REVIEWS
| Published date | 01 April 1948 |
| Date | 01 April 1948 |
| DOI | http://doi.org/10.1111/j.1468-2230.1948.tb00088.x |
REVIEWS
TILE PROVINCE
AND
FUNCTION
OF
LAW.
By
JULIUS
STONE,
Profes-
sor
of
Jurisprudence and International
Law
in the University
of
Sydney. (Sydney
:
Associated General Publications
Pty.
Ltd. London: Stevens
8z
Sons,
Ltd.
1947.
lxiv and
918
pp.
$8
10s.)
A~R
a
long period of barrenness, the last few years have witnessed an
astonisliing revival of jurisprudential thought within the British Common-
wealth of Nntions., Among
a
number of recent attempts to redefine the end
and function
of
law in modern society, Professor Stone’s work, originally
published in Australia,
is
the most comprehensive and ambitious. That many
of his conclusions have been reached independently by other jurisprudential
works publislied in recent yenrs, only proves the irresistible impact of the
social problems of
our
times on lcgnl thought. It does not detract from the
importance of
n
work which rnnges far and wide over the fields of analyticnl
jurisprudence
nR
well as legal theory nnd sociology. Its references to modern
lcgnl and sociological literature as well as to practical legal problems and
court decisions are astonishing in scope and comprehensiveness.
The
Prouincv
and
Function
of
Law
is a
book of a legal sclioinr whose intereste range far
heyond the
Inm.
Yet it is, In tlie author’s own words, an Interlocutory work-
n
chnlicnge to further thought and enquiry rnther than a final profession.
It
is
a
book
which, in width of conception nnd brendth of learning, must bc
jiidgcd by the highest critical standnrds.
It
is
in this spirit that the following
reflections on the achievements as well
a9
the deficiencies of Professor Stone’fi
monumentni treatise are oflered.
In the introauctory part the author attempts
a
re-definition of the province
of jurisprudence. After searching examinntion of the hundreds of classifica-
tlons and definitions offered by scores of jurists of ail natione, he suggests
a
re-definition of jurisprudence Jn three main branches
I
analytical jurisprudence,
sociological
(or
functional) jurisprudence, and theories of justice (or ethical
jurisprudence).
It
is
a
division with which most modern teachers of jurie-
prudence will agree, and it
is
practically identical with the classification
adopted by Professor Hall in his
Readings
in
Jurisprudence
(1088).
The
book
foilows this pnttem. The three main parts are concerned with Law and
Logic,
Law and Justice, and Law and Society. In the first part the founda-
tions of analytical jurisprudence are examined against a study of three major
writers
:
Austin, Roguin and Kelsen. The inclusion of
a
eritlque of Hohfeld’a
classification of iegni conceptions
is
not easy to understand in the frame-work
of the present book.
It
develops into an examination of certain aspects
Of
analytical jurisprudence, but the book is otherwise not much concerned with
analytical jurisprudence, and concepts of law. (There is
no
discussion, for
exnmple, of the nature of erinie, of corporate personality and many other
problems of analytical jurisprudenco. The singling out of this particular
aspect of analytical jurisprudence, while liiglily stimulating and valuable in
itself, seems hardly relevant to the main pattern of the book. The last section
in this part is concerned with the limitation
of
logical reasoning and law, and
lii this connection deals with the examinntion of extrn-logical nnd crypto-
idcnlistic elements in judicial rensoning. This part contains
a
briliiani
analysis of the various syllogistic methods by which, under. the appearance of
logical certainty, the law
Is
moulded in one directlon
or
mother, particulariy
hi
the development of English common law.
To
the present revlewer it
would
have appeared preferable to defer the discussion of this fascinating problem
285
I'm.
11
2a6
THE
MODERN LAW
REVIEW
to n Inter pitrt of tlie
Imic
:
tliiit is, foiiowiiig iincl riot precetling tlie nnnlysis
of
legni
theories, socinl interests niid other iclcnlistic elcnieiits influencing the
development of the
law.
As
tlie
book
is
nrritngecl,
tlie
render
lins
sotric
tiificulty in getting
u
cohcrent account
of
I'rofessor Stone's view on tlie
crentivc elelllent in
tile
judicinl process.
notli
logical
nritl
iclcologicni nilnlysis
is
dlspcrsed
ovcr
tiic
three pnrts.
