1952]

BOOK REVIEWS

611

LAW AND SOCIAL ACTION—SELECTED ESSAYS. By Alexander H. Pekelis.
Ithaca: Cornell University Press, 1950. Pp. xi, 272. $3.50.

Adam, the baby, and the man from Mars, as a distinguished philosopher once observed, are the three figures to whom our western society has most often turned in seeking a fresh and unprejudiced appraisal of its distinctive institutions. For the rest of us, most established practices are accepted uncritically because long familiarity and the normative force of the actual blind us to possible alternatives. We in America have been particularly fortunate in having received upon our shores a succession of itinerant observers whose freshness of approach to our scenes was strengthened by a vivid awareness of scenes in other plays. To the company of Las Casas, De Tocqueville, Lord Bryce, André Siegfried, and many others, not all of whom returned from what they found, there must now be added the gallant figure of Alexander Pekelis.

Here was a man who had lived under the four mightiest dictatorships of his generation and had seen three of them crumble to dust. He had gone to school in Russia under the dictatorship of the Romanoff dynasty, and was deprived of his Russian citizenship under the more efficient and more ruthless dictatorship of the Communist dynasty. In Mussolini's Italy he obtained a law degree and taught jurisprudence for a while. Shortly after he had fled to France, that unhappy land fell to the Nazi invader. Fleeing from his fourth dictatorship, he reached the shores of a free America and, since Senator McCarran's various anti-immigration bills had not yet received Congressional approval, he was admitted to our country. He was allowed to study at Columbia Law School, to teach at the New School of Social Research, and to help every oppressed minority that needed help, for a few brief years. An airplane accident in Ireland in 1946 deprived the world of a man who, as Max Ascoli says in his introduction to this volume, "had an amazingly disturbing power to assimilate the culture of any country . . . and . . . gave back to every school, with compound interest, everything he had received from it."¹

1. P. x.

612

UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 13: p. 611]

Coming to American shores with the experience of four dictatorships, Pekelis found the key to our social and legal development in "the fundamental pluralistic traits of American society"—in the fact that "the United States is not a monolithic block, or a mere aggregate of individuals and not even a 'melting pot.' "² Government, for us, is not a system of commands emanating from a single sovereign. Rather, it is a loose constellation of national, state, and municipal authorities, within each of which several different agencies and even different legal systems (strict law, equity, and administration) compete for respect. And enveloping these "official" governments are a host of voluntary organizations exercising, in a variety of fields, the powers of "private governments."

In the realm of choice among these various authorities, Pekelis finds the essence of American freedom. And this freedom is implemented when people assert their rights not merely as atomic individuals, but as members of the many overlapping independent organized groups that constitute our society. If these groups should be destroyed or deprived of their strength, each of us would be helpless against an omnipotent state. In his program of action for the Commission on Law and Social Action of the American Jewish Congress—which might have been a program of action for the National Association for the Advancement of Colored People or the Association on American Indian Affairs or the Japanese-American Citizens League or any one of a hundred other groups dedicated to the protection of minority rights—Pekelis sums up his pluralistic political philosophy:

> "The Jewish cause in the United States thus depends on the traditional American aversion to a leveling centralized government and to the compulsory uniformity of all members of a society. It partakes of all the difficulties and complexities inherent in a pluralistic conception of society and—which may be but another way of putting it—a pluralistic conception of human personality. . . . It claims our right to be, at the same time, loyal, devoted, and selfless members of a great variety of overlapping groups—American citizens and citizens of the world; American Jews and members of a world Jewish community; citizens of a state and citizens of a village; members of a political party and members of a religious association. This is a right unthinkable in a simplified, monolithic society, a right dreaded by all kinds of totalitarian tyrants but truly inestimable to free men. . . ."³

Pekelis, of course, is not the first visitor to be struck by the fragmentation of social and political power in our land, by the rivalries of federal, state, and municipal governments, by the conflicts inherent in our "separation of powers," and by the traditional American distrust of all government and all laws, which reflects itself not only in our journalism and public opinion

2. P. 223.

3. P. 224.

1952]

BOOK REVIEWS

613

but also in our extraordinarily high crime rate. But while other foreign observers have seen only inefficiency, anarchy, or youthful rebellion in these patterns—Shaw called our constitution a "conspiracy against government"—Pekelis has had the wisdom to see the connection between this disorganization of governmental power and the high degree of freedom that Americans enjoy (even in times of panic and hysteria). Where else in the world would a government issue a special commemorative stamp, as the United States has recently done, to honor at their final encampment those old men who as boys took up arms to destroy that government by force and violence?

Because he is keenly aware that the living law is more than a series of Congressional commands, Pekelis is able to supply American liberals with guides for action in the many situations where Congressional action is either impossible or ineffective. His essay on *The Dormant Power of American Cities* calls attention to the great range of municipal powers that can be brought to bear upon social problems long before national opinion has crystallized to a point where a national solution is feasible. It is noteworthy that within a few years the drive which Pekelis inaugurated for municipal legislation on unfair employment practices was successful in a large number of American cities.

