cohen_Transcendental Nonsense and the Functional Approach_cut

Cohen_Transcendental Nonsense and the Functional Approach_cut

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COLUMBIA LAW REVIEW VOL. XXXV JUNE, 1935 NO. 6 TRANSCENDENTAL NONSENSE AND THE FUNCTIONAL APPROACH I. THE HEAVEN OF LEGAL CONCEPTS Some fifty years ago a great German jurist had a curious dream. He dreamed that he died and was taken to a special heaven reserved for the theoreticians of the law. In this heaven one met, face to face, the many concepts of jurisprudence in their absolute purity, freed from all entangling alliances with human life. Here were the disembodied spirits of good faith and bad faith, property, possession, laches, and rights in rem. Here were all the logical instruments needed to manip- ulate and transform these legal concepts and thus to create and to solve the most beautiful of legal problems. Here one found a dialectic- hydraulic-interpretation press, which could press an indefinite number of meanings out of any text or statute, an apparatus for constructing fictions, and a hair-splitting machine that could divide a single hair into 999,999 equal parts and, when operated by the most expert jurists, could split each of these parts again into 999,999 equal parts. The boundless opportunities of this heaven of legal concepts were open to all properly qualified jurists, provided only they drank the Lethean draught which induced forgetfulness of terrestrial human affairs. But for the most accomplished jurists the Lethean draught was entirely superfluous. They had nothing to forget.1 Von Jhering's dream has been retold, in recent years, in the chapels of sociological, functional, institutional, scientific, experimental, real- istic, and neo-realistic jurisprudence. The question is raised, "How much of contemporary legal thought moves in the pure ether of Von Jhering's heaven of legal concepts?" One turns to our leading legal textbooks and to the opinions of our courts for answer. May the Shade of Von Jhering be our guide. 1. Where Is a Corporation? Let us begin our survey by observing an exceptionally able court as it deals with a typical problem in legal procedure. In the case of Tauza v. Susquehanna Coal Company,2 a corporation which had been 'VON JHERING, IM JURISTISCHEN BEGRIFFSHIMMEL, IN SCIIERZ UND ERNST IN DER JURISPRUDENZ (1 th ed. 1912) 245. 2220 N.Y. 259, 115 N.E. 915 (1917).
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COLUMBIA LAW REVIEW chartered by the State of Pennsylvania was sued in New York. Sum- mons and complaint were served upon an officer of the corporation in New York in the manner prescribed by New York law. The corpora- tion raised the objection that it could not be sued in New York. The New York Court of Appeals disagreed with this contention and held that the corporation could be sued in that State. What is of interest for our purposes is not the particular decision of the court but the mode of reasoning by which this decision was reached. The
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Cohen_Transcendental Nonsense and the Functional Approach_cut

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