REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1949.tb00135.x |
| Published date | 01 July 1949 |
| Date | 01 July 1949 |
REVIEWS
INTERPRETATIONS
OF
MODERN
LEQAL
PHILOSOPHIES.
Essays
in
Honor
of
Roscoe Pound. Edited with
an
Introduction
by
PAUL SAYRE. [New
York
:
Oxford
University Press.
1947.
x
and
807
pp;
68s.I
IF essays are to be written in tribute to famous men of letters there
is
no one
who deserves the honour more than Roscoe Pound. The editor of the present
massive
Festschrift
has evidently spared no pains to make it as representative
as
possible of all the main streams of jurisprudential thought, and the list of
contributors is imposing. In all there are thirty-eight essays by
as
many
different writers. In addition to the Introduction, two of these essays are on
Pound himself, Kocourek contributing reminiscences of Pound as
a
colleague,
and Patterson giving
a
useful survey of his theory of social interests. Jerome
Frank produces
a
lively study of Blackstone, from which his subject emerges
badly tarnished. De Bustaniente y Montoro writes on Kelsen, MendizIbnl on
F.
de Vitoria, MartInez on Lask, Jaeger on the Greeks,
J.
Walter Jones on
Cino da Pistoia, and Meyendorff and Tiniasheff on Petrasycki. (It is to be
wished that agreement should be reached on the English rendering of this last
name, for it appears also in the book as Petrazhitsky and Petrajitsky.) There
are general essays by Cairns on philosophy as jurisprudence, by Cowan on
Pragmatism, by Hall on ‘integrative jurisprudence’, and by Del Vecchio on
the obligation of honesty. The problem of natural law and of justice attracts
several writers, including C. K. Allen, Chroust, Hocking, Kelsen and Laserson.
Goodhnrt and Sorokin pursue with zest the proper definition of the word ‘law
’.
The relntion of law and fact
is
studied by Radin and Helen Silving. Max
Rheinstein discusses restraints upon the judges in the pronouncement of law.
Ranyard West’s article niay be comniended as an exposition of modern psycho-
logical theories ,in their relation to law. On the historical side, McIlwain
contributes some interesting reflections on the danger to historians of failing
to reulise changes in the meanings
of
words, and Von Mehren writes on
the
judicial attitude to legislation in Tudor England. WinAeld outlines the
activities of the Law Revision Committee. Mitchell Franklin writes
on
the
legal system of Nazi Germany, and Lord Wright contributes
a
paper on war
crimes, in which he rejects outright the maxim
NulL
puenac
sine
lege.
With an omnibus volume of this sort the reviewer has performed his main
duty if lie informs the prospective reader what
is
in it. No lawyer of broad
interests could go through this volume without coming across many passages
that reward the reading. Yet it must be confessed that, having regard to the
galaxy of talent employed in producing the book, the net result
is
somewhnt
disappointing. Apart from Helen Silving’s analysis of the relation between
law and fact
in
the light of Kelsen’s theory, there is hardly an article that
appears to the present reviewer to make
a
serious contribution to jurispru-
dentin1 thought, though a number of them are useful assessments
of
figures
of the past
or
restatements of work that has been done before. This lack of
original thinking may well be due to war-time disturbances. Some of the
contributors (not noted in the list above) have merely submitted extructs
from their own larger works which they have since published in book form,
or
else have given summaries of their books published previously.
It
is
not
intended to refer here to these particular contributions, since the arguments
contained in them are best considered by reference to the books from which
they are extracted.
388
.JULY
1959
REVIEWS
889
It must sorrowfully be added that one
or
two of the articles in the book are
open to the charge of excessive verbosity and obscurity. Carlos Cossio’s
contribution entitled
‘
Phenomenology
of
the Judgment
’
appears to be erected
(if one may be
so
hardy
as
to attempt a guess as to its meaning) on two
propositions
:
that a legal rule is a judgment of value, and that a judge lias
R
certain discretion in npplying the legal rule. These two simple propositions
are spin over forty-four closely printed pages and dressed in a sonicwhnt
pretentious terminology. The same type of criticism may be levelled agiiinst
Siches’
‘
Ideas and Historical Conditioning in the Realisation
of
the Juridical
Values’. It
is
n
pity that no contributor to the volume can review it; otlier-
wise one would have liked to see a commentary by Judge Frank on the
obfuscation of jurisprudence by some of his fellow contributors.
G.
L.
W.
A
NIBTORY
OF
EN~LIBH
CRIMINAL
LAW
AND
ITS
ADMINISTRATION
LEON RADZINOWICZ.
With
a
Foreword
by
the
RIGHT HON.
LORD
MACMILLAN.
Published under the auspices
of
the Pilgrim
Trust. [London
:
Stevens
&
Sons, Ltd.
1948.
xxiv
and
853
pp.
70s.
net.]
FROM
1750.
VOLUME
1:
THE
MOVEMENT
FOR
REFORM,
By
Ti~ra
learned and imposing volume, which
is
principally concerned with
capital punishment, might well have used the words of Albert Sore1 which
Maitland placed on the title page of the Year Books:
c’est toute
la
tragddie, twte
la
comCdie humnine
pue
met en scLne
BOW
ma
yew
l’hwtoire
de
no6
lois.
Ne
craigmm
point
de
le
dire
et
de
le
montrer.
The author
has not feared to tell the disquieting story of eighieenth-century society
with
its
sharp contrasts of intellectual curiosity and practical heedlessness,
of belief in prggress*whirh was not implemented by
a
desire
of
change, of
a
widespread sensibility and urbanity beneath which lay a vast London
populace which generally was not
80
much savage, as callous with
R
sort
of
good-humoured brutality.
Nor
were these contrasts a matter of class
distinction,
for
the nobility with all their culture enjoyed the vast spectacle
of public executions with as much zest as the artisan and the mob.
Nor
need we
fix
these contrasts on the eighteenth century alone, for to some
extent they represent divergent tendencies which
at
all times have disputed
the ascendancy over the individual man..
It
is
aa
social history that the author presents his material in this
volume, and the material
is
all
concerned in one way
or
another with
capital punishment. We
nre
shown the motives which led the Legislature
to impose the death penalty, and how such legislation was treated by the
courts, and mitigated by the application of the prerogative to commute the
penalty. We are given such statistical information as can be found about
the number of executiohs, and
a
niost striking chapter on the Ann1 rites,
based upon
a
formidable mnss of eridence which vividly displays the pro-
ceedings from the last night’s carouse at Newgate to the
slow
progress
to Tyburn sustained by flowers, prayers and drinks, and accompanied by
an elaborate folk-lore-scenes which even the art of Ilognrth only just
succeeds in making credible.
Grotesque and macabre, these spectacles were the delight of vast crowds
which might be sentimental
or
riotous
as
the mood took them. To
thoughtful men, however, they posed
a
problem, and the author
has
devoted
considerable pains
to
recovering the reflections which these scenes provoked
in the niinds
of
all
sorts of men. Of Montesquieu, Deccaria, Fielding, Rornilly,
Bentham, we all have heard, nnd
Dr.
Hadzinowicz contributes nbundant
detail and careful analysis to their well-known work; but he
has
done
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