The Modern Legal Philosophy Series; Borchard: Guide to the Law and Legal Literature of German

Drake, Joseph H.

English

University of Michigan School of Law

Michigan Law Review Volume 10 Issue 8 1912 Book Reviews Joseph H. Drake University of Michigan Law School Joseph H. Drake University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mlr  Part of the Legal Writing and Research Commons Recommended Citation Joseph H. Drake & Joseph H. Drake, Book Reviews, 10 MICH. L. REV. 663 (1912). Available at: https://repository.law.umich.edu/mlr/vol10/iss8/5  This Regular Feature is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact mlaw.repository@umich.edu. BOOK REVIEWS. THE MODERN L~AL PHILOSOPHY SERIES. Edited by a Committee of :fhe Asso-ciation of American Law Schools. 1. !NTRODVCTJON TO THE ScIENCE OF LAW. A Systematic Survey of the Law and Principles oo Legal Study. By Carl Gareis, Professor of LMv at Munich. Translated from the Third Revised Edition of the German by Albert Kocourek, Lecturer on Jurisprudence in Northwestern University. \Vith an introduction by Roscoe Pound, Story Professor of Law in Harvard University, Boston: The Boston Book Company, 19n, pp. xxix, 375. 11. CoMPAR.\TIVf. LEG.\L PHILO~OPHY. Applied to Legal Institutions. By Luigi :Miraglia, Professor of the Phiiosophy of Law in t-he University of Na-ples. -Translated from the Italian by John Lisle, of the Philadelphia Bar. \Vith an Introduction by .-\lbert Kocourek, Lecturer on Jurisprudence -in Northwestern Unh•ersity. Boston: The Boston Book Company, 1912 pp. XL., 793. Lt is not many years since one of the most distinguished Oxford scholars sa-id, "jurisprudence stinks in the nostrils of the practical barrister," and within a decade a one-time colleague of this scholar echoed the same senti-ment in a somewhat milder form by saying that "the wort!h of books on the philosophy of law can not be placed very high." These statements when uttered were received with approbation, by the practical lawyer of course, if he had ever taken the trouble to read the writings of a jurist who would even mention such an esoteric subject, but also by the more careful ~tudent of law who had looked in vain for any practical help in the elucidation of -!.>he fun-damental problems of legal science in writings of this class. But to -this student in his nihilistic attitude toward philosophy had been applied the goad of dissatisfaction, with the present chaotic state of our Jaw and the apparent hopelessness of any impro\·ement in it along the li:ne of present metlhods, and while his faith was weak his hopes were high that something might be found in ·this despised field of juristic philosophy to remedy existing evils. Codification or even the much less pretentious scheme for simpHfying our law for the learner in an elementary treatise on Jaw, seems out of tlhe ques-tion until we know somethin!t more of the basic principles of our science. It was only by the labors of Paulus, Modestinus, Ulpian and Papinian in the scientific elaboration of legal principles ·that the Corpus Juris Civilis of the later period was made possible. Savigny maintained witlh success, fa opposi-tion to "Thibaut. the thesis that the Germany of his time was not ready for codification because the lawyers of that period knew so ·little of ~he real meaning of their own system. The great triumph in that field, the German Civil Code, had to wait nearly a century and is a success because it has this century of careful scientific and philosophic study of legal principles behind it. The Editorial Committee of the Association of American Law Schools has recognized that if we expect to do anything toward remedying the evils of our system we must ha\·c a similar preliminary training ,in the principles MICHIGAN LAW REVIEW of our own law as th<'y hav..: h.:cn hi!'ltorically deve!oped. and t:!e three vol-. umes of Essays in .Anglo-American Le;ral History were published to meet this demand. It may well be said that this series has more than justified its existence in the short period since its publication. But when the same committee came to the presentation of the philosophic basis of law in gen-eral it was perfectly evident t·hat we 0mu~t look to sources other than English for the later developments in this field of knowledge. The Modern Legal Philosophy Series, a prospectus of which appears in the advertising pages of this Review, aims to present ·to English readers the results of the ripest scholarship of Continental Europe on this subject, and the three volumes that ha\·e alread}· appeared make it perfectly evident that American students of law will find here the materials necessary for a thor-ough grounding in legal principles. Korkunov's General 'Dheory of Law, translated and published independently by Dean Hastings of the Law Fac-ulty of the University of Nebraska (reviewed in 8 M1cH. LAW REV. 351) has been incorporated in this series as Volume IV. Of the volumes noted above the one by Gareis, entitled The Science of Law, is meant to be an introduction to Continental legal thinking and serves as a preliminary study to the succeeding volumes. The translator has very fortunately hit upon the term "Juristic Survey" as a translation of the "En-zyklopaedie" of the original and -has thereby avoided the confusing English literal equivalent of this German term. It is designed to serve the purpose for the German student which our .treatises on Elementary Law accomp1ish for the American student, but in the perfection of its finish and the philo-sophic grasp of the basic principles of law is far superior to anything that has been done for students of the Common Law. The first third of the book is deYoted to a systematic survey and classification of the law. In it are considered the subjects of law in general as compared with morals, religion, equity, and social· convention, the state and legal order, the sources of law and the application of law. It will be noted that ,this covers the gound ordi-narily covered by the first par,t of English works on general jurisprudence. The middle third is devoted to the system of civil law in detail. Here it is that the practical purpose of the book as an introduction to the study of German law for the use of beginners shows most plainly. This part follows substantially the order of the German Civil Code in its discussion of the law of persons, of things, of obligations, family law and inheritance, and the state-ments of abstract principles are illustrated at every point by citations from corresponding parts of the Code. This method of treatment presents but little difficulty