Levi, Edward Hirsch

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University of Chicago Law School: Chicago Unbound

University of Chicago Law SchoolChicago UnboundJournal Articles Faculty Scholarship1950Book Review (reviewing W. Friedmann, LegalTheory, 2d Edition (1949))Edward Hirsch LeviFollow this and additional works at: http://chicagounbound.uchicago.edu/journal_articlesPart of the Law CommonsThis Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in JournalArticles by an authorized administrator of Chicago Unbound. For more information, please contact unbound@law.uchicago.edu.Recommended CitationEdward Hirsch Levi, "Book Review (reviewing W. Friedmann, Legal Theory, 2d Edition (1949))," 25 New York University LawReview 426 (1950).BOOK REFIEWSLEGAL THEORY, 2d Edition. By W. Friedmann.' London: Stevens andSons, Ltd. 1949. 30s.Professor Friedmann states that his purpose in this book is to give a"concise account of the main trends of legal philosophy" and to investi-gate the "relations between legal theory, social evolution and positive law."(vii). Professor Friedmann succeeds in giving a concise account of theoutlines of numerous philosophies of law. The material covered is enor-mous and the summaries not only appear to be accurate but discerning.The achievement is a considerable one. It would be astonishing if similarthumbnail sketches of whole bodies of law could be meaningfully statedin a few pages in terms of the main concepts used. The reaction of anAmerican teacher of law would probably be that a few pages on the wholeof contracts, for example, could not be very helpful to a student, thatanyone wishing to understand the system would have to work with it inits application to situations before the system became meaningful. Butthere has been a tradition in the teaching of philosophy which permitssimilar thumbnail sketches covering whole systems, and a good deal ofProfessor Friedmann's book is written in that tradition. That the traditioncannot be a wholly satisfying one to Professor Friedmann appears tobe indicated by little flashes of criticism when the author, suddenly drop-ping the role of a restater of phrases and concepts, inquires as to the valueof a particular system. In the main, however, the book is a series of sum-maries about philosophies of law from Aristotle through the modernrealists, and if such summaries when well done are useful, then this bookshould fill a real need.It is not clear, however, that such summaries even when well doneare useful. The position which philosophy of law occupies in the profes-sional world of the practitioner or the teacher of law is that of a kind ofa religion which many people are glad to know exists, but which not verymany people want to explore or to apply. It is of definite value to prac-titioners generally to have a few people writing about the philosophyof law. Their writings accomplish two purposes. In the first place, theyset law apart from the activity of other trades' people. There is a com-mercial value in being so set apart, for the separation tends to justifyrestrictions on entry into the profession, and in addition no doubt thereis a real sense of satisfaction in not only being part of a learned profes-sion but one that has a philosophy as well. In the second place, thewritings of philosophers of law can be used by practitioners as well asothers to bolster up criticism which they wish to make of the welfarestate, the Supreme Court, laissez-faire, or whatever topic happens to bediscussed. There is no doubt, therefore, that philosophy of law has a kindof usefulness, and that kind of usefulness means that there must be a classof workers busy restating philosophy from time to time, summarizing the1 Plrofessor of Public Law, University of Melbourne.Imaged with the Permission of N.Y.U. Law ReviewBOOK REVIEWS"schools", telling us about the "leaders" and the "followers", and in gen-eral taking care of the temple so that the sinners may have a religion.Even, or in one sense particularly, unintelligible summaries of past phil-osophies of law in this somewhat cynical view contribute to the welfareof the legal profession and it may be the world, but it is clear that Pro-fessor Friedmann would not have the usefulness of his excellent summariesjudged in such fashion. Professor Friedmann is explicitly aware of theproblem of usefulness or worthwhileness. Not only does he frequentlycriticize philosophies of law which he has stated because of the resultsto which some of their "astonishing doctrines" might lead (84) or thefailure of phrases to be meaningful in application (See his criticism ofStammler, 100), but in addition he attempts to answer the common viewof lawyers that philosophizing about the law is "a useless speculation oftheories, irrevelant to the administration of law". (273). The answerwhich Professor Friedmann makes is the traditional one, but it may notbe wholly satisfying.The answer which Professor Friedmann makes is that all lawyersare legal philosophers "like everyone who has to solve legal problems"but