I'll take Cohen over KM on 20th century property rights and the legal construction of the public/private binary any day of the week. Btw, at one time Cohen *was* a Marxist...............
Ian ^^^^^^ CB: You can have him. "Was" a Marxist ? Sounds like he was going out of the world backwards. MORRIS R. COHEN (1880-1947) Morris Raphael <http://www.beardbooks.com/morriscohen.jpg> Cohen was born on July 25, 1880, and was a Russian-born philosopher who immigrated at the age of twelve to the United States in 1892 and studied at the City College of New York and Harvard University. He taught at City College (1912-38) and at the University of Chicago (until 1942). A proponent of both rationalism and naturalism, Cohen believed that there is a logical order to the universe independent of any mind, but since the universe also has an irrational aspect, our knowledge of facts is only probable. He considered law as a social system that embodies both the logical use of ideas and continuing reference to facts. Cohen's interest in the philosophy of law and religion dated back to his boyhood, when he was educated in Biblical and Talmudic law and read Maimonides and Judah Halevi's Kuzari. As a young man, he was attracted to Marxian socialism, but his strong belief in democracy helped him to discover other ways of serving the common good and acting in accordance with his social conscience. Felix Adler influenced his approach to ethics; but Cohen was essentially a logician, devoted to mathematical logic and to the investigation of the relationships between science and philosophy. He characterized himself as a realistic rationalist who conceived of reason as "the use of both deductive and inductive inferences working upon the material of experience." He regarded reality as a category that belonged to science, not religion. Cohen died on Janurary 28, 1947. <http://www.beardbooks.com/images/table%20of%20contents.gif> Volume I TABLE OF CASES XV PART I. LEGAL INSTITUTIONS Chapter 1. PROPERTY 5 1. Nature and Type of Property Grotius, War and Peace 7 Blackstone, Commentaries 7 Bentham, Theory of Legislation 8 United States v. Perchernan 9 Ely, Property and Contact 10 Aigler, Bigelow and Powell, Cases and Materials on Property 17 American Law Institute, Restatement of Property 17 International News Service v. Associated Press 18 M.R. Cohen, Property and Sovereignty 26 F.S. Cohen, Transcendental Nonsense and the Functional Approach 34 Philbrick, Changing Conceptions of Property in Law 38 Berle and Means, The Modern Corporation and Private Property 48 2. The Origin and Justification of Private Property The Institutes of Justinian 50 Victoria, De Indis 52 Grotius, War and Peace 55 :Locke, Two Treatises of Government 58 Hamilton, Property -- According to Locke 63 Bentham, Theory of Legislation 67 Kant, Philosophy of Law 70 Hegel, Philosophy of Right 73 Holmes, The Common Law 76 Pound, Introduction to the Philosophy of Law 79 Note on the Vestal Bill for the Copyright Registration of Designs 80 Tawney, The Acquisitive Society 91 Lindsay, The Principle of Private Property 98 2. CONTRACT 100 1. The Nature and Types of Contract The Institutes of Justinian 102 American Law Institute, Restatement of Contracts 105 Civil Code of Spain 106 Kant, Philosophy of Law 109 Hegel, Philosophy of right 130 2. The Social Roots of Contract Lorenzen, Causa and Consideration in the Law of Contracts 123 Maine, Ancient Law 124 M.R. Cohen, The Basis of Contract 125 Williston, Freedom of Contract 129 Llewellyn, What Price Contract -- An Essay in Perspective 133 Kessler, Contract as a Principle of Order 140 3. What Promises Should be Enforced Adkins v. Children's Hospital 147 Home Building and Loan Association v. Blaisdell 150 West Coast Hotel Co. v. Parris 156 Steele, The Uniform Written Obligations Act -- A Criticism 159 Holdsworth, History of English Law 162 Bentham, Theory of Legislation 167 Pound, Liberty of Contract 168 Ely, Property and Contract in their Relations to the Distribution of Wealth 175 Gellhorn, Contracts and Public Policy 181 M.R. Cohen, The Basis of Contract 187 3. TORTS AND LIABILITY 196 1. Definition of Tort Pollock, Law of Torts 198 Bishop, Non-Contract Law 199 Innes, Principles of Torts 200 Burdick, Law of Torts 200 Wigmore, The Tripartite Division of Torts 202 Wigmore, Selected Cases on the Law of Torts 203 2. Analysis of Tort Liability Holmes, The Common Law 204 Winfield, The Foundation of Liability in Tort 209 Salmond, Law of Torts 210 Pollock, Law of Torts 212 Wigmore, The Tripartite