Bernstein, Neil N.

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Washington University Law Review Volume 1961 Issue 3 1961 Review of “Legal Conscience,” By Felix S. Cohen Neil N. Bernstein Washington University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview  Part of the Law Commons Recommended Citation Neil N. Bernstein, Review of “Legal Conscience,” By Felix S. Cohen, 1961 WASH. U. L. Q. 303 (1961). Available at: https://openscholarship.wustl.edu/law_lawreview/vol1961/iss3/7 This Book Review is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu. BOOK REVIEWSTHE LEGAL CONSCIENCE: SELECTED PAPERS OF FELIX S. COHEN.Edited by Lucy Kramer Cohen. New Haven: Yale University Press.1960. Pp. xvii, 505. $12.50.One of the more articulate and original proponents of the approachto law known as "functional jurisprudence" was Felix S. Cohen.His productive career covered less than 25 years from the time hereceived his Ph.D. in philosophy from Harvard (at age 22) until hisdeath at the age of 46.1 During most of that period, Cohen carriedon an active legal practice, for 14 years in the Department of theInterior and thereafter in private practice. In the last six years of hislife, Cohen followed a weekly schedule of four days active practicein Washington, one day teaching at City College in New York, oneday teaching at Yale-and one day to recover. In addition to hisdemanding work schedules, he was able to produce prodigious quan-tities of highest caliber legal writing. Although some of his scholar-ship appeared in book form,2 the bulk of it was published as articlesand book reviews scattered through numerous publications.Seven years after his death, Felix Cohen's widow has collectedand published a selection of his major papers, appropriately titledThe Legal Conscience. The work is divided into three parts--"Logic,Law and Ethics," "The Indian's Quest for Justice" and "The Phil-osophy of American Democracy," following an organization made byCohen shortly before his death. The collection is not exhaustive, butit is sufficiently complete to afford vivid evidence of the depth andbreadth of his achievements.Cohen's important jurisprudential papers are collected in the firstsection. As a functionalist, he rejected the language of traditionallegal argument and opinions as justification for or explanation ofany rule of law, and focused his analysis on "the human meaning oflaw."' The only legal questions he considered significant were (1)"How do courts actually decide cases of a given kind?" and (2) "Howought they to decide cases of a given kind?"' When a practitioner asksthe question "Is there a contract?", he seeks a prediction as to what1. The biographical material in this review is taken from Biography of FelixS. Cohen, 9 Rutg. L. Rev. 345 (1954).2. Ethical Systems and Legal Ideals (1933) ; Handbook of Federal Indian Law(1941); Readings in Jurisprudence and Legal Philosophy (with Morris R. Cohen)(1951).3. P. 79.4. Pp. 49-50.Washington University Open ScholarshipWASHINGTON UNIVERSITY LAW QUARTERLYconsequences a particular court will attach to a given fact situation.Any data that can be shown to aid in the prediction, whether it relatesto previous decisions of the same or other judges, economic back-ground, social class, work habits or digestion, are relevant; all otherinformation is without significance. Law to him is a problem ofsocial actualities.To a judge, on the other hand, the question "Is there a contract?"presents a moral issue. In effect, he is asking whether a giventransaction should be a contract. Prior cases will not answer thisfor him, because every case is both similar to and different fromevery other case. The problem of assigning relative importance toto the similarities and dissimilarities is a problem of ethics, notlogic or science.Cohen felt that these moral value judgments should be made andcriticized in terms of the consequences of the decision on the behaviorof those persons affected thereby. Science can aid in tracing out theconsequences of a specific course of conduct. However, there comes"a point at which one must stop tracing the consequences of anycourse and judge that in the light of all these consequences the coursein question is desirable or undesirable." Such a judgment can only bemade by application of basic ethical assumptions as to the "goodlife."6 The main problem of present day lawyers and scholars, ac-cording to Felix Cohen, is to bring the value assumptions underlyingall legal decisions into the open where they can be subjected to scru-tiny and criticism.In contrast to the proponents of realistic jurisprudence, FelixCohen believed ethical evaluation