Readings in Jurisprudence and Legal Philosophy by Morris R. Cohen and Felix S. Cohen

This anthology will appeal not only to students of the law and philosophy, but also to the general reader who will glean much wisdom from these pages.

Grouped under the broad categories of Legal Institutions, the General Theory of Law, Law and General Philosophy, and Law and Social Sciences, the materials collected by the father and son authors illustrate that ethical issues of the law can be found in courtrooms, legislative halls, and city streets. Jurisprudence illuminates the dark realities of the law, and legal philosophy leads to an understanding of the legal order and its role in human life.

FELIX S. COHEN (1907-1953)

Felix Solomon Cohen was a lawyer with special interest in natural resources, in statehood and economic development for American territories, in Indian affairs, and in immigration and minority problems. He was a professor of jurisprudence, a civil servant, and an author of numerous articles on law, ethics, and philosophy, on Native Americans and minorities, and on human and natural resources. >From 1933 through 1947 he served in the Solicitor's Office of the Interior Department as an assistant solicitor, associate solicitor, and acting solicitor. He also served as chairman of the Office's Board of Appeals. Cohen drafted the Wheeler-Howard Act (later known as the Indian Reorganization Act) of 1934, and contributed to the department's handling of Indian and Eskimo aboriginal rights. In 1939 Cohen was named Chief of the Indian Law Survey, a joint project of the Lands Division of the Department of Justice and of the Department of Interior to compile all federal laws, treaties, etc., involving Native Americans. Cohen edited a summary of the 46-volume survey, which was published by the Interior Department as The Handbook of Federal Indian Law and remains a milestone in the evolution of Indian law. He received the Department's highest honor--the Distinguished Service Award--on retirement from government service in 1948.

Cohen re-entered private general law practice in January 1948, but continued to be interested in the legal affairs of Native Americans and immigrants, in human rights, and in natural resources. He eventually associated his Washington, D.C. office with the New York law firm of Riegelman, Strasser, Schwarz & Spiegelberg (which later became known in Washington as Fried, Frank, Harris, Shriver & Kampelman). Cohen handled several importantpro bono Indian cases, particularly lawsuits which established Native Americans' rights to vote (in the last two states that had denied the franchise to them--New Mexico and Arizona), and to receive Social Security benefits in states that denied them such legal rights.

In 1946, Cohen had begun teaching legislative drafting and legal philosophy at Yale University's Law School, and jurisprudence at The City College of New York's Department of Philosophy. Cohen had also taught at the New School for School Research and the University of Newark Law School (later Rutgers Law School). In 1951 he published Readings in Jurisprudence and Legal Philosophy, the syllabus which he developed with his father, Morris R. Cohen, for both their jurisprudence courses (Morris Cohen at St. John's Law School and Felix Cohen at Rutgers and the New School for Social Research).

Morris Raphael

Cohen was born on July 25, 1880, and was a Russian-born philosopher who immigrated at the age of twelve to the United States in 1892 and studied at the City College of New York and Harvard University. He taught at City College (1912-38) and at the University of Chicago (until 1942). A proponent of both rationalism and naturalism, Cohen believed that there is a logical order to the universe independent of any mind, but since the universe also has an irrational aspect, our knowledge of facts is only probable.

He considered law as a social system that embodies both the logical use of ideas and continuing reference to facts.

Cohen's interest in the philosophy of law and religion dated back to his boyhood, when he was educated in Biblical and Talmudic law and read Maimonides and Judah Halevi's Kuzari. As a young man, he was attracted to Marxian socialism, but his strong belief in democracy helped him to discover other ways of serving the common good and acting in accordance with his social conscience.

Felix Adler influenced his approach to ethics; but Cohen was essentially a logician, devoted to mathematical logic and to the investigation of the relationships between science and philosophy. He characterized himself as a realistic rationalist who conceived of reason as "the use of both deductive and inductive inferences working upon the material of experience." He regarded reality as a category that belonged to science, not religion. Cohen died on Janurary 28, 1947.

