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 [1].

1. Col. Law Rev. 8, 610.

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 [2].

2. 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.

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 these 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 [3], is also 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.

3. Duguit, L'Etat, Le Droit Objectif et La Loi Positive, 398- 409, from Jellinek, System der subjektiren offentlichen Rechte, 193.

The chief consequence of this growing tendency in modern juristic thinking is seen in the change in attitudes toward 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 [1].

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

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 stockholder, 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 [1].

1. 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."

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 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 contact 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."[1]

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

The principles of individual rights and contract which have long dominated our courts [2] 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."[3]

2. 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.

3. Harlan, J., in Muglar v Kansas, 123 U.S. 623. Taken from Roscoe Pound, Liberty of Contract, Yale Law Journal, 18, 468.

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:[4]

4. The End of Law as Developed in Legal Rules and Doctrines, Harv. Law Rev. 27, 195-234.

The increasing tendency of law to impose limitations on the use of property, limitations 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 [1], 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.

1. "Statutes ... have taken many features of the subject out of the domain of agreement and the tendency of judicialdecision 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."

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 to workman's compensation and employers' liability [2].

2. 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.

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. Workman'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 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 [1].

1. 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.

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 [2].

2. "The Constitutional Opinions of Justice Holmes," by Felix Frankfurter, Harv. Law Rev. 29, 683-702.

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 principles 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 posses 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 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 [1].

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

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 finishedthing; 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 interpretations contribute to the structure of our government [1].

1. 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.

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."

Chapter XVI
Democracy Not "Liberty" and "Equality": Our Political Dualism

The purpose of this book is to indicate certain changes which must be made in our political method in order that the group principle, the most fruitful principle of association we have yet found, shall have free play in our political life. In Part III we shall devote ourselves specifically to that purpose. Here let us examine some of our past notions of democracy and then trace the growth of true democracy in America.

Democracy has meant to many "natural" rights, "liberty" and "equality." The acceptance of the group principle defines for us in truer fashion those watchwords of the past. If my true self is the group-self, then my only rights are those which membership in a group gives me. The old idea of natural rights postulated the particularist individual: we know now that no such person exists.
The group and the individual come into existence simultaneously: with this group-man appear group-rights. Thus man can have no rights apart from society or independent of society or against society. Particularist rights are ruled out as everything particularist is ruled out. When we accept fully the principle of rights involved in the group theory of association, it will change the decisions of our courts, our state constitutions, and all the concrete machinery of government. The truth of the whole matter is
that our only concern with "rights" is not to protect them but to create them. Our efforts are to be bent not upon guarding the rights which Heaven has showered upon us, but in creating all the rights we shall ever have [1].

1. See ch. XXIX for the theory of "objective rights" now held by many as the basis of the new state.

As an understanding of the group process abolishes "individual rights," so it gives us a true definition of liberty. We have seen that the free man is he who actualizes the will of the whole. I have no liberty except as an essential member of a group. The particularist idea of liberty was either negative, depending on the removal of barriers, or it was quantitative, something which I had left over after the state had restrained me in every way it thought necessary. But liberty is not measured by the number of restraints we do not have, but by the number of spontaneous activities we do have. Law and liberty are not like the two halves of this page, mutually exclusive -- one is involved in the other. One does not
decrease as the other increases. Liberty and law go hand in hand and increase together in the larger synthesis of life we are here trying to make.

We see that to obey the group which we have helped to make and of which we are an integral part is to be free because we are then obeying ourself. Ideally, the state is such a group, actually it is not, but it depends upon us to make it more and more so. The state must be no external authority which restrains and regulates me, but it must be myself acting as the state in every smallest detail of life. Expression, not restraint, is always the motive of the ideal state.

There has been long a kind of balance theory prevalent: everything that seems to have to do with the one is put on one side, everything that has to do with the many, on the other, and one side is called individuality and freedom, and the other, society, constraint, authority. Then the balancing begins: how
much shall we give up on one side and how much on the other to keep the beautiful equilibrium of our daily life? How artificial such balancing sounds! We are beginning to know now that our freedom
depends not on the weakness but on the strength of our government, our government being the expression of a united people. We are freer under our present sanitary laws than without them; we are
freer under compulsory education than without it. A highly organized state does not mean restriction of the individual but his greater liberty. The individual _is_ restricted in an unorganized state. A greater degree of social organization means a more complex, a richer, broader life, means more opportunity for
individual effort and individual choice and individual initiative. The test of our liberty is not the number of limitations put upon the powers of the state. The state is not an extra-will. If we are the state we welcome Our liberty.

But liberty on the popular tongue has always been coupled with equality, and this expression too needs revaluation. The group process shows us that we are equal from two points of view: first, I am equal to every one else as one of the necessary members of the group; secondly, each of these essential parts is the tap from an infinite supply -- in every man lives an infinite possibility. But we must remember that there are no mechanical, no quantitative equalities. Democracy in fact insists on what are usually thought
of as inequalities. Of course I am not "as good as you" -- it would be a pretty poor world if I were, that is if you were no better than I am. Democracy without humility is inconceivable.
The hope of democracy is in its inequalities. The only real equality I can ever have is to fill my place in the whole at the same time that every other man is filling his place in the whole.

Much of our present class hatred comes from a distorted view of equality. This doctrine means to many that I have as much "right" to things as any one else, and therefore if I see any one having more things than I have, it is proper to feel resentment against that person or class. Much legislation, therefore, is directed to lopping off here and there. But such legislation is a negative and therefore non-constructive interpretation of equality. The trouble with much of our reform is that it is based on the very errors
which have brought about the evils it is fighting. The trade- unionists say that the courts give special privileges to employers and that they do not have equal rights. But this is just the complaint of the employers: that the unionists are doing them out of their time-honored equal rights [1].

1. This is a hoary quarrel. From the beginning of our government it was seen that the equal rights doctrine was a sword which could cut both ways. Both Federalists and Republicans believed in equal rights: the Federalists, therefore, wanted to protect individuals with a strong government; the Republicans wanted a weak government so that individuals could be let alone in the exercise of their equal rights.

Our distorted ideas of rights and liberty and equality have been mixed up with our false conception of the state, with the monstrous fallacy of man vs. the state. But as we now see that the individual and society are different aspects of the same process, so we see that the citizen and the state are one, that their interests are identical, that their aims are identical, that they are absolutely bound up together. Our old political dualism is now disappearing. The state does not exist for the individual or the individual for the state: we do not exalt the state and subordinate the individual or, on the other hand, apotheosize the individual and give him the state as his "servant." _The state is not the servant of the people_. The state must _be_ the people before it can reach a high degree of effective accomplishment. The state is one of the collective aspects of the individual; the individual is from one point of view the distributive aspect of the state. The non-existence of self-sufficing individuals gives us the whole of our theory of democracy. Those who govern and those who are governed are merely two aspects of the common will. When we have a state truly representative of our collective citizenship, then the fear of the state will disappear because the antithesis between the individual and the state will have disappeared.

To sum up: our present idea of the state is that it is not something outside ourselves, that it must flow out from ourselves and control our social life. But it must "control" our life by expressing it. The state is always the great Yes not the great No. Liberty and restraint are not opposed, because ideally expression of the social will in restraint _is_ our freedom. The state has a higher function than either restraining individuals or protecting individuals. It is to have a great forward policy which shall
follow the collective will of the people, a collective will which embodied through our state, in our life, shall be the basis of a progress yet undreamed of. When we can give up the notion of individual rights, we shall have taken the longest step forward in our political development. When we can give up the idea of national rights -- but it is too soon to talk of that yet.