REVIEWS
| Published date | 01 January 1941 |
| Date | 01 January 1941 |
| DOI | http://doi.org/10.1111/j.1468-2230.1940.tb00776.x |
232
MODERN
LAW
REVIEW
Jan.,
1941
the “place of central control and management,” and since this
can
be
out-
side the country of incorporation-De Beers Consolidated Mines, Ltd. v.
Howe
(1906),
A.C. 455-it follows that, in their view,
a
corporation can
change
its
domicil from the country of incorporation to some other country.
The writer of these notes, in his recent work The Residence and Domicil
of
Corporations (reviewed at
3
M.L.R. 174/5), dissented from this commonly
accepted view and gave reasons why a corporation, though theoretically
able to acquire a domicil of choice, was unable in law
to
change its domicil
of
origin, see pp. 217122.
His
opinion would seem to have been upheld in
the instant case which laid down that, in English law just
as
in American
law, the domicil of a corporation
was
always that of the country
of
its
incorporation.
A.
FARNSWORTH.
REVIEWS
TEE
LAW
IN
QUEST
OF
ITSELF.
By LON L.
FULLER,
Professor
of
Law,
Duke Uniuersily, Visiting Professor, Harvard Law School.
1940.
Chicago: The Foundation Press, Inc. pp. vii and
147.
$2.
This volume contains the text of three lectures “provided by the
Julius Rosenthal Foundation for General Law and delivered at tne Law
School of Northwestern University at Chicago in April,
1940.’’
The
author proposes at the start a pragmatic definition of the function of legal
philosophy as
‘I
attempting to give a profitable and satisfying direction to
the application of human energies in the law,” and suggests the question,
“Would the adoption of the one view or the other affect the way in which
the judge, the lawyer, the law teacher, or the law student, spends
his
working day?”
as
a pragmatic test of the reality of its controversies.
This test he applies to show that the old controversy between Natural
Law and Positivism is
a
real and vital one, and his definition turns
in
his
hands into a weapon which he wields vigorously in an onslaught on Posi-
tivism and all its works. Excluding from his survey the sociological
Positivism of Comte, Diirkheim and Duguit, and also the historical school
founded by Savigny, he sketches briefly and pungently the growth of
positivistic analytical jurisprudence (Austin, Somlo) from the simple
and common-sense Positivism of Hobbes, touches on the pervasive am-
biguity of Austin’s account of the Sovereign (is the Sovereign an actuali’y
or
a
juristic construction
?),
and then traces the development of the more
characteristic modem positivistic theories “along the two sides of this
ambiguity.” The “realist” view of Kornfeld, Ehrlich, and numerous
Americans and the pure abstraction of the Viennese school are for him
but obverse and reverse of the same thing. The essence of Positivism
is
its
rigid separation of the
“Is”
and the “Ought,” with the corollary that
the study of the “Ought” is no concern of the lawyer, or, at any rate,
can
be
postponed until the
“
Is”
has been thoroughly dealt with. Positivism
thus leads to narrowness of outlook, diffidence, and ethical scepticism.
The
only possible moral beauty in positivists
is
a
blind romantic loyalty-
“Theirs not to reason why”-and
it
is
significant that the image
of
the
faithful soldier appears
so
often in their writings. Professor Fuller, on the
other hand,
thinks
that the “Ought ”-the moral
“
Ought ”-enters into
every legal activity.
Law
is
a
process of becoming. Every decision,
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