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being. A human being is a human being and nothing else. If that human being happens to be a chattel, like a horse or an ox, his physical nature does not differ from any other human being. The quality of personateness is one attributed by the law. It does not reside in nature. It is conceptual and not real. There is an ambiguity in the word 'person.' It is taken to mean a human being, in one sense, and, in another, as a human being invested with personateness, the capacity for legal relations. Failure to distinguish these two meanings accounts for the classification of persons as natural and artificial persons. This classification is incoherent. From the standpoint of the first meaning of person (i. e., a human being) there are no artificial human beings. There are simply natural human beings. The attribution of legal personateness to a human being, to a succession of human beings (corporation sole), to an aggregation of human beings (share company), to a collection of objects, or to a bundle of legal relations (foundation), is neither a natural nor an artificial operation, and the resulting personateness is neither natural nor artificial. The classification of persons as natural or artificial is valuable only as pointing out the substrate of personateness and even in that respect, as we have shown, it lacks logical and practical coherence. In a word, the personateness of a corporation is not a fiction; it is simply a technical fact and as such differs in no respect from the personateness of a human being which also is a technical fact.
It is conceivable that a political society could get along somehow without such a technical device. It is conceivable also that an industrial society could get along without the wheel, or that an economic society could dispense with money. To take away, however, these valuable inventions would set us back hundreds or thousands of years, and it may be asserted with considerable confidence that a society in a modern sense could not function for a day without the concept of personateness.
Believing therefore that Professor Hohfeld's whole argument rests on an incorrect premise, we find no difficulty in supporting the Risdon case standing alone and a fortiori as consistent with a considerable body of foreign rights doctrine. The essay, however, is very valuable. The author lays out an extensive apparatus of ideas, and he takes enormous pains to explain every cog and lever in true Austinian fashion. The chief literary defect of the essay from the standpoint of this moving picture age is that he constantly explains his explanations. It shows here, as a typical instance, the workings of a careful and thoroughgoing intellect. The only real defect chargeable against the essay is that it entirely ignores an extensive foreign literature which deals with the main thesis. The conclusion is an interesting index of the legal scholar. After turning over a whole section of a field of law, with spade, plow, disk, and harrow, the author ends his book-length examination with the cautious utterance "I doubt the correctness of the result reached in the Risdon case.”
Professor Hohfeld's paper, entitled, "A Vital School of Jurisprudence,” which was read before the Association of American Schools in 1914, gave powerful support to a movement to supplement the strictly work-shop attitude toward law studies by a scientific approach. This support came at a time when it was most needed. It was then that we were warned against the contagion of foreign philosophies of law. We were then also advised that we should take our jurisprudence in high dilution and we were cautioned to suspect jurisprudence courses as labels with fancy names. These warnings and counsels in these and many other surprising forms came from respectable sources. The view that a correct rule of law could be developed by classroom dialectic had enough truth in it to make it deceptively dangerous. It soon became a new principle of natural law. Every instructor in law by this principle was able to draw out of his consciousness rules and principles which students were encouraged to impress on the courts regardless of what was going on in the throbbing and irrational world. The illusion was perfect, and as we have said it had justification in the rational element of consistency upon which it was founded.
In the few years that Professor Hohfeld lived he achieved what comes only to few men out of the mass. He built up a memory of his achievements. The book under review is a witness. He will be remembered as one of the ablest law teachers of his generation, as a patron of jurisprudence, and as one of the founders of a movement still in the earliest stages of development. It is to be regretted that it was not considered desirable to prefix these essays by a portrait of Professor Hohfeld and a biographic statement. If this work appears in a new impression, we hope that omission will be cured. It would be helpful, too, if the running heads were related to the essays. As they now stand they simply repeat the title of the book.
ARTICLES IN PERIODICALS
THE HISTORY OF THE CRIMINAL INFORMATION. W. S. Holdsworth. Can.
Bar Rev. I 300. PSYCHOLOGY AND CRIME. Herbert L. Stewart. Can. Bar Rev. I 314. William Firth. William Renwick Riddell. Can. Bar Rev. I 326. EXTRA-TERRITORIAL LEGISLATION. Herbert A. Smith. Can. Bar Rev. I 338. DETERMINABLE FEES. Richard R. B. Powell. Col. Law Rev. XXIII 207. CONFUSION. Earl C. Arnold. Col. L. Rev. XXIII 235. THE EQUALITY OF STATES III. Julius Goebel Jr. Col. L. Rev. XXIII
247. SOME ASPECTS OF THE PROBLEM OF LAW SIMPLIFICATION. Harlan F. Stone.
Col. L. Rev. XXIII 319. TRANSFER OF FLAG AND THE DECLARATION OF LONDON. Edwin M. Borchard.
Col. L. Rev. XXIII 338. NON-CUMULATIVE PREFERRED STOCK. A. A. Berle Jr. Col. L. Rev. XXIII
358. CHARLES THADDEUS TERRY. Harlan F. Stone. Col. L. Rev. XXIII 415.
Since Professor Pound wrote his article on “The Philosophy of Law in America,” in which he remarked that there was no modern philosophy of law in that country in esse, but only in posse, time has brought about great changes. A definite philosophy of law is now actually in existence, whose founder and exponent is none other than Professor Pound himself. In this article we shall try to set forth some of its salient points and venture a few comments upon them.