The
second part
is,
in
tlie
mnin,
iin
nccoiint of the principnl tnovements in
legnl tircory stiidied genernliy ngninst the biickgroiind of
iiii
outstnnding
reprcscntntive of
(L
school of
kgui
thought. In the present reviewer's opinion,
the different cliapters in this pnrt are
of
uneven value.
The
chapter on
IhmUluiii
is
outstanding in clnrity
niid
constructively links Bcnthilrri's nclilcve-
liienl
to
the
problems of our own times. On the other iinnd, tlie nccount of
tlic legnl pliiltrsopliics of Kiint nnrl Ikgcl
is
wnk nntl
coloiirless.
This
is
probnhly
clue
to one of the few weaknesses in Professor Stone's cncyclopaxlic
mental equipment
:
his
neglect of the philosophic fountlntions without wliicli
the
older
theories
of
justice
are
iinintelligible. Like tile whole book,
tills
part
ubounds in briilinnt insights nnd an understnnding of essentiuis nbve super-
ficial cliffercnccs of legnl systems and forms of txpression. Thus, Stnmmler's
socinl
idcnlisni-which nieasures just Inw by
n
fictitious specinl community
'-
Is
broitght into relation
with
Lord Atkin's 'neighbour' test in
Donoghue
v.
~~OUOJISOII.
In the present reviewer's opinion
it
is
regrettable tlint
tlie
modern
sociolugicni theories of law,
such
as tho theories of Ghy, Ehrlich and Pound
i\rc scpirriited both from
encli
other nnd from the
chnptcr
on Lnw and Justice.
Th!s seeins to destroy tlie orgnnic connection between the thought of Bentlinili.
Mill,
Ihrring nnd tlic modern theories centred nround nn apprnisnl and bnlancc
of
interest.
Professor Stone
is
n
disciple of
Roscoe
Pound, whose influence
is
pnrumount
throughout the book.
The
most brilliunt pnrt of the book is devoted to
the
unnlysis
of
law
ns
un ndjustment of conflicting interests which
is
based on
Pound's appronch nnd clnssificntion. Tlie different claims of individunl and
soclnl interests nre survcyed nnd illustrated by
a
wealth of prnctical detail and
suggestions for further research. At the same time Professor Stone does not
uncritically ndopt the tenching of his master.
His
criticism of Pound's threc-
fold division of legnliy protceted interests into individunl, public and socinl
interests
is
convincing. It is in this pnrt that tlie guiding theme of
the
book,
the
annlysis of the perpetitnllp chnnging tension between Inw nnd the clevelop-
ment of society, is most vividly dcmonstrnted, though thc sepnrntion of this
part froiii the general trends of legnl theory
is
to be regretted.
The third part deals with the sociology of law, and it
is
in this purt thut
tlic
present reviewer
lins
found it most dlmcult to grope his way. Evcry
inoclern jurist
is
fnced with the problem tlint Professor Stone
lins
tnckled with
it
wenltl
of
lntellectunl equipment and of original tliought: Given the
incrensing connection of
law
and the other social sckmces, how far sliould the
tnodern jurist go in the discussion of sociological, economlc, psycliologicnl and
other problems. In the present reviewer's opinion it is not possible, not even
for
on
nutlior
of Professor Stone's intellectual diincnsions, to write
n
text-book
on
sociology
or economies
ns
an incidental pnrt of a text-bnok on jurisprudence.
On the other hand,
the
self-limitation of the annlytlcal school is not open
to
the
inodern jurist who seco law as
n
process of socinl development.
In
this
dilemma it
is
submitted the jurist cannot but accept the mrrin conclusions which
leuding sociologisb, economists, scientists or psychologist8 mny have reached,
and state clearly the assumptions on which he is proceeding. In an nnalysis
of modern developments in the law of restraint of trade,
for
example, it
is
pertlnent for the jurlst to trnce conflicting economic theories in
the
different
judgments,
to
lay bare ideological valuations and conflicts underlying legnl
decisions; but it is neither possible nor necessary to enter at the
some
timc
into
a
discussion of the fundnmentals of monopoly capitalism, free competi-
Uon, stnte socinllsm, etc. Professor Stone has not altogether avoided this
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