Recognizing that American courts are as much law-making bodies as are legislatures, Pekelis offers a series of acute observations on the process of law reform through test cases. But these observations are not dispassionate. They carry the fire of prophecy as well as the skill of a first-rate lawyer probing the soft points in the enemy's legal armor. Many of the test cases that these essays discuss in the future tense have been carried through to victory in the few, brief years that have passed since the writing of these essays. Because of these essays, or because of the inspiration which Pekelis gave to fellow-workers, or because of the briefs from which some of these essays have been excerpted, racial intolerance has suffered a series of significant defeats in an otherwise conservative Supreme Court. The author's demonstration of the essentially governmental character of political parties, state universities, real estate associations, and other so-called private organizations lays the foundation for an increasing application of constitutional safeguards to situations where such organizations seek to impose an inferior status upon any race or creed.

The fact that many of the prophecies with which this volume abounds have been translated into reality does not rob the book of interest. Rather it emphasizes the importance of the insights and the techniques with which Pekelis operates and their potential applicability to new legal problems. The basic approach is best put in his own words:

> "Most people in areas of impairment of civil liberties do not know how to ask for their rights."⁴

4. P. 183.

614

[Vol. 13: p. 611]

"Assertion must precede recognition . . . awareness and assertion of rights can become the condition of their existence. Secrecy and deviousness are incompatible with assertion."⁶

"But recognition does not always follow assertion, and almost never does so *at once*. If minorities want to conquer the right to collective action they must be ready for financial and physical sacrifices—and for setbacks and defeats. No change can be accomplished with a previous license, and no revolution, however peaceful, with a declaratory judgment obtained in advance."⁶

"On the other hand, short-range defeats are often long-range victories. The defeat of a righteous cause in a court often becomes an impelling argument for legislative or social change and results in a political victory."⁷

Underlying this willingness to risk short-range defeats there runs an echo of the faith of the old Hebrew prophets:

"We believe that the fate of the oppressed and persecuted, of those who suffer and have no other hope than justice, is preferable to the fate of the oppressors and persecutors and of those who are continuously tempted by might and power to forsake right and justice."⁷⁸

The political pluralism of Pekelis has profound significance for jurisprudence as well as for practical programs of law-reform. In the historic competition between courts of law and courts of equity, which has so much in common with the inter-departmental rivalries of Washington today, Pekelis finds an important key to Anglo-American freedom. No agency, no magistrate, is indispensable; heads or jurisdictions may be cut off whenever they become intolerable. In the end, the choices among competing purveyors of government are made by the consumers of that ineffable commodity. And if the jury system, as Pekelis (following De Tocqueville) observes, has not proved to be the most infallible method of law-execution, it has at least turned out to be the most effective method of public legal education yet tried.⁹ It may be, however, that the jury system is important to us only because our jurymen have enough disrespect for courts to form their own judgments in disregard of the instructions or ill-concealed wishes of the man in the robe. Certainly, in most other countries, as Pekelis observes, where guaranties of jury trial appear in statutes or constitutions, these guaranties are commonly disregarded in practice. In some Latin-American states, for example, where the right to jury trial is proclaimed in the constitution, the authorities have never drawn up a list of jurors. And,

5. P. 191.

6. P. 192.

7. *Ibid*.

8. P. 219.

9. P. 65.

1952]

BOOK REVIEWS

615

when jury trial was abolished by government decree in Germany in 1924, nobody apparently raised an objection. Juries, local draft boards, and local school boards, are part of the pluralist pattern. And it is because political authority is so widely decentralized, Pekelis thinks, that it is possible to have large areas of discretion scattered about without running into a monolithic dictatorship or the "intolerable paternalism" of a "tyrannic government by experts."¹⁰

Although its advocates and its critics have traditionally regarded administrative law as a foreign importation, Pekelis makes a very persuasive case for the proposition that American administrative agencies are far more important than their Continental counterparts and more deeply rooted in the soil of judicial practice. At least since the rise of equity, we are told, Anglo-American courts have exercised much broader discretion (e.g., in deciding when care is "reasonable" or when a contract is "contrary to public policy") and a great deal more power (e.g., in forcing a defendant to pay a judgment, through "supplementary proceedings") than is exercised by Continental courts. Consequently, when commissions decide whether trade practices are "fair" or "reasonable" and issue "cease and desist" orders, they are behaving in ways characteristic of Anglo-American courts, and the use of such agencies must be viewed not as a departure from judicial practice but rather as a form of judicial specialization.

Because our courts are so much more important in the law-shaping and administrative process than Continental courts, Pekelis thinks that we need to outgrow the tradition that arguments about the social desirability of legislation should be addressed only to legislatures. In his essay on *A Jurisprudence of Welfare*, probably the most important essay of the volume, Pekelis makes an eloquent plea for a more conscious appreciation of the social considerations which enter into every judicial decision and which divide or multiply the force of every lawyer's argument.

