Reviews of Books argue that there can be any law in the absence of constraint. A man, we will suppose, is under a certain obligation;
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questions of legal theory, the views of Austin and of the late James C. Carter oorning in for a large share of the author's
if he is constrained by the state to fulfill
attention, and those of numerous other
the obligation it is a legal obligation, if he is not so constrained it can be no more than a moral obligation. Kor kunov argues that his fulfillment of the legal obligation may be voluntary, hence constraint cannot be essential. Such a voluntary attitude, however,
juristic writers being criticized from a
does not imply that a man's so acting precludes the existence of constraint,
for he may perceive it to exist and choose not to resist it. It does not cease to be a constrained obligation simply because
point of view which suggests specializa tion in the law as a particular science
and profession rather than broad philo sophical study, and everywhere bears evidence of the hard-headed assimila tion of facts by a mind of ripe legal scholarship.
The author relies largely on illustra tions for the presentation of his points, and the profusion of his examples drawn from a large fund of juristic learning
it is discharged voluntarily. Constraint exists none the less, whether met with consent or with resistance. Moreover,
defect, for the attention of one employing
the constraint which is fundamental
such a method may easily be distracted
to law need not be actually exercised;
from delicate abstract analysis to the clumsier practical means of testing refinements of speculation. Prof. Gray, we say with due deference, could hardly claim to have employed throughout an analytical rather than an empirical method. The value of his contribution is most conspicuous when he is examin ing the theories of Austin or Carter in the light of actual facts drawn from a
it is sufiiciently real because there is the possibility of its exercise and it may be brought into play at any time by resorting to the proper agencies of compulsion.
Having abolished constraint, Kor kunov is aware that he needs some notion
to take its place, to differentiate law from morality, so he adopts the subli
gives the'book a concreteness and vigor all its own.
This quality may have its
mated conception of a command (p. 169).
study of historical and current con
This really involves a latent inconsist ency, for obviously where there is no power to constrain there can be no
power to command. By denying that there is any constraint we are destroying
ditions. Its value is also in evidence when he is discussing such a question as that whether our courts make the law or merely interpret and declare it. In the higher realms of speculation, how
the authority and the sanction of law —
ever, as for example where he is con
it can no longer be a command.
sidering the nature of rights and duties
GRAY’S NATURE AND SOURCES OF THE LAW
in the abstract, Professor Gray’s skill in elucidating a subject by means of concrete illustrations is of little aid,
The Nature and Sources of the Law. By John Chipman Gray. LL.D.. Royall Professor of Law in Harvard University. Columbia University Press. New York. Pp. xii. 292+ appendices and inda 40. ($1.50 an.)
he seems too readily to fall into the
and we may be pardoned for saying that
HIS book, made up of the Carpentier
danger of confusing substantive with remedial rights.
lectures given at Columbia Uni versity in 1908, discusses fundamental
proportionate attention to the metaphy
While the book perhaps devotes dis
