Jurisprudence: Readings and Cases

The Catholic Lawyer Volume 13 Number 2 Volume 13, Spring 1967, Number 2 Article 9 Jurisprudence: Readings and Cases Dr. Miriam Theresa Rooney Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Jurisprudence Commons, and the Natural Law Commons This Book Review is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. BOOK REVIEW JURISPRUDENCE: READINGS AND CASES by Mark R. MacGuigan University of Toronto Press, Toronto, Ontario, Canada, 1966. Pp. 666. $20.00 Reviewed by DR. MIRIAM THERESA ROONEY * This is a worthwhile book. It is or- an Appendix, reviewing the present ganized in less than 700 pages, and is trends and prospects for Jurisprudence in therefore compact enough for basic class- Canada, where Common Law and Civil room use. Within such a limited space Law co-exist under one Constitution, it is amazingly comprehensive. Further- complete the presentation. more, it concentrates upon the problems Although the compiler includes ex- of Jurisprudence of the 1960's, without tensive excerpts from many of the books omitting indications of the more impor- which have become classics in Anglo- tant historical antecedents. American juridical thought, and consist- All the materials, which are highly ently presents them in a respectful and relevant, are skillfully edited, and ar- judicious manner, which ensures the use- ranged in a sequential order of cogency fulness of the book no matter what view- upon points currently at issue. They are point the reader prefers, he nevertheless divided into four principal chapters: 1) does not fail to take a strong realist Positivism; 2) Natural Law Thought; position of his own in the comments in- 3) Sociological Jurisprudence; and 4) terspersed throughout. Indeed the cri- Judicial Process. An Introduction, and tiques and contributions he makes in this way, in addition to his skillful choice of * Professor of Law, Seton Hall University representative expositions of influential School of Law. arguments, are sufficient to accredit him as 13 CATHOLIC LAWYER, SPRING 1967 a creative author, rather than as a mere position today to a revival of the so- compiler. His work therefore constitutes called natural law than was the situation an important event in this difficult branch in the 1920's and '30's when the new res- of contemporary thought. tiveness set in. The need for a scale of One of the curious phenomena of the values or priorities in measuring the ef- universities in the common-law world, fectiveness of the judicial process has noted by the compiler, who is competent raised anew the question of the relation in both fields, is the divergent directions of law to morals, while the insistance on manifest between philosophy departments facts, and ever more facts, has required and law school teaching. In Canada, for the sort of reconciliation between facts example, Scottish idealism still dominates and values which realism offers. Whether the Philosophy courses offered, while Jur- one rereads Hobbes, Bentham and Austin, isprudence is hurrying to catch up with or Hume, Kant and Hegel, the conviction advances in Economics and Psychology. grows that their works are definitely However, neither appears to be concerned dated, with little to say to an age of with the realism that the Papal Encyclicals increasing personal responsibility for more refer to as "the new Jurisprudence." Of just law and government. course, confusion, and not clarification of As a teaching tool, designed to chal- aspirations, is the result. lenge the thinking of students who are Notwithstanding the notorious lag in likely to be practicing law in the twenty- law and in legal theory which befogs the first century, this book is to be highly advancement of the juridical order toward recommended. The history of collected meeting needs, a review of the teaching readings, and of cases, of jurisprudential materials that have appeared in the significance is itself of recent origin. Begin- twentieth century discloses a definite shift ning with Jerome Hall's Readings in Juris- from the static to the dynamic. Especially prudence (Bobbs-Merrill) in 1937, the after World War I, and again after World convenience of having various quotations War II, reported decisions, no less than within one cover for class reference has books and articles, have stressed facts proved increasingly attractive. Especially rather than precedents, thereby opening desirable has been this means of introduc- the way for law to incorporate some of ing the neophyte to the style of influential the features of the scientific revolution. writers as presented in their own words, in- Sociological Jurisprudence has been stead of by hearsay evidence. Earlier there widely welcomed as a replacement for had been little other than Roscoe Pound's the hitherto prevailing positivism. A re- bibliographical guides to expand the stu- examination of the judicial process, in