A central need of modern education, he insists, is "to narrow the appalling chasm between those who, in schools and research centers, study our community and those who, in legislative committees and courts, shape its life."¹¹ The usual arguments against judicial consideration of social policy are dissected with devastating results. Now and then one wishes that Pekelis would recognize that most of what he is urging has been said before by Bentham, Holmes, M. R. Cohen, and some of their followers. But this is forgivable in a writer who is unwilling to limit himself to a legal audience. Indeed Pekelis is modest enough to insist that the "jurisprudence of welfare" which he urges "is no answer to the problems of our time . . . but rather a mode of inquiry."¹² And with that conclusion few of the Benthamites or realists whom he dismisses rather cavalierly would want to quarrel.

10. P. 17.

11. P. 14.

12. P. 40.

616

[Vol. 13 : p. 611]

As an ex-editor of the Columbia Law Review, Pekelis would be the first to admit that these essays do not come up to usual law review standards of scholarship: viz., less than 5% of the acreage covered by these pages is devoted to footnotes. But if scholarship includes the ability to see beyond the years and the even rarer ability to see through the academic walls that separate one department of knowledge from another and all of them from the arena of social struggle, then this volume deserves to be considered a brilliant contribution to legal scholarship.

What Pekelis has to say is said with a verve and richness that is rare in legal exposition. His writing is two-dimensional, not in the mechanical sense in which most law review articles and all law review case notes are two-dimensional, leaving the reader in doubt at each numbered cross-road whether to read ahead horizontally or to descend vertically, but in the very real sense that each of his sentences points not only to preceding and succeeding sentences in a linear argument but to something outside and unsaid. The richest sentences of these essays carry echoes of what has been said somewhere else in other contexts, and the suggested analogy, parallel, or contrast adds to our understanding.

"Concrete cases cannot be decided by general propositions—nor without them."¹³

"Inertia . . . is a good servant and a bad master. Sky-scrapers cannot be built without inertia—or by it alone."¹⁴

"Jurisprudence of welfare is thus no lawyer's farewell to arms. It is one thing to recognize that law is too serious a business to be left to lawyers, and that even if there are legal problems there are no strictly legal answers to them. It is quite another to pretend to solve problems by saying: 'It's simple; it is somebody else's business.'"¹⁵

"Law without a knowledge of society is blind; sociology without a knowledge of law, powerless."¹⁶

What grips the mind in these and a hundred other flashes of insight is no facile exaggeration but a deep sense of polarities and of balance. The rhythm of the author's thought has a contagious quality. It leads the reader, again and again, to stop reading and to think for himself, to go beyond the immediate argument to seminal insights that illuminate fields the author never knew.

The legal reader will regret that antipathy to footnotes was carried to the point of omitting not only the citations for most quotations but even the times and places at which several of the essays first appeared. But most

13. P. 20.

14. P. 22.

15. P. 40.

16. P. 257.

1952]

BOOK REVIEWS

617

lay readers, I suppose, will rejoice at the lack of footnote interruptions. And lawyers and laymen alike will admire the skill with which the editor has excerpted from briefs and topical statements words that will give forth light and power long after time has disposed of the particular issues to which they were addressed.

Students of law and lovers of freedom owe a great debt to Milton R. Konvitz and Alvin Johnson for rescuing these essays from obscure places and putting together a volume that will influence law and social action in this country for decades to come.

Felix S. Cohen*

* Member of the Washington, D.C., Bar.

Gal 7 COL LAW REV—738

10-9-51

BILL

BOOK REVIEWS

LAW AND SOCIAL ACTION—SELECTED ESSAYS. By Alexander H. Pekelis. Edited by Milton R. Konvitz and Alvin Johnson. Ithaca: Cornell University Press, 1950. Pp. xi, 272.

Adam, the baby, and the man from Mars, as a distinguished philosopher once observed, are the three figures to whom the reflective in western society have most often turned in seeking a new and unprejudiced appraisal of its distinctive institutions. For the rest of us, established practices are in large part accepted uncritically because long familiarity and the normative force of the actual blind us to possible alternatives. Yet we in America are more fortunate than the people of other lands, for we have received upon our shores a succession of itinerant observers whose freshness of approach to our scenes has been strengthened by a vivid awareness of scenes in other plays. To the company of *among others*, Las Casas, De Tocqueville, Lord Bryce, and André Siegfried, not all of whom returned from what they found, must now be added the gallant figure of Alexander Pekelis.

