Review of "The Law in Quest of Itself by Lon L. Fuller" by William H. Ros

Rose, William H.

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LAW JOURNAL- JUNE, 1941of state and federal courts, removal of causes, venue, the new rules,extraordinary remedies, special proceedings, trial practice, declaratoryjudgments, judgments, new trials, appellate procedure, and federalcriminal procedure. With this wide field to cultivate, it will not bestrange if some of the germinating corn has been passed unnoticed. Nodoubt the author felt that something should be left for the instructorusing the text, as there are many problems, still unsolved by the courts,which when posed to the student will give rise to stimulating classdiscussion.This well indexed book is the best that we have seen for the purposefor which it is intended. JAMES I. BOULGERMember of Columbus BarTHE LAW IN QUEST OF ITSELF. By Lon L. Fuller. The Foun-dation Press, Inc. 1940 JURISPRUDENCE. By EdgarBodenheimer. McGraw-Hill Co., Inc., 1940.Writing in 1887 Hastie quotes from Maine' (1861) to describethe "widespread dissatisfaction with existing theories of jurisprudence"which existed in England in both their times. For Hastie the evils werean Austinian positivism and "the Utilitarian Principle." The formerwas "unfruitful in scientific result," and the latter was not "capable oflonger satisfying the popular mind with its deepening Consciousness ofRight." Today, as evidenced by the two books under review, positivismis again under attack, and the return urged, while not to the metaphysicsof Kant, is at least to the rule of reason of natural law.2 Thus Americanjurisprudence traverses a cycle which began with a philosophy of naturallaw, discovered the volkgeist of Savigny, applied the positivism of Austin,developed the utilitarianism of Bentham and the pragmatism of James,only again to seek a "Consciousness of Right" in the methods ofnatural law.It is against the extremes of positivism that the present reaction ismost usually directed. Whether the nadir or the zenith of jurispru-dential theory was voiced by Holmes when he wished the divorcementof all words of moral significance from the law,' at least he fathered athought which in the name of Neo-Realism today seeks a temporary'Translator's Preface to KANT'S PHILOSOPHY OF LAv, p. xxv, quoting fromMAINE'S ANCIENT LAW.2 For instance: HAINES, THE REVIVAL OF NATURAL LAW CONCEPTS; HARVEY, JEANJACCUES BURLAMAQUE; OBERING, THE PHILOSOPHY OF JAMES WILSONi LEBUFFE ANDHAYES, JURISPRUDENCE; SCOTT, LAw, THE STATE AND THE INTERNATIONAL COMMUNITY.'HOLMEs, The Path of the Law, COLLECTED LEGAL PAPERS, pg. 179 (I9zO).478separation of the Is from the Ought. Sociological jurisprudence, too, ispositive, but it asks no such temporary severance. It not only recognizesthat law is normative, but seeks the content of norms in the "tradition-ally received ideals of the social order."4 Theories of pragmatism andof relative as distinguished from positive values, which spread so rapidlyafter World War One, offered a fertile ground in which both Socio-logical jurisprudence and Neo-Realism could flourish. But Realismwent beyond Sociological jurisprudence, and in the name of scientificmethod sought empirically to evaluate law in terms of judicial behavior.For this purpose its insistence on a temporary separation of what isfrom what ought to be in law has earned for it the accusation, whetherrightly or wrongly,' of being unmoral jurisprudence. But today values,both in and out of law, are being challenged generally. Hence therevival of a jurisprudence which purports to devote more thought towhat ought to be seems inevitable.Professor Fuller's book consists of three lectures which were givenat the Law School of Northwestern University in April 1940 underthe Julius Rosenthal Foundation for General Law. His subject is nat-ural law versus positivism. "Natural law . . . is the view which deniesthe possibility of a rigid separation of the is from the ought, and whichtolerates a confusion of them in legal discussion." Legal positivism is"that direction of legal thought which insists on drawing a sharp distinc-tion between the two" (p. 5). The lectures trace the course of posi-tivism from Hobbes through Kelsen and the American Neo-Realists."They (positivists) insist that their primary object is to promote clearthinking in the law" (p. 85). But, according to Professor Fuller, "thepurely formal and verbal nature of the conclusions of legal positivismis revealed in the inability of positivism, in all its forms to deal with thecontent of the law. Not only has positivism failed in its quest for somedefinite criterion of the law that is, but it has failed to say anythingsignificant concerning the law which it assumes to 'be.' Even withinthe framework of its own premises it remains formal and sterile" (pp.88 and 89). Thus "American legal scholarship suffers at present fromthe inhibitive effect of a positivistic philosophy" (p. 128). "The con-ception which finds the justification for democracy in skepticism is notonly demonstrably incapable of sustaining a nation in time of crisis, butit has also, . . .accelerated the disintegrative forces which threatenmodern society" (p. 125).POUND, Common Law, ENCYCLOPEDIA OF THE SOCIAL SCIENCES, vol. 4 at pg. 51(,93).'See McDouGAL, Fuller v. The American Legal