To a certain extent prices will be increased and the cost of living will rise. Frequently when labor has been organized and has secured higher wages and better labor conditions through the pressure of the strike and the boycott, consumers have had to pay more for the laborers' services and products.

As a ninth effect, some of those who work will be displaced and will be unemployable at the standard rates set. The employer will not, for any great length of time, continue to employ persons who are not worth to him the price he must pay.

In the tenth place, the regulation of the wages of women and minors will protect male adults to some extent against the disastrous effects of the underbidding by these classes. It will tend to remove the premium which has been placed upon the labor of women and youths because of the low wages they accept.

An eleventh result would be that the number of strikes in the textile and the garment trades will be diminished and the advance of such revolutionary organizations as the Industrial Workers of the World checked.

And, finally, a difficult administrative problem in the enforcement of wage standards will certainly develop. The setting of standards for the hours of labor, sanitary conditions, and child labor has brought with it acute problems of this kind. To meet them, legislation has become more and more rigid in its details designed to secure enforcement, and the inspection service has had to be strengthened. And yet, it cannot be said that we have been more than indifferently successful in those states which have made the greatest advance in the

matter.

In concluding this discussion of the minimum wage, it may be noted that its more advanced advocates plead for its application to adult males.

233. THE SOCIALIZATION OF LAW1

A developed legal system is made up of two elements, a traditional element and an enacted or imperative element. Although at present the balance in our law is shifting gradually to the side of the enacted element, the traditional element is still by far the more important. In the first instance, we must rely upon it to meet all new problems, for the legislator acts only after they attract attention.

Adapted by permission from Roscoe Pound, "Social Problems and the Courts," American Journal of Sociology, XVIII (1912–13), 334–38.

But even after the legislator has acted, it is seldom if ever that his foresight extends to all the details of his problem or that he is able to do more than provide a broad, if not a crude, outline. Hence, even in the field of the enacted law, the traditional element of the legal system plays a chief part. We must rely upon it to fill the gaps in legislation, to develop the principles introduced by legislation, and to interpret them.

Moreover, a large field is always unappropriated by enactment, and here the traditional element is supreme. In this part of the law fundamental ideas change slowly. The alterations wrought here and there by legislation, not always consistent with one another, do not produce a general advance. Indeed, they may be held back, at times, in the interests, real or supposed, of uniformity and consistency, through the influence of the traditional element. It is obvious, therefore, that above all else the condition of the law depends upon the condition of this element of the legal system. If the traditional element of the law will not hear of new ethical ideas, or will not hear of the usages of the mercantile community, or will not hear of new economics or of the tenets of the modern social sciences, legislation will long beat its ineffectual wings in vain.

If, however, the causes of the backwardness of the law with respect to social problems and the unsocial attitude of the law toward questions of great import in the modern community are to be found in the traditional element of the legal system, the surest means of deliverance are to be found there also. The infusion of morals into the law through the development of equity was not an achievement of legislation, but the work of courts. The absorption of the usages of merchants into the law was not brought about by statutes, but by judicial decisions. When once the current of juristic thought and judicial decision is turned into the new course, our Anglo-American method of judicial empiricism has always proved adequate.

There are many signs that fundamental changes are taking place in our legal system and that a shifting is in progress from the individualist justice of the nineteenth century, which has passed so significantly by the name of legal justice, to the social justice of today.

Six noteworthy changes in the law, which are in the spirit of. recent ethics, recent philosophy, and recent political thought, may be referred to. First among these we may note limitations on the use of property, attempts to prevent the anti-social exercise of rights.

Second, we may note limitations upon freedom of contract, such as requirement of payment of wages in cash, regulations of hours and conditions of labor, and limitations upon the power of employers to restrain membership in unions. These have been matters of legislation. But our courts have taken the law of insurance practically out of the law of suretyship, and have established that the duties of public service companies are not contractual, flowing from agreements, but are quasi-contractual, flowing from the calling in which the public servant is engaged. Not merely in labor legislation, but in judicial decision with respect to public callings, the whole course of modern law is belying the famous individualist generalization of the nineteenth century that the growth of law is a progress from status to

contract.

Third, we may note limitations on the power of disposing of property. These are chiefly legislative. Examples are the requirement in many states that the wife join in a conveyance of the family home; the statutes in some jurisdictions requiring the wife to join in a mortgage of household goods; the statute of Massachusetts requiring the wife to join in an assignment of the husband's wages.

