REVIEWS
| Date | 01 January 1947 |
| Published date | 01 January 1947 |
| DOI | http://doi.org/10.1111/j.1468-2230.1947.tb00041.x |
REVIEWS
A
TEXT-BOOK
OF
JURISPRUDENCE.
By
G.
W.
PATON.
(Geoffrey
Cumberlege, Oxford University Press.
1946.
x and
528
pp.
21s.)
A
MODEST
enough title for what will be to many students
the
text-book of jurisprudence
;
for the publication of Professor
Paton’s book is in the nature of an event.
It
may be, as in
the case
of
Paton’s renowned predecessor in this field, Sir
John Salmond, that one must go to the Antipodes in order
to
obtain
a
true perspective
of
the common law, and then reimport
into England
a
deeper insight into that system than we here
usually obtain. But be that as it may, here is
a
new book
which adds something of real, and all too rare, value to the
short list of students’ books on jurisprudence.
The author arranges his work in five parts:
I,
Jurispru-
dence, Law and the State;
11,
Sources;
111,
The Technique
of
the Law; IV, The Analysis
of
Legal Concepts, and
V,
Analysis
of
Law on the Basis of Interests. The scope and
selection of his subjects follows the sound common law
principle of experience rather than logic-experience in leading
students through the labyrinth of juristic thought.
Professor Paton immediately takes his readers into
a
discus-
sion and criticism of some of the most important schools
of
legal theory. His treatment of Kelsen, for instance, is
remarkably concise and uncommonly understandable.
He
gives an unusually clear exposition of the theories of Roscoe
Pound, a matter which
is
not always easy, since
so
much
of
Pound’s theories are recorded in the lecture notes of his
students and
so
little in the printed word. The influence
of
this great American lawyer is obvious, as the author acknow-
ledges, throughout the whole of this book; but writing of the
End of Law his statement that,
‘
Pound’s generalisations touch
only the fringe
of
the problem
’
(p.
100)
is
less than an under-
statement-it is an injustice. In passing, one might remark
that there is good authority in English law for the term
‘
End
of
Law
’
to describe the object
or
purpose of law, but
it
is,
nevertheless,
a
most unsatisfactory term from the point
of
view
of
the student, quite apart from the fact that
it
raises in him
false hopes at an early stage in his career.
The author’s chapter on
‘
Juristic Writings and Professional
Opinion
’
is
very good. He seems less
at
ease in dealing with
Law and the State. Here legal and political theory meet, and
matters of opinion become
as
important
as
matters of fact.
80
JAX.,
1947
REVIEWS
81
It
is very questionable, for example, if taken to the extreme,
whether ‘we can best secure the effective protection of the
subject
.
. .
by dividing political control among as many
groups in the community as possible’ (p.
138).
Professor
Paton does not seem
at
all convinced of the legal nature of
international law. While he accepts Kelsen’s contention that
‘
A
legal order may be created in the international sphere even
though no super State is set up’ (p.
139),
a matter which
raises immediately the question of the legal nature of inter-
national law, he claims (p.
71)
that international
law
can hardly
be described
as
law, but whether it may be
so
called is
a
question of fact. The War Crimes trials which have been held
in Germany recently, as well as the system of an International
Court which one hopes soon to see in
a
new and stronger form,
may provide facts
of
sufficient weight to tip the balance in
favour of calling international law
a
legal system in fact as
well
as
in hope.
In protesting against the author’s definition of
a
right, in
which he adopts the meaning of the Shorter Oxford English
Dictionary, namely,
‘
The standard of permitted and forbidden
action within
a
certain sphere
’,
one is skating over ice which
many before have found too thin. But one can at least say
that the essence of
a
right is something which one is permitted,
not forbidden, to do; and in any case it is hard to see how
anything could be permitted and forbidden at the same time.
And on this question of words, where, Professor Paton, did
you find the word
‘
externalize
’?
The author’s chapter on
‘
Titles, Acts and Events
’
is
well
written and shows careful analysis. The illustrations remind
one of Ihering’s
Law in Daily Life.
One of the most interesting
parts of the book is the author’s analysis of legal concepts.
It
is not common to find such
a
treatment of Status, for example,
as
that given in this book; but the author could, with great
profit to students, expand this section of the book, since the
subject is becoming of greater importance in the increasingly
complex industrial organisation of today. Professor Paton,
however, misses one
or
two very important points on Status;
for instance, the social or public nature of Status is funda-
mental to the concept
;
significantly following from the above,
in some cases
it
can only be acquired or discarded by an act
of the State, while in all remaining cases if the acquisition or
abandonment of
a
status follows from
a
voluntary act of the
party subject to it, such an act of the parties will affect only
the beginning or the ending of the status, but never both.
This
is
a
feature which distinguishes true legal status from,
e.g.,
professional privileges
or
disabilities. Austin already
found the purpose
of
Status as being
a
convenient method
for
VOL.
10
6
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