Volume 1, Number 2 · June 1, 1963
Sovereign Law
By Marshall Cohen
The Sovereign Prerogative: The Supreme Court and the Quest for Law
by Eugene V. Rostow
Yale University Press, $1.95 (paper)
Law, Liberty, and Morality
by H.L.A. Hart
Stanford University Press, $3.00
Dean Rostow's The Sovereign Prerogative is a collection of essays on legal topics as apparently unrelated as the doctrine of 'judicial restraint' and the government's security program. Although Dean Rostow displays a certain hostility to 'academic' philosophers—in particular, it would appear, to Professor Hart and to Mr. Richard Wollheim—the unity of his book derives from the unity of his own, fairly familiar 'philosophy.' Dean Rostow is an American legal realist and, I take it, an American liberal. As a realist Dean Rostow deplores legal formalism and legal positivism—for he takes them to encourage an undesirable separation of law and morals, and a faineant judicial philosophy. Judges, he insists, cannot simply apply rules; they must exercise that 'sovereign prerogative of choice' of which Holmes wrote, and in so doing they will inevitably assert moral and political preferences. As an American liberal Dean Rostow would have the judiciary generally, and the Supreme Court in particular, assert what he takes to be liberal values, and his attitude toward the Court reflects his judgment of its fidelity to them. In what is surely the ablest essay in his collection Dean Rostow indicts the Court for its war-time acquiescence in the relocation of Japanese American citizens. Normally, however, he is complacent about the performance of the Court, and will defend the adequacy of its reasoning in the White Primary, the Restrictive Covenant and the School Segregation cases against all comers—Northern liberals as well as Southern bigots. The legalistic scruples expressed by liberal critics such as Professor Wechsler are traced directly to inadequacies in their legal philosophy.
Review, 2803 words
To read the full text of this piece, please choose one of the following options:
|
If you are already a subscriber to the Review's electronic edition, please sign in: |
To subscribe to the electronic edition, please press the button below. |
To purchase access to this article for $3, please press the button below. |