Chapter VII: Part I: The Group Principle (4)

Both these principles—community responsibility for crime and the necessity of fitting the offender into the community life—underlie the work of the juvenile court. The probation officer’s duty is not exhausted by knitting the child again into worthy relations; he must try to see that community life shall touch children on all sides in a helpful not a harmful way.

A future task for the juvenile court is to organize groups back of the child as part of the system of probation. All our experience is showing us the value of using the group incentive. The approval or blame of our fellow-men is an urgent factor in our lives; a man can stand any sort of condemnation better than that of his club. It was the idea of community punishment which was such an interesting part of the “Little Commonwealth” which Mr. Homer Lane established near Detroit for boys and girls on probation. If a boy did not work he was not punished for it, he did not even go without food, but the whole commonwealth had to pay for it out of their earnings. The whole moral pressure of the community was thus brought to bear upon that boy to do his share of the work—an incentive which Mr. Lane found more powerful than any punishment.

A colonel of the American army says that fewer offenses are committed in our army than in the Continental armies, not because human nature is different in America but because our methods of army discipline are different: the custom in our army is to punish a company for the offense of an individual; the company, therefore, looks after its own members.

The procedure of our courts also shows signs of change in the direction of the recognition of the group principle. Until recently we have had in our courts two lawyers, each upholding his side: this means a real struggle, there is no effort at unifying, one or the other must win; the judge is a sort of umpire. But the Reconciliation Court of Cleveland (and some other western cities) marks a long step in advance. This does away with lawyers each arguing one side; the judge deals directly with the disputants, trying to make them see that a harmonizing of their differences is possible. In our municipal courts, to be sure, the principal function of the judge has long been not to punish but to take those measures which will place the individual again in his group, but this applies only to criminal cases, whereas the Reconciliation Court of Cleveland, following the practice of the conciliation courts of certain continental countries,[39] deals with civil cases. The part of the judge in our juvenile courts is too well known to need mention.

In a jury I suppose we have always had an example of the group idea in practical life. Here there is no question of counting up similar ideas—there must be one idea and the effort is to seek that.

In our legislatures and legislative committees we get little integrated thought because of their party organization; even among members of the same party on a committee there are many causes at work to prevent the genuine interplay we should have. The governors’ commissions, on the other hand, hear both sides, call in many experts and try to arrive at some composite judgment.

Nowhere has our social atomism been more apparent than in our lack of city-planning: (1) we have had many beautiful single buildings, but no plan for the whole city; (2) and more important, we could not get any general plan for our cities accepted because the individual property owner (this was called individualism!) must be protected against the community. City-planning includes not only plans for a beautiful city but for all its daily needs—streets, traffic regulations, housing, schools, industry, transportation, recreational facilities; we cannot secure these things while property owners are being protected in their “rights.” The angry protest which goes up from real estate owners when it is proposed to regulate the height of buildings we have heard in all our cities. The struggle for enough light and air in tenements has been fought step by step. The “right” claimed was the right of every man to do what he liked with his own property. Now we are beginning to recognize the error of this, and to see that it is not a state of individualism but of anarchy that our new building laws are trying to do away with. No real estate owner is to be allowed to do that with his own property which will not fit into a general plan for the beauty and efficiency of the city. The key-note of the new city-planning is adaptation, adaptation of means to end and of part to part. This does not stifle individual initiative, but directs it.

And the interesting point for us here is that the real estate men themselves are now beginning to see that particularistic building has actually hurt real estate interests. The “Report of the Advisory Council of the Real Estate Interests of New York City” admits that “light, air and access, the chief factors in fixing rentable values, had been impaired by high buildings and by the proximity of inappropriate or nuisance buildings and uses.” It is impossible to talk ten minutes with real estate men to-day without noticing how entirely changed their attitude has been in the last ten or twenty years. Moralists used to tell us that the only path of progress was to make people willing to give up their own interests for the sake of others. But this is not what our real estate men are doing. They are coming to see that their interests are in the long run coincident with the interests of all the other members of the city.

