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"War is the last and most formidable of the sanctions which in the society of nations maintain the law of nations" (p. 14).

The author gives, however, no definition of law which will include all the rules of international law, or all the rules of constitutional law. The only definition which he gives of law is one of "civil law." Here he breaks again with the analytical jurists by the importance which he assigns to judicial decisions: "Civil law," or "law without any qualifying epithet," "consists of the rules recognized and acted on in courts of justice" (pp. 3, 11). After classifying the sources of law as "formal" and "material," and explaining that "a formal source is that from which a rule of law derives its force and validity," and that "the material source supplies the substance of the rule to which the formal source gives the force and nature of law," he declares that there is only one "formal" source of civil law, "namely, the will and the power of the state as manifested in courts of justice" (p. 99). Legislation is placed, alongside of custom, precedent, professional opinion and convention, among the "material" sources of law and in the sub-class of "legal" sources (p. 103). This is to say that, when the legislature lays down a rule, the rule laid down has neither the nature nor the force of law until it is recognized and acted on by a court. This interesting theory, which seems to the reviewer a very defensible theory, at least as regards that part of the law which the courts administer, is certainly not Austinian. On the other hand, the author finds that legislation is supplanting all the other "material" sources of law. In the past, the persistent trend of judicial decision furnished most of the law in the form of judicial custom. To-day, at least in English-speaking countries, single decisions furnish much law in the form of precedents. But "so great is the superiority of legislation over all other methods of legal evolution, that the tendency of advancing civilizationis to acknowledge its exclusive claim, and to discard the other instruments as relics of the infancy of law" (p. 119). Here the author has said more than he means; for, on pages 124 and 125, in insisting that "the whole tendency in modern times is towards . . . codification," he admits that codes will never do away with case-law, but will merely reverse the existing relation between case-law and statute-law, making the latter the principal thing and the former the accessory. His suggestion, however, that this new case-law may advantageously be codified from time to time is quite in line with Bentham's ideals.

Historical jurisprudence, which has inspired most of the reaction against the analytical school, has had little influence upon Professor

Salmond's theories. From his recognition of the legal character of international law, based upon the fact that its rules are enforced, in the last instance, by war, it might be inferred that he would recognize early custom, enforced by self-help and feud, as law also. On the contrary, he defends the "imperative" theory against the historical attack:

If there are any rules prior to and independent of the state, they may greatly resemble law; they may be the primeval substitutes for law; they may be the historical source from which law is developed and proceeds; but they are not themselves law. There may have been a time, in the far past, when a man was not distinguishable from an anthropoid ape, but that is no reason for now defining a man in such wise as to include an ape [p. 54].

There are other evidences in the book that the author is not interested in legal history. He misapprehends, for example, the character of the Roman juristic literature in placing it in the category of mere professional opinion (pp. 104, 105). He does not seem to be aware that this juristic literature was always predominantly a mass of caselaw, or that in the second and third centuries it became substantially a judicial digest of the decisions of the supreme court of the empire. Again, in writing of English equity (pp. 46 et seq.) he notes no historical source for the extraordinary powers exercised by the chancellors, except Greek and Roman ideas of equity transmitted through mediæval legal theory. He does not seem to be aware of the fact which Brunner has pointed out, that the right of deciding cases without regard to the rules of the common tribal law was an attribute of early Germanic kingship.

The author is, however, familiar with the German systematic literature of modern Roman law: he knows, for example, the Pandects of Windscheid and of Dernburg, and the writings of Jhering. His definition of a right is Jhering's, and his discussion of many special topics has been advantageously influenced by a comparison of German with English theories. His chapter on possession is especially valuable because of the dearth of English literature on this topic.

The book can be recommended to law students and to all persons interested in legal theory. If it has not thorough consistency, it has at least coherence. The writer has worked out for himself a body of fairly tenable theories, and he sets them forth clearly and forcibly. Those who agree with him will find themselves furnished with a convenient set of pigeon-holes for their legal concepts, and those who do

not agree with him will be constrained by his positive and occasionally exaggerated statements to formulate their dissent. This latter service is one of the greatest which a theoretical work can render.

MUNROE SMITH.

Mutual Aid a Factor of Evolution. By P. KROPOTKIN. New York, McClure, Phillips & Co., 1902. 8vo, xix, 348 pp.

The very title of the book shows that a problem of great scientific importance is approached. While the fundamental ideas of the work are perhaps not altogether new, nobody before Kropotkin has undertaken in this direct way to state the rôle that mutual aid has played in evolution and its relation to the struggle for existence. Obviously the term "mutual aid" may convey many different meanings. may be understood as the "sense of justice and equity," it may apply to a community of interests, to a co-operative struggle for existence, to the belli auxilia in the Hobbesian sense. One soon discovers that Kropotkin uses the expression in the vaguest possible way.

