as distinct from conduct on one specific occasion. So that according to him the Railways Clauses Acts prescribing in general the terms under which land is to be transferred from private owners to railways might qualify as a law. But a statute laying down the terms under which Blackacre was to be acquired from A by the X Railway Company would not so qualify. Such a requirement would naturally present itself to Austin's mind, writing, as he was, in an age when the tendency of legislation was to remove interferences and to lay down the general rules of the social game rather than partake in the playing of it."O The distinction between general and particular command is logically unsupportable,o in the crude form which Austin gave it. And the development of administrative regulation is increasingly showing that it does not correspond to any distinction in practice. 10. THE SANCTION. As to sanction it is clear that Austin regarded the threat of the slightest evil as sufficient. This may be regarded as somewhat artificial, if as may reasonably be inferred the sanction was, in Austin's view, to be regarded as a psychological inducement. Petrazycki indeed many years ago argued that a sanction of any kind cannot be essential to a rule of law.5 ' For when Rule 1 with Sanction I is transgressed another Rule 2 with Sanction 2 must come into play unless Sanction 1, and with it Rule 1, are to be regarded as a mere nullity. But if Sanction 2 is defied Sanction 3 would similarly have to operate and so on ad infinitum. There would have to be an infinite regression of sanctioning rules if at some point or other a rule withodt a sanction (a non-legal rule) was not to be reached. And since re-, gression could not be ad infinitum it followed that at some point a rule of law without a legal sanction must be reached.