Realists: An Intervention, 5o YALEL. J. 827 (1941).479BOOK REVIEWS480 LAW JOURNAL-JUNE, 1941But to the author the rejection of positivism does not "imply arecommendation that we go the whole way in the opposite direction oflegal thought" (p. 99). He is not sponsoring "any of the varioussystems of natural law which have been advocated in the past" (p. IoI),nor "the doctrine of natural rights" (p. ioo). It is the "broader andfreer legal method" (p. 103) of the old books which he advocates. Ina double sense this is "natural law." "In the first place, it is the methodmen naturally follow when they are not consciously or unconsciouslyinhibited by a positivistic philosophy. . . . In the second place, whenreason is uninhibited by positivistic restraints, it tends inevitably to findanchorage in the natural laws which are assumed to underlie the rela-tions of men and to determine the growth and decay of civilizations"(pp. 103 and 104).Whether or not Professor Fuller has proved his thesis is one thing.That he has stated a problem of values in legal norms is certain. Butto the reviewer this statement does not require the rejection of positivism.It simply challenges rationalism to supply a deficiency in modern juris-prudence. A descriptive science of Is law can exist along with a norma-tive science of Ought law. Professor Yntema has pointed this out.6Somewhat similar in objectives to Professor Fullers lectures isProfessor Bodenheimer's text on Jurisprudence. He, too, is interestedin law's content, and in apprehensive of positivism. He believes that"The modern attack against reason is at the same time an attack againstlaw. Law is primarily a rational institution." It "incorporates certainvalues which are very largely coextensive with the values of humancivilization as such." The positivistic epoch in jurisprudence took thelaw for granted and looked only to its form." But "when we look atthe form of the law merely, we shall not be able to detect the essentialdifference between the power state and the law state." "The challengeto which the law is subjected in our time makes it imperative to reex-amine the basic nature and character of this institution" (p. vii). In hisinvestigation, then, "He has attempted to emphasize above all thoseissues which have some relation to the great political and social strugglesgoing on in the world today. Among those issues the contrast betweenarbitrary power and law, between totalitarianism and constitutionalism,has received particular attention and has been made the starting pointof the discussion" (p. ix). His method is to describe in their purest andmost advanced forms those institutions which he admires and also thosewhich he criticises (sec. 60). His assumption is "that legal sociologycan maintain its place among the social sciences only if it combines . .'YN rEMA, The Rational Basis of Legal Science, 31 COL. L.R., 929 (193I).BOOK REVIEWS 48 Ithe function of picturing the mature type of law and the task ofanalyzing the cause of legal evolution, as far as it is feasible" (p. 324).His conclusion is that "only a merger of the methods used by thenatural-law jurists with the methods employed by modern sociologistscan bring about that rebirth of jurisprudence which seems so necessaryin a time which questions the very foundations of the law" (p. 324).Part I, then, discusses "Power and Law." "Law arises from thetensions and adjustments between society and its rulers" (p. 212). It"is a mean between anarchy and despotism" (p. 19). "Sovereignty"and the "state," however, are still useful concepts (p. 70). But thestate should be a law state and not a power state. Hence the task is tocircumscribe the exercise of power by the state. This may be accom-plished by a constitution and by some system of checks and balances(pp. 25 and 26). Also, individuals as well as states may abuse power."Law in its purest and most perfect form will be realized in a socialorder in which the possibility of abuse of power by private individualsas well as by the government is reduced to a minimum" (p. 19). Hence"it is the function of private law to grant, define, and circumscribe thesphere of power which private individuals are to enjoy" (p. i9). Thissphere should be neither too wide nor too small (p. 22). In its pureform law "is a relation between equals, not between a superior and aninferior" (p. 21). "From the point of view of pure law, it wouldalmost seem logical to demand an absolute social and economic equalityof all men" (p. 27). But in point of fact law, "namely a law whichwill have eliminated all traces of power relation between men, couldnever be a permanent condition" (p. 28).The state administers law, but leaves morals and customs largely toother controls (p. 73). Also there is the matter of administration, which"is the regulation of private or public affairs according to the principleof expediency (p. 87). In its essence administration "is an exercise ofpower" (p. 91). "Public administration, in particular, is a sphere offree activity by the government. The guiding directive of public admin-istration is the principle of expediency and the will to achieve certainpractical results through the application of the most efficient means"(p. 91). "Law and administration are different not only in their con-cept, but also in their operation and effect" (p. 