dent's horizon beyond the traditional di- preference to substantive law only, has dactic method, limiting the required text been looked upon hopefully, as pre- to a single viewpoint in wrestling with senting a means for reducing the lag. many-sided problems. However, experimentation in that di- Although treatise writers in the com- rection has not proved adequate. Con- mon-law system have never attained the sequently, there appears to be less op- authoritative position among the rec- BOOK REVIEW ognized sources of law that they have British, Irish, and Australian students, no with the civilians, the course in Juris- less than those of Upper Canada and prudence has frequently devoted much Quebec, the latest writings. It may also more attention to treatise writers and serve comparative law purposes. Indeed, theorists than to judicial opinions as re- if the Italians, Germans, French, Rus- ported in the cases. Yet it is the juris- sians, Spanish, and Japanese want to have prudence implicit or explicit in the reports the perplexing Anglo-American views which authoritatively shifts the direction systematically presented in a single vol- of the law. The real problem for the ume, this is the book to meet their teacher of jurisprudence-unfortunately need. not always recognized-is how best to For the professor of Jurisprudence who prepare students to pick out the juris- must introduce the subject to law school prudential tendencies latent in the reason- seniors through a broad survey of men ing of the judges. For this skill not and ideas, and touch upon the high points, merely a few illustrative cases were need- at least, in the progress of juridical ed, but a well organized casebook, com- thought, notwithstanding the time lim- parable in form and content to the case- itations put upon a course in which no bar books which have become familiar in sub- examiner nor bread and butter client is stantive law courses since Langdell's day, likely to raise a specific question, a back in 1870. course book which will save wear and Although some judicial opinions were tear on the library staff and yet give a quoted in the books of readings from comprehensive guide to the most flavorful 1937 onwards, it was not until 1958, with writers, has been much needed. So many the publication of the pioneer casebook names, through so many centuries, must presented by Dr. John C. H. Wu (West be mentioned that a confusing eclecticism Publishing Co.) that the needed emphasis can result. Since there has been practic- on the opinions of the judges, whether ally no agreement upon materials, prob- ratio decidendi or obiter dictum, was in- lems, or methods in teaching the course, troduced among the pedagogical tools each teacher is called upon to improvise. available for student training in the an- The experience of one professor (this re- alysis and synthesis of juridical founda- viewer) has been that a biographical pre- tions. It is upon the novel experimenta- sentation is preferable to a topical ar- tion of such compilers of readings, and rangement. A list of jurists to be dis- cases, as Jerome Hall, Lon Fuller (Prob- cussed having been announced, students lems in Jurisprudence, Foundation Press), are asked to select from the list at least and John C. H. Wu, that Dr. MacGuigan one name, to ascertain pertinent bio- has built his own structure. graphical data in context, then read, This has been designed primarily to as- summarize, and evaluate the more import- sist present and future law students in ant writings of the jurist chosen, and Canada to grasp the significance of mod- present an oral report for about a half ern jurisprudential developments, but is hour, subject to questions and com- well suited to bring before American, ment from the class. The professor sup- 13 CATHOLIC LAWYER, SPRING 1967 plements or clarifies statements made in Usually differences in emphasis occur, the oral report. Active class participation which is to be expected because of the is encouraged by announcing that the final lack of consensus generally about the examination in the course will involve course. With this book an astonishing detailed knowledge of the writers dis- amount of agreement is found. Even cussed, and that acquisition of the neces- excerpts from Thomas Aquinas, and from sary knowledge may come from consulta- the Encyclical, Pacein in Terris (which, tion with the class expert who has pre- together with the other three major social pared the report, or from personal library Encyclical Letters of the modern Popes, research, or both. The final examination, are regularly assigned for term papers in in fact, includes case situations, hypo- the midst of the biographically oriented thetical or actual, mentioned during the course) are made available within the cov- course, followed by the usual query: what ers of the MacGuigan book.

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