« AnteriorContinuar »
ation of attorneys; unauthorized practice; privileges, exemptions, disabilities; libel and slander; assignment of counsel by the court; amicus curiae; privileged communications, relation of attorney and client; substitution of attorneys; imputed notice and knowledge; dealings between attorney and client acquiring adverse interests; representing conflicting interests; law partnerships; attorneys as witnesses; admissions by attorneys as evidence; scope of attorney's authority; delegation of authority; ratification of unauthorized acts; authority to compromise or release; authority to appear for litigants; authority in conducting litigation; liability generally; liability for negligence; enforcement of liability; advice of counsel; champerty, barratry and maintenance; right to compensation; contracts for compensation; amount, retention and allowance of compensation; taxable costs and expenses; actions to recover compensation; liens generally; rights and property affected by lien; settlement, dismissal, substitution, assignment and set-off as affecting lien rights; enforcement of liens; prosecuting attorneys; attorneygeneral; suspension and disbarment generally; grounds for disbarment; procedure, judgment and punishment; review of disbarment proceedings; reinstatement.
That every one of these numerous subjects should be treated fully is not to be expected. The first portion of the work, especially, is a scrappy and imperfect summary of facts, learned from secondary sources; and the author's tendency to state a fact or practice as generally true, where he is relying upon an example from a single state, is not commendable. Much may be explained, however, by the fact that the book was published posthumously, and the author was therefore unable to complete parts which he had merely sketched in his original manuscript. As we reach the chapter in which important principles of law appear, we find a much more finished work; an admirable book of its type. It is a digest of decisions, clearly and accurately stated, and following one after the other in good, logical order. The reviewer has not chanced to find a single passage in which an original opinion has been hazarded by the author, or a conflict or doubt solved, a case criticised or explained, or even a reason for a rule given. “It is a general rule that” appears to be the utmost flight of the author's original fancy.
Yet it is withal a good book. Without praising it for what it is not, one may warmly commend it for what it is: a compendium of legal information about attorneys, a key to the cases, an encyclopædic article several years later than any encyclopædia.
J. H. B.
THE EVIDENCE IN THE CASE. By James M. Beck. New York: G. P. Put
nam's Sons. 1914. pp. xxiv, 200. BENDER'S WAR REVENUE LAW, 1914. Albany, N. Y.: Matthew Bender and
Company. 1914. pp. xxviii, 181. BOUVIER'S LAW DICTIONARY. Volumes I, II, and III. By John Bouvier.
Third Revision (eighth edition). By Francis Rawle. St. Paul: West
Publishing Company. 1914. pp. xix, 3504. INTERNATIONAL TRADE AND EXCHANGE. By Harry Gunnison Brown. New
York: The Macmillan Company. 1914. pp. xviii, 197. LIMITATION OF ARMAMENT ON THE GREAT LAKES. Carnegie Endowment for
International Peace. Pamphlet No. 2. Washington: Carnegie Endowment. 1914. pp. vii, 57.
YEAR BOOK FOR 1913-1914. Carnegie Endowment for International Peace.
Washington: Carnegie Endowment. 1914. pp. xviii, 203. COMPILED STATUTES OF THE UNITED STATES, 1913. Volumes I, II, III, IV,
and V. Compiled by John A. Mallory. St. Paul: West Publishing Com
pany. 1914. pp. ciii, v, iv, vii, iii, 5686; 88 1 to 10598. INTRODUCTION TO THE STUDY OF LAW. A Handbook for the Use of Egyptian
Law Students. By Frederic M. Goadby. Second Edition. London:
Butterworth and Company. 1914. pp. XV, 426, 7. NEW JERSEY EMPLOYERS' LIABILITY LAW. By William E. Holmwood. Plain
field, N. J.: The New Jersey Law Journal Publishing Company. 1914.
pp. 227. MANUAL OF EMERGENCY LEGISLATION. Edited by Alexander Pulling. London:
H. M. Stationery Office. 1914. pp. xi, 572; vii, 54. A SUMMARY OF THE LAW OF COMPANIES. By T. Eustace Smith and Charles
Hubert Hicks. Twelfth Edition. London: Stevens and Haynes. 1914. pp. xxiv, 352.