This was a man who lived under the four mightiest dictatorships of his generation and saw three of them crumble to dust. He attended school under the dictatorship of the Romanoff dynasty, and was later deprived of his Russian citizenship by the more efficient and ruthless dictatorship of the Communists. He obtained a law degree in Mussolini's Italy, and taught jurisprudence there for a while. Shortly after he fled to France, that unhappy land fell to the Nazi invader. Fleeing from his fourth dictatorship, he reached the shores of a free America. During his brief time here, he studied at Columbia Law School, taught at the New School of Social Research, and helped every oppressed minority in need of help. An airplane accident in Ireland in 1946 deprived the world of a man who, as Max Ascoli says in his introduction to this volume, "had an amazingly disturbing power to assimilate the culture of any country . . . and . . . gave back to every school, with compound interest, everything he had received from it."¹

Viewing America from a perspective gained through his experience with four dictatorships, Pekelis sees the key to our social and legal development in "the fundamental pluralistic traits of American society," in the fact that "the United States is not a monolithic block, or a mere aggregate of individuals and not even a 'melting pot'."² Government, for us, is not a system of commands emanating from a single sovereign. On the contrary, it is a loose constellation of national, state, and municipal authorities, within each of which several different agencies and even different legal systems—strict law, equity, and administrative law—compete for respect. Enveloping these "official" governments, moreover, is a host of voluntary organizations exercising, in a variety of fields, the powers of "private governments."

In the realm of choice among these various authorities, Pekelis finds the essence of American freedom. And realization of this freedom is dependent upon the ability of people to assert their rights not merely as isolated individuals, but as members of the many overlapping, independent, organized groups which constitute our society. If these groups were crippled or destroyed, each of us would be helpless against an omnipotent state. In his program of action for the Commission on Law and Social Action of the American Jewish Congress—which might have been a program of action for the National Association for the Advancement of Colored People or the Association on American Indian Affairs or the Japanese-American Citizens League or any one of a hundred other groups dedicated to the protection of minority rights—Pekelis sums up his pluralistic political philosophy:

The Jewish cause in the United States thus depends on the traditional American aversion to a leveling centralized government and to the compulsory uniformity of all members of a society. It partakes of all the difficulties and complexities inherent in a pluralistic conception of society and—which may be but another way of putting it—a pluralistic conception of human personality. . . . It claims our right to be, at the same time, loyal, devoted, and selfless members of a great variety of overlapping groups—American citizens and citizens of the world; American Jews and members of a world Jewish community; citizens of a state and citizens of a village; members of a political party and members of a religious association. This is a right unthinkable in a simplified, monolithic society, a right dreaded by all kinds of totalitarian tyrants but truly inestimable to free men. . . .³

Pekelis, of course, is not the first visitor to be struck by the fragmentation of social and political power in our land, by the rivalry of federal, state, and municipal governments, by the conflicts inherent in our "separation of powers," and by the traditional American distrust of all government and all laws, which reflects itself not only in our journalism and public opinion but also in our extraordinarily high crime rate. But while other observers have seen only inefficiency, anarchy, or youthful rebellion in these patterns, Pekelis has the wisdom to see the connection between this disorganization of governmental power and the high degree of freedom which Americans enjoy, even in times of panic and hysteria. Where else in the world would a government issue a special commemorative stamp, as the United States has just done, to honor, at their final encampment, those old men who as boys took up arms to destroy that government?

Because he is keenly aware that living American law is not merely a series of Congressional directives, Pekelis is able to supply American liberals with guides for action in the many situations where Congressional action is either impossible or ineffective. His essay on "The Dormant Power of American Cities" calls attention to the great range of municipal powers that can be brought to bear upon social problems long before national opinion has crystallized to a point where a national solution is feasible. The drive which Pekelis inaugurated for municipal legislation on unfair employment practices has already succeeded in a large number of American cities.

Recognizing that American courts are as much law-making bodies as are legislatures, Pekelis offers a series of acute observations on the process of law reform through test cases. But these observations are not dispassionate. They are marked by the fire of prophecy as well as the skill of a first-rate lawyer probing the soft points in the enemy's legal armor. Many of the test cases that he discusses in the future tense have been carried through to victory in the few years which have passed since the writing of these essays. Because of these essays, or because of the inspiration which Pekelis gave to fellow workers, or because of the briefs from which some of these essays have been excerpted, racial intolerance has suffered a series of significant defeats in an otherwise conservative Supreme Court. The author's demonstration of the essentially governmental character of political parties, state universities, real estate associations, and other so-called private organizations lays the foundation for an increased utilization of constitutional safeguards in situations where such organizations seek to impose an inferior status upon any race or creed.