The growing recognition of the group principle in the business world is particularly interesting to us. The present development of business methods shows us that the old argument about coöperation and competition is not fruitful. Coöperation and competition are being taken up into a larger synthesis. We are just entering on an era of collective living. “Cut-throat” competition is beginning to go out of fashion. What the world needs to-day is a coöperative mind. The business world is never again to be directed by individual intelligences, but by intelligences interacting and ceaselessly influencing one another. Every mental act of the big business man is entirely different from the mental acts of the man of the last century managing his own competitive business. There is of course competition between our large firms, but the coöperation between them is coming to occupy a larger and larger place relatively. We see this in the arrangement between most of our large printers in Boston not to outbid one another, in those trades which join to establish apprentice schools, in the coöperative credit system, worked out so carefully in some of the western cities as almost to eliminate bad debts, in the regular conferences between the business managers of the large department stores, in our new Employment Managers’ associations in Boston and elsewhere, in the whole spirit of our progressive Chambers of Commerce. When our large stores “compete” to give the highest class goods and best quality service, and meet in conference to make this “competition” effective, then competition itself becomes a kind of coöperation! There are now between thirty and forty associations in this country organized on the open-price plan. The Leather Belting Exchange, an excellent example of “coöperative competition,” was organized in 1915. Some of its avowed objects are: standardization of grades of leather, promotion of use of leather belting by scientific investigation of its possible uses, uniform contract system, uniform system of cost accounting, daily charts of sales, monthly statistical reports, collection and distribution of information relative to cost of raw material and to methods and cost of manufacturing and distribution.[40] How vastly different a spirit from that which used to animate the business world!

Modern business, therefore, needs above all men who can unite, not merely men who can unite without friction, but who can turn their union to account. The successful business man of to-day is the man of trained coöperative intelligence. The world as well as the psychologist places a higher value on the man who can take part in collective thinking and concerted action, and has higher positions to offer him in the business and political field. The secretary of a Commission investigates a subject, is clever in mastering details, in drawing conclusions and in presenting them, perhaps far cleverer in these respects than any member of the Commission. But the chairman of the Commission must have another and higher power—the power of uniting these conclusions with the conclusions of others, the power of using this material to evolve with others plans for action. This means a more developed individual and brings a higher price in the open market.

Another illustration of the group principle in the business world is that a corporation is obliged by law to act in joint meeting, that is, it cannot get the vote of its members by letter and then act according to the majority.

But more important than any of the illustrations yet given is the application of the group principle to the relations of capital and labor. People are at last beginning to see that industrial organization must be based on the community idea. If we do not want to be dominated by the special interests of the capital-power, it is equally evident that we do not want to be dominated by the special interests of the labor-power. The interests of capital and labor must be united.[41]

Even collective bargaining is only a milestone on the way to the full application of the group principle. It recognizes the union, it recognizes that some adjustment between the interests of capital and labor is possible, but it is still “bargaining,” still an adjustment between two warring bodies, it still rests on the two pillars of concession and compromise. We see now the false psychology underlying compromise and concession. Their practical futility has long been evident: whenever any difference is “settled” by concession, that difference pops up again in some other form. Nothing will ever truly settle differences but synthesis. No wonder the syndicalists label the “compromises” made between “antagonistic interests” as insincere. In a way all compromise is insincere, and real harmony can be obtained only by an integration of “antagonistic” interests which can take place only when we understand the method. The error of the syndicalists is in thinking that compromise is the only method; their fundamental error is in thinking that different interests are necessarily “antagonistic” interests.

Compromise is accepted not only as inevitable and as entirely proper, but as the most significant fact of human association, by those economists who belong to that school of “group sociologists” which sees present society as made up of warring groups, ideal society as made up of groups in equilibrium. Not only, I believe, is conflict and compromise not the true social process, but also it is not, even at present, the most significant, although usually the largest, part of the social process. The integrating of ideas which comes partly from direct interpenetration, and partly from that indirect interpenetration which is the consequence of the overlapping membership of groups, I see going on very largely in the groups to which I belong, and is surely an interesting sign-post to future methods of association.

The weakness of Arbitration and Conciliation Boards, with their “impartial” member, is that they tend to mere compromise even when they are not openly negotiations between two warring parties.[42] It is probable from what we see on all sides that the more “concessions” we make, the less “peace” we shall get. Compulsory Arbitration in New Zealand has not succeeded as well as was hoped just because it has not found the community between capital and labor.

