The legal philosophy of Nelson is fundamentally a liberal doctrine. It is, on the one hand, opposed to the philosophy which places a supreme trust in human reason and which believes that man can sit down and codify a system of laws in which there will be no gaps; and, on the other, it is opposed to a belief in the necessary rationality of existing institutions in the onward sweep of human history, the idea which was so dear to the Historical School of jurisprudence.

Nelson is a Naturrechtlehrer in the sense that he believes in the existence of metajuristic criteria of justice. That there are elemental principles of justice which are universal, and according to which laws are either just or unjust, decisions either right or wrong, Nelson believes cannot be denied. The moment we admit the injustice of a statute, or a judicial decision, we admit that we have used a criterion on which to base our opinion. The mistake we make, however, is to suppose that we can discover criteria, either empirically or logically.

So controversial is the subject of thai address–“Reflections on the ‘World Revolution’ of 1940”–that a few words of justification in in order. You may be assured that it was not chosen without considerable thought and trepidation. To begin with, I made a study of the addresses of my thirty-four predecessors, as presented in the pages of the American Political Science Review. Without exception, these papers impressed me as wise, scholarly, finely stated, and cogently argued. Occasionally they were lightened by the lambent play of humor. On the other hand, several of them wen decidedly dry–a quality lees refreshing in discourses than in wines. Many of my predecessors dealt penetratingly and profoundly with topics taken from the fields of specialisation wherein they were masters, often the greatest of American masters. Others discussed broadly and philosophically the nature of political science, its relations to the social sciences in general, or the problems encountered in teaching this science.

Of course so brief a summary cannot do justice to the almost infinite variety of materials presented by past presidents of our Association. There was, however, one type of subject which as a rule they avoided—that of contemporary, controversial political affairs. Even during the years of the First World War and immediately thereafter, this proved to be the case with only one or two exceptions. No doubt the motive which prompted most of my predecessors to avoid issues of the day was a sound one.

Nothing is of greater importance to national defense than the morale of those who do the actual work, the men who pump the petroleum, roll the steel, build the ships and planes. An ounce more of spirit along the assembly line is worth more than a correspondingly higher percentage of armaments in a clash of troops. This is because modern wars are won by industrial strength, a fact that we are almost tired of hearing repeated, but the truth of which we are observing with every passing month of the present war.

War industries require raw materials, trained leadership, and sufficient funds to support the costly effort. A nation needs all of these. But all depend for their success upon the efficiency and ardor of designers, foundrymen, and machinists. Do they put their minds and backs and hearts into their work? Or do they merely go through the motions?

Organized labor may be fitted into a war economy in one of several ways. The workers can be virtually enslaved, as in Poland, and forced to labor with armed sentries standing over them. This method has never proved very efficient. Another way, which Hitler and Mussolini are using, is to appeal to the emotions of patriotism, to work men into a frenzy which must then be sustained.

“The impression of an inward principle,” asserted Thomas Aquinas, “is to natural things what the promulgation of law is to men; because law, by being promulgated, impresses on man a directive principle of human actions.” Promulgation is of the very essence of law, and a sine qua non of legal obligation. This is true both logically and historically.

The very idea of obedience presupposes knowledge of that which is to be obeyed, without which knowledge there could be only the coincidence, never the obligation, of obedience. If human relationships are to be calculable, the people of a community must know, and know in advance, the rules by which they are to act and by which they may expect other men to act. Here is a proposition of such obvious force that any conception of legal obligation is almost bound to deal with it as an ethical obstruction to law enforcement which must be obviated by promulgation and a supplemental overall presumption that “everyone knows the law.”

A fact little appreciated by American political scientists is the relatively early emergence of federalism as a working concept of political theory in the Holy Roman Empire of the seventeenth century. But although these federal theories run ahead of corresponding theories elsewhere, it must be pointed out that political and legal conditions peculiar to the medieval Empire retarded an even earlier appearance. For centuries, the constitution of the Empire had retained its feudalistic structure. Many conspicuous changes, however, had taken place in the course of its development and had filled that structure with an entirely different content. The main result of the Empire's constitutional evolution had been its gradual transformation from an originally fairly unitary state into a federalistic organization of de facto sovereign states. It might be supposed, therefore, that the highly articulated territorial organization of the Empire would have easily served as fertile soil on which contemporary political theorists and jurists might have founded an elaborate theory of federalism.