95)- "Law is mainlyconcerned with rights; administration is mainly concerned with results.Law is conducive to liberty and security, while administration promotesefficiency and quick decision. The dangers of law are rigidity and stag-nation; the dangers of administration are bureaucracy and autocracy"(P- 95). Hence, although "an increase in administrative control wasinevitable and necessary in the United States in order to achieve effi-ciency" (p. 97), its exercises should be carefully surrounded by legalsafeguards. "The equal treatment of equal situations is the most funda-mental requirement of justice" (p. 98).This distinction between law and administration is orthodox enough.But it would seem that Professor Bodenheimer's fear of bureaucracyand of power control has led him here into a formal and needlessdistinction, which excludes from the concept of law a large body ofgrowing precedent which is being established by administrative tri-bunals." Perhaps in view of authority it is too much to ask ProfessorBodenheimer that in the name of reason he disregard form and considersubstance. Yet such seems to be his own thesis. It is unfortunate thathis method of describing institutions by their advanced forms and hisfears of evil consequences potential in such forms, at times distort hisevaluations.Parts II and III are freest from this fault. In Part II the authordeals with the Law of Nature, tracing its various schools in a succinct,informative and readable style. Part III treats a selected group ofLaw-Shaping Forces: political, psychological, economic, national andracial, and cultural determinism.' Any student and any lawyer willprofit by these descriptions.Part IV concerns positivism: both analytical and sociological, includ-ing with the former a discussion of Bentham and of Jhering. Andagain predilections becloud the author's appraisals. Thus Kelsen's view"deprives the concept of law of all meaning" 9 (p. 290). So also indiscussing Pound's replacement of "rationalism in legal science byempiricism and pragmatism" (p. 30) and his "science of social engi-neering" (p. 307), it would be well for the author to remember thatthe science of law neither now nor in the past has awaited the timewhen philosophers could agree upon what its content should be."0The reviewer agrees with much of the underlying assumption ofboth Professor Fuller and Professor Bodenheimer: an appraisal of lawvalues is necessary if faith in democracy's law is not only to be felt butto be stated. Further, this would seem to be the task of rationalism.Empirical standards of utility, of pragmatism and of cultural deter-minism have served their purposes in directing courts to the ends oflaw. But something more is needed if "received ideals of the social'See FREUND, Administrative Law, ENCYCLOPEDIA OF THE SOCIAL SCIENCES, VOl. Iat pg. 454. and 455.' For criticism see Simpson, Book Review, 54 HARVARD L.R. IoUS, zo9o (5945).9 And see FULLER, pp. 77, 88, 89, 114-'9POUND, Jurisprudence, ENCYCLOPEDIA OF THE SOCIAL SCIENCES, vol. 8, p. 485-482 LAW JOURNAL-JUNE, 194-TBOOK REVIEWS 483order"" are to articulate the spiritual requirement of the present.Nor is the problem as simple as when Locke stated our faith andMontesquieu our ideal of government, to combine the spirit and theframework of democracy. Modern iconoclasm and pessimism will notsuffice. There is a call for a restatement of values. Professor Fuller'slectures and Professor Bodenheimer's text should indeed be recom-mended reading for student and for lawyer alike. But in the end thecause of a normative science of law is not advanced by a denunciationof positivism on the one hand and by formalistic legal distinctions onthe other.WILLIAM H. RosECollege of Law,Ohio State UniversityBOOK NOTESORGANIZATION OF CouRTs. By Roscoe Pound. Little, Brown& Co., Boston, Mlass. 1940.For several reasons Organization of Courts published under theauspices of the National Conference of Judicial Councils, is a volumethat should be read by every member of the legal profession and bymany laymen.In the first place the author is Honorable Roscoe Pound, DeanEmeritus of the Harvard School of Law, who, in addition to hisextended career as a law teacher and writer, acquired valuable experi-ence as a member of the Supreme Court Commission of his nativestate of Nebraska.Secondly, in these critical days accurate information with referenceto the judicial branch of the government is of great general value. Itis undoubtedly accurate to say that most citizens possess a fairly definiteconcept of the simpler functions of the legislative and executive branchesof our government. While it is of course true that during the last fouror five years popular attention has been attracted to the courts byreason of the unusual number of momentous decisions announced,nevertheless to many citizens their courts remain mysterious and for-bidding institutions; and the higher the court, the more general seemsto be the prevalence of this unfortunate illusion.In the third place Dean Pound has assembled valuable and inter-' POUND, Common Law, ENCYCLOPEDIA OF THE SOCIAL ScIENCES, vol. 4 at pg. Sx.Supra note No. 4.

The Law in Quest of Itself by Lon L. Fuller

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The Law in Quest of Itself by Lon L. Fuller

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