Gal 8 COL LAW REV—738

Most people in areas of impairment of civil liberties do not know how to ask for their rights.⁴

Assertion must precede recognition ... awareness and assertion of rights can become the condition of their existence. Secrecy and deviousness are incompatible with assertion.⁵

But recognition does not always follow assertion, and almost never does so *at once*. If minorities want to conquer the right to collective action they must be ready for financial and physical sacrifices — and for setbacks and defeats. No change can be accomplished with a previous license, and no revolution, however peaceful, with a declaratory judgment obtained in advance.⁶

On the other hand, short-range defeats are often long-range victories. The defeat of a righteous cause in a court often becomes an impelling argument for legislative or social change and results in a political victory.⁷

> We believe that the fate of the oppressed and persecuted, of those who suffer and have no other hope than justice, is preferable to the fate of the oppressors and persecutors and of those who are continuously tempted by might and power to forsake right and justice.⁸

The pluralistic approach of Pekelis has a profound significance for jurisprudence as well as for practical programs of legal reform. In the historic competition between courts of law and courts of equity, which has a modern parallel in today's inter-departmental rivalries in Washington, Pekelis finds an important clue to Anglo-American freedom. No magistrate, no agency, is indispensable; heads or jurisdictions may be cut off when they become intolerable. In the end, the choices among competing purveyors of government are made by the consumers of that ineffable commodity. And if the jury system, as Pekelis, following De Tocqueville, observes, has not proved to be the most infallible method of law-execution, at least it is the most effective method of public legal education yet tried.⁹ (It may be, however, that the jury system is important to us chiefly because our jurymen have enough disrespect for courts to form their own judgments in disregard of the instructions or ill-concealed wishes of the man in the robe.) Juries, local draft boards, and local school boards are part of the pluralist pattern. And it is because political authority is so widely decentralized, Pekelis believes, that it is possible to have. large areas of discretion scattered about without running into a monolithic dictatorship or the "intolerable paternalism" of a "tyrannic government by experts."¹⁰

Because our courts are so much more important in the law-shaping and administrative process than Continental courts, Pekelis thinks that we need to outgrow the tradition that arguments about the social desirability of legislation should be addressed only to legislatures. In his essay on "A Jurisprudence of Welfare", probably the most important essay in this volume, Pekelis makes an eloquent plea for a more conscious appreciation of the social considerations which enter into every judicial decision and which divide or multiply the force of every lawyer's argument. A central need of modern education, he insists, is "to narrow the appalling chasm between those who, in schools and research centers, study our community and those who, in legislative committees and courts, shape its life."¹¹ The usual arguments against judicial consideration of social policy are dissected with devastating results. Now and then one wishes that Pekelis would recognize that most of what he urges has been said before by Bentham, Holmes, M. R. Cohen, and their followers. But this is forgivable in a writer who is unwilling to limit himself to a legal audience. Indeed, Pekelis is modest enough to stress that his "jurisprudence of welfare" "is no answer to the problems of our time ... but rather a mode of inquiry."¹² And with that conclusion few of the Benthamites or realists whom he rather cavilyly dismisses would want to quarrel.

As an ex-editor of the Columbia Law Review, Pekelis would be the first to admit that these essays do not come up to usual law review standards: viz., less than 5% of the acreage covered by these pages is devoted to footnotes. But if scholarship includes the ability to see beyond the years and the even rarer ability to see through the academic walls that separate one department of knowledge from another and all of them from the arena of social struggle, then this volume must be considered a brilliant contribution to legal scholarship.

What Pekelis has to say is said with a verve and richness that are rare in legal exposition. His writing is two-dimensional, not in the mechanical sense in which most law review articles and all law review notes are two-dimensional, leaving the reader in doubt at each numbered crossroad whether to read ahead horizontally or to descend vertically, but in the very real sense that each of his sentences points not only to preceding and succeeding sentences in a linear argument but also to something outside and unsaid. The richest sentences carry echoes of things said elsewhere in other contexts, and the suggested analogy, parallel, or contrast adds to our understanding:

audience. Indeed, Pekelis is modest enough to stress that his "jurisprudence of welfare" "is no answer to the problems of our time . . . but rather a mode of inquiry."¹² And with that conclusion few of the Benthamites or realists whom he rather cavalierly dismisses would want to quarrel.

> Concrete cases cannot be decided by general propositions—nor without them.¹³

> Inertia . . . is a good servant and a bad master. Skyscrapers cannot be built without inertia—or by it alone.¹⁴

> Jurisprudence of welfare is thus no lawyer's farewell to arms. It is one thing to recognize that law is too serious a business to be left to lawyers, and that even if there are legal problems there are no strictly legal answers to them. It is quite another to pretend to solve problems by saying: "It's simple; it is somebody else's business."¹⁵

> Law without a knowledge of society is blind; sociology without a knowledge of law, powerless.¹⁶

What grips the mind in these and a hundred other flashes of insight is no facile exaggeration but a deep sense of polarities and of balance. The rhythm of the author's thought has a contagious quality. It leads the reader, again and again, to stop reading and to think for himself, to go beyond the immediate argument to seminal ideas which illuminate fields Pekelis never knew.

The legal reader will regret that antipathy to footnotes was carried to the point of omitting not only the citations for most quotations but even the times and places at which several of the essays first appeared; probably most lay readers will rejoice at the lack of footnote interruptions. But lawyers and laymen alike will admire the skill with which the editors have excerpted from briefs and topical statements words that will give forth light and power long after time has disposed of the particular issues to which they were addressed. Students of law and lovers of freedom owe a great debt to Milton R. Konvitz and Alvin Johnson for rescuing these essays from obscure places and putting together a volume that will influence law and social action in this country for decades to come.

