THE PROBLEMS OF A FUNCTIONAL JURISPRUDENCE
| Author | Felix S. Cohen |
| DOI | http://doi.org/10.1111/j.1468-2230.1937.tb00004.x |
| Date | 01 June 1937 |
| Published date | 01 June 1937 |
June,
1937
MODERN
LAW REVIEW
5
THE
PROBLEMS
OF
A
FUNCTIONAL
JURISPRUDENCE
N
the lists of jurisprudence, the champion of
a
new theory is
generally expected to prove the virtue of the lady for whom
he fights by splitting the skulls of those who champion other
ladies. Yet despite the struggle of schools that has been waged
for the last forty years in our law reviews,l
it
is
possible,
I
think,
to defend the functional approach in jurisprudence without
attacking the doctrines or the achievements of any other
school.
In
jurisprudence as in other fields of thought, we are more
likely to reach a just appraisal of a new school by asking not,
“What ’thesis does it defend?
’’
but rather, “What question does
it put
?
”
The most significant advances in intellectual history are
characterised by the focusing of critical attention upon facts and
issues which were formerly considered unimportant, indecent, or
self-evident.
Modern physics begins when Galileo and his fellow workers
first formulate such problems as, “How fast does a falling body
fall
?
”
Galileo is distinguished from his predecessors not because
they differed in their answers to such questions, but rather because
Galileo thought such questions were worth answering while earlier
“
natural philosophers
”
had considered such questions trivial as
compared with theological or teleological questions concerning
“perfect motion” and the “proper place” of things in the world-
scheme.
The remarkable intellectual advance achieved during the past
century in formal logic is very largely based upon the initiative
of such mathematicians as Lobachewsky and Riemann, who,
I
See Holmes, “The Path
of
the Law”
(1597),
10
Harvard Law Review,
457;:
Collected Legal Papers
(1920).
167
;
Pound, ‘:,Law in Books and Law in Action
(1910).
44
American Law Review,
12
;
Pound, Mechanical Jurisprudence
”
(1908).
8
Columbia Law Review,
605
;
M.
R.
Cohen, “The Process
of
Judicial Legislation”
(xgrq), 48
American Law Review,
161;
Law and
the
Social Order
(1933).
112;
Cook,
“Logical and Legal Bases
of
the Conflict of Laws
”
(1924). 33
Yale Law
Journal.
457;
Oliphant. “A Return to
Stave Decisis”
(1928). 6
American Law
School Review.
215
;
Llewellyn,
“A
Realistic Jurisprudence-The Next Step”
(1930), 30
Columbia Law Review,,
431;
Pound, “The Call for a Realist Juris-
prudence”
(1931). 44
Harvard Law Review,
697;
Llewellyn,
“Soae
Realism about
Realism-Responding to Dean Pound”
(1931), 44
Harvard Law Review
;
Kantorowicz, “Some Rationalism about Realism”
(1934). 43
Yale Law Journal,
1240;
John
C.
H.
Wu,
“Realistic Analysis
of
Legal Concepts: A Study in the
Legal Method
of
Mr. Justice Holrnes”
(1932). 5
China Law Review,
I,
2
;
Yntema,
“The Rational Basis of Legal Science”
(1931). 31
Columbia Law Review,
925;
M.
R. Cohen. “Philosophy and Legal Science”
(1932),
32
Columbia Law Review,
1103,
Law and the Social Order
(1933),
219;
F.
S
Cohen, “Transcendental
Non-
sense and the Functional Approach”
(1935). 35
Columbia Law Review,
809.
6
MODERN
LAW
REVIEW
June,
1937
challenging the
“
self-evidence
”
of Euclid’s parallel postulate,
asked
:
“What consequences will follow from geometric assump-
tions other than those of Euclid
?
”
The result of such investiga-
tions was not to “disprove” Euclidean geometry, but rather to
show it in its true perspective as one logical system within a
matrix of systems, all of which have possible applications to the
actual world.
If history-writingis on a more realistic plane to-day than it
was a century ago, this is certainly due very largely to the work of
Karl Marx. Non-socialist historians may reject entirely the thesis
of
the class struggle, and even the general doctrine of social evolu-
tion, but they cannot reject or forget the insistent questions that
Marx put, “How is this or that event related to the system of
production and distribution that prevails at the time and place?
”
Certainly the persistent reiteration of this question in fields of
social organisation, politics, morality, and law is the first charac-
teristic that distinjguishes modern history-writing from the pre-
Marxian histories that ascribe most historical events to the
character of the sovereign, the fortunes of warfare, or the spirit
of peoples.
Similarly it might be shown that in fields of biology, economics,
psychology, and philosophy, to mention no others, the enduring
contributions of new schools of thought have been not the new
theories they have defended, which have more often than not
turned out to be erroneous, but the new questions they have
Let us then survey the role of functionalism in legal science
not as a refutation of past theories
of
law nor even
as
an improve-
ment in our present methods of legal research, but rather as an
insistence on certain questions that until recently have been
generally ignored in legal studies. Specifically, the functional
method poses such questions as: How do rules of law work?
Are certain rules of law, so-called, merely ritual observances which
have no verifiable relation to the decisions
of
judges who recite
them?
To
what extent are laws actually obeyed? What are the
limits of effective law enforcement? What are the social mechan-
isms and institutions that make certain rules
of
law effective
and leave others dead letters? When rules of law are obeyed
or disobeyed, what consequences actually follow from such
conduct
?
More generally, these questions may be compressed in the
formula, “What
is
the human meaning
of
the law?” This is
a
very different question from the question,
“
How has law deve-
loped?
”
which historical jurists have asked and answered.
It
is
put.
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