Digital Commons Network^™

The Function Of Legal Philosophy, Roscoe Pound

Vanderbilt Law Review

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 …

Rudolf Von Jhering, Iredell Jenkins

Vanderbilt Law Review

It is often the fate of the giants of thought to have their names live on while their doctrines are neglected, and even for their reputations to wax as their influence wanes. Indeed, this happens at some periods to the work that all such men leave behind them; it is esteemed but not appreciated, acknowledged but not cultivated. The precise reasons for this fall into oblivion vary with every individual case, but there is one factor that is common and constant: the prominence within the work of these men of ideas that push inquiry beyond the comfortable limits that are …

Gustav Radbruch, Wolfgang Friedmann

Vanderbilt Law Review

As recently as the end of the last World War the name and work of Gustav Radbruch were virtually unknown in the Anglo-American legal world. In 1938 Roscoe Pound, in his encyclopedic survey, "Fifty Years of Jurisprudence," had given a concise account of Radbruch's legal philosophy in the context of his section on "neo-idealism." In 1944 Anton Hermann Chroust wrote a penetrating analysis of Radbruch's philosophy of law, and about the same time the first edition of the present writer's Legal Theory, published on the other side of the Atlantic, included Gustav Radbruch in the survey of major legal philosophers. …

Justice Holmes And The Common-Law Tradition, John C.H. Wu

Vanderbilt Law Review

Briefly, case law may be described as "a method of developing law which preserves the continuity of legal doctrine, and is, at the same time, eminently adaptable to the needs of a changing society." On the whole, it is not far from the truth to say that "it hits the golden mean between too much flexibility and too much rigidity .... -" But what makes it so matter-of-fact and racy of the soil is to be found in Holdsworth's further observation that "this method keeps the law in touch with life, and prevents much unprofitable speculation upon academic problems which …

E. Jordan: Critic And Metaphysician Of Modern Civilization, Andrew J. Reck

Vanderbilt Law Review

Elijah Jordan (1875-1953) was one of the most original social and, legal philosophers in the history of American thought. Jordan spent his life in the midwest, near the rural setting from which he came, serving as professor of philosophy at Butler College in Indianapolis from his appointment in 1913 until his retirement 31 years later. Jordan wrote a half dozen volumes that comprise for American philosophy a unique contribution the full significance of which has still to be measured: The Life of Mind,' Forms of Individuality, Theory of Legislation, The Aesthetic Object, The Good Life Essays in Criticism, and on …

John Dewey--A Philosophy Of Law For Democracy, Jay W. Murphy

Vanderbilt Law Review

On what bases can a philosophy of law be founded which is equal to the task of the democratization of man in the world today? The purpose of this article is to present some suggestions concerning the fuller use of John Dewey's philosophy in this important regard. In addition to an examination of Dewey's theory of justice, it will be suggested that the richness of Dewey's thought and the variety of its uses in legal scholarship and legal education have yet to be felt.

Justice, Language And Communication, Julius Stone, G. Tarello

Vanderbilt Law Review

The present paper has been concerned to stress that jurisprudence, insofar as it is not limited to analytical jurisprudence, dare not overlook the distinctive qualities either of common language, or of the special language of lawyers. For what its authors deny above all is the utility of so defining a field--like the justice-field--which is a segment of common language, in terms of a special language or logical structuring similar to those used by lawyers. Nor do we think that the presence of considerations of justice (and therefore of common language statements) in the process of the operation of law, either …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Conflict of Laws--Implied Warranties Governed by Law of the State Most Closely Associated with the Contract

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Constitutional Law--Due Process--Absolute Statutory Prohibition of the Use of Contraceptives Not a Violation of Rights Secured by Fourteenth Amendment

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Constitutional Law--Freedoms of Speech and Press--Ordinance Prohibiting Distribution of Handbills Without Identification of Author Violates Fourteenth Amendment

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Contracts--Termination--Employment for Indefinite Duration not Terminable for Refusal of Employee to Commit Perjury

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Evidence--Federal Courts--Evidence Obtained by State Officers Through Unreasonable Search and Seizure Inadmissible in Federal Courts

