Fuller, Lon L.

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Louisiana Law ReviewVolume 12 | Number 4May 1952JURISPRUDENCE-ITS AMERICANPROPHETS, by Harold Gill Reuschlein. TheBobbs-Merrill Company, Indianapolis, 1951. Pp.xvii, 527.Lon L. FullerThis Book Review is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted forinclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationLon L. Fuller, JURISPRUDENCE-ITS AMERICAN PROPHETS, by Harold Gill Reuschlein. The Bobbs-Merrill Company, Indianapolis,1951. Pp. xvii, 527., 12 La. L. Rev. (1952)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol12/iss4/21BOOK REVIEWSwriting, however legible, to be convincing as working papers;explaining their role, to the extent it is not already done, wouldbe a small price to pay for complete legibility.Oehler's book is satisfying on another and minor score; theterm "equity of creditors" is used only as a section heading, anddebts and proprietary items on the balance sheet are generallyreferred to by Oehler as interests of creditors and interests ofowners. It has seemed regrettable to me that as the use of the term"liabilities" is generally being contracted and rendered moremeaningful in balance sheet terminology by excluding from itproprietary items, another corruption is developing in its place,namely the use of the term "equities" to cover both creditor andowner interests. Such use of the latter term is particularly con-fusing in reorganization law and accounting where the respectiveinterests of creditors and stockholders have come to be referredto as debt claims and equity claims. I suppose if the use of it inthis fashion has historical justification it lies in the analogy to the"equity of redemption" notion developed in connection with mort-gage foreclosures in courts of equity. In the light of this history,it seems somehow anomalous to refer to the claim of a first mort-gage bondholder as an "equity," yet, this seems to be the effectof a classification of balance sheet items into ."proprietary andnon-proprietary equities."Melvin G. Dakin*JURISPRUDENCE-ITs AMERICAN PROPHETS, by Harold Gill Reusch-lein. The Bobbs-Merrill Company, Indianapolis, 1951. Pp.xvii, 527.This work presents the views of some seventy differentAmerican writers in a loosely-constructed, badly proof-read, buton the whole remarkably faithful paraphrase. The task theauthor took on himself was truly a formidable one. Long articleshad to be summarized in a few sentences, whole books in a coupleof paragraphs. To accomplish this condensation without commit-ting egregious blunders is itself an achievement of some impor-tance.But the book displays more important qualities than mereindustry and breadth of coverage. The author has a remarkable* Professor of Law, Louisiana State University.1952]LOUISIANA LAW REVIEWtalent for a sympathetic and understanding presentation of viewswith which he disagrees. He makes no use of a device that hasbecome almost standard in jurisprudential polemics, that is, asnide undercutting of the opponent's position in the process ofrestating it. Instead he lets each writer in turn put his bestfoot forward, and where criticisms are offered, which is seldom,they are expressed modestly and at the conclusion of the dis-cussion.Professor Reuschlein divides his book into three sections.The first-largely a summary of colonial thinking about law-bears the title, "The Ante-'Taught Law' Period in the UnitedStates." The next section covers the period of "taught law"from its beginnings to Holmes and Pound, passing in reviewsuch men as Wilson, Kent, Story, Livingston, Carter, Gray,Hohfeld and Brooks Adams. The final section, devoted to "OurContemporaries," opens with chapters on "The Fatherhood ofHolmes" and "The Pre-emptive Roscoe Pound." For a betterunderstanding of Pound the author includes a summary-runningabout twenty-five pages-of the views of the European writerswho chiefly influenced Pound's thought.Other "contemporaries". are grouped together as formingschools or movements of thought. "The Realists" include Bing-ham, Arnold, Llewellyn, Green, Frank, Radin, Yntema, Douglas,Felix Cohen, Lerner, Nelles, Powell, Rodell, Laski and Garlan.(Cook and Oliphant are given separate treatment under theheading, "The Scientific Method.") Next in numbers to theRealists are "The Neo-Scholastics," all of whom are of Catholicfaith with the, should I say, possible exception of MortimerAdler. (Though Robert Hutchins makes a one-paragraph appear-ance under this heading, Reuschlein disclaims any intention toclassify him as a "neo-scholastic.") The final heading is a newone borrowed from Jerome Hall, "Integrative Jurisprudence."Its representatives (besides Pound, who has already been dis-cussed) are Cardozo, Patterson, Cairns, Morris Cohen, Hall,Cahn and your informant, who is very happy indeed to findhimself in such good company enrolled under so attractive abanner.Of the remaining "contemporaries," some apparently provedtoo difficult to classify and therefore appear under separate head-ings. This is the case, for example, with Stone, Frankfurter,Vanderbilt and Walton Hamilton. (I personally would have[VOL. XIIBOOK REVIEWSbeen inclined to put Hamilton under the Realists and to givea separate heading to Arnold, who often deplores the blindnessof the "mere realist." But this is a small matter, especially sinceReuschlein seems to attach little importance to his own classi-fications and does his best to convey what is truly distinctiveabout each man.) A scattering of writers are grouped by two'sand three's under somewhat vague headings, such as "TheReign of Law" and "Law in a New and a Different World," thelatter standing as a common rubric for the very different andvery new legal worlds of Northrup and Lasswell-McDougal.Even a book that discusses seventy professed and unprofessedlegal philosophers is bound to leave somebody out and anyreviewer of such a book is equally preordained to criticize theauthor's judgment as to who is worth talking about. I cannot,for example, suppress the question, why, among the neo-scholastics, are the windy effusions of Ben W. Palmer discussedfor four pages while the moderate and thoughtful writings ofMiriam Theresa Rooney are passed over in silence?Throughout his book, Professor Reuschlein