Volume I
	TABLE OF CASES	XV

PART I. LEGAL INSTITUTIONS
Chapter
1. PROPERTY		5

	1. Nature and Type of Property

	Grotius, War and Peace	7
	Blackstone, Commentaries	7
	Bentham, Theory of Legislation	8
	United States v. Perchernan	9
	Ely, Property and Contact	10
	Aigler, Bigelow and Powell, Cases and Materials on Property	17
	American Law Institute, Restatement of Property	17
	International News Service v. Associated Press	18
	M.R. Cohen, Property and Sovereignty	26
	F.S. Cohen, Transcendental Nonsense and the Functional Approach	34
	Philbrick, Changing Conceptions of Property in Law	38
	Berle and Means, The Modern Corporation and Private Property	48

	2. The Origin and Justification of Private Property

	The Institutes of Justinian	50
	Victoria, De Indis	52
	Grotius, War and Peace	55
	:Locke, Two Treatises of Government	58
	Hamilton, Property -- According to Locke	63
	Bentham, Theory of Legislation	67
	Kant, Philosophy of Law	70
	Hegel, Philosophy of Right	73
	Holmes, The Common Law	76
	Pound, Introduction to the Philosophy of Law	79
	Note on the Vestal Bill for the Copyright Registration of Designs	80
	Tawney, The Acquisitive Society	91
	Lindsay, The Principle of Private Property	98

2. CONTRACT		100

	1. The Nature and Types of Contract

	The Institutes of Justinian	102
	American Law Institute, Restatement of Contracts	105
	Civil Code of Spain	106
	Kant, Philosophy of Law	109
	Hegel, Philosophy of right	130

	2. The Social Roots of Contract

	Lorenzen, Causa and Consideration in the Law of Contracts	123
	Maine, Ancient Law	124
	M.R. Cohen, The Basis of Contract	125
	Williston, Freedom of Contract	129
	Llewellyn, What Price Contract -- An Essay in Perspective	133
	Kessler, Contract as a Principle of Order	140

	3. What Promises Should be Enforced

	Adkins v. Children's Hospital	147
	Home Building and Loan Association v. Blaisdell	150
	West Coast Hotel Co. v. Parris	156
	Steele, The Uniform Written Obligations Act -- A Criticism	159
	Holdsworth, History of English Law	162
	Bentham, Theory of Legislation	167
	Pound, Liberty of Contract	168
	Ely, Property and Contract in their Relations to the Distribution of Wealth	175
	Gellhorn, Contracts and Public Policy	181
	M.R. Cohen, The Basis of Contract	187

3. TORTS AND LIABILITY		196

	1. Definition of Tort

	Pollock, Law of Torts	198
	Bishop, Non-Contract Law	199
	Innes, Principles of Torts	200
	Burdick, Law of Torts	200
	Wigmore, The Tripartite Division of Torts	202
	Wigmore, Selected Cases on the Law of Torts	203

	2. Analysis of Tort Liability

	Holmes, The Common Law	204
	Winfield, The Foundation of Liability in Tort	209
	Salmond, Law of Torts	210
	Pollock, Law of Torts	212
	Wigmore, The Tripartite Division of Torts	215
	Pound, An Introduction to the Philosophy of Law	217
	Radin, A Speculative Inquiry into the Nature of Torts	223

	3. Damage

	Pound, Interests of Personality	230

	4. Causation

	A. Legal Act
	Buch v. Amory Manufacturing Co.	233
	Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability	233

	B. Proximate Cause
	Brunner, History of Germanic Law	235
	Pollack and Maitland, History of English Law	236
	Bacon, Maxims of the Law	237
	Palsgraf v. Long Island R.R. Co.	238
	Laidlaw v. Sage	243
	Edgerton, Legal Cause	244
	F.S. Cohen, Field Theory and Judicial Logic	245

	C. Culpable Cause
	Ives v. South Buffalo Ry. Co.	251
	Charmont, The Changes in the Civil Law	254
	Demogue, Fault Risk and Apportionment of Loss	259
	Duguit, General Changes in Private Law Since the Code Napoleon	262
	Wu, The Art of Law	265
	James, Accident Liability Reconsidered, The Impact of Liability Insurance	266

	5. Compensation

	Bentham, Theory of Legislation	268

4. CRIME AND PUNISHMENT		280

	1. Crime

	A. Nature of Crime
	Von Bar, A History of Continental Criminal Law	282
	Savigny, System of the Modern Roman Law	284
	J. Hall, General Principles of Criminal Law	284
	M.R. Cohen, Moral Aspects of the Criminal Law	289

	B. Causes of Crime
	Ferri, Criminal Sociology	291
	Lombroso, Crime, Its Causes and Remedies	292
	Lindner, Rebel Without a Cause	295
	Bonger, Criminality and Economic Conditions	296
	M.R. Cohen, Moral Aspects of the Criminal Law	300
	Lunden, Statistics of Crime and Criminals	303
	Von Hentig, The Criminal and His Victim	304
	A.C. Hall, Crime and Its Relation to Social Progress	307
	Aristotle, Metaphysics	308

