Editorial Committee of the Cambridge Law Journal

An Introduction to the Science of Law by Albert KocourekReview by: H. C. G.The Cambridge Law Journal, Vol. 4, No. 2 (1931), pp. 247-248Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4502547 .

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Book Reviews. 247

the relationship between the Paramount Power and the Indian States, agrees in substance with the findings of the Committee and with much of Sir W. Holdsworth's reasoning. Mr. Palmer emphasizes more clearly than previous contributors to the inquiry that the Paramount Power is- not the Government of British India, but the Crown acting through the Governor-General in Council. The fact that the Political Department is the organization which conducts relations with the Indian States has tended to obscure this point, the importance of which has been increased of late years by the constitutional reforms aSecting the Government of India. In dealing with that Government, the States are true contracting parties; in economic matters adjustment must be on the principle of mutual falr dealing, since there is a contractual bond between the Government and the States. But in relation to the Paramount Power itself constitutional relations are not of necessity consensual, so far as

they depend upon usage or custom. The author seeks to draw a distinction between ancient custom as a source of law and modern constitutional

usage, which he asserts produces resultant rights, or rights which result at various times in the existence of a given society from the nature of such society and its growth. His object in maintaining the distinction is to explain how the constitutional relationship since 1858 has been determined by usage which is to some extent fixed in advance by political conditions at the will of the Paramount Power, not with the consent of the States. But is not this true of custom in general as a source of law ? Mercantile law is predetermined by the practices which merchants-

follow; it is to that extent fixed in advance. Paramountcy, which

depends upon political rather than economic factors, is explicable by regarding current usage and custom as a source of new constitutional

law, at least as much as ancient custom is the source of constitutions. We have found this little book very helpful towards an understanding

of a little-known and unique constitutional relationship. E. C. S. W.

Book Reviews. 247

the relationship between the Paramount Power and the Indian States, agrees in substance with the findings of the Committee and with much of Sir W. Holdsworth's reasoning. Mr. Palmer emphasizes more clearly than previous contributors to the inquiry that the Paramount Power is- not the Government of British India, but the Crown acting through the Governor-General in Council. The fact that the Political Department is the organization which conducts relations with the Indian States has tended to obscure this point, the importance of which has been increased of late years by the constitutional reforms aSecting the Government of India. In dealing with that Government, the States are true contracting parties; in economic matters adjustment must be on the principle of mutual falr dealing, since there is a contractual bond between the Government and the States. But in relation to the Paramount Power itself constitutional relations are not of necessity consensual, so far as

they depend upon usage or custom. The author seeks to draw a distinction between ancient custom as a source of law and modern constitutional

usage, which he asserts produces resultant rights, or rights which result at various times in the existence of a given society from the nature of such society and its growth. His object in maintaining the distinction is to explain how the constitutional relationship since 1858 has been determined by usage which is to some extent fixed in advance by political conditions at the will of the Paramount Power, not with the consent of the States. But is not this true of custom in general as a source of law ? Mercantile law is predetermined by the practices which merchants-

follow; it is to that extent fixed in advance. Paramountcy, which

depends upon political rather than economic factors, is explicable by regarding current usage and custom as a source of new constitutional

law, at least as much as ancient custom is the source of constitutions. We have found this little book very helpful towards an understanding

of a little-known and unique constitutional relationship. E. C. S. W.

An Introduction to the Science of Law. By Albert Kocotjrek,. Professor of Law at the Northwestern University. Boston:

Little, Brown & Co. 1930. xii and 343 pp.

It is to be hoped that this book will not be placed in the hands of

English law students, because the inevitable result must be to aggravate the more or less dormant, but nevertheless unfortunate, antipathy felt

by many undergraduates towards the study of theoretical. jurisprudence in its various manifestations. This is said with real regret, since much that is valuable is contained in these pages, and the work taken a& a whole is, in certain respects, an extremely interesting and stimulating introduction to the subject. A detailed discussion of the author's treatment of the principles of Jurisprudence would be out of place here, but the main objections to the methods which he has adopted would seem to be twofold. To begin with, one meets in many places with an obscurity of statement which must be baffling to anybody who is likely to read an

introductory study of this nature {e.g. the reader is introduced to Neo-

Hegelianism without any explanation of its bearing on legal theories).

An Introduction to the Science of Law. By Albert Kocotjrek,. Professor of Law at the Northwestern University. Boston:

Little, Brown & Co. 1930. xii and 343 pp.

It is to be hoped that this book will not be placed in the hands of

English law students, because the inevitable result must be to aggravate the more or less dormant, but nevertheless unfortunate, antipathy felt

by many undergraduates towards the study of theoretical. jurisprudence in its various manifestations. This is said with real regret, since much that is valuable is contained in these pages, and the work taken a& a whole is, in certain respects, an extremely interesting and stimulating introduction to the subject. A detailed discussion of the author's treatment of the principles of Jurisprudence would be out of place here, but the main objections to the methods which he has adopted would seem to be twofold. To begin with, one meets in many places with an obscurity of statement which must be baffling to anybody who is likely to read an

introductory study of this nature {e.g. the reader is introduced to Neo-

Hegelianism without any explanation of its bearing on legal theories).

This content downloaded from 194.29.185.216 on Thu, 12 Jun 2014 19:55:28 PMAll use subject to JSTOR Terms and Conditions

248 T11e Cclrtbridge l,aw Journal.

lRurther, the author has succumbed to the temptation to devise a novel phraseology, which purports to clarify existing terminology, but in effect only makes it more difficult to understand topics which are alreadJr abundantly obscure. The reader is confl onted with such terms as ' Zygllomic ' and ' Nlesonomic.' The sowalled Immunity Disability relation is explained by the following formula: [A) < + B].

