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1 Critical Sketch of Legal Philosophy in America 1937

handle is hein.beal/csklpa0001 and id is 1 raw text is: A CRITICAL SKETCH OF LEGAL PHILOSOPHY IN AMERICA MORRIS R. COHEN THOUGH American experience in lawmaking (and law- breaking) has been extraordinarily rich in novelty and diver- sity, our contributions to legal philosophy have been impressive neither in quality nor in quantity. Wealth of practical experience does not always bring about great achievements in the field of thought. Still, if we take the term philosophy of law not in its technical but in its wider sense, as general reflection on the nature of legal institutions, it has not been completely absent here, though it came near its nadir in the nineteenth century. Such reflection was in fact provoked by the Revolution, and later stim- ulated by controversies on the nature of the Constitution in its relation to the states and the Union. Also, as a nation we have had an unprecedentedly large diversity not only in the legislation of the different states, but also in the interpretations of the com- mon law; and in a few states elements of the (Roman) civil law have entered. The problem of codifying the enormous and grow- ing mass of this judge-made law aroused a good deal of discus- sion in the middle of the nineteenth century, and the topic is now revived in the present attempt by the American Law Institute at a Restatement of the Law. In recent times, prohibition has pro- vided a new and emphatic illustration of the difference between law that is formally enacted and law that is actually enforced, and has brought back the issue of natural rights as limits not only of legislative power but also of the people's right to amerid the Constitution. Indeed, since Theodore Roosevelt, in his message to Congress in 19o8, stated bluntly that our unsatisfactory judicial decisions have resulted from the antiquated philosophy held by MORRis R. COHEN is Professor of Philosophy at the College of the City of New York.

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