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institutions. Within the compass of six hundred pages, there are given the selections, carefully edited, of some fifty-two writers, ranging over the nineteenth and present centuries, whose writings have had for their objective either the destruction or justification of certain present inherited legal institutions. The writings have been grouped by the compilers around five fundamental legal institutions, viz., Liberty, Property, Succession, Family, and Punishment—all of which have been under criticism, and have been more or less modified, within recent times. In the words of the compilers, "The selections are meant to range through all schools of thought, whether conservative or radical. Rational conviction is best reached by a fearless facing of all views purporting to be rational, however repulsive those views may be to our own bias or subversive of our own assumptions" (p. xxi).
The method of selection of the source material seems to have been to include those discusions on these five legal institutions that were "supported in reputable quarters of thought or subject to be forced upon attention by popular debate" (xxii), subject, of course, to the limitations of space, and the compilers were aware that, amidst the rich variety of published thought on the rational basis of these fundamental legal institutions, many passages, equally suited for the purpose, may have been omitted” (p. xxvi). While, therefore, other selections might well have been included had space permitted, it is undoubtedly true, as stated by the compilers, that "the readers of this volume will here find adequate materials for that clarification of thought and conviction which the editors aim to stimulate” (p. xxvii).
The purpose of the book is to supply for the lawyer, judge, legislator, and student of the law and social institutions, those materials which will enable him to think through the reasons for or against the inherited legal institutions. In the words of the compilers, "The calm of the solid ocean surface of the Is has prevailed. Reversing Descartes' famous phrase, the lawyers have been satisfied to announce, 'These things exist, therefore we do not need to Think.'” Primarily, the book is to be used in the law school, in the course in legal philosophy, where the book would seem almost indispensable, meeting a long-felt want; but the book is also intended to be useful for the members of the legal profession generally, to place at their disposal material in this field which otherwise would not be readily obtainable. In the opinion of the reviewer, the book admirably meets the purpose for which it was compiled.
The need for such a work is obvious. It cannot be denied by thoughtful students in many fields that the present age is a transitional one, when inherited social institutions are being tested pragmatically in the crucible of new conditions and new needs, and when great disparity of thought—nay, even confusion of thought-is found in many quarters. (See the article, “The Common Law in a Transitional Era," A. B. A. Journ. IX 515.) In many fields of human endeavor this ferment of thought and questioning of in
herited institutions has been going on for a century or more; in recent times it has found its way also into the law. As is well stated by the compilers:
"New times have been coming—nay, are now here. The outermost circle of that wave of scientific rationalism, which began in the DarwinHuxley period, has at last reached the Saragossa sea of the law . The fundamentals of the law are discussed by the man in the street
• And so the lawyer can no longer afford to ignore them. They have ceased to be closet theses, and have become popular themes” (p. xx).
It is, indeed, true that we have reached a new era, when the law must take cognizance, whether it adopts them or not, of new and strange doctrines. And it has likewise been true that "in any progressive, highly organized nation law and lawyers are always one or two or more generations behind public opinion. The most progressive body of law formally embodies the public opinion of the past generations rather than of the generations living at the time" (McDougall, “The Group Mind," p. 265). This situation is due in part to the natural conservatism of the legal order, dealing as it does with the social interests of liberty and property; but also in part, in America particularly, because of the power of courts to declare an act of the legislature unconstitutional, and "thus the leading conceptions of our traditional case law come to be regarded as fundamental conceptions of legal science" (Pound, "Scope and Purpose of Sociological Jurisprudence," Harvard L. Rev. XXIV 591, 601). Perhaps another reason for this indifference of the legal profession to new conceptions in philosophy of law in particular and all philosophy in general, is unacquaintance with the various movements in thought (Wigmore, “Current Judicial Decisions,” ILLINOIS L. Rev. IX 529), due to lack of time through overwork in the legal profession, or due to a prejudice against innovations in legal thinking in general.
