The New State · Part II · Chapter 21 (2/2)

But the most salient thing about present American politics is that we are giving up both our let-alone and our regulation policies in favor of a constructive policy. There has been a steady and comprehensible growth of democracy from this point of view, that is, of the idea of the function of government being not merely to protect, to adjust, to restrain, and all the negative rest of it, but that the function of government should be to build, to construct the life of its people. We think now that a constructive social policy is more democratic than the protection of men in their individual rights and property. In 1800 the opposite idea prevailed, and Jefferson, not Hamilton, was considered the Democrat. We must reinterpret or restate the fundamental principles of democracy.

But why do we consider our present constructive social policies more democratic? Are they necessarily so? Has not paternalistic Germany constructive social policies for her people? Social legislation in England and America means an increase of democracy because it is a movement which is in England and America bound up with other democratic movements.79 In America we see at the same time the trend towards (1) an increase of administrative responsibility, (2) an increase of direct control by the people, (3) an increase of social legislation. Not one of these is independent of the other two. They have acted and reacted on one another. Men have not first been given a more direct share in government and then used their increased power to adopt social policies. The two have gone on side by side. Moreover, the adoption of social policies has increased the powers of government and, therefore, it has more and more come to be seen that popular control of government is necessary. At the same time the making of campaign issues out of social policies has at once in itself made all the people more important in politics. Or it is equally true to say that giving the people a closer share in government means that our daily lives pass more naturally into the area of politics. Hence we see, from whichever point we begin, that these three movements are bound together.

Thus in America there is growing recognition of the fact that social policies are not policies invented for the good of the people, but policies created by the people. The regulation theory was based on the same fallacy as the let-alone theory, namely, that government is something external to the structural life of the people. Government cannot leave us alone, it cannot regulate us, it can only express us. The scope of politics should be our whole social life. Our present idea of an omnipresent, ever-active, articulate citizenship building up its own life within the frame of politics is the most fruitful idea of modern times.

Moreover, social legislation is an indication of the growth of democracy, the increase of individualism, because it is legislation for the individual. We have had legislation to protect home industries, we have encouraged agriculture, we have helped the railroads by concessions and land grants, but we have not until recently had legislation for the individual. Social legislation means legislation for the individual man: health laws, shorter hours of work, workmen’s compensation, old age pensions, minimum wage, prevention of industrial accidents, prohibition of child labor, etc. Over and over again our social legislation is pointed to as a reaction against individualism. On the contrary it shows an increase of genuine individualism. The individual has never been so appreciated as in the awakening social world of today.

This is not a contradiction of what is said in chapter XV, that law according to its most progressive exponents is to serve not individuals, but the community; that modern law thinks of men not as separate individuals, but in their relation to one another. Modern law synthesizes the idea of individual and community through its view of the social individual as the community-unit. Law used to be for the particularist individual; now it serves the community, but the community-unit is the social individual.

In our most recent books we see the expression “the new individualism.” The meaning of this phrase, although never used by him, is clearly implied in the writings of Mr. Roscoe Pound. He says “As a social institution the interests with which law is concerned are social interests, but the chiefest of these social interests is one in the full human life of the individual.” Here is expressed the essential meaning of the new individualism⁠—that it is a synthesis of individual and society. That the social individual, the community-unit, is becoming “the individual” for law is the most promising sign for the future of political method. When Mr. Pound says that the line between public law and private law in jurisprudence is nothing more than a convenient mode of expression, he shows us the old controversy in regard to the state and the individual simply fading away.

Social legislation, direct government, concentration of administrative responsibility, are then indications of the growth of democracy? Yes, but only indications. They can mean an actual increase of democracy only if they are accompanied by the development of those methods which shall make every man and his daily needs the basis and the substance of politics.