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Cohen's Influence on Law and Legal Philosophy
Published online by Cambridge University Press: 12 February 2016
Extract
Morris Raphael Cohen, the American philosopher, had a major impact on the development of legal philosophy in the United States and on the law itself. The centenary of his birth (1880–1947) is a fitting occasion to assess his influence on the law.
This paper addresses only a few aspects of Cohen's enormous influence, as a legal philosopher, on American law. Since his day, the changes which he wrought in the law have been taken for granted by lawyers, judges, legal writers and historians.
The following four facets of Cohen's seminal influence on the law will be reviewed. Philosophy of law—what? and why?; Revival of the philosophy of law in the United States; Debunking the legal fiction that judges declare, but do not make, the law; and Substantive legal themes.
- Type
- The Philosophy of Morris R. Cohen - A Symposium
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- Copyright
- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1981
References
1 See Cohen, Morris Raphael, My Philosophy of Law (1940)Google Scholar, reprinted in Reason and Law (1950, 1967, 1970) (hereinafter referred to as RL); The Faith of A Liberal (1946, 1970) chap. 3 and 19 (hereinafter FL); American Thought, A Critical Sketch (1954), edited by Felix S. Cohen, chap. 6 (hereinafter AT); Law and the Social Order (1933, 1967) (hereinafter LSO); Cohen-Rosenfield, Leonora, Portrait of A Philosopher, Morris R. Cohan in Life and Letters (N.Y., Harcourt, 1962)Google Scholar, chap. 6, 14, 15, 16 (hereinafter Portrait); Rosenfield, Leonora C., “Morris R. Cohen, The Teacher” (1957) 18 J. of the History of Ideas 552 CrossRefGoogle Scholar at 554, 565 (hereinafter “Teacher”); Cairns, Huntington, “The Legal Philosophy of Morris R. Cohen” (1960) 14 Vand. L.R. 239–262 Google Scholar; Laski, Harold, “Morris Cohen's Approach to Legal Philosophy” (1948) 15 U. Chic. L.R. 574–587 Google Scholar; Reid, Herbert G., “A Philosopher's Perspective on Law: A Study of Morris R. Cohen” (1971) 16 Am. J. Juris. 242–258 CrossRefGoogle Scholar; Myers, Edward B., “Liberalism and Legal Science: The Jurisprudence of Morris R. Cohen” (1977) 52 Notre Dame Lawyer 653–672.Google Scholar
2 (1913) 10 J. of Philosophy 225, reprinted in RL at 129; RL 135–6.
3 RL, 129.
4 RL, 6.
5 RL, 163. See “Vision & Technique in Philosophy” (1930) 39 Philosophical Review 127; FL at 380. See also Nagel, Ernest, “Morris R. Cohen in Retrospect” (1957) 18 J. Hist. Ideas 548 CrossRefGoogle Scholar at 550.
6 This unpublished fragment, and other referred to hereafter, are from Cohen's unpublished papers.
7 “Absolutisms in Law and Morals” (1936) 84 U.Pa.L.R. 181; RL. 104.
8 Portrait, 192. See also Rosenfield, Leonora Cohen, “Mysticism and Rationalism in Morris Raphael Cohen” (1961) 42 The Personalist 330 Google Scholar at 306–7.
9 A Tribute to Professor Morris Raphael Cohen, Teacher and Philosopher, Published by “The Youth who Sat at his Feet” (N.Y., 1928), 39–40 (hereinafter Tribute).
10 LSO, 351.
11 Cohen, Felix S., “Foreword to The Holmes-Cohen Correspondence” (1948) 9 J. Hist. Ideas 5 Google Scholar; Portrait, Chap. xvi.
12 For this course, Cohen developed Reading in the Philosopher of Law, privately printed, which was enlarged by Morris R. and Felix S. Cohen into Readings in Jurisprudence and Legal Philosophy (published in 1951).
13 For some of the history of the Conference, see A Dreamer's Journey, the Autobiography of Morris Raphael Cohen (1949, 1970) 178 et seq. (hereinafter referred to as DJ).
14 Felix S. Cohen, Preface to AT 14.
15 Portrait 189–190.
16 Portrait 197.
17 See The Holmes-Cohen Correspondence, op. cit., supra n. 11, p. 24; Portrait, chap. xvi.
18 Quoted from Judge Nathan R. Margold, Portrait 186.
19 Felix C. Cohen op. cit., supra n. 11, at p. v.
20 The American Bar Association printed George Sharswood's “An Essay on Professional Ethics” in (1970) 32 Reports of ABA 44–52 dealing with “judicial legislation”.
21 Nathan R. Margold, “Morris R. Cohen as a Teacher of Lawyers and Jurists”, quoted from Foreword by Felix S. Cohen to AT 13.
22 LSO 112. This paper was read at the first Conference on Legal and Social Philosophy, held April 25–26, 1913, and published in (1914) 48 Am. L.R. 161.
23 LSO 112. Even prior to this 1913 paper, in his 1912 paper, he wrote of the “legal fictions… that the judges simply declare and never make the law”. RL 131.