Division of Torts 215 Pound, An Introduction to the Philosophy of Law 217 Radin, A Speculative Inquiry into the Nature of Torts 223 3. Damage Pound, Interests of Personality 230 4. Causation A. Legal Act Buch v. Amory Manufacturing Co. 233 Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability 233 B. Proximate Cause Brunner, History of Germanic Law 235 Pollack and Maitland, History of English Law 236 Bacon, Maxims of the Law 237 Palsgraf v. Long Island R.R. Co. 238 Laidlaw v. Sage 243 Edgerton, Legal Cause 244 F.S. Cohen, Field Theory and Judicial Logic 245 C. Culpable Cause Ives v. South Buffalo Ry. Co. 251 Charmont, The Changes in the Civil Law 254 Demogue, Fault Risk and Apportionment of Loss 259 Duguit, General Changes in Private Law Since the Code Napoleon 262 Wu, The Art of Law 265 James, Accident Liability Reconsidered, The Impact of Liability Insurance 266 5. Compensation Bentham, Theory of Legislation 268 4. CRIME AND PUNISHMENT 280 1. Crime A. Nature of Crime Von Bar, A History of Continental Criminal Law 282 Savigny, System of the Modern Roman Law 284 J. Hall, General Principles of Criminal Law 284 M.R. Cohen, Moral Aspects of the Criminal Law 289 B. Causes of Crime Ferri, Criminal Sociology 291 Lombroso, Crime, Its Causes and Remedies 292 Lindner, Rebel Without a Cause 295 Bonger, Criminality and Economic Conditions 296 M.R. Cohen, Moral Aspects of the Criminal Law 300 Lunden, Statistics of Crime and Criminals 303 Von Hentig, The Criminal and His Victim 304 A.C. Hall, Crime and Its Relation to Social Progress 307 Aristotle, Metaphysics 308 C. Criminal Procedure Pound, The Future of the Criminal Law 309 2. Punishment A. Responsibility Tarde, Penal Philosophy 312 B. Purpose of Punishment Kant, Philosophy of Law 320 Hegel, Philosophy of Right 323 Saleilles, The Individualization of Punishment 326 Tourtoulon, Philosophy in the Development of Law 327 Bentham, Theory of Legislation 329 Tarde, Penal Philosophy 334 M.R. Cohen, Moral Aspects of the Criminal Law 336 Michael and Wechsler, Criminal Law and Its Administration 341 C. Types of Punishment Beccaria, Essay on Crimes and Punishment 346 Bentham, Theory of Legislation 352 Poland, Changes in the Criminal Law and Procedure since 1800 355 D. Individualization of Punishment Bede, Ecclesiastical History of the English Nation 358 Saleilles, The Individualization of Punishment 359 M.R. Cohen, Moral Aspects of the Criminal Law 360 E. Alternatives to Punishment Bentham, Theory of Legislation 361 PART II. THE GENERAL THEORY OF LAW 5. THE NATURE OF LAW 369 Aristotle, Basic Works 371 Cicero, De Legibus 376 St. Thomas Aqunas, Summa Theologica 377 St. Germain, A Doctor and a Student 379 Coke, Conference Between King James I and the Judges of England 380 Hobbes, Leviathan 382 Blackstone, Commentaries 384 Savigny, Of the Vocation of our Age for Legislation and Jurisprudence 386 Savigny, System of the Modern Roman Law 389 J.C. Carter, The Proposed Codification of our Common Law 393 Livingston, A System of Penal Law for the State of Louisiana 395 Swift v. Tyson 399 Lorimer, Institutes of Law 401 Austin, Jurisprudence 403 Gray, Nature and Sources of the Law 407 Holmes, The Path of the Law 416 Pound, Law in Book and Law in Action 419 Dernogue, Analyzis of Fundamental Notions 423 Ehrlich, The Fundamental Principles of the Sociology of Law 426 F.S. Cohen, Transcendental Nonsense and the Functional Approach 429 M.R. Cohen, On Absolutisms in Legal Thought 435 6. THE NATURE OF THE JUDICIAL PROCESS 439 Aristotle, Basic Works 440 Rabelais, Gargantua 440 Ehrlich, Judicial Freedom of Decision: Its Principles and Objects 445 M.R. Cohen, The Process of Judicial Legislation 450 Southern Pacific Co. v. Jensen 455 Cardozo, The Nature of the Judicial Process 456 Haines, General Observations on the Effects of Personal, Political, and Economic Influences in the Decisions of Judges 461 Hutchinson, The Judgment Intuitive: The Function of the "Hunch" in Judicial Decisions 467 Llewellyn, A Realistic Jurisprudence -- The Next Step 472 Frank, What Courts Do in Fact 474 F.S. Cohen, Transcendental Nonsense and the Functional Approach 477 7. LEGISLATION 483 1. The Nature and Scope of Legislation Spencer, Over-Legislation 484 Maine, Early History of Institutions 485 T.V. Smith, The Legislative Way of Life 487 Horack, The Common Law of Legislation 491 2. Statutory Interpretation Aristotle, Rhetoric 497 Heydon's Case 498 Pound, Common Law and Legislation 498 M.R. Cohen, The Process of Judicial Legislation 503 Radin, Statutory