Review

Author(s): Munroe Smith

Review by: Munroe Smith
Source: Political Science Quarterly, Vol. 18, No. 4 (Dec., 1903), pp. 699-702
Published by: The Academy of Political Science
Stable URL: http://www.jstor.org/stable/2140786
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No. 4.]

REVIEWS.

699

continually
pointingout,we have notthe factsbeforeus necessaryto
theformation
of a finaljudgment. For thisreasonalone Mr. Whinery'sbookis an argument
of greatforceforthereform
whichhe persistently
urgesupon his readers:viz.,publicity
of municipalaccounts
framedupona uniform
plan. Onlywhensuchaccountsare accessible
can we solve,e.g., the vexed questionof municipalownership;only
thencan thecitizensof a givencitydetermine
whether
thegovernment
of theirown cityis being conductedwiselyand economically;
for
onlythencan itbe comparedwiththatofothercties. For thisreason,
if forno other,it is to be hopedthatMr. Whinery's
bookwillreacha
widecircleof readers.
F. J. G.

Jurisprudence,
or the Theoryof theLaw. By JOHN W. SALMOND,

Professorof Law in the University

of Adelaide. London,
- xv,673pp.

andHaynes,I902.
Stevens

ProfessorSalmond may perhapsbe classed as belongingto the

natural-lawschoolby sentiment
and to the analyticalby conviction.
If, however,
he be describedas an analvticaljurist,it mustbe added
that he is an independent
memberof the school. Not onlydoes he
refuseto viewlaw as madeup entirely
ofcommands,
buthe pronounces
" theorydefective,
theanalyticalor "imperative
"inasmuchas it disregardsthatethicalelementwhichis an essentialconstituent
of the
completeconception." "Law is notrightalone,or mightalone,but
the perfectunionof the two." This, however,is merelythe "idea"
of law. "The establishedlaw may be far fromcorresponding
acwiththetrueruleofright,noris its legalvalidityin anyway
curately
affected
by any such imperfection"
(pp. 55-59). The authorrecognizes"naturalrights"(pp. 22I, 222), but he does notclearlyindicate
theirnature. He does notanswerthequestionwhichhe putson page
2, whether
"naturallaw, so-called,"is rightly
entitledto thename of
law,but he suggestsan answerby theformof his question,and also
by his remarkthatthe books on naturallaw are "a sufficiently
unprofitable
formof literature."Finally,sinceneithernaturallaw nor
ethicsis includedin his listof "legal" sourcesof thelaw (p. I03), he
apparently
relegatesthemto his alternative
categoryof "historical"
sources. He affirms,
however,
thatinternational
law is reallylaw,not
merelyas a bodyof rulesenforced
withineach stateby its courtsof
justice,but as a bodyof rulescontrolling
therelationsbetweenstates
(p. i). International
law has behindit thesanctionofphysicalforce:

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700

POLITICAL SCIENCE QUARTERLY.

[VOL. XVIII.

"War is the last and mostformidable

of the sanctionswhichin the
societyof nationsmaintainthelaw ofnations"(p. I4).
The authorgives,however,no definition
of law whichwillinclude
all the rules of international
law, or all the rulesof constitutional
law. The onlydefinition
whichhe givesof law is one of " civillaw."
Here he breaksagainwiththe analyticaljurists by the importance
whichhe assignsto judicial decisions:"Civil law," or "law without
anyqualifying
epithet,""consistsof the rulesrecognizedand acted
on in courtsof justice" (pp. 3, ii).
Afterdassifying
the sourcesof
law as " formal"and " material,"and explaining
that" a formalsource
is thatfromwhicha rule of law derivesits forceand validity,"and
that"the materialsourcesuppliesthesubstanceof theruleto which
theformalsourcegivestheforceand natureoflaw," he declaresthat
thereis onlyone "formal"sourceof civillaw, "namely,thewilland
the powerof the state as manifested
in courtsof justice" (p. 99).
Legislationis placed,alongsideofcustom,
precedent,
professional
opinion and convention,
amongthe "material"sourcesof law and in the
sub-classof "legal" sources(p. I03). This is to say that,whenthe
legislature
laysdowna rule,therulelaid downhas neitherthenature
nor the forceof law untilit is recognizedand acted on by a court.
This interesting
theory,
whichseemsto thereviewer
a verydefensible
theory,at least as regardsthatpart of the law whichthe courtsadminister,
is certainly
not Austinian. On the otherhand,the author
findsthatlegislationis supplanting
all the other"material"sources
of law. In thepast,thepersistent
trendofjudicialdecisionfurnished
mostof the law in the formof judicialcustom. To-day,at least in
English-speaking
countries,
singledecisionsfurnishmuchlaw in the
formof precedents.But "so greatis the superiority
of legislation
overall othermethodsoflegalevolution,
thatthetendencyof advancingcivilizationis
to acknowledge
its exclusiveclaim,and to discard
theotherinstruments
as relicsof theinfancyof law" (p. II9).
Here
the authorhas said morethanhe means;for,on pages 124 and 125,
in insisting
that"the wholetendency
in moderntimesis towards
codification,"
he admitsthatcodeswill neverdo awaywithcase-law,
but will merelyreversethe existingrelationbetweencase-lawand
statute-law,
makingthe latterthe principalthingand the former
the
accessory. His suggestion,
however,thatthisnew case-lawmay advantageously
be codifiedfromtimeto timeis quitein linewithBentham'sideals.
Historicaljurisprudence,
whichhas inspiredmostof the reaction
againsttheanalyticalschool,has had littleinfluenceupon Professor

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No. 4.]

