Page:The Green Bag (1889–1914), Volume 23.pdf/172

 Reviews of Books KORKUNOV’S THEORY OF LAW General Theory of Law. By N. M. Korkunov, late Professor of Law. University of St. Petersburg. English translation by W. G. Hastings. Dean of the Law Faculty, University of Nebraska. Boston Book Co.. Boston. Pp. xiv. 524 (index). ($3.50.)

HIS treatise by the late Professor Korkunov of the University of St. Petersburg, in its English translation, is one of the few Continental works of permanent importance which have been made accessible to American readers.

Written in 1887, at the beginning of the sociological movement in juristic

morals cannot here be presented and criticized in detail. He connects morals

with the evaluation of interests and law with their limitation.

It is, however,

difiicult to accept any view which treats the evaluation and the limitation of interests as separable. By “limitation" it is plain to be seen that he does not mean physical limitation or constraint, but a moral limitation, for if not physi cal, what can it be but moral? It is hard to see, therefore, how the ﬁeld of morality and of law can be differentiated

science, it is very largely concerned

in this manner. We prefer to Korkunov's

with a review and criticism of earlier Continental jurists, chieﬂy German and

view a different theory, analogous to

Jhering’s, which would treat morals as

French, and the author is also familiar

concerned with the evaluation of in

with

English legal thought.

These

terests and law with their protection.

criticisms are marked by rare discrimina

Or, to express this attitude differently,

tion and sanity, and the author presents

morals are concerned with an ideal limitation of interests, in the sphere of

his own views with an ability which

compels admiration. We have here a Continental point of view, but the metaphysical method is not employed in too idealistic a manner for Anglo Saxon readers.

Moreover, the author

reﬂection, and law with an actual limitation, in the sphere of conduct.

This work, marked by notable vigor of analysis and lucidity of treatment, is least satisfactory in its criticisms of

is a broad-minded man of cosmopolitan culture whose political opinions convey no suggestion of bureaucratic Russia. The publication of this work in America is an important event if it

bute of juridical phenomena" (p. 96). The explanation of his readiness to

foreshadows, as we hope it does, the

adopt such a position is found partly

reproduction

in the broad sense in which he uses the term “law.” If “law” is to mean some

of

standard

European

treatises by jurists of highest repute, in a form accessible to American readers.

A large debt of gratitude is due to Dean Hastings on this score, for his alertness in being one of the ﬁrst of our legal scholars to discover this "Science of Law," and for so pleasantly introducing its author to the American public. Professor Korkunov's argument re

garding the distinction betwe'in law and

Jhering.

Korkunov believes, and labors

to prove, that "constraint is neither a fundamental, nor even a general, ‘attri

thing more than positive law, if it is,

in fact, to instruct men with regard to their duties to one another and to society, it is hardly distinguishable from morality, so the concept of constraint is easily eliminated. But in the Anglo-Saxon

philosophy .“law" and positive law are practically synonymous, and the deﬁ nition being narrower, it is futile to