1. The Problem of Juristic Philosophy. The constant problem for the jurist, as Pound sees it, has been the task of reconciling "the conflicting demands of the need of stability and of the need of change.' He declares: “Law must be stable and yet it cannot stand still."3 This sounds like a paradox, but the statement is true. A firm and stable social order is an indispensable condition to human progress, but human progress, in its turn, necessitates changes in the law. There can be no question, therefore, of the desirability of both these qualities, stability and changeability; the question rather is whether they are compatible with each other. In other words, can we make room for both of them at the same time? Pound's answer is in the affirmative. He resorts to what he calls "a social engineering”; he holds that by a skilful handling of the laws we can preserve social order while at the same time adapting them to social progress. Law “must be overhauled continually and refitted continually to the changes in actual life which it is to govern." He demands, thus, continual vigilance and exertion on the part of lawgivers, judges, and legal teachers. He preaches effort, because he believes in its efficacy. Everywhere he recommends a functional attitude in jurisprudence. Like Jhering, he abhors the jurisprudence of conceptions and calls for a jurisprudence of actualities. In short, his solution of the problem of stability and changeability is a pragmatic one, for he inquires not so much after the logical compatibility of these ideas as after the workability of actual designs. He speaks of "cautious striking out of new paths, paved in part at least with old materials but given a direction by trial and error." From his system of reference, law appears to be a useful instrument for satisfying human desires, a lever for elevating human civilization; its value is to be judged, not by its conformity to an abstract idea, but by its capacity to promote human welfare in the concrete. The reconciliation between stability and change is not to be effected once for all through a dialectic process; it is a daily task to be performed by legal experts with the aid of their "trained intuition."
*[Research scholar at Harvard Law School.)
1. Achiv für Rechts- und Wirtschaftsphilosophie (1913-1914) Band VII Nos. 2-3.
2. Pound "Interpretations of Legal History" Cambridge 1923 p. 1. 3. Ibid. p. 1.
The position of a philosopher is largely determined by his way of presenting the question. Pound's way of presenting the question marks him down at once as a pragmatist, and among the pragmatists he is most akin to John Dewey. Dewey is to Pound what Natorp is to Stammler. In this connection, I cannot resist the temptation of quoting an excellent summary of Dewey's philosophy from Arthur K. Rogers, English and American Philosophy since 1800:
"Pragmatism is an experimental use of intelligence to liberate and liberalize action. It looks to a growing rather than a static world; thinking is not the reduplication of reality already complete, but the actual method of social advance, a method that is to free us alike from the unchanging ideals of obscurantism, and from the sporadic demand for novelty or freedom working under no principle of control from the past. It is the logic of rational evolution, where, along with a constant alertness to the novelties in the situation, and an absence of undue subservience to the past, the new is at the same time connected with the old in an orderly and sober fashion."?
This passage describes just as adequately the philosophy of Pound as that of Dewey. I have quoted it, not to show the dependence of one upon the other, but to show that they belong to a common philosophical tendency of the present time. Just as it is impossible to understand Stammler without a general survey of the Neo-Kantian philosophy of the Marburg School, or to apprehend the full purport of Duguit's doctrines without an intimate knowledge of the solidarist movement in the contemporary French thought, it is impossible to realize the real position of Pound without relating him to that general tendency of thinking which is called Pragmatism. This goes to prove the inter-dependence of law and philosophy.
4. Ibid. p. 1. 5. Ibid. p. 4.
6. See, for an excellent discussion of the trained intuition, Cohen “The Place of Logic in the Law” Harvard L. Rev. (1916) XXIX 638.
7. P. 391. Cf. the remark of Santayana : “Reason is not come to repeat the universe, but to fulfill it”: “The Life of Reason" New York 1905 Vol. V p. 52.
2. Pound's Treatment of the Different Interpretations of Legal History. Pound is a through and through instrumentalist. If he treats laws as tools, he treats legal theories as materials for tool making. To him both the idealistic and the materialistic interpretations of legal history have a share of utility, and each of them is given a proper place and made to perform a proper function in his own system. From the former he draws the motive force required to set his machine in motion, while out of the latter he makes the wheels.
Now the whole history of the philosophy of law in the last few centuries may be summed up as follows: (1) Juridical Idealism: teleological views.
The ethical interpretation lays emphasis upon the value of the ideas of right.
b. The political interpretation lays emphasis upon the value of individual self-assertion and liberty.
(2) Juridical Materialism: mechanical views.
a. The ethnological and biological interpretations call attention to the influence of the physical environment and of race psychology upon the development of law. They look upon law as a social phenomenon which is related to all other social phenomena. These relations are causal.
b. The economic interpretation asserts the dependence of legal development upon economic development.
Roughly speaking, the first group of legal theories prevailed in the seventeenth and eighteenth centuries, while the second prevailed in the nineteenth century. The problem for Pound is: What use can we make of each of them? He simplifies the whole business by resorting to what may be called a "juridical activism.” He eliminates from them whatever may tend to breed political fatalism and judicial pessimism, and accepts from them whatever may spur men to creative activity and conscious law making. This does not mean,