LEGAL system attains its end by recognizing certain in
terests, - individual, public, and social, - by defining the limits within which these interests shall be recognized legally and given effect through the force of the state, and by endeavoring to secure the interests so recognized within the defined limits. It does not create these interests. There is so much truth in the old theories of natural rights. Undoubtedly the progress of society and the development of government increase the demands which individuals may make, and so increase the number and variety of these interests. But they arise, apart from the law, through the competition of individuals with each other, the competition of groups or societies with each other, and the competition of individuals with such groups or societies. The law does not create them, it only recognizes them. Yet it does not have for its sole function to recognize interests which exist independently. It must determine which it will recognize, it must define the extent to which it will give effect to them in view of other interests, – individual, public, or social, — and the possibilities of effective interference by law, and it must devise the means by which they are to be secured. Hence in determining the scope and subject-matter of a legal system we have to consider (1) the interests which it may be asserted the law ought to recognize and to secure; (2) the principles upon which interests are to be selected for such recognition and securing; (3) the principles upon which such interests should be defined and limited for the purposes of legal recognition, or, in other words, the principles upon which conflicting interests should be weighed or balanced in order to determine the extent to which the respective interests are to be given effect; (4) the means by which the law may secure the interests which it recognizes; and (5) the limitations upon effective legal action which preclude complete recognition or complete securing of all these interests to the full extent which ethical considerations might require.
NOTE. The substance of this paper will appear in Chapter IX of a book entitled “Sociological Jurisprudence,” now in preparation.
1 Ritchie, Natural Rights; Spencer, Justice, chs. 9-18; Paulsen, Ethics (Thilly's trans.), 633-637; Green, Principles of Political Obligation, 88 30-31; Lorimer, Institutes of Law, ch. 7; Demogue, Notions fondamentales du droit privé, 405-443; Ahrens, Cours de droit naturel, 8 ed., II, 88 43-88; Hegel, Grundlinien der Philosophie des Rechts, $8 34-104; Fichte, Grundlage des Naturrechts, $$ 18, 19, Erster Anhang, $$ 1-61 (Kroeger's trans., 298–343, 391-469); Beaussire, Les principes du droit, bk. III; Lasson, System der Rechtsphilosophie, $$ 48-56; Boistel, Philosophie du droit, I, 98 96–241; Kohler, Lehrbuch der Rechtsphilosophie, 91-142; Miraglia, Comparative Legal Philosophy (Lisle's Trans.), bk. II, chs. 1, 2.
2 “A man's rights multiply as his opportunities and capacities develop. . . The more civilized the nation, the richer he is in rights.” Miraglia, Comparative Legal Philosophy (Lisle's trans.), 324. The idea here is that interests,
that is, demands of the individual, — increase with increasing civilization, and hence the
Strictly the concern of the law is with social interests, since it is the social interest in securing the individual interest that must determine the law to secure it. But using interest to mean a claim which a human being or a group of human beings may make, it is convenient to speak of individual interests, public interests, that is, interests of the state as a juristic person, — and social interests, – that is, interests of the community at large. This is the order in which they have been recognized in the development of juristic thought.
Although certain great social interests have determined the growth of law from the beginning, individual interests were the first to be worked out critically. The social interest in general security required that these interests be provided for in order to prevent self-redress and private war. For nearly three centuries pressure upon the law to meet these interests increases the scope and character of legal rights.
now, philosophical jurisprudence has devoted itself to this task. The more important of them have become well known to us under the name of natural rights. Usually they have been deduced from the qualities of man in the abstract or from some formula of right or justice. But the practice of jurists has often been sounder than their theories have been. So far as individual interests go, the sociological jurist has little to do beyond essaying to supply a better theoretical foundation.
With respect to public interests, the situation is very different. These were first thought of as individual interests of the personal sovereign and hence were worked out originally in jurisprudence on the analogy of individual interests. Moreover, since the sovereign is, as it were, the guardian of social interests, these also were at first treated as individual interests of the sovereign and worked out on the same analogy of private rights. Hence there is much confused thinking in jurisprudence at this point. General social interests and interests of the state as a juristic person are not differentiated, and both are spoken of as “rights” of the state. The persistence in American public law of the royal prerogative of dishonesty, and the resistance of American lawyers to attempts to introduce ideas on this subject which are familiar to the rest of the world, afford but another instance of the practical effect of theoretical confusion in retarding the growth of the law.
Turning to social interests, the sociological jurist has in a sense a clear field. As such we have only begun to recognize them. Yet the social interest in general security was the first interest secured by the law. It is not too much to say that law came into being to secure this interest. Unhappily, in the nineteenth century legal history was written from an individualist standpoint and was interpreted as a development of restrictions on individual aggression in the interest of individual freedom of action. When
3 At common law the king was parens patriæ, that is, he was guardian of social interests of all kinds and hence his courts of law and equity had a general superintendence of all manner of matters where social interests might be jeopardized. Coke, Second Institute, 199; Blackstone, Commentaries, II, 427, III, 110, 112, 362; Attorney-General v. Newman, 1 Ch. Cas. 157 (1735); Attorney-General v. Richards, 2 Anstr. 603, 606 (1794). As the king enforced the duties imposed to secure these interests, the common-law lawyer naturally thinks here of rights of the state. See Pollock, First Book of Jurisprudence, 3 ed., 64-65.