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Book Review
| Dalia Tsuk Mitchell, Architect of Justice: Felix S. Cohen and the Founding of American Legal Pluralism, Ithaca: Cornell University Press, 2007. Pp. xi + 368. $59.95 (ISBN 978-0-8014-3956-8).
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| This is a good intellectual biography. It is also an instructive example of the limits of this art form as regularly practiced. |
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Felix Cohen was the son of a second generation ethnically Russian, Polish Jewish mother from a large, gregarious family who was involved in numerous left-wing social organizations, and a first generation Russian Jewish father, Morris, the first Jew to earn a Ph.D. from the Harvard Philosophy Department, who taught mathematics, then philosophy at CCNY and was known for his writing about legal theory. A wunderkind, Felix graduated from high school at 15 and CCNY at 19. He then earned a Ph.D. in philosophy from Harvard at 22 and a J.D. from Columbia at 24. After a brief clerkship and an even briefer stint in private practice, in 1933 he joined the New Deal as an attorney in the Interior Department's Bureau of Indian Affairs. There Felix fought the good fight for Indian's property and culture against increasingly long odds until 1948 when he returned to private practice for five years before succumbing to cancer at the age of 46. |
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Felix produced two memorable books, Ethical Systems and Legal Ideals and Handbook of Federal Indian Law and two memorable articles, "Transcendental Nonsense and the Functional Approach" and "Field Theory and Judicial Logic." On the basis of the two articles he is often thought of as a late participant in the Legal Realist movement, a characterization that the author mostly avoids. This is sensible because what is interesting about Felix's thought is that in all of his writings he attempted to thread his way between affirming a social/political relativism and avoiding an ethical one, to recognize plural understandings of the world without paralyzing ethical judgment. The narrative thrust of this biography comes from following Felix's shifts from an early socialist focus on groups in their economic relationships, through a middle focus on ethnic groups—Indian tribes and Jewish refugees—in their cultural specificities, to a late focus on using law to increase social contacts between groups so as to facilitate tolerance as a basis for a wider pluralism. |
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This book was begun because a seminar teacher wanted to know "how a Jewish guy from New York became the guru of federal Indian law" (ix). Somewhere along the way that question got forgotten. Indeed, somewhere along the way the human Felix Cohen was mostly forgotten. Once he finishes his law degree, marries, completes a clerkship and lands a job in Washington he is completely transformed from a person with a rich family and social life into a thinking machine. Felix does law for twenty years only to reappear as a person when he stops to die. Nor is it remarked on, much less interrogated, that a major intellect who knew everyone who was anyone in the liberal Washington legal elite, spent 14 years as a foot soldier in an obscure federal agency. Surely this was not an accident. |
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Felix was a tall slender, curly haired man. Known as "Redleg Cohen" for the long johns he wore when out on the reservations in winter, he was revered for his kindness toward one and all. Indeed, he grew figs, that most pacific of biblical fruit, in his back yard. Family was a major part of his life, especially his wife and children, but also his siblings' families and the great extended family of his mother. His father, Morris, was an abrasive, intensely intellectual person, known for kindness toward no one, including his two other children, Leonora, who taught French literature and civilization all her life, and William, who became a physicist. It took a special agreement for Felix not to ignore, but rather to greet this father with a crisp "Hello, Sir," when he met him in the hall at CCNY. After completing his Ph.D. thesis, the degree that Morris had, Felix collected a law degree, the degree that Morris lacked. Thereafter, Felix wrote one important piece of legal theory, "Transcendental Nonsense," and then not much more until after Morris had died, a time when Felix left government service and began private practice. |
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There seems to be a pattern here, pop psychology aside. As adults, all three children chose to hide professionally from their father, even the one most like him. Morris's personality so dominated the lives around him that escape to a place where one might not be noticed was the only plausible strategy for living a separable life. While Felix corresponded regularly with Morris and helped to edit his books, that was a mitzvot, an obligation, and so, another matter entirely. Meanwhile, he worked in an obscure federal agency helping people who needed his help. My bet is that he did this for a quite obvious reason, but a reason of the kind that intellectual history somehow always misses. |
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| John Henry Schlegel
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| SUNY/Buffalo Law School |
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