Philosophy Tests the Law

For many years Morris Cohen has deplored the neglect of the Law by the professional philosophers of this country. To direct critical reflection upon the Law has been for him a never abandoned purpose. In knightly fashion, and without esquire, his errantry led into battle after battle—more often against the Paynims of the Law than against the knights of Philosophy. “Law and the Social Order” is the record of knightly vows fulfilled—and in the main, of defeats of the Paynim.

The animals are not metaphysicians; but, on the authority of Hegel, all men are. Since even lawyers must be included within the human species, the lawyers also, and without exception, are metaphysicians. It is quite possible that some of them, if they read this book, will be led to admit the fact. An unsound metaphysics may be better than none at all: but not if the metaphysics be implicit and unacknowledged. Again and again Professor Cohen indicates the deplorable consequences that follow when the jurist possesses a metaphysics and sturdily denies the possession. Not the least valuable purpose of “Law and the Social Order” is its demonstrations that to deal with the Law means reckoning with philosophical speculation. In analogous fashion Professor Cohen shows how economic, sociological, and ethical considerations have functioned in the up-building of the Law. The effort to isolate the Law—to insulate it from the influences of the social order—is psychologically impossible in a world in which nature comprises men. The Quixotism leading lawyers and jurists to deny this is magnificent —Cohen acknowledges its inspirational ideality—but it does not abolish the windmills. If all of this is not convincingly established in the pages of Cohen’s book, one may despair of establishing anything whatever.

The book makes an analogy irresistible. The feud between Philosophy and the Law reminds the reader of the ancient feud between Philosophy and Science. To keep philosophy out of science, to pursue science without concern for metaphysics and problems of logic—this was the ideal of yesterday’s scientist. Like the lawyer, it is true, the scientist had a deal of metaphysics, mostly bad, that he did not acknowledge. Freshmen, leaving the comforting certainties of chemistry, jeered at the mere speculations of the philosopher. The scientist pursued his task without bothering to inquire what he was doing and how he was doing. The philosopher did the bothering for him—without appreciable effect upon science and with scant praise from the scientist. Recent decades mark the waning of the feud. Science has become speculative; the philosophers of science are recruited from the ranks of the scientists. Indeed, the philosopher must now study science in order to understand, not “science,” but the metaphysical speculations of the scientists. As this feud has been recently terminated, so Professor Cohen would have the feud between Philosophy and the Law terminated, not by surrender, but by co-operation.

“Law and the Social Order” bids fair to serve effectively in bringing about the change. The book, then, is important. Nevertheless, it is also a disappointment. Cohen’s “Reason and Nature,” appearing two years ago, contained in effect an introduction to a Philosophy of Law. “Law and the Social Order,” however, does not provide the systematic philosophy of law that we have expected. The later book is a set of exemplifications, in the field of Law, for the principles of the earlier work. Cohen’s consummate critical skill was never better displayed. But after all, the book is a record not of battles but of skirmishes: our knight should now advance to the main battle.