Readings In Jurisprudence and Legal Philosophy Readings in Jurisprudence and Legal Philosophy
By Morris R. Cohen and Felix S. Cohen
2002/08 - Beard Books - Law Classic
Volume I - 542 pp.
1587981440 - Paperback
Volume II - 576 pp.
1587981475 - Paperback

This anthology will appeal not only to students of the law and philosophy, but also to the general reader who will glean much wisdom from these pages.


Publisher Comments

Category: Law

This title is part of the Legal History list.

Of Interest:

Cardozo and Frontiers of Legal Thinking: With Selected Opinions 

Law: Its Origin, Growth and Function

Legal Lore: Curiosities of Law and Lawyers

Life, Death and the Law

The Reasonableness of the Law

The Rise and Fall of Classical Legal Thought 

Grouped under the broad categories of Legal Institutions, the General Theory of Law, Law and General Philosophy, and Law and Social Sciences, the materials collected by the father and son authors illustrate that ethical issues of the law can be found in courtrooms, legislative halls, and city streets. Jurisprudence illuminates the dark realities of the law, and legal philosophy leads to an understanding of the legal order and its role in human life.

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FELIX S. COHEN (1907-1953)

Felix Solomon Cohen was a lawyer with special interest in natural resources, in statehood and economic development for American territories, in Indian affairs, and in immigration and minority problems. He was a professor of jurisprudence, a civil servant, and an author of numerous articles on law, ethics, and philosophy, on Native Americans and minorities, and on human and natural resources. >From 1933 through 1947 he served in the Solicitor's Office of the Interior Department as an assistant solicitor, associate solicitor, and acting solicitor. He also served as chairman of the Office's Board of Appeals. Cohen drafted the Wheeler-Howard Act (later known as the Indian Reorganization Act) of 1934, and contributed to the department's handling of Indian and Eskimo aboriginal rights. In 1939 Cohen was named Chief of the Indian Law Survey, a joint project of the Lands Division of the Department of Justice and of the Department of Interior to compile all federal laws, treaties, etc., involving Native Americans. Cohen edited a summary of the 46-volume survey, which was published by the Interior Department as The Handbook of Federal Indian Law and remains a milestone in the evolution of Indian law. He received the Department's highest honor--the Distinguished Service Award--on retirement from government service in 1948. 

Cohen re-entered private general law practice in January 1948, but continued to be interested in the legal affairs of Native Americans and immigrants, in human rights, and in natural resources. He eventually associated his Washington, D.C. office with the New York law firm of Riegelman, Strasser, Schwarz & Spiegelberg (which later became known in Washington as Fried, Frank, Harris, Shriver & Kampelman). Cohen handled several importantpro bono Indian cases, particularly lawsuits which established Native Americans' rights to vote (in the last two states that had denied the franchise to them--New Mexico and Arizona), and to receive Social Security benefits in states that denied them such legal rights.

In 1946, Cohen had begun teaching legislative drafting and legal philosophy at Yale University's Law School, and jurisprudence at The City College of New York's Department of Philosophy. Cohen had also taught at the New School for School Research and the University of Newark Law School (later Rutgers Law School). In 1951 he published Readings in Jurisprudence and Legal Philosophy, the syllabus which he developed with his father, Morris R. Cohen, for both their jurisprudence courses (Morris Cohen at St. John's Law School and Felix Cohen at Rutgers and the New School for Social Research).

MORRIS R. COHEN (1880-1947)

Morris Raphael Cohen was born on July 25, 1880, and was a Russian-born philosopher who immigrated at the age of twelve to the United States in 1892 and studied at the City College of New York and Harvard University. He taught at City College (1912-38) and at the University of Chicago (until 1942). A proponent of both rationalism and naturalism, Cohen believed that there is a logical order to the universe independent of any mind, but since the universe also has an irrational aspect, our knowledge of facts is only probable.

He considered law as a social system that embodies both the logical use of ideas and continuing reference to facts. 

Cohen's interest in the philosophy of law and religion dated back to his boyhood, when he was educated in Biblical and Talmudic law and read Maimonides and Judah Halevi's Kuzari. As a young man, he was attracted to Marxian socialism, but his strong belief in democracy helped him to discover other ways of serving the common good and acting in accordance with his social conscience.