urges the neces-sity of a closer integration of law with the other social sciences.He discusses at length most of the ambitious programmaticarticles that play on this theme. But what of some of the actualaccomplishments in this field, such as the work of Beuscher atWisconsin, Hale at Columbia, Rostow at Yale, and Cavers atDuke and Harvard, particularly in the latter's founding andeditorship of Law and Contemporary Problems? Were theseleft out because jurisprudence is tacitly assumed to includepromises but not achievements? Even if the intent were torestrict the discussion to programmatic pronouncements, onemisses the names of Beutel and Simpson, who are certainlymore significant and have presented more workable projectsthan, say, Lee J. Loevenger.Finally, one is startled to see the statement on page 314 that,with the exception of Jerome Hall, "juristic writers, when con-fronted with the problem of crime, seem unable to get an ideaon' the subject," so that "all recent advances in criminology havebeen made by psychiatrists and sociologists." Surely this is abit stiff in view of the work of Wechsler, Harno, Dession, Warnerana the Gluecks.Albert Schweitzer has said that at a time marked approxi-mately by the beginning of the present century philosophy1952]LOUISIANA LAW REVIEWceased to be philosophy and became merely the history of phil-osophy. Now that the realist movement has largely exhaustedits contribution, there is a considerable danger, it seems to me,that jurisprudence will become merely the history of jurispru-dence. The last decade has seen the publication of a great manygeneral treatises on jurisprudence, by Stone, Bodenheimer, Fried-mann, Paton and others, including now Reuschlein. By andlarge these books, though not free from avowed or unavowededitorial comment, are discussions of what other people havesaid. They are, in short, histories of jurisprudence, not juris-prudence.All of this is by way of leading up to the suggestion thatProfessor Reuschlein take as his next task, not writing anotherbook about what other people have written, but a thorough, pre-sentation of the neo-Thomist point of view to which he person-ally subscribes. It seems to me that such a work is badly needed.Reuschlein speaks repeatedly of a resurgence in recent years ofthe neo-Thomist legal philosophy, yet he nowhere attempts todefine just what that philosophy is. When one turns to thewritings on both sides of this question one finds that they arelargely polemic and even vituperative in character and centerabout an attack on, or a defense of Holmes.As I read these articles, which have been so numerous inrecent years in the American Bar Association Journal, I keepasking myself, just what is this neo-Thomist legal philosophythat is creating such a stir? I know, of course, that Catholicsare likely to have certain views concerning legislation affectingdivorce and contraception. But can this outcropping of religiousviews into the legislative field be called a legal philosophy?Christian Scientists in a number of communities have opposedthe fluoridation of the municipal water supply. No one supposeson that account that there is a Christian Scientist philosophyof law.What does the neo-Thomist philosophy say about such ques-tions as the interpretation of statutes, the proper role of thejudiciary, or the methods of reconciling freedom and control inour complex modern society? I find no coherent answer toquestions of this sort in the published professions of this phil-osophy. It may be answered that the binding cement for thewhole neo-Thomist jurisprudence is to be found in the writingsof St. Thomas himself. Though there are some startling things[VOL. XIBOOK REVIEWSin St. Thomas on such subjects as monsters and angels, I per-sonally have found him full of useful wisdom on matters of lawand government. But curiously most of the neo-Thomist writ-ings in the legal field are almost destitute of reference to St.Thomas himself, who taught, as I read him, that positive law isa human thing intended to promote the happiness of humanbeings.Though Professor Reuschlein found it necessary to fill inthe European background of Pound's thinking by a long digres-sion, he apparently felt no need for a similar introduction to theneo-scholastic philosophy, and there is no real exposition of whatSt. Thomas thought to be found in the book. What I hope is thatProfessor Reuschlein will next attempt a book that will presentus with what may be truly called a neo-Thomist philosophy oflaw. The publication of such a book might convert the seem-ingly endless exchange over the grave of Holmes of epithetslike "absolutist," "relativist," "authoritarian," and "positivist"into a serious discussion of intellectual issues.In closing I do, not wish to leave the impression that Pro-fessorReuschlein's professed adherence to the neo-Thomist legalphilosophy in any way impairs the utility of his book for thosewho thinlX they would find that philosophy uncongenial. On thecontrary, the outstanding quality of the book, as I have alreadysuggested, is its scrupulous fairness and the faithfulness withwhich it presents all points of view.Lon L. Fuller*LOUISIANA WORKMEN'S COMPENSATION LAW AND PRACTICE, by WexS. Malone. West Publishing Company, St. Paul, 1951. Pp.740. $15.00.Workmen's Compensation is a problem subject in the lawschools. As the pressure on the curriculum has increased, only asmall remnant may be found, sometimes in the course on agencyand sometimes in torts. There remains a large uncovered field ofgreat importance to millions of workers and of great interest tothe 4000 or 5000 lawyers largely engaged in dealing with indus-trial accidents. In the absence of law school teaching, it isimperative that clearly written and carefully prepared treatisesshould be available. Since there is no uniformity in the statutory* Carter Professor of General Jurisprudence, Harvard Law School.1952]

JURISPRUDENCE-ITS AMERICAN PROPHETS, by Harold Gill Reuschlein. The Bobbs-Merrill Company, Indianapolis, 1951. Pp. xvii, 527.

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JURISPRUDENCE-ITS AMERICAN PROPHETS, by Harold Gill Reuschlein. The Bobbs-Merrill Company, Indianapolis, 1951. Pp. xvii, 527.

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