As the most hopeful sign in the present treatment of industrial questions is the recognition that man with his fundamental instincts and needs is the very centre and heart of the labor problem, so the most hopeful sign that we shall fully utilize the constructive powers which will be released by this psychological approach to industrial problems, is the gradually increasing share of the workman in the actual control of industry.
The recognition of community rather than of individuals or class, the very marked getting away from the attitude of pitting labor interests against the interests of capital, is the most striking thing from our point of view about the famous report formulated by a subcommittee of the British Labor Party in the autumn of 1917. In every one of the four “Pillars” of the new social order this stands out as the most dominant feature. In explaining the first, The Universal Enforcement of the National Minimum, it is explicitly stated that this is not to protect individuals or a class, but to “safeguard” the “community” against the “insidious degradation of the standard of life.” The second, The Democratic Control of Industry, proposes national ownership and administration of the railways, canals and mines and “other main industries … as opportunity offers,” with “a steadily increasing participation of the organized workers in the management,” the extension of municipal enterprise to housing and town planning, public libraries, music and recreation, and the fixing of prices. This “Pillar,” too, we are told, is not a class measure, but is “to safeguard the interests of the community as a whole.”
Under the heading, “Revolution in National Finance,” the third “Pillar,” it is again definitely stated and moreover convincingly shown that this is not “in the interests of wage-earners alone.” Under “The Surplus Wealth for the Common Good,” the fourth “Pillar,” it is stated that the surplus wealth shall be used for what “the community day by day needs for the perpetual improvement and increase of its various enterprises,” “for scientific investigation and original research in every branch of knowledge,” and for “the promotion of music, literature and fine arts.” “It is in the proposal for this appropriation of every surplus for the common good—in the vision of its resolute use for the building up of the community as a whole … that the Labor Party … most distinctively marks itself off from the older political parties.”47
XV
From Contract to Community
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