This book, when used in the course in legal philosophy, will get at the source of some of these difficulties. The average law graduatein fact, most law graduates-knows very little of the merits and demerits of these movements of the present which are seeking to modify or question entirely the accepted legal institutions. At the most, he has a somewhat hazy conception that there are problems about certain fundamental legal institutions. Moreover, in but a relatively few law schools do we find courses in legal philosophy; the atmosphere in most schools is largely commercially utilitarian, to prepare a practitioner who can pass the bar examination. And where such courses in legal philosophy are given, the tendency often is to treat these as luxuries and not as the real foundation courses of the curriculum. It is to be hoped, now that source material is so convenient, as brought together in this book, courses in legal philosophy will be given more attention in the future.
The book will meet a further need. It will be worth while to re-examine critically and rationally the accepted legal bases, if our only gain will be a reassurance that that which we have inherited
from the past is after all the best because it has been proved to be rationally sustainable. In many of the great social crises through which the race has from time to time passed, a great gain has often been to re-establish the old order more firmly than ever before, but to place it upon a more coherent, rational basis. (See the article, "Is there a Legal Cycle” California Law Review XI 381.) In the words of Mr. Justice Holmes, expressed in the Introduction (pp. XXX-xxxi) :
"The present time is experimenting in negations—an amusing sport if it is remembered that while it takes but a few minutes to cut down a tree, it takes a century for a tree to grow. Perhaps, however, more is to be apprehended from ungrounded hopes than from criticisms without a fulcrum
Humbugs, through whose vitals Malthus ran a rapier a hundred years ago, are alive and kicking today.”
But even if wholesale reconstruction of the social and legal order is neither possible nor desirable, yet, as Mr. Justice Holmes further remarks, “it would gratify the noble instinct of scientific curiosity to understand why we maintain what now is” by re-examining the foundation premises through the acid of "cynical criticism” (Introduction, p. xxix); and, moreover, the first step toward improvement is "to look the facts in the face" (p. xxxii).
In short, this admirable little work should prove of great help in stimulating interest in the subject of legal philosophy, and, when used with The Modern Legal Philosophy Series, and in conjunction with other rich material on this subject, the cause of legal scholarship should be greatly enhanced.
E. F. ALBERTSWORTH.
A SELECTION OF CASES AND OTHER AUTHORITIES ON LABOR Law.
By Francis Bowes Sayre, Assistant Professor of Law in
1922. Pp. xvii + 1017.
In publishing this selection of cases and of authorities Professor Sayre has done a service not only to the real law student but to the student of political and social science everywhere. The book is more than a law book. In it is a more or less complete history of the English and American labor movement from the reign of Ed. ward III to the present time, in so far as it has been controlled by the legislatures and by the decisions of the courts. It omits the judge-made law of master and servant and the various employers' liability acts and deals, almost exclusively, with the strictly economic and political side of the labor question, and principally with the legality of combination, federal jurisdiction over labor disputes, interference with interstate commerce or with the United States mails, the legality of the means used by the labor organizations, legality of end pursued through collective action of labor organizations, lockouts, boycotts, the black list, the union label, union organizers in non-union fields, corporate powers and liabilities of members of labor unions in respect to third parties, trade agreements, internal government of unions, use of injunction against labor organizations, prohibition of strikes by injunctions or by the criminal law in the light of the Thirteenth Amendment, regulatory labor legislation, employment in a business charged with a public interest, compulsory arbitration and the industrial court and workmen's compensation laws. Of course it is not all-comprehensive and of course at times some of its critics would have chosen other cases and authorities than those selected It needs to be supplemented by comparative research; but its value as a judicial and legislative summary and means of comprehension of the field of law and of the social and economic history which it covers can hardly be overestimated.