The latest development of collective bargaining, the Trade Agreement,[43] with more or less permanent boards of representatives from employers and workers, brings us nearer true community than we have yet found in industrial relations. The history of these Agreements in England and America is fruitful study. One of the best known in America is Mr. Justice Brandeis’ protocol scheme in 1910 for the garment industries of New York, which provided for an industrial court composed of employers and employed to which all disagreements should be brought, and for six years this prevented strikes in the needle trades of New York.[44]

One of the most interesting of the Trade Agreements to be found in the Bulletins of the National Labor Department, and one which can be studied over a long term of years, is that between the Stove Founders’ National Defence Association (employers) and the Iron Moulders’ Union of North America. It is not only that the permanent organ of “conference” (employers and employees represented) has brought peace to the stove industry after forty years of disastrous strikes and lockouts, but that question after question has been decided not by the side which the market rendered strongest at the moment seizing its advantage, but by a real harmonizing of interest. A good illustration is the treatment of the question of who should pay for the bad castings: that was not decided at once as a matter of superior strength or of compromise, but after many months a basis of mutual advantage was found.

For some years Trade Agreements have been coming to include more and more points; not wages and hours alone, but many questions of shop management, discipline etc. are now included. Moreover it has been seen over and over again that the knowledge gained through joint conference is the knowledge needed for joint control: the workmen ought to know the cost of production and of transportation, the relative value of different processes of production, the state of the market, the conditions governing the production and marketing of the competing product etc.; the employer must know the real conditions of labor and the laborer’s point of view.

The fundamental weakness of collective bargaining is that while it provides machinery for adjustment of grievances, while it looks forward to all the conceivable emergencies which may arise to cause disagreement between labor and capital, and seeks methods to meet these, it does not give labor a direct share in industrial control. In the collective _bargain wages_ and the conditions of employment are usually determined by the relative _bargaining_ strength of the workers and employers of the industrial group. Not bargaining in any form, not negotiation, is the key to industrial peace and prosperity; the collective contract must in time go the way of the individual contract. Community is the key-word for all relations of the new state. Labor unions have long been seeking their “rights,” have looked on the differences between capital and labor as a fight, and have sought an advantageous position from which to carry on the fight: this attitude has influenced their whole internal organization. They quite as much as capital must recognize that this attitude must be given up. If we want harmony between labor and capital, we must make labor and capital into one group: we must have an integration of interests and motives, of standards and ideals of justice.

It is a mistake to think that social progress is to depend upon anything happening to the working people: some say that they are to be given more material goods and all will be well; some think they are to be given more “education” and the world will be saved. It is equally a mistake to think that what we need is the conversion to “unselfishness” of the capitalist class. Those who advocate profit-sharing are not helping us. The quarrel between capital and labor can never be settled on material grounds. The crux of that quarrel is not profits and wages—it is the joint control of industry.

There has been an increasing tendency of recent years for employers to take their employees into their councils. This ranges from mere “advisory” boards, which are consulted chiefly concerning grievances, through the joint committees for safety, health, standardization, wages etc., to real share in the management.[45] But even in the lowest form of this new kind of coöperation we may notice two points: the advisory boards are usually representative bodies elected by the employees, and they are consulted as a whole, not individually. The flaw in these advisory boards is not so much, as is often thought, because the management still keeps all the power in its own hands, as that the company officials do not sit with these boards in joint consultation. There is, however, much variety of method. In some shops advisory committees meet with the company officials. Some companies put many more important questions concerning conditions of employment before these bodies than other companies would think practical. A few employers have even given up the right to discharge—dismissal must be decided by fellow-employees.

Usually the management keeps the final power in its own hands. This is not so, however, in the case of Wm. Filene Son’s Co., Boston, which has gone further than any other plant in co-management. Here the employees have the right by a two-thirds vote to change, initiate, or amend any rule that affects the discipline or working conditions of the employees of the store, and such vote becomes at once operative even against the veto of the management. Further, out of eleven members of the board of directors, four are representatives of the employees.[46]

The great advantage of company officials and workers acting together on boards or committees (workshop committees, discipline boards, advisory councils, boards of directors, etc.) is the same as that of the regular joint conferences of the Trade Agreement: employers and employed can thus learn to function together and prepare the way for joint control. Workshop committees should be encouraged, not so much because they remove grievances etc., as because in the joint workshop committee, managers and workers are learning to act together. Industrial democracy is a process, a growth. The joint control of industry may be established by some fiat, but it will not be the genuine thing until the _process_ of joint control is learned. To be sure, the workshop committees which are independent of the management are often considered the best for the workers because they can thus keep themselves free to maintain and fight for their own particular interests, but this is exactly, I think, what should be avoided.

