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 tomorrow and again day after tomorrow. 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 today—this is always the law of the given condition, never a “rule.”
Part II
The Traditional Democracy
XVI
Democracy Not “Liberty” and “Equality”: Our Political Dualism
The purpose of this book is to indicate certain changes which must be made in our political methods in order that the group principle, the most fruitful principle of association we have yet found, shall have free play in our political life. In part III we shall devote ourselves specifically to that purpose. Here let us examine some of our past notions of democracy and then trace the growth of true democracy in America.
Democracy has meant to many “natural” rights, “liberty” and “equality.” The acceptance of the group principle defines for us in truer fashion those watchwords of the past. If my true self is the group-self, then my only rights are those which membership in a group gives me. The old idea of natural rights postulated the particularist individual; we know now that no such person exists. The group and the individual come into existence simultaneously: with this group-man appear group-rights. Thus man can have no rights apart from society or independent of society or against society. Particularist rights are ruled out as everything particularist is ruled out. When we accept fully the principle of rights involved in the group theory of association, it will change the decisions of our courts, our state constitutions, and all the concrete machinery of government. The truth of the whole matter is that our only concern with “rights” is not to protect them but to create them. Our efforts are to be bent not upon guarding the rights which Heaven has showered upon us, but in creating all the rights we shall ever have.63
As an understanding of the group process abolishes “individual rights,” so it gives us a true definition of liberty. We have seen that the free man is he who actualizes the will of the whole. I have no liberty except as an essential member of a group. The particularist idea of liberty was either negative, depending on the removal of barriers, or it was quantitative,
