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The Faculty of Law and the Department of Philosophy of the Hebrew University of Jerusalem found that celebrating the 100th birthday of M.R. Cohen by holding a symposium dealing with his legal philosophy was the best tribute we could pay to the man who spent so much energy telling both lawyers and philosophers that their disciplines could benefit from cross-fertilization. It is a telling fact that both disciplines need that reminder today as much as they needed it then: legal philosophy is considered central neither in law schools nor in philosophy departments. Law schools perceive as their primary tasks the equipping of their students with the tools of the trade: knowledge of the law, coupled with an understanding of legal reasoning and special legal terminology. Since a person can be a very effective lawyer without thinking a lot about the nature of law as a social phenomenon or its function in social life, curricula in law schools often do not include a course in legal philosophy. Departments of philosophy, on the other hand, tend to shy away from “applied” subjects. They offer courses in the history of philosophy, metaphysics, ontology and epistemology, ethics, theory of action and theory of mind. They usually consider law as just another realm of human practical affairs, which does not deserve particular philosophical care.
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- The Philosophy of Morris R. Cohen - A Symposium
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- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1981
References
1 Cohen, M.R., “Jurisprudence as a Philosophical Discipline” (1913) 10 Journal of Phil. 225 Google Scholar; reprinted in Reason and Law (1950) (RL), 129; and his response to Yntema, , “Philosophy and Legal Science”, (1932) 32 Colum. L. R. 1103 Google Scholar, reprinted in Law and the Social Order (1933) (LSO), 219.
2 See, for example, Cohen's comment that although Roscoe Pound was advancing an instrumentalistic conception of law in the period in which there was a lot of pragmatism in American philosophy, neither Pound nor the relevant philo sophers seemed to know or care about the other: RL, pp. 132–33.
3 See e.g. “Legal Philosophy in the Americas”, “Kant's Philosophy of Law”, “Italian Legal Philosophy”, “A French View of Jurisprudence” in RL; and the section on contemporary legal philosophy in LSO, pp. 271–370.
4 One effort of this sort is “Philosophy and Legal Science”, (1932) 32 Colum. L.R. 1103 (LSO, 219).
5 E.g. “‘Real’ and ‘Ideal’ Forces in Civil Law”, (1916) 26 International J. of Ethics 347 (LSO, 248); “Rule v. Discretion”, (1914) 12 J. Phil. 208 (LSO, 259).
6 “Property and Sovereignty” (1927) 13 Cornell. L.Q. 8, reprinted LSO, 41; “The Basis of Contract” (1933) 46 Hvd. L.R. 553, reprinted LSO, 69.
7 “Rule v. Discretion”, supra n. 5; “The Process of Judicial Legislation” (1914) American L.R. 161, reprinted LSO, 112.
8 See his exchange with one of the leading Realists: Yntema, “The Rational Basis of Legal Science” (1931) 31 Colum. L.R. 925, and Cohen's “Philosophy and Legal Science”, supra n. 4.
9 For a comprehensive and penetrating discussion of Cohen and his contributions, see Hollinger, David A., Morris R. Cohen and the Scientific Ideal (MIT Press 1975).Google Scholar
10 Supra n. 6.
11 Much of Cohen's work has lost its relevance to contemporary debate, since it was very clearly linked to the storms of the days when he wrote. These two pieces are also a part of a public debate, but they have retained their value as analyses of two concepts which have always been of central importance to the law. Cohen himself wrote in the context of the American Supreme Court invocation of the “constitutional right to freedom of contract” as the ground for invalidation of laws seeking to limit working hours and establish minimum wages. Anyone familiar with American constitutional law and politics can see how philosophical analysis of that period is still relevant today. Consequently, Cohen's articles are still read with benefit. A specific feature of Cohen's scolarship, which may explain its staying power, is well illustrated in these two articles, as in his other writing: Cohen combined analytical powers with a breadth of sources and knowledge that have practically disappeared from contemporary legal (and to a lesser extend even philosophical) works. Cohen thus did not fall an easy victim to the tendency not to see beyond one age and one tradition. This lends his analysis some immunity from changes of opinion. This breadth of scholarship is stressed by his daughter, by S. Schneider, and by Z. Falk.
12 Supra n. 7.
13 See supra n. 11.
14 See Cohen's, “Absolutisms in Law and Morals” (1936) 84 U. Pa. L.R. 181 Google Scholar, reprinted in RL, 63, which is the starting point of Falk's critical paper in this symposium.
15 Cohen himself was not very systematic about the relationships between law and morals. He did write about “Moral Aspects of the Criminal Law” (RL, 15), and he was aware that a full philosophy had to deal with ethical values, but he never developed an ethical theory of his own. His son, Felix Cohen, went further than his father in his clear commitment to a utilitarian ethical system of evaluating law: Ethical Systems and Legal Ideal (1933). Morris R. Cohen did think that judges, since they inevitably make law, should make it explicitly by taking into account the values which their decisions promoted. On the ultimate basis for evaluation, he defended some version of natural law theories, free of the obscurantism of some versions of this belief: “lus Naturale Redlvivum” (1916) Phil. R. 761. For recent accounts of the debate see Raz, , The Authority of Law (Oxford, 1979)Google Scholar and Finnis, , Natural Law and Natural Right (Oxford, 1980).Google Scholar Finnis's account is in many ways similar to Gans's but the former stresses the moral significance of cooperation rather than its amoral character as stressed by Gans.
16 Some of his more polemical and journalistic pieces were published in the New Republic and similar forums. See, e.g., “Judge Parry on the Law and the Poor”, LSO 3, where Cohen criticizes Parry for expressing a willingness to wait until social evils are remedied by the slow, curing powers of history. Cohen suggests that deliberate social reform is, at least sometimes, clearly superior. These publications include many book reviews and commentaries on current events.
17 On judicial law-making see supra n. 7. On Cohen's alliance with Holmes, Pound and Gray, see Hollinger, supra n. 9, pp. 165–171.
18 See especially his “The Place of Logic in the Law”, (1915) 28 Hvd. L.R. 622 (LSO, 165); “Justice Holmes and the Nature of Law” (1932) 32 Colum. L.R. 352 (LSO, 198).
19 See “Justice Holmes” supra n. 18, pp. 204–08.
20 “Justice Holmes”, Ibid., pp. 208–215; “Philosophy and Legal Science”, supra n. 4. Cohen fought against tendencies towards realism, pragmatism, behaviorism and nominalism in all the realms in which they have obtained popularity. See e.g. “New Realism” (1913) 10 Journal of Philosophy 214; “The New Realism and the Philosophy of Royce” (1916) 25 Philosophical Review 378–82.
21 A notable exception is Dworkin, R., who argues (Taking Rights Seriously, (Harvard, 1977, ch. 2)Google Scholar, that judges do not have discretion “in the strong sense”. In some sense Dworkin goes back to a version of the declarative theory of law, but most of Cohen's arguments, good against the Realists, will not hold against Dworkin's version, which has attracted more than its share of critical response.
22 See e.g. McCormick, Neil, Legal Reasoning and Legal Theory (Oxford, 1978)Google Scholar; Raz, J., “Law and Value in Adjudication” in The Authority of Law (Oxford, 1979), 163–79Google Scholar; Moore, M., “The Semantics of Judging” (1981) 54 S. Cal. L.R. 151–294.Google Scholar