FELIX S. COHEN

Lecturer, Yale Law School; General Counsel to the Association of American Indian Affairs.

LAW AND SOCIAL ACTION - SELECTED ESSAYS. By ALEXANDER H. PEKELIS.
ITHACA: CORNELL UNIVERSITY PRESS, 1950, pp. xi, 272.

Adam, the baby, and the man from Mars, as a distinguished philosopher once observed, are the three figures to whom our western society has most often turned in seeking a fresh and unprejudiced appraisal of its distinctive institutions. For the rest of us, most established practices are accepted uncritically because long familiarity and the normative force of the actual blind us to possible alternatives. We in America have been more fortunate than some other lands in having received upon our shores a succession of itinerant observers whose freshness of approach to our scenes was strengthened by a vivid awareness of scenes in other plays. To the company of Las Casas, De Tocqueville, Lord Bryce, Andre Siegfried, and many others, not all of whom returned from what they found, there must now be added the gallant figure of Alexander Pekelis.

Here was a man who had lived under the four mightiest dictatorships of his generation and had seen three of them crumble to dust. He had gone to school in Russia under the dictatorship of the Romanoff dynasty, and was deprived of his Russian citizenship under the more efficient and more ruthless dictatorship of the Communist dynasty. In Mussolini's Italy he obtained a law degree and taught jurisprudence for a while. Shortly after he had fled to France, that unhappy land fell to the Nazi invader. Fleeing from his fourth dictatorship, he reached the shores of a free America and, since Senator McCarran's various anti-immigration bills had not yet received Congressional approval, he was admitted to our shores. He was allowed to study at Columbia Law School, to teach at the New School of Social Research, and to help every

- 2 -

oppressed minority that needed help, for a few brief years. An airplane accident in Ireland in 1946 deprived the world of a man who, as Max Ascoli says in his introduction to this volume, "had an amazingly disturbing power to assimilate the culture of any country. . . and. . . gave back to every school, with compound interest, everything he had received from it." (p. X)

Coming to American shores with the experience of four dictatorships, Pekelis found the key to our social and legal development in "the fundamental pluralistic traits of American society," - in the fact that "the United States is not a monolithic block, or a mere aggregate of individuals and not even a 'melting pot'" (p. 223). Government, for us, is not a system of commands emanating from a single sovereign. Rather, it is a loose constellation of national, state, and municipal authorities, within each of which several different agencies and even different legal systems - strict law, equity, and administration - compete for respect. And enveloping these "official" governments are a host of voluntary organizations exercising, in a variety of fields, the powers of "private governments."

In the realm of choice among these various authorities, Pekelis finds the essence of American freedom. And this freedom is implemented when people assert their rights not merely as atomic individuals, but as members of the many overlapping independent organized groups that constitute our society. If these groups should be destroyed or deprived of their strength, each of us would be helpless against an omnipotent state. In his program of action for the Commission on Law and Social Action of the American Jewish Congress - which might have been a program of action for the National Association for the Advancement of Colored People or the Association on American Indian Affairs or the Japanese-American Citizens League or any one of a hundred other groups dedicated to the protection

-3-

of minority rights - Pekelis sums up his pluralistic political philosophy:

"The Jewish cause in the United States thus depends on the traditional American aversion to a leveling centralized government and to the compulsory uniformity of all members of a society. It partakes of all the difficulties and complexities inherent in a pluralistic conception of society and — which may be but another way of putting it — a pluralistic conception of human personality. . . . It claims our right to be, at the same time, loyal, devoted, and self-less members of a great variety of overlapping groups — American citizens and citizens of the world; American Jews and members of a world Jewish community; citizens of a state and citizens of a village; members of a political party and members of a religious association. This is a right unthinkable in a simplified, monolithic society, a right dreaded by all kinds of totalitarian tyrants but truly inestimable to free men. . . ." (p. 224)

Pekelis, of course, is not the first visitor to be struck by the fragmentation of social and political power in our land, by the rivalries of federal, state, and municipal governments, by the conflicts inherent in our "separation of powers," and by the traditional American distrust of all government and all laws, which reflects itself not only in our journalism and public opinion but also in our extraordinarily high crime rate. But while other foreign observers have seen only inefficiency, anarchy, or youthful rebellion in these patterns — Shaw called our constitution a "conspiracy against government" — Pekelis has had the wisdom to see the connection between this disorganization of governmental power and the high degree of freedom that Americans enjoy (even in times of panic and hysteria). Where else in the world would a government issue a special commemorative stamp, as the United States has just done, to honor those old men at their final encampment/who as boys took up arms to destroy that government by force and violence?