The labor question is—Is the war between capital and labor to be terminated by fight and conquest or by learning how to function together? I face fully the fact that many supporters of labor believe in what they call the “frank” recognition that the interests of capital and labor are “antagonistic.” I believe that the end of the wars of nations and of the war between labor and capital will come in exactly the same way: by making the nations into one group, by making capital and labor into one group. Then we shall learn to distinguish between true and apparent interests, or rather, between long-run and immediate interests; then we shall give up the notion of “antagonisms,” which belong to a static world, and see only difference—that is, that which is capable of integration. This is not an idealistic treatment of the labor problem. Increase of wages and reduction in cost of production were once considered an irreconciliable antagonism—now their concurrence is a matter of common experience. If the hope of that concurrence had been abandoned as visionary or idealistic, we should be sadly off to-day. Many people are now making a distinction, however, between production and distribution in this respect: in the former the interests of capital and labor are the same, it is said, but not in the latter. When that reorganization of the business world, which it is no longer utopian to think of, is further actualized, then in distribution too we shall be able to see the coincident interests of labor and capital.

As the most hopeful sign in the present treatment of industrial questions is the recognition that man with his fundamental instincts and needs is the very centre and heart of the labor problem, so the most hopeful sign that we shall fully utilize the constructive powers which will be released by this psychological approach to industrial problems, is the gradually increasing share of the workman in the actual control of industry.

The recognition of community rather than of individuals or class, the very marked getting away from the attitude of pitting labor interests against the interests of capital, is the most striking thing from our point of view about the famous report formulated by a sub-committee of the British Labor Party in the autumn of 1917. In every one of the four “Pillars” of the new social order this stands out as the most dominant feature. In explaining the first, The Universal Enforcement of the National Minimum, it is explicitly stated that this is not to protect individuals or a class, but to “safeguard” the “community” against the “insidious degradation of the standard of life.” The second, The Democratic Control of Industry, proposes national ownership and administration of the railways, canals and mines and “other main industries ... as opportunity offers,” with “a steadily increasing participation of the organized workers in the management,” the extension of municipal enterprise to housing and town planning, public libraries, music and recreation, and the fixing of prices. This “Pillar,” too, we are told, is not a class measure, but is “to safeguard the interests of the community as a whole.”

Under the heading, “Revolution in National Finance,” the third “Pillar,” it is again definitely stated and moreover convincingly shown that this is not “in the interests of wage-earners alone.” Under “The Surplus Wealth for the Common Good,” the fourth “Pillar,” it is stated that the surplus wealth shall be used for what “the community day by day needs for the perpetual improvement and increase of its various enterprises,” “for scientific investigation and original research in every branch of knowledge,” and for “the promotion of music, literature and fine arts.” “It is in the proposal for this appropriation of every surplus for the common good—in the vision of its resolute use for the building up of the community as a whole ... that the Labor Party ... most distinctively marks itself off from the older political parties.”[47]

-----

Footnote 36:

It is interesting to notice that Miss Lathrop’s whole conception of
the Children’s Bureau is that it is to fit children into the life of
the community.

Footnote 37:

See Appendix.

Footnote 38:

The new farm industrial system which is to replace Sing Sing is
founded largely on the community idea.

Footnote 39:

France, Norway, Switzerland. In Norway it is said that more then
three-quarters of the cases which come before the conciliation courts
are settled without law suits.

Footnote 40:

“Experiences in Coöperative Competition,” by W. V. Spaulding.

Footnote 41:

The great value of Robert Valentine’s work consisted in his
recognition of this fact.

Footnote 42:

I am speaking in general. It is true that the history of cases settled
by arbitration reveals many in which the “umpire” has insisted that
negotiations continue until the real coincident interest of both sides
should be discovered.

Footnote 43:

It has long been known in England and America but recently it has been
spreading rapidly.

Footnote 44:

Recently abandoned.

