California Law Review, Inc.

Review
Author(s): Max Radin
Review by: Max Radin
Source: California Law Review, Vol. 17, No. 1 (Nov., 1928), pp. 74-76
Published by: California Law Review, Inc.
Stable URL: http://www.jstor.org/stable/3475998
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74 17 CALIFORNIA LAW REVIEW

was not oppressed, and in fact was not prejudiced in the least by the transaction.
It is true that the California statute provides that "no person, company, etc. shall
directly or indirectly take or receive in money, goods, or things in action, or in any
manner whatsoever any greater sum . . . . for the loan or forbearance of money
than at the rate of twelve dollars upon one hundred dollars .... ." Cal. Stat.
1919, p. lxxxvii. Literally read, the words of the statute would seem to support
the holding of the principal case. But the California statute is in this respect
virtually identical with the New York statute, the Utah statute, and the Wisconsin
statute. N. Y. Laws 1909, c. 25, ? 371; UTAH COM-P. STAT.(1917) tit. 53, ? 3322;
Wis. Stat. 1915 ? 1689. As pointed out above, the statutes of these states have
been construed as not making a transaction like that in the principal case usurious.
In view of these considerations, it is hard to see how the transaction in the
principal case is usurious, unless we are to construe our usury statute as being
enacted for the purpose of penalizing lenders rather than protecting borrowers.

Book Reviews
THE PARADOXES OF LEGALSCIENCE, THE CARPENTIER LECTURES. By
Benjamin N. Cardozo. New York: Columbia University Press.
1928. pp. 141.
Plato's ideal state was one in which philosophers were kings. And
since it is currently reported that we are ruled by judges, we may ob-
serve with satisfaction that some at least of our judges are philosophers.
For certainly the title of philosopher will not be denied to Judge Car-
dozo who in the 1927 Carpentierlectures has at the beginning a quota-
tion from Whitehead and toward the end a reference to Dewey-who
cites Plato and Aristotle, Spinoza and Kant, Vaihinger and Royce, and
who wrestles throughout the book with the tough problems of plurality
and causality, with the paradox of inference and the reality of collec-
tive units.
The lectures are admirable. They exhibit the finesse of mind, the
catholicity of learning, the earnestness of purpose which we are accus-
tomed to take for granted in the Chief Justice of the New York Court
of Appeals. And lawyers who enter with trepidation upon a considera-
tion of philosophicproblems will be consoled by the cases cited on every
page. They will get the comfortable feeling of being led through this
unfamiliar ground by a man who understands them and speaks their
tongue.
We take for granted, as Judge Cordozo does, that law is a variable,
the uncertain result of incompletely calculable forces. It will be well
to rememberthat this view would itself be a paradox to an older genera-
tion which was wont to contrast the faltering and doubtful pronounce-
ments of such poor empiric sciences as physics and chemistry with the
definite and clear principles of law, divine and human. Apparently the
author regrets that this is not true and wishes that it were. I am not
sure that we should all share his regrets. It is no superhumantask to
create a calculus of law. It has often enough been done. The paradox

