426
The Green Bag
there are several varieties. Dahn said emphati cally in 1878 that a "scientific philosophy of law must be based upon comparative legal study." This latest phase of the philosophical school "presents three types. the so-called Neo-Kan tians, who, on the whole, are philosophical and sociological in tendency, the teleologists or social utilitarians, whose tendency is analytical and sociological, and the Neo-Hegelians, who may be described as historical and sociological in ten dency. . . .
“Just as historical jurists are now of two types, the one historical in the older sense, the
ot er sociological, philosophical jurists are to be recognized as natural-law or metaphysical on the one hand, or social-philosophical (sociological) on the other hand. it is not easy to perceive any real distinction between the advanced types of the two schools." Government. “Government by Judiciary." By L. B. Boudin. Political Science Quarterly. v. 26, p. 238 (June).
carried out, usually meet a cumulative opposi tion that soon becomes strong enough to bring them to a standstill, and often causes some with drawal from their point of farthest advance. So far we have no evidence of such a gathering resistance in Australia — though it possibly may ap r when the proposed amendments to the f eral constitution are put to popular vote." Canada. “Canada's System of Responsibl. Government." By Senator Albert J. Beveridge. McClure'.r, v. 37, p. 330 (July). “Our fundamental law is based on the non party concept. . . . The legislative and execu tive branches of our overnment are decreed to be separate and in ependent. thus prevent
ing any united party government. . . . Speak ing exclusively from the practical point of view, the Canadian legislative and executive branches are inextricably mingled." Great Britain. "The Constitutional Revolu tion, ll." By Prof. J. H. Morgan. Nineteenth Century, v. 69, p. 993 (June).
The writer considers that “the most important
question before the people of this country today is undoubtedly the question of the limits of the power of the judiciary to annul legislation for alleged unconstitutionality." Mr. Roosevelt's criticisms of some of the decisions of our courts are treated with respect, and much attention is given to constitutional history. The author evidently is out of sympathy with the doctrine enunciated in Marbury v. Madison. “As a matter of le al reasoning" that case “has been ronounced
y many eminent thinkers unsatis
actory." In Lochner v. New York, the Supreme Court "assumed the distinctively legislative function of deciding whether circumstances existed which required remedial legislation. “This position is opposed to that which the Court took in Munn v. Illinois. Even in that comparatively late case the Supreme Court held that such an inquiry was part of the functions of the legislature, and none of the Court's busi ness. It said: ‘For our purposes we must assume that if a state of facts could exist that would 'ustify such legislation, it actually did exist when the statute under consideration was passed.’ . . . “To say, in the face of these decisions and the many more that could be cited but for lack of space, that our courts do not exercise any legis lative power, seems like adding insult to injury." Australia. “The Labor Party and the Con stitution in Australia." By Victor S. Clark. Journal of Political Economy, v. 19, p. 479 (June). "The rise to power of the labor party, and the platform it proposes to make into law, are sufli
cient indication that the people of Australia have so far retained confidence in government regulation as a palliative for social ills, and intend
to continue this method of treatment. The arbi tration system has encountered some humiliating defeats. . . . The puzzling thing about the resent public policies of Australia and New £l’ealand is that they have in the course of the past twenty years encountered so little reaction.
Positive and radical programs, when actually
“The reform of the House of Lords should be preceded b the reform of the House of Com mons. Be ore we can decide what the powers of the Upper House are to be we must know what are to be the powers of the Lower House. . . . A reform of the House of Com mons by devolution would, by restoring the control of the House over Bills, put a limit to the necessity of legislation by the departments and of revision by the House of Lords. It would also diminish the area of conflict between the two houses by removin out of the sphere of contention bills—the ottish Land Bill, for example-—which, although commanding the almost unanimous support of the community for which they are intended, are at present treated as mere pawns in the party game between the two houses." “The Royal Prerogative." By C. Harvard Pierson. Fortnightly Review, v. 89, p. 969 (June). _ Describing the nature of the royal preroptiveI its sources and its limitations.
India. “The Government of India." By Theodore H. Boggs. Political Science Quarterly, v. 26, p. 290 (June). A detailed descri tion of the mechanism of the administration of ndia. The writer is of the opinion that “the reforms, both executive and legislative, introduced under the act of 1909, mark a real advance toward the goal of intelli gent self-government by native Indians." See Executive Organization, Direct Govern ment, Federal and State Powers, Federal Courts and Jurisdiction, Local Government.
International Arbitration. “The Outlook for Arbitration." By Sir John MacDonell, C.B. Contemporary Review, v. 99, p. 687 (June).
“It is worth while noting how many questions in which it was said national honor was involved have in fact been successfully settled by arbitra tion or ‘by like means. The opposition to the arbitrations conducted under the Jay Treaty