Footnote 45:

The three firms which have carried co-management furthest are the
Printz-Biederman Co. of Cleveland, the Wm. Filene’s Sons Co. of Boston
and the U. S. Cartridge Co. of Lowell. See Report of Committee on
Vocational Guidance, Fourth Annual Convention of National Association
of Corporation Schools, by Henry C. Metcalf.

Footnote 46:

We have a number of minor instances of the recognition of the group
principle in industry. An interesting example is the shop piece-work
in the Cadbury works, where the wages are calculated on the output of
a whole work-room, and thus every one in the room has to suffer for
the laziness of one. (See “Experiments in Industrial Organization,” by
Edward Cadbury.)

Footnote 47:

I have not spoken of the coöperative buying and selling movement
because by the name alone it is obvious how well it illustrates my
point, and also because it is so well known to every one.

Another evidence of the spreading of the community idea is the wide
acceptance of the right of the community to value created by the
community.

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XV

FROM CONTRACT TO COMMUNITY

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BUT perhaps nowhere in our national life is the growing recognition of the group or community principle so fundamental for us as in our modern theory of law. Mr. Roscoe Pound has opened a new future for America by his exposition of modern law, an exposition which penetrates and illumines every department of our thought. Let us speak briefly of this modern theory of law. It is: (1) that law is the outcome of our community life, (2) that it must serve, not individuals, but the community.

Mr. Pound, in a series of articles on “The Scope and Purpose of Sociological Jurisprudence” in the Harvard Law Review (1910-1912), points out that it was an epoch-making moment when attention began to be turned from the nature of law to its purpose. The old conception of law was that “new situations are to be met always by deductions from old principles.” The new school (headed by Jhering) believe that “law is a product of conscious and increasingly determinate human will.” “Legal doctrines and legal interests do not work themselves out blindly, but have been fashioned by human wants to meet human needs.” Before Jhering the theory of law had been individualistic; Jhering’s is a social theory of law. “The eighteenth century conceived of law as something which the individual invoked against society; ... Jhering taught that it was something created by society through which the individual found a means of securing his interests, so far as society recognized them.” And Jhering called his a jurisprudence of realities; he wanted legal precepts worked out and tested by results. For instance, if a rule of commercial law were in question, the search should be for the rule which best accords with and gives effect to sound business practice.[48]

So, Mr. Pound tells us, the idea of justice as the maximum of individual self-assertion, which began to appear at the end of the sixteenth century and reached its highest development in the nineteenth century, began to give way towards the end of the nineteenth century to the new idea of the end of law. Modern jurists have come to consider the working of law more than its abstract content; they lay stress upon the social purposes which law subserves rather than upon sanction.[49]

Mr. Pound then shows us that Gierke’s theory of association “became as strong an attack upon the individualistic jurisprudence of the nineteenth century upon one side as Jhering’s theory of interests was upon another.” The “real personality” of the group is plainly expounded by Gierke, that it is not a legal fiction, that is that the law does not create it but merely recognizes that which already exists, that this “real person” is more than an aggregation of individuals, that there is a group will which is something real apart from the wills of the associated individuals.

Thus German jurists recognize the principle of “community.” The theory of Vereinbarung, as expounded by Jellinek,[50] is also a recognition of the fact that one will can be formed from several. The present tendency to work out the law of association through the study of the group is marked and significant.

The chief consequence of this growing tendency in modern juristic thinking is seen in the change in attitude towards contract. The fundamental question of relation, of association, is—Can you make one idea grow where two grew before? _This_ is the law of fruitful increase. The gradual progress away from contract in legal theory is just the gradual recognition of this principle. You can have a contractual relation between two wills or you can have those two wills uniting to form one will. Contract never creates one will. It is the latter process which is shown in the development of corporation law.[51] The laws regulating partnership are based on contractual relations between the individual members. The laws regulating corporations are based on the theory that a corporation is something quite different from the individuals who constitute it or the sum of those individuals, that a new entity has been created. I am writing at this moment (February, 1918) in a room with the thermometer at 42, but the law would not uphold me in going and getting my share, as a stock holder, of the coal now in the New York, New Haven and Hartford sheds! But to many the personality of the corporation is a fiction: they do not consider the corporation a self-created entity but a state-created entity. To others, following Gierke, the corporation is merely a state-_recognized_ entity, it has the inherent power to create itself. The increasing acceptance of this latter theory has made it possible to hold liable groups which have not been legally incorporated but which exercise powers analogous to those of corporations. This has been the principle of some of the English decisions making trade-unions responsible, as notably in the Taff-Vale case.