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Judgments--Limitation of Overruling Decision to Parties Before the Court and to Causes of …

Book Reviews, Edgar Bodenheimer, Robert S. Lancaster, Stanley D. Rose, Lloyd B. Urdahl

Vanderbilt Law Review

The Great Legal Philosophers: Selected Readings in Jurisprudence Edited by Clarence Morris. Philadelphia: University of Pennsylvania Press 1959. Pp. 571. $10.00.

reviewer: Edgar Bodenheimer

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Law as Large as Life: A Natural Law for Today and the Supreme Court as its Prophet By Charles P. Curtis. New York: Simon & Schuster. 1959. $3.50.

reviewer: Robert S. Lancaster

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Cases and Materials on Juriprudence By John C. H. Wu. St.Paul: West Publishing Co. 1960. Pp. xliii, 719. $12.00.

reviewer: Stanley D. Rose

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The Law and Legal Theory of the Greeks: An Introduction By J.Walter Jones. New York: Oxford University Press, …

Four Eighteenth Century Theories Of Justice, Clarence Morris

Vanderbilt Law Review

This paper is about an important facet of the justice theories of four eighteenth century European philosophers. The earliest of the four, Hume, thought justice and law were purely human inventions. The next, Montesquieu, said that justice preceded laws because possible relations of justice existed before human ordinances were enacted, and that man, who lives peacefully in the state of nature, invents unjust exploitation after he enters a state of society. Then followed Rousseau who pronounced that contemporary governments had enchained freedom and subverted justice, and whenever a just government did come to power its excellence was doomed to fade. …

Studies In Legal Philosophy, William R. Anderson

Vanderbilt Law Review

The hazards of planning a symposium in the field of jurisprudence derive largely from the fact that the field is itself ill-defined; the legitimate "province of jurisprudence," to use Austin's phrase, has never been fully agreed upon. A historical approach seemed reasonably satisfactory, however, and what follows is a series of studies of some of the great figures in the history of legal philosophy. Happily, no one of our contributors was satisfied with simple exegesis or even with appraising matters of purely historical importance. Each study is an attempt to deal critically with a facet of its subject which is …

Law As Means To End, Thomas E. Davitt S.J.

Vanderbilt Law Review

The importance of a man can be judged by his influence on the thinking of other men. Periodically during the course of the centuries men have appeared who exercised this power to a commanding degree. The presence of "great" names in all fields of human endeavor attests to this...Such a man was Thomas Aquinas. He was a trail blazer in many regards, one of them being especially his work on law. His was the first systematically organized treatise on law and its philosophical roots, and over the years it has been recognized as a masterful accomplishment. Consequently, during succeeding generations …

Plato And The Doctrine Of Natural Law, Hans Kelsen

Vanderbilt Law Review

As a result of the shocks which the existing social orders have experienced through two World Wars and the Russian Revolution, an intellectual movement is becoming increasingly evident in the Western World--one which, in sharp reaction to a scientific-positivistic and relativistic philosophy, aims at a return to metaphysics and theology, and--closely connected with this--to a renewal of the doctrine of natural law. The proponents of this trend believe they find valuable support in the philosophy of Plato, whose authority until recently was virtually uncontested--and in this they are justified. Plato's doctrine of Ideas is the boldest of metaphysical speculations, for …

Austin's Theory Of The Separation Of Law And Morals, Samuel E. Stumpf

Vanderbilt Law Review

The lingering influence of the natural law theory in England brought forth a powerful new philosophy of law. The chief features of this new theory were developed by Hobbes and Bentham and found their most compelling formulation in the works of the "analytical"jurist, John Austin. What concerned these men most was how to deal with the existence of morally bad laws. Sir William Blackstone had said in his Commentaries that the laws of God are superior in obligation to all other laws; that no human laws should be allowed to contradict them; that human laws are of no validity if …

