REVIEWS
| Date | 01 July 1950 |
| Published date | 01 July 1950 |
| DOI | http://doi.org/10.1111/j.1468-2230.1950.tb00176.x |
11
E
VI
E
W
S
CASES
AND
READINQS
ON
LAW
AND
SOCIETY.
By
SIDNEY
POST
SIMPSON
and
JULIUS
STONE,
with the collaboration
of
Magdalena
Schoch
:
in three Volumes. [St.
Paul,
Minnesota
:
West
Pub-
lishing
Co.
Vol.
I,
xlvi and
602
pp.
;
Vol.
11,
xliii
and
698-1592
pp.
;
Vol.
111,
xlii and
1598-2889
pp. (with indexes).]
IT is difficult to know where to start in reviewing this monumental work, and
it
is difficult to avoid hyperbole in expressing one’s admirntion for the
enterprise, the imaginative thought, the wide and exact scholarship, and the
unremitting industry which went
to
the making of it. Two things however
one may say nt once. The
first
is thnt the book brings home in
a
way which
nothing else could have done the grievous loss which the profession
of
law
teaching and indeed the legal profession as
a
whole has suffered by the
untimely death of Professor Simpson. That he should have lived
to
sce
its
publicntion, and to have received at any rnte the congratulations
of
his
friends is something for thankfulness, How much of his vitnlity had gone
into the making of it
I
know from many conversations with him.
The
strain
of preparing
it
for the press amid other heavy commitments undoubtedly
contributed to his collnpse.
The second is thnt the work is of outstanding vnluo-of outstanding value
not only to all serious students of jurisprudence, but to every lawyer
who
has
7ny sort
of
concern nbout the position of law and lawyers in the working
of
society.
It
is unfortunate that its great length, and consequent
cost,
will
place it beyond the reach of the average English lawyer, but since, as will
appear, each volume
is
in
a
sense self-contained he might be advised to obtain
at any rate Voluiiie
I1
which contains the heart
of
the matter.
To
the
average
English lawyer ninny of these readings will no doubt appear highly irrelevant
since he seldoin stops to think about the wider implications of his work and
subject. In America however for half
a
century
a
wider outlook has
been
evident, at any rnte In the great law schools; though the story told by Sir
Walter Moberly in the
Criris
of
the
Uniuersity
about the law student who
complained. to the College President
that
his professor was wasting time
lecturing about the background of the subject, shows that even in Americn
the artisan type
‘of
outlook
is
not unknown.
However, before
I
begin to comment on some of the points raised
by
the
book it will be
as
well to give an indication
of
its scope and contents. By
classification it falls into the class
of
historico-sociological jurisprudence, for it
consists of excerpts from books denling with society in
nll
its
amre vital
nspects,
of
extracts from decided cases, and of relevant portions of codes
and
statutes bearing upon the same subject. Book
I
is historical
and
is
entitled,
‘Law and Society in Evolution’.
It
is
divided into
four
parts dealing
respectively with law in a kin-organised society, in an emergent political
society, in a rising commercinl society, and in an expanding industrial society.
I will take the material
on
the kin-organised society
to
illustrate the detail
of
the discussion. Here we have chapters on the basis
of
social cohesion. the
nature of social control, the role of social control, and the machinery
of
mial
control in the society in question. Again
I
will take the chaptcr
on
the
mnchinery of social control
@
illustrnte the analysis
of
the material. Hen
we
have sections on self-help, the wrath of the gods, pressure of group opinion,
and undifferentiated legislative nnd judicial functions. Every primary title
in the
book
is
divided and subdivided with similar thoroughness.
1949.
885
380
TlIE
h1OI)ERN
I.A\V
REVIEW
1.01,.
13
Book
I1
is concerned with
'
Law
in llodern Dciiiocratic Society
*.
It ngiiin
wntains four cliapters dealing rcspectively with the social i~nd ideological
Iwkpround; with interests, pressing and secured; with the nincliinery of social
control through law; and with the liiiiitntions of social control through law.