to be as necessary and imperative asscientific investigation of consequences. His position is best sum-marized in these words:The collection of social facts without a selective criterion ofhuman values produces a horrid wilderness of useless statistics.The relation between positive legal science and legal criticismis not a relation of temporal priority, but of mutual dependence.Legal criticism is empty without objective description of thecauses and consequences of legal decisions. Legal description isblind without the guiding light of a theory of values. It isthrough the union of objective legal science and a critical theory5. P. 401.6. Cohen's philosophy has been criticized for its failure to provide any methodfor ascertainment of the fundamentals which make up the good life. See, e.g.,Northrop, The Complexity of Legal and Ethical Experience 68-70 (1959). It is adefect which Cohen would undoubtedly acknowledge. Cohen, Ethical Systems andLegal Ideals 227 (1933). He would probably reply to it with this quotation: "Theday is short and the task is great. It is not incumbent upon thee to complete thewhole work, but neither art thou free to neglect it."https://openscholarship.wustl.edu/law_lawreview/vol1961/iss3/7BOOK REVIEWSof social values that our understanding of the human significanceof law will be enriched7Felix Cohen's most noteworthy achievements as a legal practitionercentered about the protection and expansion of the rights of Amer-ican Indians. While in government service, he assisted in the draftingof the Indian Reorganization Act of 1934, lent his talent and author-ity to the successful effort to create the Indian Claims Commission 9and strove for equitable solutions to the myriad, persistent problemsof Indian administration. As Special Assistant to the Attorney Gen-eral in 1939, Cohen compiled a collection of Federal laws and treaties,on the basis of which he prepared the Handbook of Federal IndianLaw, described by Felix Frankfurter as "the vademecum of all con-cerned with its problems. ' 1o After returning to private practice,Cohen appeared as general counsel to several Indian tribes and theAssociation on American Indian Affairs in litigation securing toIndians such basic rights as voting"' and participation in socialsecurity programs. 12 It is fair to say that he has influenced, eitherin person or through his writings, all significant Indian rights litiga-tion since 1940.The papers on Indian affairs reproduced in The Legal Consciencedemonstrate that he wrote not to convert the oppressors of the orig-inal Americans but primarily to give the public generally, and es-pecially those who considered themselves "friends" of the Indians, anaccurate understanding of the history and status of Indians andIndian tribes. Cohen fought as hard to preserve those special at-tributes of tribal status beneficial to the Indians as to relieve thosewhich were oppressive.Three themes recur throughout these papers. The first is an effortto show that the Indian in his tribe is not a child-like ward of theGreat White Father, but is instead a full citizen with certain rightsover and above those enjoyed by other citizens. These rights wereacquired by Indians, through statutes, treaties and contracts, in ex-change for 95 per cent of the land in the public domain of the UnitedStates Government. Cohen believed the land acquisitions were gener-ally fair and equitable and that the rights acquired by the Indianswere and are of substantial benefit. He strove to protect against their7. P. 76.8. 48 Stat. 984 (1934), 25 U.S.C. § 461.9. See the Indian Claims Commission Act 60 Stat. 1049 (1946), 25 U.S.C. § 70.10. P. xiii.11. Trujillo v. Garley (D.N.M. Aug. 3, 1948, Unreported); Harrison v. Laveen,67 Ariz. 337, 196 P.2d 456 (1948).12. Acosta v. County of San Diego, 272 P.2d 92 (Cal. 1954) ; Arizona v. Hobby,221 F.2d 498 (D.C. Cir. 1954).Washington University Open ScholarshipWASHINGTON UNIVERSITY LAW QUARTERLYdestruction in the name of "assimilation" and to ensure that theirpresence could not be mistakenly utilized as a justification for deny-ing Indians the basic guarantees of citizenship.The second theme is the notion that Indian tribes should enjoy thelargest possible measure of self-government. Although the right toself-government has been recognized for more than 100 years, itspractical implementation has been frustrated by the use of deroga-tory adjectives to describe the habits and activities of Indians, thereluctance of Bureau of Indian Affairs officials to surrender theirauthority, and procrastination. Cohen felt that Indians, no less thantheir white brothers, should enjoy "the right to use experts whentheir advice is wanted and the right to reject their advice when itconflicts with purposes on which we are all our own experts." 