	C. Criminal Procedure
	Pound, The Future of the Criminal Law	309

	2. Punishment

	A. Responsibility
	Tarde, Penal Philosophy	312

	B. Purpose of Punishment
	Kant, Philosophy of Law	320
	Hegel, Philosophy of Right	323
	Saleilles, The Individualization of Punishment	326
	Tourtoulon, Philosophy in the Development of Law	327
	Bentham, Theory of Legislation	329
	Tarde, Penal Philosophy	334
	M.R. Cohen, Moral Aspects of the Criminal Law	336
	Michael and Wechsler, Criminal Law and Its Administration	341

	C. Types of Punishment
	Beccaria, Essay on Crimes and Punishment	346
	Bentham, Theory of Legislation	352
	Poland, Changes in the Criminal Law and Procedure since 1800	355

	D. Individualization of Punishment
	Bede, Ecclesiastical History of the English Nation	358
	Saleilles, The Individualization of Punishment	359
	M.R. Cohen, Moral Aspects of the Criminal Law	360

	E. Alternatives to Punishment
	Bentham, Theory of Legislation	361

*PART II. THE GENERAL THEORY OF LAW*

5. THE NATURE OF LAW		369

	Aristotle, Basic Works	371
	Cicero, De Legibus	376
	St. Thomas Aqunas, Summa Theologica	377
	St. Germain, A Doctor and a Student	379
	Coke, Conference Between King James I and the Judges of England	380
	Hobbes, Leviathan	382
	Blackstone, Commentaries	384
	Savigny, Of the Vocation of our Age for Legislation and Jurisprudence	386
	Savigny, System of the Modern Roman Law	389
	J.C. Carter, The Proposed Codification of our Common Law	393
	Livingston, A System of Penal Law for the State of Louisiana	395
	Swift v. Tyson	399
	Lorimer, Institutes of Law	401
	Austin, Jurisprudence	403
	Gray, Nature and Sources of the Law	407
	Holmes, The Path of the Law	416
	Pound, Law in Book and Law in Action	419
	Dernogue, Analyzis of Fundamental Notions	423
	Ehrlich, The Fundamental Principles of the Sociology of Law	426
	F.S. Cohen, Transcendental Nonsense and the Functional Approach	429
	M.R. Cohen, On Absolutisms in Legal Thought	435

6. THE NATURE OF THE JUDICIAL PROCESS		439

	Aristotle, Basic Works	440
	Rabelais, Gargantua	440
	Ehrlich, Judicial Freedom of Decision: Its Principles and Objects	445
	M.R. Cohen, The Process of Judicial Legislation	450
	Southern Pacific Co. v. Jensen	455
	Cardozo, The Nature of the Judicial Process	456
	Haines, General Observations on the Effects of Personal, Political, and Economic Influences in the Decisions of Judges	461
	Hutchinson, The Judgment Intuitive: The Function of the "Hunch" in Judicial Decisions	467
	Llewellyn, A Realistic Jurisprudence -- The Next Step	472
	Frank, What Courts Do in Fact	474
	F.S. Cohen, Transcendental Nonsense and the Functional Approach	477

7. LEGISLATION		483

	1. The Nature and Scope of Legislation

	Spencer, Over-Legislation	484
	Maine, Early History of Institutions	485
	T.V. Smith, The Legislative Way of Life	487
	Horack, The Common Law of Legislation	491

	2. Statutory Interpretation

	Aristotle, Rhetoric	497
	Heydon's Case	498
	Pound, Common Law and Legislation	498
	M.R. Cohen, The Process of Judicial Legislation	503
	Radin, Statutory Interpretation	509
	Landis, A Note on "Statutory Interpretation"	514
	Frankfurter, Some Reflections on the Reading of Statutes	518
	Horack, The Disintegration of Statutory Construction	524

	Volume II
**PART III. LAW AND GENERAL PHILOSOPHY**

8. LAW AND LOGIC		529

	1. Logic, Experience and Scientific Method

	Holmes, The Common Law	530
	Radin, Law as Logic and Experience	532
	Cardozo, Paradoxes of Legal Science	534
	Pound, Mechanical Jurisprudence	535
	M.R. cohen, The Place of Logic in the Law	540
	Dewey, Logical Method and Law	552
	Oliphant and Hewitt, From the Physical to the Social Sciences	557
	M.R. Cohen, Law and Scientific Method	560

	2. The Logical Nature of Legal Propositions and Questions

	Oliphant, A Return to Stare Decisis	566
	F.S. Cohen, Transcendental Nonsense and the Functional Approach	571
	Williams, Language and the Law	577
	F.S. Cohen, Field Theory and Judicial Logic	580
	F.S. Cohen, What is a Question?	586