The most important of these cliapters is tha:
on
intcrests (with
the
rather
puzzling titlc mentioned), and of this it may be as well to illention the section
headings which are
(1)
tlic physical conditions
of
social
life:
public safety,
health, and comfort;
(2)
the economic conditions of social life including
organisation and methods of business enterprise, protection of investors and
bank depositors, control of conflicts between business enterprise and orgnniscd
labour, alleviation of the effects of the business cycle, and mutual assimilation
of economic and political institutions;
(3)
maintenance and progress
of
social
institutions, that
is
political, domestic, religious and cultural institutions, with
an additional section on social institutions and the general morals;
(4)
the
conservation of social resources, dealing with natural resources and human
resources
including the rising generation, delinquents, defectives, rclief of the
unemployed and indigent, protection from economic duress, and the conditions
of human life;
(5)
the conditions of individual life and activity, covering
(a)
mutual interdependence of the conditions of social and individual life,
(6)
interests of personality,
(c)
interests of substance, including changing
forms and nature of property, promised advantages and the law of contract,
and freedom of economic activity,
(d)
restrictions on the effective protection
of secured individual interests, dealing with restrictions in favour of privnte
debtors
or
tortfeasors, and restrictions in favour of the State
or
its agencies.
Book
111
is entitled,
'
Law
:
Totalitarianism and Democracy' and consists
of six chapters entitled respectively, the rise of totalitarian politics nod
ideologies, law under fascist totalitarianism, law under communist totali-
tarianism, changes in interests secured under totalitarian politics, changes in
the machinery of social control under totalitarian politics, law and democracy
in
a
time of change. The most substantial of these chapters-Chapter
IV-
contains sections on
the
economic conditions of social life under totalitarianism
(industrial enterprise and management, labour, agriculture), social institutions
(political, domestic, religious, cultural), the utilisation of human resources
(the rising generation, delinquents, defectives, social security, and the mainten-
ance
of
mass morale, propaganda),
.
repercussions on individual interests
(submergence of private rights under fascist totalitarianism, and resurgence of
privnte property under communist totalitarianism). Finally
I
should perhaps
mention
the
section headings in
the
last chapter on law and democracy in
a
time of change, which are, the trend towards collectivism, collectivism and
free
dom, the maintenance of freedom (the psychology, the economics, the domain of
freedom), implications of atomic energy, the internationalisation of positive
law, and
'
what's past is prologue
'.
It may be useful now to indicate the type of sources from which the
readings are taken,
so
I
will pick at random
a
sclection of sections over the
whole
work.
For Section
1
of Chapter
I1
in Book
I
which deals with Absence
of
Differentiation between Law, Religion, and Morals the authors make their
sclection from
:
Hartland,
Primitive
Law;
McIlwain,
Urowth
of
Political
Thought
in
Uie 1Vest;
Vinogradoff,
Historical
Jurisprudence
;
Malinowski,
Crtms
and
Cwtom
in
Sacags Society;
and Hoebel,
Political Orgumisation
and
Lnw
Il'ayr
of
the Comanche
Iitdians.
Tlie section includes
a
note by the
editors on the orthodox views of the Maine-Hartland school as compared with
the heterodox outlook of Malinowski and Diamond. For Section
8
of
Chapter
111
of
the same book the extracts
arc
made from the
Twelve Tablea;
the
Laws
of
Aethelbert;
the
Salk
Law;
Grueber,
Lex
Aquilia;
Gaius,
Institutes; Prnvda Xu88kaia;
and Hartland,
Primitive
Law.
For
Section
1
of Chapter
I1
in Part
I1
which deals with the Rise of Secular Interpreters of
Law
the autlioritirs :irc the
Digest;
Glanvill,
Tractulnu del Legihs el
Cmi-
ruP!udid)us
.4nglhe;
Bracton,
D0
Legibud et
COnJ~~tudinit~ua
Anglb;
REVIEWS
387
JULY
1950
,Iolowics,
Nistoricnl
I~itroduetiolr
to
Ilnnrcrn
Law;
IIuebner,
IIirtory of
Germattic Private Law;
Savigny,
Voni
Beruf unarer Zeit fur Qesetzgebung
ud
Rechtsw~ssenachaft
;
Blackstone,
Commentaries; Proh'bitions del Roy;
.Workby,
Elements of Law.
Fop Section
1
of Chapter
IV
in Part
111
which is
entitled Displacenicnt of Mechnnical by Ilationnl Modes of Trial, the readings
are taken from Millar,
Formative Principks of
Cid
Procedure;
Trevelynn,
HLtory
of England;
Glanvill,
Twctatw
&
Legitnu
et
Cona~td'nihbJ
Angliae;
Anonymous,
41
Lib. Ass. pl.