REVIEWS.

70I

Salmond'stheories. From his recognition

of the legal characterof
international
law, based upon the factthatits rulesare enforced,
in
thelastinstance,by war,it mightbe inferred
thathe wouldrecognize
earlycustom,enforcedby self-helpand feud,as law also. On the
contrary,
he defendsthe "imperative"theoryagainstthe historical
attack:
If thereare anyrulespriorto and independent
of thestate,theymay
greatlyresemblelaw ; theymaybe the primevalsubstitutes
forlaw;
theymay be the historicalsourcefromwhichlaw is developedand
proceeds;but theyare not themselves
law. There mayhave been a
time,in the far past, whena man was not distinguishable
froman
anthropoid
ape, but thatis no reasonfor nowdefining
a manin such
wiseas to includean ape [p. 54].
There are otherevidencesin thebook thattheauthoris notinterestedin legal history.He misapprehends,
forexample,thecharacter
of the Roman juristicliterature
in placingit in the categoryof mere
professional
opinion(pp. 104, I05). He does not seem to be aware
thatthisjuristicliterature
was alwayspredominantly
a mass of caselaw, or thatin thesecondand thirdcenturies
it becamesubstantially
a judicialdigestof thedecisionsof the supremecourtof the empire.
Again,in writingof Englishequity(pp. 46 et seq.) he notesno historical sourcefortheextraordinary
powersexercisedby the chancellors,
exceptGreekand Roman ideas of equitytransmitted
throughmediawvallegal theory. He does not seem to be aware of the factwhich
Brunnerhas pointedout,thattherightof decidingcases withoutregard to the rulesof the commontriballaw was an attribute
of early
Germanickingship.
The authoris, however,familiarwiththe Germansystematic
literatureof modemRoman law: he knows,forexample,the Pandects
of Windscheidand of Dernburg,and the writings
of Jhering.His
definition
of a rightis Jhering's,
and his discussionof manyspecial
topicshas been advantageously
influenced
by a comparisonof German withEnglishtheories. His chapteron possessionis especially
valuablebecauseof thedearthof Englishliterature
on thistopic.
The book can be recommended
to law studentsand to all persons
in legal theory. If it has not thorough
interested
consistency,
it has
at least coherence. The writerhas workedoutforhimselfa bodyof
fairlytenabletheories,and he sets themforthclearlyand forcibly.
Those who agreewithhimwill findthemselves
furnished
witha convenientset of pigeon-holes
fortheirlegal concepts,and thosewho do

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702

POLITICAL SCIENCE QUARTERLY.

(VOL. XVIII

by his positiveand occasionnot agreewithhimwill be constrained

to formulatetheirdissent. This latter
ally exaggeratedstatements
workcan render.
whicha theoretical
serviceis one of thegreatest
MUNROE SMITH.

Mutual Aid a Factorof Evolution. By P. KROPOTKIN. New

York,McClure,Phillips& Co., 1902.

8vo,xix,348 pp.

The verytitleof thebook showsthata problemof greatscientific

ideas of thework
is approached. Whilethe fundamental
importance
has underKropotkin
new,nobodybefore
are perhapsnot altogether
takenin thisdirectway to statethe role thatmutualaid has played
in evolutionand its relationto the struggleforexistence. Obviously
meanings. It
the term"mutual aid" may conveymany different
as the"sense of justiceand equity,"it mayapply
maybe understood
struggleforexistence,
to a co-operative
of interests,
to a community
to the belliauxitiain the Hobbesiansense. One soon discoversthat
in thevaguestpossibleway.
Kropotkinuses theexpression
beginsby citingcases of mutualsupportamonganimals,
Kropotkin
but greganouscobut in all the cases citedwe fail to see anything
subjectof study)
operationfor a commonpurpose an interesting
frommutualaid forits own
quite different
no doubt,but something
sake. Kropotkinmaintainsthat"mutual aid" is as mucha law of
but that as a factorin evolutionit
animallife as mutualstruggle,
inasmuchas it favors
mostprobablyhas a far greaterimportance,
whichmakeforthesurvival
of habitsand characters
thedevelopment
welfareoftheindividual. This is doubtofthespeciesand thegreatest
failsto provethatmutualaid is the antithesis
less true,butKropotkin
of mutualstruggle. "Mutual aid in struggle"wouldhave been perhaps a bettername forthesecomplexphenomenato which Kropotkin devotesthefirsttwochaptersof his book.
two chaptersdeal withmutualaid amongsavages
The following
and barbarians. To all whohavereadotherworksbythesameauthor
are his b^tesnoires.
it is probablywellknownthatstateand authority
life
of
savages
appearsto himto
naturalthatthesocial
It is therefore
anarchism. Not that he conrepresentthe ideals of communistic
his
but the natureof all sotheories,
sciouslyselectsthe data to suit
life
is such thatit may be
called originalmaterialrelatingto savage
used in supportof almostanyposition.
rightin assertingthatmuKropotkinis, however,unquestionably

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