The new state : $b Group organization the solution of popular governmentFollett, Mary Parker
Science
The new state : $b Group organization the solution of popular government
Follett, Mary Parker
Democracy; Political participation; Social psychology; State, The
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.
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