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THE GREEN BAG

thing as finality about the administration of the law. It changes, it must change, it ought to change, with the broadening wants and requirements of a growing coun try, and with the gradual illumination of the public conscience."1 He speaks of the whole body of law, both common and statute. Mr. Justice Holmes, writing as a contributor in the Harvard Law Review says, "I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them. As a step toward that ideal it seems to me that every lawyer ought to seek an under standing of economics."2 Again: "Every one instinctively recognizes that in these days the justification of a law for us cannot be found in the fact that our fathers always have followed it. It must he found in some help which the law brings toward reaching a social end which the governing power of the community has made up its mind that it wants."* At the last meeting of this Association, Professor Pound in an interest ing paper added another voice to these declarations in favor of a progressive jurisprudence.4 This spirit is not confined to our own country. In France, the Code Civil, en acted in 1804, was based in part upon the principle of absolute, or nearly absolute, individual freedom. The experience of a century has shown in France that under the regime of individual freedom many indivi duals, unable to hold their own in the fierce competition which that principle permits, require the protection of society. In a valuable work published as a memorial 1 The Reign of Victoria, vol. i, 329. Select Essays in Anglo-American Legal History, vol. I, 557' 10 H. L. R. 474. • 12 H. L. R. 452. 4 31 A. B. A. R. 911. The Need of a Sociologi cal Jurisprudence.

in honor of the one hundredth anniversary of the Code Civil, some of the learned jurists of France express this view. Professor Saleilles of the Law Faculty of the Univer sity of Paris says: "The law, then, is never absolutely individualistic; and we should add, what the socialists are unable to see, that it is never absolutely socialistic. It is the resultant of social life in combination with the life of the individual. And con sequently, in proportion as the expansion of the individual is necessary to the progress and welfare of society, society owes pro tection to the individual; not to the indivi dual as an abstraction, considered with reference to his potential development, but to the concrete and living individuals of which society is composed, and to those especially who are poorly armed to live and play their part in the world. It is because there is a portion of individual right in the right of society that men, taken as a whole, owe protection to the individual; and it is because there is a portion of social right in every individual right that the juridical sphere of the individual always remains con ditioned and limited by the collective inter est of the group."1 There are signs that our law is changing, and that the dominant sen timent of collectivism (not to speak of other sentiments) is making its way into the law, not only by legislation, but by judicial action. Mr. Beven, author of the English work on Negligence, says that since 1877 not merely a change in the law but an absolute reversal of the law in regard to the meaning of volenti non fit injuria "has been brought about by public opinion operating on the judicial mind."2 If that is true, it is pertinent to inquire what are the principles or rules which define the authority of the courts to change the com mon law. The legislature may properly enact laws designed to correct evil tend encies and to change the progress and 1 Le Code Civil, Livre du Centenaire, no. 2 Journal Comp. Jurisprudence, vol. XVIII, N. S. 190, 192.