Suchergebnisse

For twenty-four hundred years--from the Greek thinkers of the fifth century B.C. who asked whether right was right by nature or only by enactment and convention, to the social philosophers of today, who seek the ends, the ethical basis and the enduring principles of social control--the philosophy of law has taken a leading role in all study of human institutions. The perennial struggle of American administrative law with nineteenth-century constitutional formulations of Aristotle's threefold classification of governmental power, the stone wall of natural rights against which attempts to put an end to private war in industrial disputes for a long time dashed in vain, and the notion of a logically derivable super constitution, of which actual written constitutions are faint and imperfect reflections, which was a clog upon social legislation in the nineteenth and the first decade of the present century, long bore witness how thoroughly the philosophical legal thinking of the past is a force in the administration of justice of the present. Indeed the everyday work of the courts was nevermore completely shaped by abstract philosophical ideas than in the nineteenth century when lawyers affected to despise philosophy and analytical jurists believed they had set up a self-sufficient science of law which stood in no need of any philosophical apparatus.

Professor Friedmann, who had already made a notable contribution to jurisprudence in his Legal Theory, now in its second edition, has now made a second and perhaps even more notable contribution toward understanding the role and presaging the future of the common law system in the society of today. His purpose is a reassessment of the function of law and of legal institutions in England a half century after Dicey's Law and Public Opinion in England during the Nineteenth Century, comparing the economic function of law and how the common law was adapted to it in the nineteenth century with its function in the "vastly changed social pattern of contemporary England" (p. 3) in the twentieth century after half of that century has gone by. He seeks to coordinate recent developments with respect to the relation of the judicial function and judicial process to social problems, the role of legislation and the interpretation of statutes, the growth of standard contracts and collective bargaining, and the change in the structure and function of the law of property and to appraise the "interrelation of law and social change in present-day British society." (p. 3).

There is a well-known principle of municipal government that there cannot be two municipalities possessed of the same or similar powers, privileges and jurisdiction covering the same territory at the same time. Perhaps the earliest expression of this principle may be found in an early English dictum to that effect where the court explains why such a proposition must be true, viz., "[F]or, instead of good order, that would only be productive of anarchy." Whether in our conglomerate of municipalities we have abided by this principle or have created duplications, overlappings and conflicts due to the vast multiplicity of municipal units is an issue which will bear study. It will appear that the courts have not been unduly disturbed by the inconveniences, the probability of litigation, the uneconomical operation of public business or even the anarchy which are inherent in any scheme which departs measurably from the principle that coterminous units should not have the same or similar powers, either wholly or in part. Due or even excessive deference has been shown to the legislative will where the creating statutes have been drawn without adequate care.

When I am asked to write on the law in China, I take it I am to use the term "law" in a wide sense, not only to include the codes and statutes but the organization of courts, application and interpretation of the codes and statutes, legal education, and the whole administration of justice as affected by or resulting from these things. I am able to speak with no little assurance on this subject, because since 1935 1 have made a full and careful study of the Chinese codes and legislation on legal subjects and since February, 1946, as adviser to the Chinese Ministry of Justice, I have had to observe on the spot and study particularly many of the points of which I shall speak.

It has been customary to take Grotius's book for the starting point of one of the best marked eras in the history of jurisprudence. Any account of the development of theories of justice is likely to begin the modern history of the subject with Grotius, and to put as a classical epoch a period designated as "from Grotius to Kant." Any account of theories of law is likely to set off a period from the revived study of Roman law in the Italian universities of the twelfth century to Grotius, and another from Grotius to the breaking up of the eighteenth century law-of-nature school. In almost all accounts of the history of the science of law, Grotius stands as marking a turning point.

Let me begin with a quotation:"[There] is no doubt but that our law and the order thereof is over-confuse[d]. It is infinite and without order or end. There is no stable ground therein nor sure stay; but every one that can color reason maketh a stop to the best law that is before time devised. The subtlety of one serjeant shall [make] inert and destroy all the judgments of many wise men before time received. There is no stable ground in our common law to lean unto. The judgments of years be infinite and full of much controversy. .... The judges are not bound to follow them as a rule, but after their own liberty they have authority to judge, according as they are instructed by the serjeants, and as the circumstance of the case doth them move. And this maketh judgments and processes of our law to be without end and infinite; this causeth suits to be long in decision. Therefore, to remedy this matter groundly, it were necessary in our law to use the same remedy that Justinian did in the law of the Romans, to bring this infinite process to certain ends, to cut away these long laws, and by the wisdom of some politic and wise men institute a few and better laws and ordinances."