Page:The Green Bag (1889–1914), Volume 22.pdf/194

 The Green Bag

178 wakes u

to the knowledge that business

failure, like ﬁre damage, is largely prevent able,. . . swifter rogress will begin to be made in reducing t e burdens of losses which the business community and, through it, the

country at large must bear." Basis of Law. "Review of Current Theories of Jurisprudence." By George H. Smith. 43 American Law Review 821 (Nov.-Dec.). This writer rejects the predominating views of English and American jurists, and substi

of the many modiﬁcations, long been inac curate." British Constitution.

See Government.

Capital and Income. “Economic and Legal Differentiation of Capital and Income." By W. Strachan. 26 Law Quarterly Review 40 (]an.). ' This articleaﬁords an interestin illustra tion of_ the interdependence of Fegal and economic science. “(1) The theory of ‘fund’ or 'ﬂow' forrnu

tutes for the doctrines of Holland, Maine, and

Pollock, a theory which he conceives to have been that of the Roman jurists and to have had its germ in the writings of Aristotle. A large ortion of Mr. Smith's conclusions are undou tedly sound.

A serious defect, how

ever, is the failure to accentuate the existence of a principle which differentiates legal justice from morality. It will not do to confound le al with moral justice, even though the su ject-matter of legal and moral rights be identical. If the state, through its appro priate organs, will take no notice of certain moral rights, it must be because of a principle of legality which determines the policy of the state in setting apart certain rights from others to be erected into a legal system. Such a principle ranks as not less important than any other principle of social conduct. From the ignoring of this principle of legality results rnattention to other important considerations. Not only is there some such principle, which may be considered as one of the folkways, but its mode of application need not a ways be the same. In countries which inherit the traditions of the common law it is applied in the a posleriori spirit,

invariably with an a peal to the experience of the past to determine the actual substance of lega rights. In continental countries it is applied more a priori, with the object of anti crpatin the experience of the future rather than 0 formulating deductions from that of the past. Consequently, a system of juris prudence based only on the broad foundation of ideal moral rights and duties would be utterly foreign to the genius of Anglo-Saxon institutions. Because the classical jurists treated jus gentium as not less truly the law of the state than jus civile, it must not be

assumed that moral and legal rights are equivalent in every system of law. Such a theory of jurisprudence would be both un scientiﬁc and impractical. See Legal Evolution. Bastsrdy.

“Can Parents Give Evidence to

Bastardize Their Issue?" By Wilfrid Hooper. 26 Law Quarterly Review 47 (Jan). "The broad statement that arents cannot

give evidence to bastardize t eir issue was never correct. . . . The more accurate prop osition was that parents could not be per mitted to say after marria e that they did not have access, so as to a ect the status of their issue born within wedlock. Even this more circumspect form has, however, in view

lated by the leading authorit on the subject [Prof. rving Fisher of Yale niversity] pro vides a scientiﬁc and practical working theory for distinguishing capital and income. "(2) Economics shows that income is a detachment from capital. “(3) Law decides by rules adopted in the particular circumstances (the relation of the parties being an important one) whether as a question of fact such detached portion shall be regarded as ‘capital’ or as ‘income,’ using those terms in a popular sense." Causes of Action. "The Materiality of Motive in Litigation." By Garrard Glen. 19 Bench and Bar 106 (Dec.). "The courts will always content themselves with a real plaintiff who will receive some pecuniary beneﬁt as a direct result of his cause of action, should he successfully main tain it, however slight may be that possi bility, or however small the recovery, and the motive of such a liti at under such circum stances in pressing is claim is immaterial. But if the situation is such that the plaintiﬂ cannot receive any advantage of a pecuniary nature whatsoever, as the direct result of his litigation, but instead will have his indemnity from some other source than the only legiti rnate one, the suit in court, then his motive is material in the sense that the court lays its hand upon the real party whose interests constitute the motive of the straw plaintiﬁ, and will deal with the parties accordingly." Chinese Law. See Comparative Jurispru dence.

Codiﬁcation. "A Modern View of the Law Reforms of Jeremy Bentham." By Frederick N. Judson. 10 Columbia Law Review 41 (Jan). "While rofessional opinion since Bentharn's time has n more or less interested in the academic discussion of codiﬁcation, it cannot be said that in either England or the United States there has been any general agreement _ u 11 its feasibility, even in its desirabilit l'ﬁiowever, "we mustor not overlook the fact t ."t there is a form of codiﬁcation going on, per— haps that best suited to the character of our people and our institutions. Thus we have what is known as tacit codiﬁcation, whereby the princi les decided in the adjudged cases are so colated that rules formulated from them become acknowledged and adopted as the statement of the written law. . ..