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.”