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
The chief consequence of this growing tendency in modern juristic
thinking is seen in the change in attitude towards contract. The
fundamental question of relation, of association, is—Can you make one
idea grow where two grew before? _This_ is the law of fruitful increase.
The gradual progress away from contract in legal theory is just the
gradual recognition of this principle. You can have a contractual
relation between two wills or you can have those two wills uniting to
form one will. Contract never creates one will. It is the latter process
which is shown in the development of corporation law.[51] The laws
regulating partnership are based on contractual relations between the
individual members. The laws regulating corporations are based on the
theory that a corporation is something quite different from the
individuals who constitute it or the sum of those individuals, that a
new entity has been created. I am writing at this moment (February,
1918) in a room with the thermometer at 42, but the law would not uphold
me in going and getting my share, as a stock holder, of the coal now in
the New York, New Haven and Hartford sheds! But to many the personality
of the corporation is a fiction: they do not consider the corporation a
self-created entity but a state-created entity. To others, following
Gierke, the corporation is merely a state-_recognized_ entity, it has
the inherent power to create itself. The increasing acceptance of this
latter theory has made it possible to hold liable groups which have not
been legally incorporated but which exercise powers analogous to those
of corporations. This has been the principle of some of the English
decisions making trade-unions responsible, as notably in the Taff-Vale
case.
The paradox of contract is that while it seems to be based on relation,
it is in reality based on the individual. Contract is a particularist
conception. Mr. Pound speaks of the significance of the “parallel
movement away from liberty of contract and yet at the same time towards
the full recognition of association.” It is the legal theory of
association based on our growing understanding of group psychology which
will finally banish contract. When Duguit, the eminent French jurist,
tells us that contract is diminishing, it is because he sees a time when
all juridical manifestations will come from unilateral acts.[52] We see
contract diminishing because we believe in a different mode of
association: as fast as association becomes a “community” relation, as
fast as individuals are recognized as community-units, just so fast does
contract fade away. Jellinek points out that legal theory is coming to
recognize that violation of community is quite different from the
violation of contract.
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