The main purpose of this paper is not so much to measure the impact of utilitarianism on American political thought as to explain why utilitarian influence was so slight. The question I am seeking to answer may be phrased as follows: How did it come about that utilitarianism, the main current in English thought for two or three generations, was little more than a series of ripples, or at most a weak cross-current, on this side of the Atlantic? The problem becomes more puzzling when one reflects that the period of the rise and growth of utilitarianism in England (the first three or four decades of the nineteenth century) was an era in which intellectual relations between the two countries were especially close and one in which movements of political and social reform ran parallel courses. Quite reasonably, too, one might suppose that the qualities of Bentham's thought which contributed to its spread in England would have insured its enthusiastic reception here. A doctrine which contemptuously rejected tradition, preached hard-headed, calculating practicality, conceived of the individual as an isolated atomistic unit, and which in all its aspects and phases appealed to the virtues and limitations of the middle-class man of affairs—such a doctrine, one might think, would have flourished on nineteenth-century American soil.

As preliminary to a direct attack on the problem, some definitions or distinctions are in order. “When I mention religion,” said Parson Thwackum, “I mean the Christian religion; and not only the Christian religion, but the Protestant religion; and not only the Protestant religion, but the Church of England.”

It is a truism that the response of government to the manifold necessities of modern society has made the state today an organization providing services for the community. In particular, government is regarded as an agency to help alleviate economic disparity and maladjustment. This present development does not mean that the functions of regulation and protection, the traditional concomitants of the police state of the nineteenth century, have ceased to be important. On the contrary, they have increased in magnitude and importance as means of communication and as technical knowledge have increased. Thus the regulation and licensing of the practice of medicine, for example, assume greater importance as medical knowledge increases and as the health problems of the community grow. But the new emphasis of government is indeed on assistance and service to those in need of aid, such as the unemployed, the aged, and the blind.

The new functions of government are in some ways only developments of the old, and the line between regulatory and service developments is not a division between absolutely watertight compartments. In general, a regulatory function is one in which government either directs by regulations of one sort or another the way in which private individuals shall conduct themselves, or else licenses them to carry on certain activities, as found in statutes forbidding industrial homework in certain industries and requiring licenses in others.

The conservative of today hardly knows what to conserve. His bargain with destiny seems broken, and instead of consciousness of achievement and contentment with what is, he is more likely to be filled with a sense of frustration. This frustration is an uncertain quantity with which to deal, since it is characteristically explosive and negative. Under its guidance, conservatism may become a driving force to suppress the inconsequential; it may be a force that is forgetful at the same time of fundamental changes that will undermine a way of political existence. The conservative is happiest when he is unconscious of politics, when the essential propositions of social organisation do not have to be defended. But the weakness of conservatism appears in not knowing always what are the fundamental propositions supporting its manner of living, and in inability to judge the consequences of political and economic mutation. Conservatism, however, is at least that body of social thought which does not have to be defended.

Conflict, struggle, and protest must be conscious and filled with a sense of purpose. In conflict, there is always the conscious defense of what is presumed to be an interest, and there is an attack on what others deem to be their interest. Likewise, radicalism can never be unconscious or merely habitual, for it is a protest against something that is. But it must not be forgotten that in no state of society have all interests reached an equilibrium which permits of complete coöperation and no struggle. In this sense, conservatism represents a functional value in existence, since the stability of a conservative society is a situation in which the conflict of interests and wills is muted and restricted.

The B.A.E.-Extension Service views quoted above stress the importance of securing on planning committees representatives of all economic, social, racial, and geographic groups found in the county. To what extent are such groups represented on planning committees at present?

A wide geographic distribution of representation is, of course, more easily secured than any other kind of distribution. Geographic boundaries between groups are easily recognized, and it is usually taken for granted that distinct areas should be separately represented. A distribution based on type-of-farming areas will, of course, mean representation of geographic areas. And geographic distribution will ordinarily achieve some degree of distribution among social, economic, nationality, or other groups. In practically all counties, the county committee includes at least one member from each township, other civil district, or type-of-farming area in the county. Ordinarily this is achieved by making the chairman of each community committee, or other member selected by the community committee, also a member of the county committee. In a few cases where the county committee was set up first, a member from each township or district was made responsible for selecting the members of a community committee for his area.

In December, 1922, a resident of Berlin finished the manuscript of a book which, although far from becoming a best-seller, was destined to make history, if only through its title. The book was Das Dritte Reich, and its author, Arthur Moeller van den Bruck, was a German intellectual, then in his forties, who had a theory purporting to explain Germany's downfall as well as a vision of her recovery and return to a leading position in the world.