The paradox of contract is that while it seems to be based on relation, it is in reality based on the individual. Contract is a particularist conception. Mr. Pound speaks of the significance of the “parallel movement away from liberty of contract and yet at the same time towards the full recognition of association.” It is the legal theory of association based on our growing understanding of group psychology which will finally banish contract. When Duguit, the eminent French jurist, tells us that contract is diminishing, it is because he sees a time when all juridical manifestations will come from unilateral acts.[52] We see contract diminishing because we believe in a different mode of association: as fast as association becomes a “community” relation, as fast as individuals are recognized as community-units, just so fast does contract fade away. Jellinek points out that legal theory is coming to recognize that violation of community is quite different from the violation of contract.

From status to contract we do not now consider the history of liberty but of particularism—the development of law through giving a larger and larger share to the particular will. The present progress of law is from contract to community. Our particularistic law is giving way to a legal theory based on a sound theory of interrelationship. Our common law has considered men as separate individuals, not as members of one another. These separate individuals were to be “free” to fight out their differences as best they could, it being overlooked that freedom for one might not mean freedom for the other, as in the case of employer and employed. “Individual rights” in practice usually involve some difference of opinion as to who is the individual! Mr. Olney said of the Adair case: “It is archaic, it is a long step into the past, to conceive of and deal with the relations between the employer in such industries and the employee as if the parties were individuals.”[53]

The principles of individual rights and contract which have long dominated our courts[54] are giving way now to sounder doctrine. The old idea was that a man could do what he liked with his own; this is not the modern notion of law. We find a judge recently saying: “The entire scheme of prohibition as embodied in the Constitution and laws of Kansas might fail, if the right of each citizen to manufacture intoxicating liquors for his own use or as a beverage were recognized. Such a right does not inhere in citizenship.”[55] Our future law is to serve neither classes nor individuals, but the community. The lawyer is to bring his accumulation of knowledge not to his clients merely, but to enrich and interpret and adjust our whole social life.

We have many signs to-day of the growing recognition of community as the basis of law. The following are taken from an article by Mr. Pound:[56]

The increasing tendency of law to impose limitations on the use of property, limitations designed to prevent the anti-social use of property. This has already been noticed in our new building laws.

The limitations now imposed on freedom of contract. This is shown in the statutes regulating the hours and conditions of labor, in the law of insurance,[57] in the judicial decisions which have established that the duties of public service corporations are not contractual, flowing from agreement, but quasi-contractual, flowing from the calling in which the public servant is engaged.

Limitations on the part of creditor or injured party to exact satisfaction. This is illustrated by the homestead exemptions which prevail in many states, and such exemptions as tools to artisans, libraries to professional men, and animals and implements to farmers.

Imposition of liability without fault, as illustrated in workmen’s compensation and employers’ liability.[58]

Water rights are now interpreted with limitations on the owners. The idea is becoming accepted that running water is an asset of society which is not capable of private appropriation or ownership except under regulations that protect the general interest. This tendency is changing the whole water law of the western states.

Insistence on interest of society in dependent members of household. With respect to children it is not the individual interest of the parents, but the interest of society which is regarded.

Thus modern law is being based more and more upon a recognition of the community principle.

When we sometimes hear a lawyer talk of such measures as old age pensions as a matter of “social expediency,” we know that he has not yet caught the community idea in law. Modern law considers individuals not as isolated beings, but in their relation to the life of the whole community. Thus in shortening the hours of work the courts can no longer say this is an “unwarrantable interference” with individual liberty; they have to consider the health of the individual in its relation to his family and his work, also the use he will make of his leisure, the need he has for time to perform his duties as citizen, etc. etc. Mr. Pound points out with great clearness that relation is taking the place of contract in modern law. Workmen’s compensation arises from the theory of reciprocal rights and duties and liabilities which flow from a relation. This he tells us was the common law conception until deflected by contract; now we are going back to it and we do not ask the strict terms of the contract, but what the relation demands.

