Page:American Journal of Sociology Volume 6.djvu/411

 COURTS AND FAC TOR Y LEG I SLA TION 397

objects in view should be entitled to most favorable considera- tion and construction by the courts, that the purposes of their enactment should be attained.

This form of legislation is based upon a modern theory of social economy which, long since recognized and followed by the legislatures, is in some states still regarded with' concern and suspicion by the courts ; a theory which, ordinarily masquerading under the conveniently vague name of "police power," justifies "class legislation " so-called, and asserts the right to interfere with the natural laws of the business world, aiming to secure the liberty of one class by curbing the license of another. It is per- haps needless to say that the doctrines of the common law regarding the reciprocal relations of master and servant were formulated and adopted under a totally different conception of economic philosophy under the old laissez-faire theory of extreme individualism. This theory resolutely closed its eyes to com- mon, obvious, social, and economic distinctions between men, either considered as individuals or as classes, and with self- imposed blindness imagined rather than saw the servant and his master acting upon a plane of absolute and ideal equality in all matters touching their contractual relation ; both were free and equal, and the proper function of government was to let them alone. If the servant was dissatisfied with the conditions of his employment ; if the dangers created, not merely by the necessities of the work, but by the master's indifference to the safety of his men, were in the eyes of the latter too great to be endured with prudence, then, being under this theory a "free agent" to go or to stay, if he chose to stay he must take the possible conse- quences of personal injury or death. The laissez-faire doctrine became firmly imbedded in the law, and upon it the doctrine of "assumed risk," in the modern application of the maxim, Volenti non fit injuria? is unquestionably founded.

Under this theory the rules of the common law regarding the rights and duties of masters and servants were established before the commencement of the general legislative movement toward regulative statutes and factory laws. One of the best-known of

1 " To the willing one no legal injury can occur " is a translation often given of the maxim.