The Faculty of Law and the Department of Philosophy of the Hebrew University of Jerusalem found that celebrating the 100th birthday of M.R. Cohen by holding a symposium dealing with his legal philosophy was the best tribute we could pay to the man who spent so much energy telling both lawyers and philosophers that their disciplines could benefit from cross-fertilization. It is a telling fact that both disciplines need that reminder today as much as they needed it then: legal philosophy is considered central neither in law schools nor in philosophy departments. Law schools perceive as their primary tasks the equipping of their students with the tools of the trade: knowledge of the law, coupled with an understanding of legal reasoning and special legal terminology. Since a person can be a very effective lawyer without thinking a lot about the nature of law as a social phenomenon or its function in social life, curricula in law schools often do not include a course in legal philosophy. Departments of philosophy, on the other hand, tend to shy away from “applied” subjects. They offer courses in the history of philosophy, metaphysics, ontology and epistemology, ethics, theory of action and theory of mind. They usually consider law as just another realm of human practical affairs, which does not deserve particular philosophical care.

In opening this symposium, which has been convened on May 14, 1981, to commemorate the one hundredth birthday of the late Professor Morris R. Cohen, I need hardly state that I feel honored by being privileged to preside at its first session. It is fitting that the symposium takes place under the joint auspices and sponsorship of the Philosophy Department and Law Faculty of the Hebrew University, for the subjects of philosophy in general and legal philosophy in particular were Cohen's life-loves. In this connection, I desire to mention the credit which is due to Dr. Ruth Gavison, who teaches legal philosophy here, for thinking out the program of the symposium and undertaking the onerous task of supervising the implementation of the technical details involved in organizing this event. It is also my great pleasure to extend, on behalf of all who are assembled here, a heartfelt welcome to Dr. Leonora Cohen-Rosenfield, Professor Emeritus of the University of Maryland and daughter of Morris Cohen, as well as to her husband, Mr. Harry Rosenfield, who was her father's student and is presently a prominent Washington attorney, for having come from the United States in order to grace this symposium with their presence and indeed to be active participants therein.

The philosophy of law was a major component of Morris Raphael Cohen's commitment to philosophy. “To examine anew the problem of social ends in relation to law and morals and the life of civilization” he considered “an essential task of philosophy”. Where better than in the legal arena could one follow the living play of the social order in the light of logical method and ethical purpose? How did Cohen acquire this classical view of the task of philosophy, which in the early twentieth century seemed so foreign to his compatriots?

For the Hebrews, God is a law giver, Moses a law teacher, and the Talmud, commentaries on the Law. Even God has to forbear from infringing the duty to be just. “My interest in the philosophy of law”, said Morris né Moses, “has its roots in the fact that my very first education was Mosaic and Talmudic legislation”.

Morris Raphael Cohen, the American philosopher, had a major impact on the development of legal philosophy in the United States and on the law itself. The centenary of his birth (1880–1947) is a fitting occasion to assess his influence on the law.

This paper addresses only a few aspects of Cohen's enormous influence, as a legal philosopher, on American law. Since his day, the changes which he wrought in the law have been taken for granted by lawyers, judges, legal writers and historians.

The following four facets of Cohen's seminal influence on the law will be reviewed. Philosophy of law—what? and why?; Revival of the philosophy of law in the United States; Debunking the legal fiction that judges declare, but do not make, the law; and Substantive legal themes.

What manner of man was Cohen? An examination of his published philosophical writings, his autobiography (completed by his son after his death in 1947), his daughter's Portrait of a Philosopher, his colleagues’ book of memorial essays in his honor, Cornelius F. Delaneys' Study of Naturalistic Philosophy and David A. Hollinger's Morris R. Cohen and the Scientific Ideal, all reveal a many-sided, complex human being.

Several judgments based on the evidence supplied above come readily to mind. If a list of accomplishments at the close of his life were to be drawn up, it would appear that he attained much of what he consciously resolved to do, in spite of the fact that his own view of human destiny was one of powerlessness, tragedy, limited human knowledge and vain hopes. Cohen lived to become a sage, a humanitarian, a great teacher and an extraordinarily gifted and influential philosopher of science, civilization and law. He was a sage because he knew the limitations of wisdom and the bitterness and resignation attendant upon a life obedient to the reasoned dictates of wisdom.

The following critique of Morris R. Cohen's paper on Absolutisms in Law and Morals, first published in 1936 in the University of Pennsylvania Law Review and reprinted in his book Reason and Law, may be opened with an example of absolutism which appears in a passage of Scripture read in the Synagogue.

In the levitical law of the Sabbatical Year (Lev. 25:1–7) we read in the introduction that “God said to Moses on Mount Sinai, speak to the people of Israel” … The Rabbinical interpretation in Sifra, ad loc, remarks:

In his essay on Justice Holmes and the Nature of Law, Morris Raphael Cohen makes it clear that a fruitful science of law cannot be built if we restrict ourselves to the study of law as uniformities of behavior. He warns us against “doing away altogether with the normative point of view in law”. We regard legal rules as binding norms, says Cohen, and not just as mere descriptions of uniform behavior. Insisting on the normativity and bindingness of legal rules, Cohen anticipates contemporary legal philosophy, which takes this normativity and bindingness of law to be a pre-analytic datum to be accounted for by legal theory.

“The theory of law as coercive orders”, says H.L.A. Hart, “… started from the perfectly correct appreciation of the fact that where there is a law, there human conduct is made in some sense non-optional or obligatory…In building up a new account of law… we shall start from the same idea”. Ronald Dworkin starts his discussion of jurisprudence by asking: “Why do we call what ‘the law’ says a matter of ‘legal obligation’? Is ‘obligation’ a term of art, meaning only what the law says? Or does legal obligation have something to do with moral obligation?’

Accounts of the normativity of law resorting to morality, to sanctions and those viewing legal duty as a term of art, are amongst the commonest solutions to the problem under discussion.

By “legal ontology” I mean the religious or philosophical view which is the basis of a system of law and by “legal reasoning” I mean the totality of techniques which legal theorists and lawyers use to adjust that system to the requirements of adjudication; these requirements essentially being security and justice. Since the role of the judge is to proclaim the law in each specific case, we want his decisions to be not arbitrary, to be predictable in that they treat cases which are basically similar in the same way. We also want them to be seen as equitable, appropriate to the circumstances, the ways and the customs of the community. In reconciling stability and flexibility, the various systems to be compared in this article, i.e. Jewish law, Continental European law and Common law, allocate differently the powers of judge and legislator, regarded as complementary to one another. It will be seen that this division of powers changes at different times, while at the same time the ontology according to which the allocation of powers is effected becomes more flexible.