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.