to the American student witho11t knowledge of German faw since the Code has been made accessible to English readers by ,the transla-tions of Loewy and of Chung Hui Wang. It has the very great adyantage of keeping the ab,tractions tied to solid ground. The la5-t -third of the book is devoted to the public law of the state and in a supplement we have the special law of profession and position and a very interesting and valuable section on the methodology of legal science. The chief criticism of the book from the American teachers' standpoint would probably be its difficulty as an introcluctory text. This of course has BOOK REVIEWS 665 no force as applied to beginners in German law for they are all men of uni-versity grade. W•hen the good time comes-may it not be too long deferred -that will bring students of like calibre into our first year law ~ork, <the book will serve admirably as a model on whiah to construct a like introduc-tion to our own law, with Common law illustrations insteatl of 1Jhose from the Civil Code. Since the publication of ·the work of Korkunov and the completion of the translation of the work of Gareis the plan of the entire series has been some-what elaborated. The Science of Law was made Volume I of the series as beini the most typical of the works on juristic survey, the translation of Korkunov was put in ,lhe fourth place as. the best representative of the gen-eral theory of law, and Volumes II and III, The \Vorld's Legal Philosophies, by Professor Berolzheimer of the University of Berlin, and Comparative Legal Philosophy, by Professor Miraglia, of the University of Naples, were designed as a general introduction to the later volumes of the series. The third volume, which has been finished before the second, ihas a gen-eral introdu~ion to the series which explains and justifies the somewhat ambitious program of the committee. This is followed by a valuable intro-duction to the translated volume by Albert Kocourek of the Editorial Com-mittee, who is also the translator of Volume I. He discusses the creation and application of law. Tlhe introduction to the work of Professor Miraglia gives a summary of the history of general philosophy from the Pre-Socratics down to Schopenhauer. The general part opens with a discussion of the idea of the philosophy of law. Philosophy is the most general and elevated system of the fundamental principles and concepts of the mind. It is the science tihat systematizes the mother ideas of the particular sciences. The philosophy of law, a part of philosophy, i~ the science of the highest princi-ples of law. Lt should not, therefore, be separated from the complexes of positive and historical studies of jurisprudence and of socia'l and political sciences. It is not possible to base the philosophy of law on a priori princi-ples alone. The social rheory of law is not separable from the juristic. This philosophy of law is the search for first and supreme principles, while the general jurisprudence of the Austinians-among whom 'Miraglia includes Sir Henry Maine-recognizes only similarities of fact or homonyms, and does not consider reasons. He rightly says that -the analysis of ideas in which the English jurisprudence is so valuable never reac.hes a philosophic height. In the second, book Miraglia takes up the several main categories of law; person, property, possession, obligation, contract, family and inlleritance. Each is examined from the point of view of the principal philosophies of law. In this part of the book the wide learning of the author is perhaps more in evidence ,than in the first part. In his discussion of inherent rights the gen-eral theories of thinkers from the Sophists to Hobbes, Rousseau, Hegel, Spencer and Vico are cited and criticized. In the chapter on ,tihe theories of the incorporeal person t,here is a similar cosmopolitan range. In his his-tory of property lie cites illustrations from Polynesia and India to North America. In ms praedial property in land the theories of Wagner, of Spen-cer, of Henry George and of Loria are contrasted and critisized. The au-666 MICHIGAN LAW REVIEW thor shows throughout the book a much greater familiarity with the work of English scholars than is usuaHy possessed by Continental writers and his knowledge of the Continental literature is surpassed by few. J f the volumes of ,the Legal P.hilosophy Series already published may be taken as fair representatives of what is .to come-and there seems no reason to doubt it-the years of the publication of this i;eries in the future may be referred to as, the period when the American bar disc-:>Vered Continental &ro~ tRn GuIDE TO THE LAW AND LEGAI. LITERATURE OF GERMANY. By Edwin M. Bor-chard, Law Librarian of the Library of Congress, Washington: Gov-ernment Printing Office, 1912, pp. 226. This is the first of a series of guides to the great collection of foreign law in the Library of Congress. It calls attention to important contributions both in •the way of books and periodicals in the English language and to a few standard works in French, but with these exceptions is confined entirely to the German literature of the subject. It is, however, more than a mere catalogue of the works mentioned. The introduction lhas a keen criticism of our lack of knowledge of comparative law and the philosophy of law. The section on Jurisprudence is an arlmirable commentary on the literature and the modern development of the subject and may well be read in connection with the articles now appearing from tihe pen of Professor Pound on the Scope and Purpose of Sociological Jurisprudence. The term Legal Encyclo-pedia is unfortunately retained in place Juristic Survey, as tlhe caption of the first diYision• of ,this subject. The section on Legal History is quite .as well done as tlhe one on Jurisprudence. This is followed by a bibliographical commentary on- the Civil Code, Commercial Code, Criminal Cod~ and tlhe -0:xles of Procedure. 'fihere is an especially interesting account ·<Gn pp. 104-171, of the re-form of criminal law and procedure, a subject which has of late years re-~eived so much attention in Germany. A full glossary 'of German legal terms, pp. 189-21 r adds materially to the value of the book T·he author says in his preface that he ihas here retained .the terminology adopted by Schuster. The book is throughout .a model of its kind and will be invaluable to students of the German legal literature. It may be obtained of the Superintendent of Documents, Government Printing Office, Washington, D. C., for sixty-five cents. J. H. D.::_ 

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