	3. Logic and Ethics

	F.S. Cohen, The Ethical Basis of Legal Criticism	589

9. LAW AND ETHICS		594

	Kant, Philosophy of Law	595
	Stammler, Theory of Justice	597
	Kelsen, General Theory of Law and State	599
	Bentham, Theory of Legislation	599
	Russell, the Harm that Good Men Do	610
	Russell, Sceptical Essays	614
	M.R. Cohen, Reason and Nature	615
	F.S. Cohen, Ethical Systems and Legal Ideals	616
	F.S. Cohen, Modern Ethics and the Law	646
	F.S. Cohen, Transcendental Nonsense and the Functional Approach	653
	Garlan, Legal Realism and Justice	655
	McDougal, Fuller v. The American Legal Realists: An Intervention	660

10. LAW AND METAPHYSICS		665

	Heraclitus, The Fragments	666
	Kant, Philosophy of Law	667
	M.R. Cohen, A Critique of Kant's Philosophy of Law	670
	Kohler, Philosophy of Law	674
	Von Jhering, In the Heaven of Legal Concepts	678
	Holmes, Natural Law	689
	M.R. Cohen, Justice Holmes and the Nature of Law	692
	M.R. Cohen, Reason and Nature	696
	F.S. Cohen, Field Theory and Judicial Logic	699

*PART IV. LAW AND THE SOCIAL SCIENCES*

11. LAW AND HISTORY		709

	Kant, Idea of a Universal History from a Cosmopolitical Point of View	710
	Kant, Perpetual Peace: A Philosophical Essay	720
	Pound, Ethical and Religious Interpretations	726
	Pound, The Political Interpretation	729
	Bigelow and Adams, Centralization and the Law	735
	Beard, An Economic Interpretation of the Constitution of the United States	747
	Myers, History of the Supreme Court	752
	Pound, The Economic Interpretation	753
	M.R. Cohen, Roscoe Pound	762
	Maitland, The Forms of Action at Common Law	763
	C.F. Clark and W.O. Douglas, Law and Legal Institutions	765
	Julius Stone, The Myths of Planning and Laissez-faire	723
	M.R. Cohen, Tourtoolon	779
	M.R. Cohen, History versus Value	782

12. LAW AND ANTHROPOLOGY		785

	Myres, The Influence of Anthropology on the Course of Political Science	786
	Cairns, Law and the Social Sciences	791
	Driberg, At Home with the Savage	794
	Malimowski, Crime and Custom in Savage Society	796
	Lowie, Incorporeal Property in Primitive Society	798
	Lowie, Property Rights and Coercive Powers of Plains Indian Military Societies	802
	Hoebel, Primitive Law and Modern	806
	Llewellyn and Hoebel, The Cheyenne Way	809
	Hallowell, The Nature and Function of Property as a Social Institution	811

13. LAW AND ECONOMICS		823

	1. Economic Systems and Their Legal Defenses

	Maitland, Constitutional History of England	824
	Holmes, Law and the Court	826
	M.R. Cohen, Socialism and Capitalism	828
	Arnold, The Symbols of Government	836
	Arnold, The Folklore of Capitalism	838
	Berle and Means, The Modern Corporation and Private Property	841

	2. Legal Factors in Economic Science

	Llewellyn, The Effect of Legal Institutions upon Economics	847
	R.L. Hale, Economics and Law	853


14. LAW AND POLITICS		860

	1. Law and Administration

	Hewart, The New Despotism	861
	Laski, Allen's "Bureaucracy Triumphant"	866
	T.R. Powell, Constitutional Metaphors	867
	Arnold, Substantive Law and Procedure	870
	F.S. Cohen, Colonialism: A Realistic Approach	873

	2. Separation and Distribution of Powers

	Aristotle, Politics	878
	Montesquieu, The Spirit of the Law	879
	Jefferson, Notes on the State of Virginia	880
	Baudin, Government by Judiciary	881
	M.R. Cphen, Constitutional and NAtural Rights in 1789 and Since	883

	3. Law as Coercion and Law as Consent

	Hobbes, Leviathan	888
	Locke, Two Treatises of Government	890
	Bentley, The Process of Government	891
	W. Beard, Government by Special Consent	895
	M.R. Cohen, The Meaning of Human History	898
	T.V. Smith, Consent and Coercion in Governing	903

	4. Political Ideals

	Laski, Foundation of Sovereignty	907
	M.R. Cohen, The Future of American Liberalism	913
Index		928