24 LSO 123.
25 LSO 112.
26 LSO 133–4.
27 LSO 138.
28 LSO 144.
29 See, for example: 1916: RL 258; 1924: RL 338; 1927: RL 186; 1932: RL 201 and 357; 1933: RL vi-vii; FL 44 and LSO 246; 1936: FL 176, 180; RL 74; 1941: RL 159.
30 Portrait 264.
31 Ibid., p. 265, See Cohen's comment: “Literally, no one knows what the United States Supreme Court will rule in the next important constitutional case. It depends entirely on the personnel of the Court as to what they will consider to be ‘due process’ or within the ‘police power’…” Introduction to Goldberg, L.P., and Levenson, E., Lawless Judges (1935) viii Google Scholar. Elsewhere he wrote: “The pretense that every decision of the Supreme Court follows logically from the Constitution must, therefore, be characterized as a superstition”. RL 74.
32 “Legal Theories and Social Science” (1915) 25, International J. of Ethics 469 LSO 380–1, n. 86.
33 DJ 176–7.
34 See Cairns, op. cit. supra n. 1, at 258–60. See also Trammel, Jr. v. U.S., 48 LW 4201 (U.S. Sup. Ct. Feb. 27, 1980) unanimously overruling (at least in part) a 1958 decision and thus rejecting the long-standing privilege of a defendant in a criminal case to prevent adverse testimony from a spouse because “… ‘reason and experience’ no longer justify so sweeping a rule as that found acceptable by the Court in Hawkins”. 48 LW 4205.
35 Brown v. Board of Education, 347 U.S. 483, at 494 (1954).
36 Johnson v. Louisiana, 406 U.S. 356, 372 note 9, 376 (1972).
37 Furman v. Georgia, 408 U.S. 238 (1972).
38 Richmond Newspapers, Inc. et al. v. Commonwealth of Virginia, et al., 48 L.W. 5008 (July 7, 1980). For the plurality, the Chief Justice said, among other. things:
“The State argues that the Constitution nowhere spells out a guarantee for the right of the public to attend trials, and that accordingly no such right is protected… [Fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined”. (P. 5014). Mr. Justice Brennan (joined by Mr. Justice Marshall) concurred in the judgment and said: “Under our system, judges are not mere umpires, but, in their own sphere, lawmakers—a coordinate branch of government”. (P. 5019). To this, footnote 20 was appended: “The interpretation and application of constitutional and statutory law, while not legislation, is lawmaking, albeit of a kind that is subject to special constraints and informed by unique considerations…”
39 Quoted from Wermiel, Stephen, “The Philosophical Legacy of William O. Douglas”, Wall St. J., Jan. 25, 1980, p. 6 Google Scholar, col 5.
40 Quoted from Woodward, Bob & Armstrong, Scott, The Brethren, Inside the Supreme Court (1979) 61 Google Scholar. See Linzer, Peter, “The Meaning of Certiorari Denials”, (1979) 79 Colum. L.R. 1227 CrossRefGoogle Scholar, 1269 (“Constitutional law, in which precedent is always open for consideration…”).
41 Prof. Laski wrote Justice Holmes in 1927 that “Morris Cohen was the outstanding legal theorist in America”, quoted from Howe, Mark de Wolfe, ed., Holmes-Laski Letters (1953)Google Scholar.
42 See Konvitz, Milton R., “Morris Raphael Cohen”, The Antioch R., Winter 1947–8 Issue, at 494.Google Scholar
43 Margold, Nathan R., “Morris R. Cohen as a Teacher of Lawyers and Jurists,” in Freedom and Reason, Studies in Philosophy and Jewish Culture (1951) 36–7Google Scholar (hereinafter, FR).
44 RN 400.
45 LSO 46. This was originally published as “Property and Sovereignty”, (1922) 13 Cornell L.Q. 8.
46 LSO 46–7.
47 LSO 47.
48 LSO 49.
49 LSO 51.
50 LSO 56–7.
51 “Communal Ghosts and Other Perils in Social Philosophy” (1918) 16 J. Phil., 673; RN 397.
52 LSO 57.
53 LSO 57, 63.
54 “The Basis of Contract” (1933) 46 Hvd. L. R. 553; LSO 103–4.
55 LSO 105.
56 LSO 74.
57 LSO 79.
58 Cairns, op. cit., supra n. 1, at 260.
59 “Moral Aspects of the Criminal Law” (1940) 49 Yale L.J. 987; RL 18.
60 RN 26.
61 RL 4, 8.
62 Tribute 32.
63 ibid., 38.
64 Life and Mind of Morris R. Cohen, FR 17. See also Schmidhauser, John, The Supreme Court: Its Politics, Personalities and Procedures (1960) 144 Google Scholar; Reid, op. cit. supra a. 1, at 242; Myers, supra a. 1, at 653.
65 See LSO 37. This was originally published in (1916) 6 New Republic 148.
66 Portrait 431.