13Finally, he tried to familiarize all Americans with the scope andnature of the Indians' contribution to the American way of life. Inpolitics, medicine, agriculture and even sports, Cohen felt "what isdistinctive about America is Indian through and through."'1 4 Althoughthere is a tendency to overstate the case here, there is no doubt thatthe extent of the Indian contribution has been almost as great as ourignorance of its influence.In the final section of papers, Felix Cohen's philosophy and talentsare projected into the wider arena of the basic problems of dem-ocracy. His concern with the rights of Indians was duplicated byhis efforts on behalf of aliens, Asiatics, peoples under colonial dom-ination and the inhabitants of Puerto Rico. Cohen fought for thesepeoples, not for their sake alone, but for the sake of all free men:If we fight for civil liberties for our side, we show that we believenot in civil liberties but in our side. But when those of us whowere never Indians and never expect to be Indians fight for thecause of Indian self-government, we are fighting for somethingthat is not limited by the accidents of race and creed and birth;we are fighting for... the integrity and salvation of our ownsouls. We are fighting for what Jefferson called the basic rightsof man. We are fighting for the last best hope of earth. Andthese are causes that should carry us through many defeats.",Up to the very day of his death,16 Felix Cohen wrote, practiced andfought to ensure the continuance of what he felt was the Americanway of life, not only for Americans but for the entire world. We13. P. 313.14. P. 316.15. P. 314.16. When he wrote the review of Konvitz, Civil Rights in Immigration, whichis reprinted on pp. 481-84.https://openscholarship.wustl.edu/law_lawreview/vol1961/iss3/7BOOK REVIEWSmust lament that death stilled his voice in 1953, since his advicewould be continually helpful in the present Cold War. But throughthe immortality of his good works, Felix Cohen's memory and beliefsremain with us. NEIL N. BERNSTEIN tPOWERS OF THE PRESIDENT DURING CRISES, J. Malcolm Smith andCornelius P. Cotter, Public Affairs Press, Washington, D. C., 1960.Pp. 146. $5.00.The major emphasis of the work is on emergency powers duringwartime, with lesser attention being accorded to emergencies gener-ally involving a small area. In the latter category are emergenciesbrought about by reason of droughts, earthquakes, fires, floods andtornadoes. The normal procedure followed in such cases is thatCongress will authorize the president to take appropriate action afterdeclaring that an emergency exists.The conclusion that the Constitution authorizes the use of emer-gency powers is reached by the literature on the breadth of the in-herent, residual, executive and war powers of the president. Hundredsof cases involving the use of emergency powers during crises in thethree Administrations since 1933 are discussed by the authors, witha few references to earlier precedents. However, the point of viewadopted is that precedent is unnecessary for the exercise of"emergency" powers. Supporting this position are references tonumerous occasions where recent presidents have considered it nec-essary to exercise an emergency power for the public good withoutauthority of law.A separate chapter is devoted to the various legislative restraintson the use of the emergency powers. Among these restraints arerequirements that the executive must report to Congress or to aCongressional Committee. In some cases Congress may by concurrentresolution check, modify or terminate an emergency program, whilein other instances, legislation may require inter-agency cooperationin declaring and in meeting an emergency.In the chapter devoted to judicial review, the authors agree thatself-preservation in time of war may require the violation of con-stitutional rights of the individual. They quote with approval thedictum of Chief Justice Hughes that "the war power of the federalgovernment . . . is a power to wage war successfully." Brief ref-erence is made to the Milligan case following the Civil War, and tothe Schenck case with Justice Holmes' "clear and present dangert A.B., University of Michigan, 1954; LL.B., Yale University, 1957. Memberof the District of Columbia and Wyoming bars.Washington University Open Scholarship

Review of “Legal Conscience,” By Felix S. Cohen

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Review of “Legal Conscience,” By Felix S. Cohen

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