*Surely it is time to call halt to these and similar efforts to transplant the terminology and methodology of the mathematicians, the engineers and the physicists on to the wholly uncongenial soil of legal theory. This process can only lead to the obfuscation of legal concepts, and mllst inevitably bring theoretical jurisprudence into disrepute. Binder, for instance, rendered a great disservice to clear legal thinking when he invented the term ' no7m.' The writings of our English legal philosophers (not excluding Austin), and in particular those of the great modern iFrench jurists, have shown how unnecessary it is to resort to the use of phraseology borrowed in part from Germany and in part from the neo- physicists. The matter is one of some moment, particularly in England, where the study of the law in an academic direction is being pursued in circumstances of difficulty which cannot fail to be enhanced if concepts which s}lould be simplified as much as possible, are stated in words which can only be understood by those who have invented them. It matr be that legal English i9 not sufficiently supple for all purposes, but in that event it can be supplemented by a resort to the phraseology of Roman law, with the aid of which most, if not all, of the difficulties can be surmounted. The invention in any language of terms ' ad hoc X is a dangerous expedient and one which should be avoided whenever possible. It is difficult to avoid the suspicion that some modern writers do not themselves always clearly understand their expositions: it is certain that their readers are often left in the dark.

H. C. G.

Les Ordonnances Civiles du C/tonceliew Da.yuesseau. B5r Prof. ]IENRI 1tEGNALrLT. Paris: Recueil Sirey. 1929. sis an(l 658 pp.

DAalJEssEAu was one of the great French jurists of the early elghteenth century, but his fame rests chiefly on his pioneer work in the field of the ullification of French law. Perhaps the nsost remarkable of his achieve- ments in this direction was the ' Ordonnance sur les Donottons ' of 1731, which forms the subject-matter of Professor Regnault's learned treatise. This Ordonnance., which was absorbed to a large extent into the Code Napoleon, was based on replies elicited by a questionnaire 8ubmitted by Daguesseau to the ' Parlements ' and supelior courts of France. This raw material had disappeared at least so it was thoughSuntil the guardian angel who watches over bibliophiles led Professor Regnault to a book stall on which he found a bound manuscript containing a copy of the replies returned by the Parlement of Grenoble to Daguesseau's questionnaire. The finder has utilized this discovery to the best advantage and has given us an extremely able 3nd careful study of the early French law relating to Gifts. The importance of llis work may be gauged by

248 T11e Cclrtbridge l,aw Journal.

lRurther, the author has succumbed to the temptation to devise a novel phraseology, which purports to clarify existing terminology, but in effect only makes it more difficult to understand topics which are alreadJr abundantly obscure. The reader is confl onted with such terms as ' Zygllomic ' and ' Nlesonomic.' The sowalled Immunity Disability relation is explained by the following formula: [A) < + B].

*Surely it is time to call halt to these and similar efforts to transplant the terminology and methodology of the mathematicians, the engineers and the physicists on to the wholly uncongenial soil of legal theory. This process can only lead to the obfuscation of legal concepts, and mllst inevitably bring theoretical jurisprudence into disrepute. Binder, for instance, rendered a great disservice to clear legal thinking when he invented the term ' no7m.' The writings of our English legal philosophers (not excluding Austin), and in particular those of the great modern iFrench jurists, have shown how unnecessary it is to resort to the use of phraseology borrowed in part from Germany and in part from the neo- physicists. The matter is one of some moment, particularly in England, where the study of the law in an academic direction is being pursued in circumstances of difficulty which cannot fail to be enhanced if concepts which s}lould be simplified as much as possible, are stated in words which can only be understood by those who have invented them. It matr be that legal English i9 not sufficiently supple for all purposes, but in that event it can be supplemented by a resort to the phraseology of Roman law, with the aid of which most, if not all, of the difficulties can be surmounted. The invention in any language of terms ' ad hoc X is a dangerous expedient and one which should be avoided whenever possible. It is difficult to avoid the suspicion that some modern writers do not themselves always clearly understand their expositions: it is certain that their readers are often left in the dark.

H. C. G.

Les Ordonnances Civiles du C/tonceliew Da.yuesseau. B5r Prof. ]IENRI 1tEGNALrLT. Paris: Recueil Sirey. 1929. sis an(l 658 pp.

DAalJEssEAu was one of the great French jurists of the early elghteenth century, but his fame rests chiefly on his pioneer work in the field of the ullification of French law. Perhaps the nsost remarkable of his achieve- ments in this direction was the ' Ordonnance sur les Donottons ' of 1731, which forms the subject-matter of Professor Regnault's learned treatise. This Ordonnance., which was absorbed to a large extent into the Code Napoleon, was based on replies elicited by a questionnaire 8ubmitted by Daguesseau to the ' Parlements ' and supelior courts of France. This raw material had disappeared at least so it was thoughSuntil the guardian angel who watches over bibliophiles led Professor Regnault to a book stall on which he found a bound manuscript containing a copy of the replies returned by the Parlement of Grenoble to Daguesseau's questionnaire. The finder has utilized this discovery to the best advantage and has given us an extremely able 3nd careful study of the early French law relating to Gifts. The importance of llis work may be gauged by

This content downloaded from 194.29.185.216 on Thu, 12 Jun 2014 19:55:28 PMAll use subject to JSTOR Terms and Conditions