Felix Adler influenced his approach to ethics; but Cohen was essentially a logician, devoted to mathematical logic and to the investigation of the relationships between science and philosophy. He characterized himself as a realistic rationalist who conceived of reason as "the use of both deductive and inductive inferences working upon the material of experience." He regarded reality as a category that belonged to science, not religion. Cohen died on Janurary 28, 1947.

Volume I

1. Nature and Type of Property
Grotius, War and Peace 7
Blackstone, Commentaries 7
Bentham, Theory of Legislation 8
United States v. Perchernan 9
Ely, Property and Contact 10
Aigler, Bigelow and Powell, Cases and Materials on Property 17
American Law Institute, Restatement of Property 17
International News Service v. Associated Press 18
M.R. Cohen, Property and Sovereignty 26
F.S. Cohen, Transcendental Nonsense and the Functional Approach 34
Philbrick, Changing Conceptions of Property in Law 38
Berle and Means, The Modern Corporation and Private Property 48
2. The Origin and Justification of Private Property
The Institutes of Justinian 50
Victoria, De Indis 52
Grotius, War and Peace 55
:Locke, Two Treatises of Government 58
Hamilton, Property -- According to Locke 63
Bentham, Theory of Legislation 67
Kant, Philosophy of Law 70
Hegel, Philosophy of Right 73
Holmes, The Common Law 76
Pound, Introduction to the Philosophy of Law 79
Note on the Vestal Bill for the Copyright Registration of Designs 80
Tawney, The Acquisitive Society 91
Lindsay, The Principle of Private Property 98
1. The Nature and Types of Contract
The Institutes of Justinian 102
American Law Institute, Restatement of Contracts 105
Civil Code of Spain 106
Kant, Philosophy of Law 109
Hegel, Philosophy of right 130
2. The Social Roots of Contract
Lorenzen, Causa and Consideration in the Law of Contracts 123
Maine, Ancient Law 124
M.R. Cohen, The Basis of Contract 125
Williston, Freedom of Contract 129
Llewellyn, What Price Contract -- An Essay in Perspective 133
Kessler, Contract as a Principle of Order 140
3. What Promises Should be Enforced
Adkins v. Children's Hospital 147
Home Building and Loan Association v. Blaisdell 150
West Coast Hotel Co. v. Parris 156
Steele, The Uniform Written Obligations Act -- A Criticism 159
Holdsworth, History of English Law 162
Bentham, Theory of Legislation 167
Pound, Liberty of Contract 168
Ely, Property and Contract in their Relations to the Distribution of Wealth 175
Gellhorn, Contracts and Public Policy 181
M.R. Cohen, The Basis of Contract 187
1. Definition of Tort
Pollock, Law of Torts 198
Bishop, Non-Contract Law 199
Innes, Principles of Torts 200
Burdick, Law of Torts 200
Wigmore, The Tripartite Division of Torts 202
Wigmore, Selected Cases on the Law of Torts 203
2. Analysis of Tort Liability
Holmes, The Common Law 204
Winfield, The Foundation of Liability in  Tort 209
Salmond, Law of Torts 210
Pollock, Law of Torts 212
Wigmore, The Tripartite Division of Torts 215
Pound, An Introduction to the Philosophy of Law 217
Radin, A Speculative Inquiry into the Nature of Torts 223
3. Damage
Pound, Interests of Personality 230
4. Causation

A. Legal Act

Buch v. Amory Manufacturing Co. 233
Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability 233

B. Proximate Cause

Brunner, History of Germanic Law 235
Pollack and Maitland, History of English Law 236
Bacon, Maxims of the Law 237
Palsgraf v. Long Island R.R. Co. 238
Laidlaw v. Sage 243
Edgerton, Legal Cause 244
F.S. Cohen, Field Theory and Judicial Logic 245

C. Culpable Cause

Ives v. South Buffalo Ry. Co. 251
Charmont, The Changes in the Civil Law 254
Demogue, Fault Risk and Apportionment of Loss 259
Duguit, General Changes in Private Law Since the Code Napoleon 262
Wu, The Art of Law 265
James, Accident Liability Reconsidered, The Impact of Liability Insurance 266
5. Compensation
Bentham, Theory of Legislation 268
1. Crime

A. Nature of Crime

Von Bar, A History of Continental Criminal Law 282
Savigny, System of the Modern Roman Law 284
J. Hall, General Principles of Criminal Law 284
M.R. Cohen, Moral Aspects of the Criminal Law 289