- 5 -

"Assertion must precede recognition . . . awareness and assertion of rights can become the condition of their existence. Secrecy and deviousness are incompatible with assertion." (p. 191)

"But recognition does not always follow assertion, and almost never does so at once. If minorities want to conquer the right to collective action they must be ready for financial and physical sacrifices - and for setbacks and defeats. No change can be accomplished with a previous license, and no revolution, however peaceful, with a declaratory judgment obtained in advance." (p. 192)

"On the other hand, short-range defeats are often long-range victories. The defeat of a righteous cause in a court often becomes an impelling argument for legislative or social change and results in a political victory." (p. 192)

"We believe that the fate of the oppressed and persecuted, of those who suffer and have no other hope than justice, is preferable to the fate of the oppressors and persecutors and of those who are continuously tempted by might and power to forsake right and justice." (p. 219)

The political pluralism of Pekelis has a profound significance for jurisprudence as well as for practical programs of law-reform. In the historic competition between courts of law and courts of equity, which has so much in common with the inter-departmental rivalries of Washington today, Pekelis finds an important key to Anglo-American freedom. No agency, no magistrate, is indispensable; heads or jurisdictions may be cut off whenever they become intolerable. In the end, the choices among competing purveyors of government are made by the consumers of that ineffable commodity. And if the jury system, as Pekelis (following De Tocqueville) observes, has not proved the most infallible method of law-execution, it has at least turned out to be the most effective method of public legal education that has yet been tried. (p.65) It may be, however, that the jury system is important to us only because our

- 6 -

jurymen have enough disrespect for courts to form their own judgments in dis-
regard of the instructions or ill-concealed wishes of the man in the robe.
Certainly, in most other countries, as Pekelis observes, where guaranties of
jury trial appear in statutes or constitutions, these guaranties are commonly
disregarded in practice. In some Latin American states, for example, where
the right to jury trial is proclaimed in the constitution, the authorities
have never drawn up a list of jurors. And, when jury trial was abolished by
government decree in Germany in 1924, nobody apparently raised an objection.
Juries, local draft boards, and local school boards, are part of the pluralist
pattern. And it is because political authority is so widely decentralized,
Pekelis thinks, that it is possible to have large areas of discretion scattered
about without running into a monolithic dictatorship or the "intolerable
paternalism" of a "tyrannic government by experts." (p. 17)

Although its advocates and its critics have traditionally regarded
administrative law as a foreign importation, Pekelis makes a very persuasive
case for the proposition that American administrative agencies are far more
important than their Continental counterparts and more deeply rooted in the
soil of judicial practice. At least since the rise of equity, we are told,
Anglo-American courts have exercised much broader discretion (e.g., in
deciding when care is "reasonable" or when a contract is "contrary to public
policy") and a great deal more power (e.g., in forcing a defendant to pay
a judgment, through "supplementary proceedings") than is exercised by
Continental courts. Consequently, when commissions decide whether trade
practices are "fair" or "reasonable" and issue "cease and desist" orders, they
are behaving in ways characteristic of Anglo-American courts and the use of
such agencies must be viewed not as a departure from judicial practice but
rather as a form of judicial specialization.

- 8 -

"Concrete cases cannot be decided by general propositions
--nor without them." (p. 20)

"Inertia. . .is a good servant and a bad master. Sky-
scrapers cannot be built without inertia - or by it alone."
(p. 22)

"Jurisprudence of welfare is thus no lawyer's farewell to
arms. It is one thing to recognize that law is too serious
a business to be left to lawyers, and that even if there are
legal problems there are no strictly legal answers to them.
It is quite another to pretend to solve problems by saying:
'It's simple; it is somebody else's business.'" (p. 40)

"Law without a knowledge of society is blind; sociology
without a knowledge of law, powerless." (p. 257)

The legal reader will regret that antipathy to footnotes was carried to
the point of omitting not only the citations for most quotations but even the
times and places at which several of the essays first appeared. But most lay
readers, I suppose, will rejoice at the lack of footnote interruptions. And

-9-

FEB 13 1951

UNIVERSITY OF PENNSYLVANIA LAW REVIEW

THIRTY-FOURTH AND CHESTNUT STREETS

PHILADELPHIA 4. PA.

February 12, 1951

Felix S. Cohen, Esq.,
810 18th Street, N.W.,
Washington, D. C.

Dear Mr. Cohen:

At the suggestion of Professor Tunks of the Iowa Law School, I am writing to invite you to review for us *Law and Social Action* by Alexander Pekelis. I was much impressed by a cursory examination of the book and, while I hardly feel qualified to venture an opinion as to its intrinsic worth, I feel sure that the book would be extremely interesting and stimulating and well worth reviewing.

If you find it possible to accept our invitation, as I hope you will, I should like to have your review in my hands by the third of April so that I can use it in our May issue. Please let me know if that does not suit you, and I am sure we can settle on a later deadline. Our reviews normally range from 1000-1300 words, but I would of course leave the precise length entirely to your discretion, and your estimate of what the book deserves.

I hope that we shall have the honor of publishing a review over your signature.

C/M

Columbia Law Review

Columbia University

New York 27, N. Y.

