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 courts54 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 today 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 antisocial 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 today 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 today 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 tomorrow and again day after tomorrow. 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 today⁠—this is always the law of the given condition, never a “rule.”