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.