Perhaps social psychology can give two warnings to this new tendency of law. First this relation must not be a personal relation. I have spoken several times of our modern legal system as based on relation, but this must not be confused with the relation of the Middle Ages. Then the fundamental truth of relation, that life is a web of relationships, was felt intuitively, but it was worked out on its personal side. The feudal age lived in the idea of relation, but the heart of the feudal system was personal service. It was like loyalty to the party chief: right or wrong, the vassal followed his lord to the battlefield and died with him there. Because it was worked out on its personal side it had many imperfections, and the inevitable reaction swung far away. Now the pendulum is returning to relation as the truth of life, but it is to be impersonal. Employers and employed must study the ideal relation and try to actualize that. We seek always the law of true community.

Secondly, the relation itself must always be in relation. But these warnings are not necessary for our progressive judges. It is interesting to read the decisions of our common-law judges with this in view: to see how often the search is for the law of the actual conditions and what obligations those actual conditions create, not for a personal relation with some abstract conception of a static relation. It is of a _relation in relation_ that judges must, and often to-day do, consider: not landlord and tenant as landlord and tenant, not master and servant as master and servant, but of that relation in relation to other relations, or, we might say, to society. This growing conception of a dynamic relation in itself means a new theory of law.[59]

Thus our law to-day is giving up its deductions from juristic conceptions, from the “body of rules” upon which trial procedure has so largely rested, and is beginning to study the condition given with the aim of reaching the law of that condition. Mr. Pound says distinctly that law is to be no longer based on first principles, but on “the conditions it is to govern.” And we are told that “Mr. Justice Holmes has been unswerving in his resistance to any doctrinaire interpretation,” that his decisions follow the actual conditions of life even often against his own bias of thought.[60] The great value of Mr. Justice Brandeis’ brief in the Oregon case concerning the constitutionality of limiting the hours of women in industry, was his insistence upon social facts. And Mr. Felix Frankfurter made an address before the American Bar Association in August, 1915, the burden of which was that “law must follow life.” His plea for a “creative” system of law in the place of the crystallized system of the past which we are trying with hopeless failure to apply to present conditions points the way with force and convincingness to a New Society based on the evolving not the static principle of life.

As our theory of the state no longer includes the idea of contractual obligation, we begin to see the interdependence of state and law, that neither is prior to the other. The same process which evolves the state evolves the law. Law flows from our life, therefore it cannot be above it. The source of the binding power of law is not in the consent of the community, but in the fact that it has been produced by the community. This gives us a new conception of law. Some writers talk of social justice as if a definite idea of it existed, and that all we have to do to regenerate society is to direct our efforts towards the realization of this ideal. But the ideal of social justice is itself a collective and a progressive development, that is, it is produced through our associated life and it is produced anew from day to day. We do not want a “perfect” law to regulate the hours of women in industry; we want that kind of life which will make us, all of us, grow the best ideas about the hours of women in industry, about women in industry, about women, about industry.

We cannot assume that we possess a body of achieved ideas stamped in some mysterious way with the authority of reason and justice, but even were it true, the reason and justice of the past must give way to the reason and justice of the present. You cannot bottle up wisdom—it won’t keep—but through our associated life it may be distilled afresh at every instant. We are coming now to see indeed that law is a social imperative in the strict psychological sense, that is, that it gets its authority through the power of group life. Wundt says, The development of law is a process of the psychology of peoples, therefore law will forever be a process of becoming.[61] Our obedience to law then must not be obedience to past law, but obedience to that law which we with all the experience of the past at our command, with all the vision of the future which the past has taught us, with all the intelligence which vivid living in the present has developed in us, are able to make for our generation, for our country, for the world. We are told that one of the most salient points in modern juristic thinking is its faith in the efficacy of effort, its belief that law has been and may be made consciously.

When we look upon law as a thing we think of it as a finished thing; the moment we look upon it as a process we think of it always in evolution. Our law must take account of our social and economic conditions, and it must do it again to-morrow and again day after to-morrow. We do not want a new legal system with every sunrise, but we do want a method by which our law shall be capable of assimilating from day to day what it needs to act upon that life from which it has drawn its existence and to which it must minister. The vital fluid of the community, its life’s blood, must pass so continuously from the common will to the law and from the law to the common will that a perfect circulation will be established. We do not “discover” legal principles which it then behooves us to burn candles before forever, but legal principles are the outcome of our daily life. Our law therefore cannot be based on “fixed” principles: our law must be intrinsic in the social process.