B. Causes of Crime

Ferri, Criminal Sociology 291
Lombroso, Crime, Its Causes and Remedies 292
Lindner, Rebel Without a Cause 295
Bonger, Criminality and Economic Conditions 296
M.R. Cohen, Moral Aspects of the Criminal Law 300
Lunden, Statistics of Crime and Criminals 303
Von Hentig, The Criminal and His Victim 304
A.C. Hall, Crime and Its Relation to Social Progress 307
Aristotle, Metaphysics 308

C. Criminal Procedure

Pound, The Future of the Criminal Law 309
2. Punishment

A. Responsibility

Tarde, Penal Philosophy 312

B. Purpose of Punishment

Kant, Philosophy of Law 320
Hegel, Philosophy of Right 323
Saleilles, The Individualization of Punishment 326
Tourtoulon, Philosophy in the Development of Law 327
Bentham, Theory of Legislation 329
Tarde, Penal Philosophy 334
M.R. Cohen, Moral Aspects of the Criminal Law 336
Michael and Wechsler, Criminal Law and Its Administration 341

C. Types of Punishment

Beccaria, Essay on Crimes and Punishment 346
Bentham, Theory of Legislation 352
Poland, Changes in the Criminal Law and Procedure since 1800 355

D. Individualization of Punishment

Bede, Ecclesiastical History of the English Nation 358
Saleilles, The Individualization of Punishment 359
M.R. Cohen, Moral Aspects of the Criminal Law 360

E. Alternatives to Punishment

Bentham, Theory of Legislation 361
Aristotle, Basic Works 371
Cicero, De Legibus 376
St. Thomas Aqunas, Summa Theologica 377
St. Germain, A Doctor and a Student 379
Coke, Conference Between King James I and the Judges of England 380
Hobbes, Leviathan 382
Blackstone, Commentaries 384
Savigny, Of the Vocation of our Age for Legislation and Jurisprudence 386
Savigny, System of the Modern Roman Law 389
J.C. Carter, The Proposed Codification of our Common Law 393
Livingston, A System of Penal Law for the State of Louisiana 395
Swift v. Tyson 399
Lorimer, Institutes of Law 401
Austin, Jurisprudence 403
Gray, Nature and Sources of the Law 407
Holmes, The Path of the Law 416
Pound, Law in Book and Law in Action 419
Dernogue, Analyzis of Fundamental Notions 423
Ehrlich, The Fundamental Principles of the Sociology of Law 426
F.S. Cohen, Transcendental Nonsense and the Functional Approach 429
M.R. Cohen, On Absolutisms in Legal Thought 435
Aristotle, Basic Works 440
Rabelais, Gargantua 440
Ehrlich, Judicial Freedom of Decision: Its Principles and Objects 445
M.R. Cohen, The Process of Judicial Legislation 450
Southern Pacific Co. v. Jensen 455
Cardozo, The Nature of the Judicial Process 456
Haines, General Observations on the Effects of Personal, Political, and Economic Influences in the Decisions of Judges 461
Hutchinson, The Judgment Intuitive: The Function of the "Hunch" in Judicial Decisions 467
Llewellyn, A Realistic Jurisprudence -- The Next Step 472
Frank, What Courts Do in Fact 474
F.S. Cohen, Transcendental Nonsense and the Functional Approach 477
1. The Nature and Scope of Legislation
Spencer, Over-Legislation 484
Maine, Early History of Institutions 485
T.V. Smith, The Legislative Way of Life 487
Horack, The Common Law of Legislation 491
2. Statutory Interpretation
Aristotle, Rhetoric 497
Heydon's Case 498
Pound, Common Law and Legislation 498
M.R. Cohen, The Process of Judicial Legislation 503
Radin, Statutory Interpretation 509
Landis, A Note on "Statutory Interpretation" 514
Frankfurter, Some Reflections on the Reading of Statutes 518
Horack, The Disintegration of Statutory Construction 524