One may well be uncertain as to whether Moeller, had he lived, would have found himself altogether in agreement with the policies and methods of the régime for which he accidentally furnished so attractive a label, or whether he would have found himself among the dead on the morrow of June 30, 1934; but there can be little doubt that the author of Das Dritte Reich belongs among the contributors to the creed in the name of which Germany is ruled today.

Moeller van den Bruck was born in 1876 in the Rhineland, the son of a middle-class architect and Prussian official whose family went back to Lutheran pastor stock in Saxony. From his mother's side he inherited Dutch-Spanish blood and, from her Dutch maiden name, the more romantic-sounding portion of his pen name. His formal education was never completed after he was expelled from the Gymnasium at Düsseldorf as penalty for his indifference in class, resulting from his preoccupation with modern German literature (social lyrics) and philosophy (Nietzsche), which to the lad of sixteen seemed of vastly greater “social significance” than what his teachers had to offer.

Planning has always been regarded as a matter for the experts. Laymen affected by the plans have usually participated in the process only by accepting or rejecting through their representatives planning projects drawn up by technicians. The necessary importance of the rôle of technicians and the inevitable conflict between technical considerations, which must determine the recommendations of the experts, and political considerations, which must determine the attitude of representatives, have led many to regard the whole idea of systematic planning (in any large field of production) as undemocratic in its general trend. The whole idea of planning, they insist, points necessarily toward bureaucratic centralization of responsibility. The significance of the recently launched County Land Use Planning program lies in the effort to achieve from the first stages of the process and at the most local levels of organization that fusion between the skill and experience of the expert and the political choices of laymen which is the essence of modern democracy. Decentralization and localization of planning is, of course, particularly essential in agriculture because of the need to adapt methods for attaining general objectives to widely varying sectional differences. At the same time, lay participation in agricultural planning can mean widespread participation because of the wide spread of individual responsibility for individual farm enterprises. It may well be, therefore, that the lessons to be learned from this experiment in democratic planning for agriculture are not readily transferable to other fields of productive enterprise. That is a question that I must leave to others.

Since officers who conduct hearings in benefit procedures are given so much latitude and are so free from any leading-strings of a court process, it is of the essence not only that they possess a judicial attitude of mind but that they be keenly alive to the social implications of their work. In 1929, the New York Industrial Survey Commission wrote: “Referees are in every essential judicial officers; and they should be, so far as is humanly possible, above suspicion of improper practices, political or otherwise. They should be persons of mature judgment and be skilled in law—not alone the Compensation law—for they touch many and various points of law not comprehended within the language of the Compensation law. They should be trained in the value of evidence, and they should know the rules of evidence even though they are not obliged to apply them in compensation hearings.”

It is safe to speculate that if the above had been written in 1941, it would have contained more emphasis on the social viewpoint needed by referees. They must realize that on them depends to a large extent the difficulties accompanying denial of benefits which not only may cause serious hardship to individuals but may even have repercussions of the utmost importance in the community at large. Thus referees conducting hearings are supposed to have a kind of partisanship toward the law, in that they must constantly remember that its aim is to secure payments to all qualified claimants, not merely to decide the merits of a dispute between two opposing parties. Nevertheless, an attitude which is supposed to resolve doubts in favor of a claimant as required by the compensation law does not negate a judicial frame of mind in deciding the merits of a disputed claim.

During the 1939 term, President Roosevelt made his fifth appointment to the Supreme Court. Mr. Justice Butler died on November 16, 1939. Attorney-General Frank Murphy was appointed to this vacancy and took his seat on February 5, 1940. Presidents Lincoln and Taft also appointed five members of the Court; only President Washington and President Jackson appointed more than five. By his policy of choosing younger men, President Roosevelt reduced the average age of the members of the Court from seventy-two to sixty-one in less than three years. This change is important because it brings to the work of the Court younger and more vigorous men; it is also important because it extends the President's influence, through his appointment of justices, over a much longer period of time. It seems probable that we shall have a “Roosevelt Court” for many years to come.

In times of national or international stress, public attention tends to become focused upon spectacular events transpiring in the nation's capital or chief cities, with little interest displayed in the more prosaic affairs of rural local government. As a consequence, normal progress in rural institutions and activities is likely to be retarded. During 1940, with but few state legislatures in session and popular interest diverted to other fields, little that was distinctly novel occurred in the field of American county and township government. The rural units seemed, in a sense, to be marking time while the national government, and, to a lesser degree, states and cities, concentrated upon various phases of the national defense program. Yet certain developments took place during the year which, if not extraordinary, were nevertheless significant. As in former years, events will be summarized under the following headings: (1) areas; (2) organization and personnel; (3) functions; (4) finance; (5) optional charters; and (6) intergovernmental relations.