Interpretation 509 Landis, A Note on "Statutory Interpretation" 514 Frankfurter, Some Reflections on the Reading of Statutes 518 Horack, The Disintegration of Statutory Construction 524 Volume II PART III. LAW AND GENERAL PHILOSOPHY 8. LAW AND LOGIC 529 1. Logic, Experience and Scientific Method Holmes, The Common Law 530 Radin, Law as Logic and Experience 532 Cardozo, Paradoxes of Legal Science 534 Pound, Mechanical Jurisprudence 535 M.R. cohen, The Place of Logic in the Law 540 Dewey, Logical Method and Law 552 Oliphant and Hewitt, From the Physical to the Social Sciences 557 M.R. Cohen, Law and Scientific Method 560 2. The Logical Nature of Legal Propositions and Questions Oliphant, A Return to Stare Decisis 566 F.S. Cohen, Transcendental Nonsense and the Functional Approach 571 Williams, Language and the Law 577 F.S. Cohen, Field Theory and Judicial Logic 580 F.S. Cohen, What is a Question? 586 3. Logic and Ethics F.S. Cohen, The Ethical Basis of Legal Criticism 589 9. LAW AND ETHICS 594 Kant, Philosophy of Law 595 Stammler, Theory of Justice 597 Kelsen, General Theory of Law and State 599 Bentham, Theory of Legislation 599 Russell, the Harm that Good Men Do 610 Russell, Sceptical Essays 614 M.R. Cohen, Reason and Nature 615 F.S. Cohen, Ethical Systems and Legal Ideals 616 F.S. Cohen, Modern Ethics and the Law 646 F.S. Cohen, Transcendental Nonsense and the Functional Approach 653 Garlan, Legal Realism and Justice 655 McDougal, Fuller v. The American Legal Realists: An Intervention 660 10. LAW AND METAPHYSICS 665 Heraclitus, The Fragments 666 Kant, Philosophy of Law 667 M.R. Cohen, A Critique of Kant's Philosophy of Law 670 Kohler, Philosophy of Law 674 Von Jhering, In the Heaven of Legal Concepts 678 Holmes, Natural Law 689 M.R. Cohen, Justice Holmes and the Nature of Law 692 M.R. Cohen, Reason and Nature 696 F.S. Cohen, Field Theory and Judicial Logic 699 PART IV. LAW AND THE SOCIAL SCIENCES 11. LAW AND HISTORY 709 Kant, Idea of a Universal History from a Cosmopolitical Point of View 710 Kant, Perpetual Peace: A Philosophical Essay 720 Pound, Ethical and Religious Interpretations 726 Pound, The Political Interpretation 729 Bigelow and Adams, Centralization and the Law 735 Beard, An Economic Interpretation of the Constitution of the United States 747 Myers, History of the Supreme Court 752 Pound, The Economic Interpretation 753 M.R. Cohen, Roscoe Pound 762 Maitland, The Forms of Action at Common Law 763 C.F. Clark and W.O. Douglas, Law and Legal Institutions 765 Julius Stone, The Myths of Planning and Laissez-faire 723 M.R. Cohen, Tourtoolon 779 M.R. Cohen, History versus Value 782 12. LAW AND ANTHROPOLOGY 785 Myres, The Influence of Anthropology on the Course of Political Science 786 Cairns, Law and the Social Sciences 791 Driberg, At Home with the Savage 794 Malimowski, Crime and Custom in Savage Society 796 Lowie, Incorporeal Property in Primitive Society 798 Lowie, Property Rights and Coercive Powers of Plains Indian Military Societies 802 Hoebel, Primitive Law and Modern 806 Llewellyn and Hoebel, The Cheyenne Way 809 Hallowell, The Nature and Function of Property as a Social Institution 811 13. LAW AND ECONOMICS 823 1. Economic Systems and Their Legal Defenses Maitland, Constitutional History of England 824 Holmes, Law and the Court 826 M.R. Cohen, Socialism and Capitalism 828 Arnold, The Symbols of Government 836 Arnold, The Folklore of Capitalism 838 Berle and Means, The Modern Corporation and Private Property 841 2. Legal Factors in Economic Science Llewellyn, The Effect of Legal Institutions upon Economics 847 R.L. Hale, Economics and Law 853 14. LAW AND POLITICS 860 1. Law and Administration Hewart, The New Despotism 861 Laski, Allen's "Bureaucracy Triumphant" 866 T.R. Powell, Constitutional Metaphors 867 Arnold, Substantive Law and Procedure 870 F.S. Cohen, Colonialism: A Realistic Approach 873 2. Separation and Distribution of Powers Aristotle, Politics 878 Montesquieu, The Spirit of the Law 879 Jefferson, Notes on the State of Virginia 880 Baudin, Government by Judiciary 881 M.R. Cphen, Constitutional and NAtural Rights in 1789 and Since 883 3. Law as Coercion and Law as Consent Hobbes, Leviathan 888 Locke, Two Treatises of Government 890 Bentley, The Process of Government 891 W. Beard, Government by Special Consent 895 M.R. Cohen, The Meaning of Human History 898 T.V. Smith, Consent and Coercion in Governing 903 4. Political Ideals Laski, Foundation of Sovereignty 907 M.R. Cohen, The Future of American Liberalism 913 Index 928