41;
Maitland,
!?'he Fom
of
Ach
al
Cmm
Law;
Thayer,
Preliminary Treatise
on
Evidsnce;
l3urhell's Cars,
Vmghan
135.
For Section V of Chapter
3
of Part V (the Factor of Per-
sonnel) the extracts are from: Mott, Albright and Sammerling,
Judicial
Persmnel;
Lummus,
The Trial Judge;
Warner and Cabot,
Changes
in
the
Ahinistration of Criminal Jwliee
during
Ue
Past Fifty Years;
Scrutton,
The Work of
the
Cmmercial Courts;
Gellhorn,
Adminutrafivs
Law;
Reprt
of
Special
Committee
on
Ahinistrative
Law,
American Bnr Association;
Frankfurter,
The Public
and
Its Governnwnt;
White and Smith,
PoEficr and
Public
Service;
Henderson,
The Federal Trade ConumissiOn;
Dodds,
Thr
Public's Respwibitity
for
LegClation.
For the subsection on Defectives
iinder Human Resources in the same Pnrt the authorities nre:
Glu&
Mental Hygiene; Minnesota
ex
rel.
Pearson
v.
Probate Court
[309
U.
S.
2701
(commitment of psychopathic persons not convicted of crime);
Buck
v.
BsU
I274
U.
S.
2001
(compulsory sterilisation of mental defectives);
Eugenical
Steriliaalion:
A
Rehtation of
the
Problem
(American Neurologicnl Assn.
1936).
For Lnw under Fascist Totnlitarianism (Germany) the extrncts are
from Hess,
Re&
Anliissich der Erofnungskundgebung des Juristen.tags8
1936;
Frank,
Red6 auf der Schlusskundgebvnd
&s
Deutchen Juristentags8
1936;
Loewinstein,
Lmd
in
Ue
Third Reich;
Neumann,
Behemoth, The
Struc-
ture
md Practice
of
National
8ocicrlism
Similarly for Law under Communist
Totalitarianism
:
Vyshinsky,
Sovetskos
Gosudarstoenmm Pram
(1938)
;
Haznrd,
Soviet
Law:
An
Introduction;
Timasheff,
The
Cniir
in
the Manion
Theory of Law;
Volfson,
Semeinoe Pravo
(1938);
Grazhdanakoe Prmo
(1938);
Wymnski,
Book RePieu,
in
60
Ham.
L.
Rev.
677.
For
the Section on Defectives
under Human Resources which niay be comparrd with the authorities men-
tioned above we have:
Law
for
the
Prerwntbo:i of Hereditarily Dbsclrsd
Ofspring, Germany
(1933);
Deuel,
Peopls
un&t
Hitkw
(1942);
Lao
for
Ue
ProLecEM,
of
the
Hereditary Health of
the
German
P&
(Maniags
H&
Low)
Bermmy
(1985);
Ziemer,
Educcrtiun
for Dd
(1941).
Finally
for
'What's
Past
is Prologuc': Conant,
Education
in
a
Divided WorZd;
Mydal,
An
Amadcan,
Dilemma;
Veblen,
The Thmry of the Leiwrs Char;
Benedict,
Pattenu of Culture;
Simpson arid Field,
Social
Engineering Through
Luw;
Whitehead,
Science
and the Modern World.
The above selection of
sources
inny perhaps suggest that very littie use has been made of case material
but
this
is
not
so,
the grenter part of the very important chapter in Book
I1
on
Interests is composed of extracts froni English and American cases of which
something like
a
hundred have been used: they are prepondaratingly
Americnn and to
nn
English reader afford in themselves
a
fascinating view
of
.4mericnn courts
at
work.
The extrncts froni non-English sources nre translated. Numerous foot-
notes refer
to
large numbers of other works and articles, and this
documentation
is
remarkably extensive, the references covering not
only
American nnd English
works
and periodicals but also, at nny rote
from
time
to time, German, French, Italian nnd Russian sources. The Prefnce, a
valuable General Introduction by Roscoe Pound, and the general table of
contents is repented
at
the beginning of ench Volume which can therefore be
handled sepnrately, though the indexes which include an author index, an
index of texts and governnient documents, a tnble of cases (American and
British), and
n
table of statutes
(U.
S.,
British and Commonwealth, Geman,
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