MAY 1951

MAY 1 1951

KENT HALL

April 30, 1951

Felix S. Cohen, Esq.
810 - 18th Street NW
Washington 6, D. C.

Dear Mr. Cohen:

We wish to acknowledge receipt
of your review of "Law and Social Action--
Selected Essays" by Alexander H. Pekelis.
Thank you for sending it to us.

Sincerely yours,

Howard Weinstein
Book Review Editor

w/s

Columbia Law Review
Columbia University
New York 27, N.Y.

WASHINGTON, D.C.

November 13, 1951

Mr. Felix S. Cohen
Suite 607, 810 18th Street NW
Washington 6, D. C.

Dear Mr. Cohen:

We were most distressed, on receiving your letter concerning the galley proof of your review of Pekelis' "Law and Social Action," to find that you regard our changes as a sign that your writing fails to meet our editorial standards. Nothing could be further from the truth. On the contrary, the very fact that the review is so definitely not run of the mill led us to take particular care in editing it.

We really would very much like to publish the review, but will not do so against your wishes. We hope that clarifying our position will lead you to view it more favorably. We are, therefore, enclosing the revised manuscript of the review, with a list of the reasons for our changes.

It seems to us that by reading only the first paragraph and a half of the galley, you may have obtained a false picture of the number and the scope of the changes. Also, since you could not know why we made the changes, you may have found some unacceptable with which you might otherwise have agreed. We would be very grateful if you would take the time to go over the revised manuscript together with the explanatory notes. We hate the thought of losing such a fine piece of writing to a competitor--especially since you are a former editor of the COLUMBIA LAW REVIEW.

May I add that I, personally, truly regret that this difficulty has arisen. It would be unfortunate and untrue if it has led you to feel that Columbia in general, and we on the REVIEW in particular, do not regard you with admiration and respect.

November 20, 1951.

Miss Janet Kane,
Editor-in-Chief,
Columbia Law Review,
Columbia University,
New York, 27, N. Y.

Dear Miss Kane:

Thank you for being so patient with a difficult contributor and for your kind letter of November 13, with its gratifying assurance that you will not publish the enclosed review in the face of my objections. I have followed your suggestion and read through the entire manuscript and all of the explanations of the various revisions that have been made in it. The experience has transformed into a deep conviction the impression that led me to withdraw my little piece. It is now perfectly clear to me that the corrections were made by somebody who never forgot rules of style and grammar which he learned as a college sophomore and which now prevent him from appreciating or even understanding any writing that does not conform to those rules. As Mr. Churchill said, when he was subjected not long ago to a similar experience, "This is the sort of nonsense I will not up with put."

I trust that you will be able to find another reviewer for the Pekelis volume whose style of writing and sense of the proprieties correspond more closely than mine to present-day Columbia Law Review standards. I, in turn, will set out to find a more tolerant receiving home for my little waif of a review.

FSC/js

Enc.

HARVARD LAW REVIEW

PUBLISHED BY

THE HARVARD LAW REVIEW ASSOCIATION

CAMBRIDGE, MASS.

JAN 11 1952

January 9, 1952

Felix S. Cohen, Esq.
810 18th Street, N.W.
Washington 6, D.C.

Dear Mr. Cohen:

Please accept my apology for the long delay
in answering your letter. For over a year we
have had the Pekelis book in the hands of a re-
viewer and have not yet succeeded in getting the
review. After receiving your letter I wrote him
that we had been offered an unsolicited review
and wanted to know if he wished to abandon the
project, but he has not as yet answered. If
you still have the review and would be willing
to wait another week or so for a definite com-
mitment, I shall write him once more, informing
him that unless he answers we shall accept the
other review.

Please let me know as soon as possible if
you still have the review so that I may contact
this reviewer once again.

wjk:cau

January 24, 1952

Mr. James E. Rowley
Book Review Editor
University of Pittsburgh Law Review
1101 Cathedral of Learning
Pittsburgh 13, Pennsylvania

Dear Mr. Rowley,

It is so long since the Pekelis volume, LAW AND SOCIAL ACTION, was published that I am naturally anxious to have my review appear as promptly as possible.

Not having heard from you since submitting the review a month ago, and in view of the fact that your letter of December 18 inviting this submission did not say definitely whether you would actually use the review, I have decided to publish the piece in another periodical which is anxious to use it immediately. My decision, however, is subject to the contingency that you have already sent the piece to the printer or made other irrevocable commitments for its publication. In that event, please wire me immediately.

Sincerely yours,

Felix S. Cohen

MAR 3 1952

February 29, 1952

Attorney Felix S. Cohen
810 18th. St., N. W.
Washington 6, D. C.

Dear Attorney Cohen:

I am in receipt of your letter dated February 18th.

We have placed your order for 100 copies of the reprint with the printers and when same has been mailed to you, we will bill you.

Enclosed please find the galley of your book review. When you have read it, we would appreciate your returning it to us as soon as possible so we can send it back to the printers.

Yours very truly,

jer/r
enc.