Volume II

1. Logic, Experience and Scientific Method 
Holmes, The Common Law 530
Radin, Law as Logic and Experience 532
Cardozo, Paradoxes of Legal Science 534
Pound, Mechanical Jurisprudence 535
M.R. cohen, The Place of Logic in the Law 540
Dewey, Logical Method and Law 552
Oliphant and Hewitt, From the Physical to the Social Sciences 557
M.R. Cohen, Law and Scientific Method 560
2. The Logical Nature of Legal Propositions and Questions
Oliphant, A Return to Stare Decisis 566
F.S. Cohen, Transcendental Nonsense and the Functional Approach 571
Williams, Language and the Law 577
F.S. Cohen, Field Theory and Judicial Logic 580
F.S. Cohen, What is a Question? 586
3. Logic and Ethics
F.S. Cohen, The Ethical Basis of Legal Criticism 589
Kant, Philosophy of Law 595
Stammler, Theory of Justice 597
Kelsen, General Theory of Law and State 599
Bentham, Theory of Legislation 599
Russell, the Harm that Good Men Do 610
Russell, Sceptical Essays 614
M.R. Cohen, Reason and Nature 615
F.S. Cohen, Ethical Systems and Legal Ideals 616
F.S. Cohen, Modern Ethics and the Law 646
F.S. Cohen, Transcendental Nonsense and the Functional Approach 653
Garlan, Legal Realism and Justice 655
McDougal, Fuller v. The American Legal Realists: An Intervention 660
Heraclitus, The Fragments 666
Kant, Philosophy of Law 667
M.R. Cohen, A Critique of Kant's Philosophy of Law 670
Kohler, Philosophy of Law 674
Von Jhering, In the Heaven of Legal Concepts 678
Holmes, Natural Law 689
M.R. Cohen, Justice Holmes and the Nature of Law 692
M.R. Cohen, Reason and Nature 696
F.S. Cohen, Field Theory and Judicial Logic 699
Kant, Idea of a Universal History from a Cosmopolitical Point of View 710
Kant, Perpetual Peace: A Philosophical Essay 720
Pound, Ethical and Religious Interpretations 726
Pound, The Political Interpretation 729
Bigelow and Adams, Centralization and the Law 735
Beard, An Economic Interpretation of the Constitution of the United States 747
Myers, History of the Supreme Court 752
Pound, The Economic Interpretation 753
M.R. Cohen, Roscoe Pound 762
Maitland, The Forms of Action at Common Law 763
C.F. Clark and W.O. Douglas, Law and Legal Institutions 765
Julius Stone, The Myths of Planning and Laissez-faire 723
M.R. Cohen, Tourtoolon 779
M.R. Cohen, History versus Value 782
Myres, The Influence of Anthropology on the Course of Political Science 786
Cairns, Law and the Social Sciences 791
Driberg, At Home with the Savage 794
Malimowski, Crime and Custom in Savage Society 796
Lowie, Incorporeal Property in Primitive Society 798
Lowie, Property Rights and Coercive Powers of Plains Indian Military Societies 802
Hoebel, Primitive Law and Modern 806
Llewellyn and Hoebel, The Cheyenne Way 809
Hallowell, The Nature and Function of Property as a Social Institution 811
1. Economic Systems and Their Legal Defenses
Maitland, Constitutional History of England 824
Holmes, Law and the Court 826
M.R. Cohen, Socialism and Capitalism 828
Arnold, The Symbols of Government 836
Arnold, The Folklore of Capitalism 838
Berle and Means, The Modern Corporation and Private Property 841
2. Legal Factors in Economic Science
Llewellyn, The Effect of Legal Institutions upon Economics 847
R.L. Hale, Economics and Law 853
1. Law and Administration
Hewart, The New Despotism 861
Laski, Allen's "Bureaucracy Triumphant" 866
T.R. Powell, Constitutional Metaphors 867
Arnold, Substantive Law and Procedure 870
F.S. Cohen, Colonialism: A Realistic Approach 873
2. Separation and Distribution of Powers
Aristotle, Politics 878
Montesquieu, The Spirit of the Law 879
Jefferson, Notes on the State of Virginia 880
Baudin, Government by Judiciary 881
M.R. Cphen, Constitutional and NAtural Rights in 1789 and Since 883
3. Law as Coercion and Law as Consent
Hobbes, Leviathan 888
Locke, Two Treatises of Government 890
Bentley, The Process of Government 891
W. Beard, Government by Special Consent 895
M.R. Cohen, The Meaning of Human History 898
T.V. Smith, Consent and Coercion in Governing 903
4. Political Ideals
Laski, Foundation of Sovereignty 907
M.R. Cohen, The Future of American Liberalism 913
Index 928

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