It has been pointed out by at least one reviewer that the work, if introduced as the foundation of a course of study in our American law schools, will occasion an overlapping with some other subjects. Society and the law student, however, were not made for the law school nor for the law professor, but the law school and the law professor for the student and for society; and the primary function of the law school should be to train intelligent citizens. In this age when the controversy between the employer and the employee is so great and creates a problem on the solution of which the very existence of states and nations depend, no lawyer should be uninformed upon the subject; and, if in gaining a knowledge of it, the student also gains a new, or reinforces his old, knowledge of contracts, torts, and equity and criminal and constitutional law, so much the better for the law student and for the organized society in which he is bound to play an important part. There is such a thing, indeed, as making a fetich of what is called "straight law." Certainly it would seem that an understanding and knowledge of the legal aspect of the great labor problem is of as much value as an understanding of the theory of consideration or of “The mystery of seizin.” The conflict, too, would be but slight, as the labor cases apply and do not create fundamental legal concepts.
Recently a prominent American law professor when asked if he was still interested in constitutional law answered: "No. Constitutional law is merely practical politics." The obvious answer was that if such was the case the subject above all others needed to be studied and understood. Are the law schools indeed only to be interested in that which is static? Rather should they not seek to take an active part in that which is living and formative? Should not their graduates seek to be creators and dynamic citizens rather than mere legal mechanics and puerile appliers of formulated rules?
A. A. B.
GOVERNMENT IN ILLINOIS. By Walter F. Dodd, of the Chicago
Bar, and Sue Hutchison Dodd. The University of Chicago
Press, Chicago, Illinois, 1923. Pp. xix + 479.
The title aptly describes the contents of the book. The authors have set out a thorough analysis of our state government, treating every phase from the development of its existing institutions to an exact explanation of the operation of the wheels of our modern administrative, legislative, and judicial machinery. The first few chapters of the book are mainly introductory, being historical in nature and furnishing a foundation for a more thorough understanding of modern civic problems. Then follows the body of the work, supplemented by suggestions and theories of the authors.
The book is, of course, as it apparently is intended to be, best adapted for use by a student of the government of this particular state. At the end of each chapter are lists of questions and references for outside reading. However, it is really more than a text book. The subject appears to have been thoroughly and carefully studied, and upon broad lines which are not merely local, so that any student of government should find it of great value. Reference to it by lawyers and business men undoubtedly will result in a deeper appreciation of the problems of our legislators, and ultimately in an improvement in the form of our government.
There has been no hesitancy in pointing out the defects in the existing system; and the criticism is all the most commendable in that it is not merely destructive. In the last chapter an attempt is made to indicate the relation of the state of Illinois to the nation, the problems we, as citizens, will have to face, and the general lines upon which we should form our policies. The first great step in reform and reorganization, taken in 1917 in the enactment of the Civil Administration Code, by which, it may be incidentally remarked, Illinois showed itself far ahead of any other state in this branch of legislation, must be seconded by other and farther reaching reforms. A new constitution, further civil service, permanence of the tenure of employment of those in government service, and a new system of taxation are among the present needs. The writer agrees that the urgency of these reforms is daily becoming more pressing and more apparent in this progressive world.
The attempt of the authors to classify and to clarify such a complex subject and to suggest remedies for its evils is worthy of praise in view of the difficulty and of the vital importance of the task; and the conclusions presented are well-considered.
K. G. CHETLAIN.
ARTICLES IN PERIODICALS LAW AS AN EDUCATION STUDY. Charles Thaddeus Terry. Col. L. Rev.
XXIII 418. The Positions of SHAREHOLDERS IN BUSINESS Trusts. Calvert Magruder.
Col. L. Rev. XXIII 423. FROLIC AND DETOUR. Young B. Smith. Col. L. Rev. XXIII 444. THE PSYCHOPATHIC LABORATORY. Harold Shepherd. Jour. Crim. L. & Crim.
XIII 479. DETERMINANTS OF SEX DELINQUENCY IN ADOLESCENT Girls BASED ON IN
TENSIVE STUDIES OF 500 Cases. Anne T. Bingham. Jour. Crim. L. &
Crim. XIII 494. THE SKIN GAME. Webster A. Melcher. Jour. Crim. L. & Crim. XIII 587.