The New State · Part I · Chapter 15 (2/2)

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.”