Law, we are accustomed to say, comprises two elements. It is a body of obligatory rules of conduct, but it differs from other obligatory rules, such as moral precepts or the rules of a game, in that it is enforced by the state. On the one hand, law exists as a conceptual system of normative rules; on the other, it dwelis as well in the realm of brute fact, where it is something that is “done” or enforced by the state. But here surely is a snake swallowing its own tail, for the state which concretises law on the level of actuality is itself a creature of the realm of ideality: the state is meaningless except as a legal concept.

What is needed is a treatment of law which will equate the actual practice of government with the conceptual system of rules that are obligatory, not merely upon citizens, but upon government as well. There seem to be good a priori reasons for believing that this cannot be done, and for believing, furthermore, that no definition of law in terms of either of the elements alone will be satisfactory.

The American writers loosely grouped as “realistic” have made a thoroughgoing effort to solve the problem by omitting the normative element. With individual variations, these authors have argued that law is simply the behavior of the judge. Since the judge is a man, the law which he makes is a by-product of his personal existence, secreted, perhaps, as a result of a bad breakfast, as a pearl is secreted by an oyster. It is meaningless to talk of law as obligatory, or law as rule. Law is occurrence, on the simple level of fact, and it is not to be discussed in terms of obligation or validity, ideas which are the product of folklore or father-fixation.

Much has been said and written in recent years concerning executive usurpation of congressional powers. Little attention seems to have been given to encroachment by Congress on the President's right to give or withhold his approval of “every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment).”

At various times in the past, the question of the extent to which political activity on the part of government officers and employees should be curtailed has been a subject of public discussion. Within the past two years, the question has arisen again in connection with the passage by Congress of what is popularly known as the Hatch Act. The purpose of the present article is to point out the principal restrictions imposed by this new, as well as by earlier, federal legislation upon the political activity of individual government employees. These restrictions are of three types: (1) those relating to political contributions and solicitation, (2) those relating to political office-holding, and (3) those relating to political activity generally. Each of these types will be discussed, first, in relation to federal employees, and second, in relation to employees of state and local governments.

The increase in judicial restraint noted a year ago has again been in evidence during the period under review. State courts, in following the lead of the United States Supreme Court, have construed police power liberally and have spoken out in defense of civil rights. Noteworthy, as well, has been the practice of these courts to construe strictly the power of the governor in this period of expanding administrative authority. The tendency of state courts to uphold experimental legislation, in line with the doctrine established by Nebbia v. New York rather than founded on liberty of contract and separation of powers precepts, has not been uniform. Federal decisions which recently have been greatly weakened but not expressly overruled still serve as guide-posts for some appellate courts.

A predominant note in the speculations of liberal-democratic thinkers on the subject of post-war reconstruction has been an insistence on the need for “some kind of a federation.” As a popular catch-word, “federation” has undoubted propagandist value. It has come to acquire some of the magic properties once associated with phrases like “a parliament of man,” “league of nations,” and “outlawry of war.” For the pamphleteer and orator, therefore, it is a readymade formula which should be fully exploited for the purpose of engendering a readiness for international collaboration.

The Contest for a National Syatem of Home-Mortgage Finance. Since 1932, the federal government has undertaken new responsibilities in regard to housing and home finance which involve a public investment of more than four billion dollars, contingent liabilities for the security of a private investment of three billion dollars, and the creation of a set of administrative structures that cover the entire nation. Yet, despite the magnitude of this public effort, no new “system” of housing has resulted. It is precisely the striking lack of coherence in the government's program that gives a hint of the variety of forces now competing for control and for advantage in this field.

Not until 1937, after a stormy period of improvisation, was the first workable formula of public housing agreed upon. Surely it is clear that the nation was not preoccupied throughout the depression years with the cause of those most in need of proper dwellings. By 1937 there had already been enacted the Federal Home Loan Bank Act, the Home Owner's Loan Act, and the National Housing Act, all of which dealt with some aspect of housing and none of which made any serious approach to slum of clearance or housing for the masses.

Whereas the depression brought no essentially new crisis for the ill-housed, it did represent a critical time for home tenure. Home ownership in this country has always been extensive, and ownership is usually not achieved without contracting some amount of mortgage debt.