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Kropotkin begins by citing cases of mutual support among animals, but in all the cases cited we fail to see anything but gregarious cooperation for a common purpose an interesting subject of study, no doubt, but something quite different from mutual aid for its own sake. Kropotkin maintains that "mutual aid" is as much a law of animal life as mutual struggle, but that as a factor in evolution it most probably has a far greater importance, inasmuch as it favors the development of habits and characters which make for the survival of the species and the greatest welfare of the individual. This is doubtless true, but Kropotkin fails to prove that mutual aid is the antithesis of mutual struggle. "Mutual aid in struggle" would have been perhaps a better name for these complex phenomena to which Kropotkin devotes the first two chapters of his book.

The following two chapters deal with mutual aid among savages and barbarians. To all who have read other works by the same author it is probably well known that state and authority are his b^tes noires. It is therefore natural that the social life of savages appears to him to represent the ideals of communistic anarchism. Not that he consciously selects the data to suit his theories, but the nature of all socalled original material relating to savage life is such that it may be used in support of almost any position.

Kropotkin is, however, unquestionably right in asserting that mu

tual aid in some form or other permeates the social relations of all savages and barbarians. A study of the evolution of mutual aid in human society from its beginnings in tribal organizations to the forms it takes in modern state and city would have been most fruitful. Such a study is, however, very far from the purpose of our author. What Kropotkin aims to give is a sociology from the point of view of communistic anarchism. He does not recognize the mutual aid that characterizes the functions of the modern state and city. Instead, he emphasizes the struggles of individuals and of states.

In his excellent chapters on mutual aid in the medieval city, he naturally enough fails to see that the medieval city was a state, or the organ of a state; he regards it as a free federation of guilds. Nor is even the medieval state itself odious to him, since it appears to him to be an almost anarchistic society. It is the same old story of paradise lost, of the golden age, and the same old hope of the millennium. According to Kropotkin it almost seems that all of our good qualities have been transmitted to us from the state of nature, before we fell from grace, before we developed political authority.

In his chapter on mutual aid among ourselves, Kropotkin naturally finds that the state is the root of all evil. The thought that we have outgrown village conditions and that our mutual aid, if it is to be effective, must be adequately organized and specialized, does not even occur to him. And it is almost painful to find that a man of his breadth of mind should sneer at us because we have antiseptic public hospitals with efficient physicians and nurses to take care of the sick instead of leaving that function to the fraternal good-will of the individual.

Kropotkin's statements in regard to the village community in Russia are very inaccurate. "Nowhere," he writes, "did the village community disappear of its own accord; it took the ruling classes several centuries of persistent but not always successful efforts to abolish it

." (p. 230). "In short, to speak of the natural death of the village communities in virtue of economic laws is as grim a joke as to speak of the natural death of soldiers slaughtered on a battlefield" (p. 236). As a fact, however, the Russian village community is simply a product of the agrarian policy of the state. Before the abolition of serfdom, the Russian peasantry were either the property of the nobles that is, private serfs-or of the state-crown-land peasants. Unlike the German noble, the Russian noble landlord took no interest in agricultural improvements; he did not undertake large-scale farming under his own direction. He usually left the farming entirely to his peasants, exacting from them in tribute as much as he possibly

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could. This plan was so general that the serfs universally believed that while they themselves belonged to the nobleman, the land belonged to them a legal absurdity. It is evident that since the farming was done by serf-families, it was necessary for the landlord to see to it that each peasant-family was provided with land. The land, however, was a fixed quantity, while the composition of each serffamily and the number of such families were constantly changing. Constant reallotments of the land were therefore necessary. And here you have the much-talked-of village community.

The private serfs did not constitute the whole of the Russian peasantry; there was a large class of peasants who lived on crown lands. There was further a considerable number of free farmers (odnodvorcy, or single-farm-owners), descendants of petty officers who were employed in the early days by the Tzars of Moskow and received small land grants from them for their services. During the nineteenth century the village community was to a very large extent imposed upon by these two classes for fiscal reasons. The crown-land peasants have been since 1724 subject to a poll tax. The land was originally only nominally owned by the state; as a matter of fact, the peasants bought, sold, leased, rented, and willed their land at their pleasure. The result was of course that a differentiation of peasantry took place. Some became large landowners, others became extremely poor. The poll tax in the meantime was the same, and the poor were unable to pay it. Instead of adjusting the tax-rate to the changed conditions, the government decided to restore equality among the peasantry by the introduction of the village community system. Such was the law passed in 1770, the complete text of which may be found in the Complete Collection of Laws of the Russian Empire under No. 13,590. This law, however, had only local effect. In northern Russia the peasantry were so individualistic that it took the government decades to introduce the village community. The ordinance of March 6, 1830, was of such a nature that it could not be disobeyed, and the blessings of the village community were in 1830-31 introduced there, though only after bloodshed.

But Kropotkin does not object to state and law so long as they introduce the village community, and he does not even notice the atrocities with which such measures are often accompanied. "The peasants," he writes,

were formerly individual owners of their plots and used to rent and sell their land at will. But in the fifties of the nineteenth century a move

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