Nietzsche, Thomas A. Cowan

Vanderbilt Law Review

I find that the attempt to assess Nietzsche's value to contemporary jurisprudence is fraught with extreme difficulty. Not only was Nietzsche perhaps the most controversial figure in the history of ideas:' this might have happened to one whose message was simple.But in Nietzsche's case the ideas themselves are highly controversial, paradoxical and even "immoral." Like every great thinker Nietzsche was more provocative to his enemies than to his friends. His enemies took their revenge by burying him under a deluge of refutation and abuse. Apparently Nietzsche was guilty of what might be called the crime of "universal treason." He gave …

The Pure Theory Of Law, Reginald Parker

Vanderbilt Law Review

There is hardly a theory of law about which there exists so much confusion in the minds of so many scholars as about Hans Kelsen's theory, which is commonly known under the name "Pure Theory of Law." If, for instance, a scholar of the stature and standing of Professor Northrop maintains that Kelsen locates the basic norm of the Austrian Constitution of 1920 "in the earliest Constitution of 1867,"'then it seems that there is still room, indeed an intellectual demand, for a brief and simple exposition of Kelsen's theory. We shall attempt it in the following article not without avoiding …

The Legal Philosophy Of Morris R. Cohen, Huntington Cairns

Vanderbilt Law Review

Cohen died in 1947 with five of the numerous books he had planned published. Since that time others have appeared. If he did not live to finish his life's work, he accomplished more than is given to most scholars who teach and participate in the numerous public activities that marked his career. Cohen was not a hopeful man and he would not be attracted by the thought, he once said in conversation, of living life over again--particularly, he added after a pause, if he had to teach mathematics to college students. He was disturbed above everything else by the decline …

American Legal Realism In Retrospect, Hessel E. Yntema

Vanderbilt Law Review

The ultimate question posed by the realistic movement in American jurisprudence is whether the practical conception of legal study and instruction as projected by legal realism, is really practical. There are two considerations among others which suggest that it is not, whether for training or research. The first is that the volume of existent law of any modern industrialized state is too vast and complicated for the human mind to master in all its technical detail and specialization during the brief time allotted. The second is that, even if this were possible, since the legal materials of the time and …

Creditors' Rights And Security Transactions -- 1960 Tennessee Survey, Forrest W. Lacey

Vanderbilt Law Review

Two cases involving mechanic's liens were decided during the period under survey. Rowland v. Lowe' presented the question of the validity of a material men's lien against the owner of land subject to a contract of sale which required the purchaser to erect improvements on the land. In order to protect the vendor's lien, which was to be retained in the deed, the contract provided:

"The purchaser obligates himself to pay all sums for labor and materials in the construction of the improvements on said lot, and in no event shall there be any lien on the lot of ground …

Constitutional Law--1960 Tennessee Survey, James C. Kirby Jr.

Vanderbilt Law Review

Eminent Domain--Just Compensation.-Landowners sued the Tennessee Commissioner of Highways and Public Works for compensation for a taking of property for the state's superhighway program in Brooksbank v. Leech. The trial court sustained a demurrer on the ground that the suit was barred by sovereign immunity. In order to dispose of this question on appeal the supreme court first determined whether the legislature had provided an adequate statutory method for just compensation, the absence of which would have rendered the taking unconstitutional under both article I, section 21, of the Constitution of Tennessee and the due process clause of the United …

Contracts -- 1960 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

During the period covered by this survey, the Tennessee courts have had occasion to decide some rather basic questions in the law of contracts. These cases are the subject of comment. Other cases involving only questions of burden of proof regarding contracts questions have not be commented on.

Automobile Policy Exclusions, A. L. Plummer

Vanderbilt Law Review

The exclusions in the automobile liability insurance policies have required much litigation to clarify and interpret the intent of the draftsmen and underwriter who wrote them. An exclusion takes away or modifies certain coverages given in the insuring agreements. The giving and taking-away provisions of insurance policies are necessary in the making of a limited contract. They tend to avoid duplication of coverage, limit the assumed risk or hazard, avoid underwriting the primary liabilities of others that should be covered by other policy forms, and otherwise limit the scope of coverage. Since 1936 there has been a constant effort by …

Decedents' Estates, Trusts And Future Interests -- 1960 Tennessee Survey, Herman L. Trautman