There has been a distinction made between legal principles and the application of these principles: legal principles partook of the nature of the absolute, and to our high-priests, the lawyers, fell the privilege of applying them. But this is an artificial distinction. If our methods could be such that the energy of lawyers, which now often goes in making the concrete instance and the legal principle in some way (by fiction, or twisting, or “interpreting”) fit each other, could help evolve day by day a crescent law which is the outcome of our life as it is to be applied to our life, an enormous amount of energy would be saved for the development of our American people. It is static law and our reverence for legal abstractions which has produced “privilege.” It is dynamic law, as much as anything else, which will bring us the new social order.

To sum up: Law should not be a “body” of knowledge; it should be revitalized anew at every moment. Our judges cannot administer law by knowing law alone. They have to be so closely in touch with a living, growing society, so at one with the conceptions that are being evolved by that society that their interpretations will be the method by which our so-called “body of law” shall indeed be alive and grow in correspondence with the growth of society. This is what gives to our American supreme courts their large powers, and makes us choose for judges not only men who understand law and who can be trusted for accurate interpretation, but men who have a large comprehension of our country’s needs, wide conceptions of social justice, and who have creative minds—who can make legal interpretation contribute to the structure of our government.[62] The modern lawyer must see, amidst all the complexity of the twentieth-century world, where we are tending, what our true purpose is, and the part law can take in making manifest that purpose. The modern lawyer must create a new system of service. A living law we demand to-day—this is always the law of the given condition, never a “rule.”

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Footnote 48:

Col. Law Rev. 8, 610.

Footnote 49:

Pound, Outlines of Lectures on Jurisprudence, p. 20. The influence of
sociology on law has here been very marked. For further discussion of
a teleological jurisprudence, see ch. XXIX.

Footnote 50:

Duguit, L’État, Le Droit Objectif et La Loi Positive, 398–409, from
Jellinek, System der subjektiren öffentlichen Rechte, 193.

Footnote 51:

The whole legal history of associations and the development of
association law throws much light on the growth of the community idea.

Footnote 52:

Also, I recognize, because his “_droit objectif_” based on social
solidarity tends to sweep away contract. It is interesting to notice
that contract is being attacked from more than one point of view. The
bearing of all this on politics will be seen later, especially in ch.
XXIX, “Political Pluralism and Sovereignty.”

Footnote 53:

Quoted by Roscoe Pound in Col. Law Rev. 8, 616.

Footnote 54:

Statutes limiting the hours of labor were held unconstitutional,
railway corporations were held not to be required to furnish
discharged employees with a cause for dismissal, etc.

Footnote 55:

Harlan, J., in Mugler _v._ Kansas, 123 U. S. 623. Taken from Roscoe
Pound, Liberty of Contract, Yale Law Journal, 18, 468.

Footnote 56:

The End of Law as Developed in Legal Rules and Doctrine, Harv. Law
Rev. 27, 195–234.

Footnote 57:

“Statutes ... have taken many features of the subject out of the
domain of agreement and the tendency of judicial decision has been in
effect to attach rights and liabilities to the relation of insurer and
insured and thus to remove insurance from the category of contract.”

Footnote 58:

The old idea of “contributory negligence” is seen in the following
decision: “We must remember that the injury complained of is due to
the negligence of a fellow workman, for which the master is
responsible neither in law nor morals.” Durkin _v._ Coal Co. 171, Pa.
St. 193, 205. Quoted by Roscoe Pound in Yale Law Journal, 18, 467.

Footnote 59:

This is the “new natural law” of which Mr. Pound speaks as “the
revival of the idealist interpretation which is the enduring
possession of philosophical jurisprudence.” Formerly, we are told,
“equity imposed moral limitations. The law to-day is beginning to
impose social limitations.” Harv. Law Rev. 27, 227.

Footnote 60:

“The Constitutional Opinions of Justice Holmes,” by Felix Frankfurter,
Harv. Law Rev. 29, 683–702.

Footnote 61:

Quoted by Roscoe Pound in Harv. Law Rev. 25, 505.

Footnote 62:

It has been proposed that we should have trained business men on the
benches of our supreme courts as well as lawyers. I should think it
would be better for our lawyers to be so conversant with social facts
that this need not be necessary.

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