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 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 today 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 today 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