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 BOOK REVIEWS 75

lies partly in the fact that so many persons continue to want one. The
quality of law that seems to me desirable is its incalculability. Law is
-I cannot imagine it otherwise-a reasonable prediction of what a
judge will say. And if the prediction could not be falsified by the event,
I do not see why we should take the trouble to make it.
In other words one may hazard a doubt whether the movement of
the law is really, as Judge Cardozorepresentsit, directed to an absolute
towards which we yearn. Indeed, among the thousands of metaphors
which seem inevitable in any presentation of legal science, I wonder
whether the least useful is not that which represents law as moving in
a linear direction towards a dimly descried and remote objective. Since
we must have pictures, I trust some adventurous jurist will present us
with the ebb and flow of the tides, the procession of the equinoxes, the
filling and drying of the streams, or some other form of periodicity in
nature. One will do almost as well as another for purposes of exposition,
or as a mnemonic device, and none has much utility beyond that. Per-
haps the source of many of the paradoxes here discussed is the fact
that law is an adaptive mechanism to secure quite diverse results. And
because the characterof an operationis determinedby its end somewhat
more than by its instruments,law is a different thing when it deals with
liberty and government from what it is when it facilitates the trans-
actions of merchants. Perhaps the same human instruments should not
be used to effect such disparate ends.
If the paradoxes Judge Cardozo discusses really arise from the situa-
tion depicted in the phrase-"Fundamental opposites clash and are
reconciled" (pp. 5-7) then I fear we are in a bad way. For, of course,
fundamental opposites cannot be reconciled and it is only in literature
or in a kind of scholastic rhetoric that we pretend that they can. Is
there a real antithesis between stability and progress and are our souls
torn by the struggle between them? It is more than doubtful. What we
desire, one might say, is stability in some things and progress in others.
We rarely wish stability and progress in the same thing. It was by the
efforts of men who styled themselves conservative in most things, that
during the nineteenth century the largest extensions were made in the
procedure by injunction. A contradiction arises only when we create
the abstract term "stability" and set it over against the abstract term
"progress"as two real and unified objective things.
If there were an actual contradictionof fundamentalopposites, clash-
ing before us in very truth, reconciliationwould be impossible and what
we should be compelled to do is choose between them. When precedents
are modified by equity and conscience,we are not compromisingbetween
opposing tendencies, we are rejecting one of them. This is particularly
the case in applying criteria of values, as Judge Cardozo himself shows
us in the wise and lucid pages (pp. 53-66) he devotes to the Science of
Values.
We may illustrate by one of the author's examples that, if there is a
real antithesis, its reconciliation is scarcely feasible. On p. 132, Judge
Cardozo says:
" 'Shall A. answer to B. for the consequences of an act ?' means this and nothing
more, "Shall the freedom of A. to work damage to B. be restrained so as to pre-
serve to B. the freedom to be exempt from damage?' "

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76 17 CALIFORNIA LAW REVIEW

This, I fear, is as little possible as to draw a triangle with four sides.

I suggest as a possible restatement: "In what specific ways may A dam-
age B and in what ways may he not damage him?" or "How many
exemptions from damage by A may we grant B without depriving A of
too many of his powers of inflicting harm, since in a competitive society
this would be a damage to A?"
I regret that Judge Cardozo should characterizeas the "more precise
language of philosophic jurists" the mischievous classification of duties
(p. 44) into those of "perfect and imperfect obligation" determined the
presence or absence of a "correlative right." The term "correlative"is
one of the worst possible words in this connection, since when it means
anything, it means something quite different from what it is supposed to
be, and there is nothing imperfect about a moral obligation which is as
fully and completely the obverse of a moral right as a legal obligation is
of a legal one.
The printer has done well by the author, except that twice (pp. 38,
48) he has omitted the letter o in the Greek word dikaiosyne. There
are also a few instances in which the form of the statement which Judge
Cardozomakes, seems slightly open to objection. So on p. 20, we have:
"Take the rule that a master is liable for the contracts and torts of a
servant within the scope of the apparent authority." "Servant" is not
the best word in this connection, or else "authority"is not. Again when
Judge Cardozo says (p. 40): "Statutes against spite fences have made
neighborliness a duty," and cites Rideout v. Knox (1889) 148 Mass.
368, 19 N. E. 390, to support it, he is by way of forgetting that in that
case, Justice Holmes - to be sure in a dictum - declaredwith emphasis
that no malicious use of property can be prevented which is seasoned
ever so slightly with the expectation of personal advantage. I should
not call this neighborliness.
As a supplemental note, it may be worth while to refer those who
would like to examine the relations of "As-if" to the law (pp. 33-35)
to a little volume of R. Mallachow, Das Als-ob im Jus-Rechtserkenn-
tistheorie und Fiktionslehre, Munich, 1922.
Max Radin.
SCHOOL OF JURISPRUDENCE,
UNIVERSITY OF CALIFORNIA.

STUDIESIN THE LAW OF CORPORATION

FINANCE. By Adolf A. Berle, Jr.
Chicago: Callaghan & Co. 1928. pp. xvii, 199.
This is a scholarly collection of recent articles from various law re-
views written by a New York lawyer who is a lecturer in corporation
finance at Columbia Law School and who has assisted in the drafting
of the new Ohio corporation law. Several of these articles are striking
contributions to the solution of novel problems arising out of the adop-
tion of non-voting and non-par stock and other new forms of securities.
The articles are collected as tentative studies in a field dealing with
the control of management over financial methods and devices, a field
where it is necessary to go ahead of the decided cases, discover under-

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