Brief Notices

BRIEF NOTICES The Nature of Law. By THOMAS E. DAVITT S.J. St. Louis: Herder Book Co., 1951. Pp. ~74 with index. $4.00. " This book is a historical introduction to a problem." Thus, in the opening sentence of the introduction, does the author announce the purpose, the scpe, and the limitations of his work. The problem is the problem of the nature of law in its relation to the philosophy of intellect and will from which every theory of law necessarily proceeds. The history is the history of those theories of law which arose during the great fertile period of Christian jurisprudence from the 13th to the early 17th century. Father Davitt recounts the history and places the problem by analyzing the legal writings of certain key figures of that period in order to extract from those writings the theory of law which each writer professed, the source of that theory in the same writer's psychology of intellect and will, and the natural effect of that theory in his notion of obligation. Finally, he shows the effect of this theory of law and obligation upon the same writer's views on the controversial question of penal laws. Upon that simple, but very solid, foundation the entire work is built. The writers are divided into two groups, those who hold for the primacy of the intellect and those who hold for the primacy of the will in the concept of law. In each analysis of a particular writer Father Davitt is careful to point out how an error or a truth in one area of thought leads to a corresponding error or truth in another subordinate or consequent area of thought. For example, the concept of the primacy of the will as a faculty leads to the conclusion that command or imperium is essentially an act of the will. Since law is the act of command, or imperium, this leads to the conclusion that law is essentially a thing of the will. From this we can conclude that the source of obligation in law is the will of the legislator, not the relation between end and means perceived by the intellect. Finally, this same emphasis upon will in law causes these jurists to argue for the existence of purely penal laws, which are specified as penal by the will of the legislator. In treating of those who hold to a voluntaristic theory of the faculties, of command, of law, of obligation, and of penal law, the author examines Henry of Ghent, Scotus, Ockham, Biel, de Castro, and Suarez. As for the adherents of an intellectualistic or rational theory of faculty supremacy, command, law, obligation, penalty-he examines St. Albert the Great, St. Thomas, Cajetan, Dominic Soto, Medina, and St. Robert Bellarmine. The work is thus no more, and yet no less, than it purports to be-a 826 BRIEF NOTICES 8~7 history, and an introduction to a problem. Yet the orderly manner of treatment, the careful way in which the internal relationships in the thought of a given writer are worked out, the depth of analysis, make it an extremely valuable introduction to a problem. Furthermore, it must be said to the author's credit that he is not content with the easy role of the historicist who stands off in detachment from the very real clash of opinions implicit in the contradictory positions he is examining. Father Davitt casts his lot with the rational theory of law and considers the future of legal theory to rest in a full working out of the principles of the Thomistic analysis. If there is one source of dissatisfaction with the work, it is the treatment of penal law. Father Davitt obviously intended that the most practical and pertinent application of the voluntaristic or rational theories he describes would be in deciding the question of the existence of purely penal laws.. But while he comes to the conclusion that the rational or intellectual theory of law which he favors necessarily excludes the possibility of laws which are penal only, he does not really prove, nor does he adequately answer the objections which he himself raises against it. It must be said...