Fenn, P. T., Jr.

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Washington University St. Louis: Open Scholarship

Washington University Law Review Volume 12 Issue 1 January 1926 Review of “Present Status of Philosophy of Law and of Rights,” By William Ernst Hocking P. T. Fenn Jr. Washington University in St. Louis Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview  Part of the Law Commons Recommended Citation P. T. Fenn Jr., Review of “Present Status of Philosophy of Law and of Rights,” By William Ernst Hocking, 12 ST. LOUIS L. REV. 081 (1926). Available at: https://openscholarship.wustl.edu/law_lawreview/vol12/iss1/22 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. COMMENT ON RECENT DECISIONSwhich the public force will be brought to bear upon men through the courts."To a practicing lawyer the important question is: "What will the courts de-cide in a particular jurisdiction?" and not: "What would the courts decide ifbound only by logic and unhampered by the welfare of society or the doctrineof stare decisis?"The author of this book is far more interested in criticizing the law of con-tracts then he is in stating it or justifying it. It is now generally held that anordinary offer to contract sent by mail can be accepted by mail even if thesecond letter is not delivered. This is a rule of convenience, or a principle ofpragmatism,-to use the language of philosophy. The author does not like therule. And so he uses up most of fifty pages in attempting to prove that thedoctrine is unsound. He says: "What is to be borne in mind is, that thoughthe weight of authorities, in both number of decisions, and numbereof juris-dictions, is with Adams z. Lindsell, there is not a possible bit of logic or reason-ing which can be brought to support that decision." (Page 61.) Of the 700cases cited in the book, those cited most frequently are those which the authorregards as unsound.From the viewpoint of students in law schools, the book is valuable. Oneof the chief purposes of a modern law school, perhaps the chief purpose, is toenable students to analyze and criticize judicial decisions and judicial opinions.This important trick can be acquired when studying leading cases which havemade the law, like Marbury v. Madison, and then afterwards the student canuse the trick when confronted in his practice with modern mooted questionsand conflicting authority. Has a common law court jurisdiction over a breachof promise to marry? Of course it has. And yet it is a splendid exercise forstudents to attempt to prove that the common law courts were wrong whenthey first assumed such jurisdiction.This book, as the title page indicates, consists chiefly of digests of cases usedas the basis of instruction for the law of contracts in modern law schools. Thedigests are succinct and accurate. The arrangement is according to logic andnot according to historical development or jurisdictions. Indeed the author paysmore attention to logic and less attention to human experience than practicinglawyers do. For many students the book would be more valuable if the authorhad made freer use of the most recent casebooks on Contracts, namely those ofCorbin and Costigan. An excellent feature of the book is the insertion of alarge number of hypothetical cases, after the style of examination questions, anda careful consideration of those cases in the light of principle and authority.TYRRELL WILLIAMS.School of Law,Washington University.PRESENT STATUS OF THE PHILOSOPHY OF LAW AND OF RIGHTS. By WilliamErnest Hocking, Alford Professor of Natural Religion, Moral Philosophy,and Civil Polity in Harvard University. pp. viii and 97. New Haven: YaleUniversity Press, 1926.The point of view of this brilliant outline is truly indicated by its dedicationto Dean Roscoe Pound. Professor Hocking is concerned with the essentialtask of the sociological jurists, the problem of getting at the relative importanceof the various social interests which are recognized by legal action. Specifically,he proposes a scale of values among rights for the guidance of law-makers,while leaving to those learned in the law the technical work of construction.The first half of the book is given to an analysis of the contributions ofStammler and Kohler to the present problem. He boils down the issue betweenthem to the answers they would give to this question: what is to be done whenthe claims of Kultur and Right conflict? (Professor Hocking translates Kul-Washington University Open ScholarshipST. LOUIS LAW REVIEWlur, culture; Professor Pound prefers civilization.) Kohler answers: abstractjustice must give way. Stammler's answer would be, that the question is fal-lacious, for Right is of the very substance of Culture.The latter half of the book is devoted to the pursuit of the issue thus indi-cated. The statement thereof takes another form. In cases where we canknow what is unjust, independently of knowing what is good for society, thecourts are bound to follow the rule, "No known injustice for whatever socialgood." But where the injury complained of is not severe, the courts havewavered, occasionally invoking the doctrine of "balancing of injuries," namely,that a little injustice seems to be sanctioned for the sake of a considerable socialutility. Professor Hocking favors the latter doctrine, holding the apparentsanction to be fallacious.The problem involved is one of a definition of justice or of injustice. Butit is necessary to define the nature of rights in order to arrive at a concept ofjustice. This is the most suggestive part of the work. Only a bare mentionof the leading points is possible here.Good-will of an individual towards his fellows and the public welfare is theprimary condition of every presumptive right. The presumptions of the laware creative; they are aimed at conditions which it is desirable to bring about.Good-will is essential. The justification for these creative presumptions mustrest in some facts concerning human nature, for "presumptive rights are theconditions under which individual powers normally develop." Rights are notprimarily a series of conditions for the performance of functions, but condi-tions which promote the development of powers. Man has only one naturalright-to become what he is capable of becoming.Now the character of the individual human will seeking a concrete good, andthe claim which this seeking makes upon every agent which can affect it, providetogether a standard for the law. Developing human powers or faculties are theprimary concern of right. Thus "the scale of values among rights is to bedetermine'd by the closeness of their bearing on the devolopment of mentalpower in individuals." It comes down to a matter of "working out the systemof human instincts within what we call 'the will'."- This is the measure pro-posed by Professor Hocking. The final chapter outlines the application of theforegoing principles, turning on the existence of the two great presumptiverights, the right to liberty of the person and its activity, and the right to se-curity of property.This book contains the distilled essence of a theory which is to be elaboratedin a later volume. The author invites criticism of the principles herein setforth. P. T. FENN, JR.Department of Political Science and Government,Washington University.FEDERAL INCOME AND ESTATE TAX LAWS, CORRELATED AND ANNOTATED. ByWalter E. Barton and Carroll W. Browning, members of the Washington,D. C. Bar. pp. XXIV and 707. Washington, D. C.: John Byrne and Com-pany, Third Edition, 1926.The first edition of this work, published in 1922, was a pioneer in the methodof presenting the changes in the Federal Income Tax Laws by means of placingthe corresponding portions of the law opposite each other in parallel columns.This method is a great improvement over the usual method of showing suchchanges, such as having the text of one law in ordinary type, that of anotherlaw in italics, and that of another law in bold face type, and so on. The re-sult of the adoption of the usual method is inextricable confusion, but the workof Barton and Browning presents the corresponding sections of the Acts of1916, 1917, 1918, 1921, 1924 and 1926, for purposes of comparison in a very clearmanner.https://openscholarship.wustl.edu/law_lawreview/vol12/iss1/22

Review of “Present Status of Philosophy of Law and of Rights,” By William Ernst Hocking

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Review of “Present Status of Philosophy of Law and of Rights,” By William Ernst Hocking

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