their philosophy is often inarticulate. (274). Professor Friedmannrests his case for legal philosophy on the proposition that "On the wholethose lawyers who are unconscious of their legal ideology are apt to domore harm than their more conscious colleagues. For their self delusionmakes it psychologically easier for them to mould the law in accordancewith their beliefs and prejudices without feeling the weight of responsi-bility that burdens lawyers with greater consciousness of the issues atstake". Unhappily however, it appears that a statement of philosophicalprinciples, whether done by a German romanticist of what probablyshould be called an American neo-legal realist, can operate to insulatea lawyer from an awareness of what is going on, and certainly can makeit psychologically easier for him, if it has any effect, to mould the lawin accordance with beliefs and prejudices. It remains to be shown thatprejudices cease to exist or are more easily controlled because they arestated; much of recent history seems to show the reverse. One cannothelp thinking that in view of what people sometimes say when they speakout loud, that it is sometimes better, all things considered, if they remainsilent. Professor Friedmann's book raises very sharply the question ofwhether philosophy of law has anything to contribute to the good of thelegal profession, the law, or the world.It is a little difficult to know what Professor Friedmann thinks is theproper scope for legal theory or philosophy of law. At one point he statesthat the fundamental question to be answered by legal theory is not lessthan the question "What is the purpose of life?" (423). In his criticismof Roscoe Pound, Professor Friedmann develops the point that legaltheory cannot be used to give a basis for choosing between different typesof political society. (422). He appears to argue that the unsolved problemof individual autonomy and the needs of the community is not a problemof legal or political theory but of human morality. (432). He states atImaged with the Permission of N.Y.U. Law ReviewAprfl, 1950]NEW YORK UNIVERSITY LAW REVIEWleast twice that the choice between different methods of controlling ad-ministrative discretion "is a matter of positive administrative law not offundamental legal theory". (460, 406). What appears to worry Pro-fessor Friedmann is that legal theory incorrectly conceived may preventchange in the direction of economic planning. One cannot be sure aboutthis, because Professor Friedmann may really mean to delimit the philoso-phy of law from the most crucial questions of our day, although permittingit to have something to say about "order", whatever that may be. (422).But if this is so then one must ask what is the relationship between whatProfessor Friedmann thinks legal theory is and his statement of what heterms legal values of modern democracy, his statement that it is theU.S.S.R. which "has gone furthest in carrying out the legislative impli-cations of the ideal of equality-by contrast with the ideal of freedom"(451), and his view that democracy is furthered by planning of thesocialist type because participation in industrial management replaces whatotherwise would be private economic activity. (455). Perhaps we shouldfollow Professor Friedmann's course in dealing with the doubtful lawyerand ask Professor Friedmann to state the underlying assumptions uponwhich these ideas are based. A book on legal theory which begins bysummarizing Aristotle and ends by attacking Professor Hayek may beintended to delimit the field of legal theory from the area of politicaltheory, but there remains some doubt that perhaps the articulation oflegal theory has served rather to give support to particular political ideas.Professor Friedmann no doubt would agree that it is the ideal ofrational discussion which supports his belief in the philosophy of law.The statement of the key concepts used by many philosophers of lawmay be a preliminary to such a discussion. Perhaps the same can be saidof the statement of those problems which beset the modern world as setforth by Professor Friedmann in the last part of his book. But the dis-cussion itself has not taken place. Such a discussion appears to be neces-sary if philosophy of law is to be helpful in the solution of problems ofinternational order and individual freedom. The discipline of orderly dis-cussion is necessary also to prevent the theory of law from degeneratinginto a statement of power words which appeal to the community, andwhich are set forth as values and goals, and are then used to justify actionwithout discussion. Professor Friedmann has set forth a large task forhimself in his next volume.E. H. LEVI*Chicago, Illinois* Professor of Law, University of Chicago.Imaged with the Permission of N.Y.U. Law Review[Vol. 25

Book Review (reviewing W. Friedmann, Legal Theory, 2d Edition (1949))

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Book Review (reviewing W. Friedmann, Legal Theory, 2d Edition (1949))

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