Vanderbilt Law Review

The subject matter will be discussed under the three principal headings: Decedents' Estates, Trusts, and Future Interests. Since the legislature has not been in session during the year' covered by this survey, the developments in the subject areas of the law consist entirely of appellate court litigation. Most of the cases discussed in the section on Decedents' Estates involve problems of probate administration and procedure; there was only one case involving the substantive right of intestate succession and one case concerning the federal estate tax. The section on Trusts is practically non-existent this year, although one case is mentioned concerning …

Business Associations -- 1960 Tennessee Survey, Kenneth L. Roberts

Vanderbilt Law Review

Two opinions of the court of appeals during the survey period-one unpublished-discussed the fiduciary duties owing by officers and directors to their corporations. In Harriman Welding Supply Co. v. Lake City Lightweight Aggregate Corp.,' Presiding Judge McAmis of the eastern section found occasion to state the principles applicable when the fairness of contracts between two corporations having interlocking directorates is questioned.

Semi-Direct Action Against Liability Insurers: Current Problems, Ronan E. Degnan

Vanderbilt Law Review

The legislatures of the various states of the union have by and large seen fit to forbid actions by an injured party directly against a liability insurer. This limitation, founded upon policy reasons which are doubtless apparent to the reader, has led the interested parties to seek out various indirect or semi-direct methods for reaching the insurance fund. This article is designed to discuss two particularly difficult problems which have arisen because of this semi-direct mode of proceeding: (1) By what appropriate methods can a judgment be obtained against a nonresident tort feasor or his estate so as to create …

Ancillary Rights Of The Insured Against His Liability Insurer, Robert E. Keeton

Vanderbilt Law Review

The primary right of the insured against his liability insurer is the right to reimbursement of loss falling within the coverage defined in the policy. The scope of that right is ordinarily determined by construction of the clauses defining the Bodily Injury Liability and Property Damage Liability Coverages.' The present article is concerned with ancillary rights, arising in part from these and other policy provisions and in part from the relationship created by liability insurance. These rights of the insured are, from the opposite point of view, duties of the insurer--duties concerned principally with settlement of the tort claim or …

Insurance Coverage Against Explosion Damage, William C. Brewer Jr.

Vanderbilt Law Review

Astronomers tell us that the world began with an explosion, and common sense tells us that it may end with one. Today, the explosion is the symbol of the corruption of knowledge. It has always suggested the devastation of property and the tragedy of death, reminding us that man is never in full control of the forces he has loosed for his material benefit. When accidental explosion became frequent enough for consideration by actuaries, it became a natural subject for insurance. It is proposed here to survey the contractual provisions under which explosion may be insured, and to examine briefly …

Conflict Of Laws -- 1960 Tennessee Survey, Elvin E. Overton

Vanderbilt Law Review

A well known text book on Conflict of Laws concludes its opening section with the sentence, "In brief, a Conflict of Laws problem arises whenever a foreign element gets into a legal question." If this definition is accepted, there were about twenty cases of Conflicts of Laws decided during the survey period, in the sense that foreign elements were shown to exist in the facts which appeared. In another sense, there were other cases in which it must be suspected that substantial "other state" contacts existed, but in which no express mention appears of such facts. On the other hand, …

Agency -- 1960 Tennessee Survey, Warren A. Seavey

Vanderbilt Law Review

In Richardson v. Snipes' both parties to an exchange of land employed the plaintiff, the contract providing that the defendant would pay no commission unless the transfer was completed. The other party satisfied the conditions imposed by the defendant, who, however, refused to go through with the exchange. The court properly reversed judgment for the defendant; but the result should not have turned upon the finding of bad faith of the defendant, as the court held. The plaintiff had performed his undertaking which was to provide one who would exchange titles and who would have gone through with the transaction …

Bills And Notes -- 1960 Tennessee Surveys, B. Gilreath

Vanderbilt Law Review

The fact that there was only one reported Tennessee decision during the survey period for 1958, none in 1959 and again only one for 1960, is a high tribute to the settled condition of the law of negotiable instruments, and the knowledge and wisdom of the lawyers of that state. When the law on any subject is settled and known men can make their contracts and engage in their transactions with security; uncertainty breeds doubt, confusion, strife, litigation and loss.