Fourth, reference may be made to limitations upon the power of the creditor or injured party to secure satisfaction. In the United States, the homestead exemption statutes which prevail in so many states, and the personalty exemptions which in some states go so far as to exempt five hundred dollars to the head of the family, and usually make liberal exemptions of tools to the artisan, library to the professional man, animals and implements to the farmer, and wages to the head of a family, will serve as illustrations. There is a notable tendency in recent legislation and in recent discussion to insist, not that the debtor keep faith in all cases, even if it ruin him and his family, but that the creditor must take a risk also either along with, or even in some cases instead of, the debtor.

Fifth, there is a tendency to revive the primitive idea of liability without fault, not only in the form of wide responsibility for agencies' employed, but in placing upon an enterprise the burden of repairing injuries incident to the undertaking without fault of him who conducts it. What Dean Ames called "the unmoral standard of acting at one's peril" is coming back into the law in the form of employers' liability and workmen's compensation. There is a strong and growing tendency, where there is no blame on either side, to ask, in view of the exigencies of social justice, who can best bear the loss.

Finally, recent legislation and, to some extent, judicial decision have begun to change the old attitude of the law with respect to dependent members of the household. Courts no longer make the natural rights of parents with respect to children the chief basis of their decisions. The individual interest of parents which used to be the one thing regarded has come to be almost the last thing regarded as compared with the interest of the child and the interest of society. In other words, here also social interests are now chiefly regarded.

See also 407. Dissatisfaction with Present Formal Social Control. 234. REFORM WITH RESPECT TO EMPLOYERS' LIABILITY1 The study of the situation at home and abroad suggests a program for reform, and its ultimate accomplishment should be held constantly in view.

a) Employers should be held accountable for the safety of surroundings and equipment. This is now recognized in Great Britain, and in most of the states of Continental Europe. In nine American states this principle is applied to all industries; in five others, to railways; and in nineteen more, responsibility is thrown upon employers who fail to comply with legal requirements concerning stated safety devices and precautions. Its general acceptance in the United States would largely abolish the doctrine of assumed risk, and greatly reduce litigation.

b) Employers should be held accountable for the negligent acts of their employees. This principle also is accepted in most of the countries of Europe and in three American states. In ten others it is recognized in part, and in eighteen more it applies to specified industries. Its general acceptance would abolish the fellow-servant doctrine and restore the principle of respondeat superior to the full range of legal application that it should properly have.

c) The employer's defense of contributory negligence should be denied. The workingman's environment makes constant care impossible, and this general defense against liability works grave injustice. Industry should bear its inevitable accident losses, as it bears its inevitable fire losses and maintenance charges. No part of the burden should be thrown upon those whose earning power is sacrificed. In most European nations only such contributory negligence as is

I

1 Adapted by permission from G. L. Campbell, Industrial Accident Compensation, chaps. iv and vi. (Houghton Mifflin Co., 1911.)

wilful, unreasonable, or unlawful bars the victim from the right to compensation, and recognition of the same principle should be an early reform in American legislation.

d) Employers should be held accountable for unpreventable accidents. -In spite of all possible precaution, many workingmen are sure to be killed and injured. Neither employers nor employees are at fault in such cases, but since such accidents seem necessary in the creation of economic goods, the burden should be placed, through the employer, upon the ultimate consumer of the finished product. This principle is fully recognized in Europe, and is faintly suggested by a recent law in Montana. Its general acceptance in the United States, together with the recognition of the first and second principles outlined, would completely abolish the doctrine of assumed risk.

e) Compensations should be paid according to a definite scale fixed by law and varying according to the age and pecuniary situation of dependents. The principle of fixed compensation was recognized by the English Act of 1897; it has spread to the British colonies, and the definite but variable scale of payments and pensions is a meritorious feature of the compensation laws of the states on the Continent. In America a few states set maximum limits to the liability of employers on account of any one casualty, but that is all. One of the most flagrant abuses under the existing system of law is the spirit of speculation that is fostered by the ever-dazzling possibility of a large award. The establishment of a definitely variable scale, together with the greater certainty of award that would be lent by the other reforms outlined, would go far in reducing the volume and expense of litigation. Fewer cases would come to trial, and jury awards would be more readily accepted without appeal.

f) Payment should be guaranteed by adequate insurance.-A great catastrophe or some other cause often leads to the insolvency of the employer at a time when the injured men and their dependents are most in need of assistance. Certain methods of guaranty are therefore used in Germany, Austria, France, and Italy, and more or less. effective plans are followed in other countries. First lien on assets and compulsory state insurance are most frequently resorted to. The statutes of Massachusetts and New York provide that any employer may partially disburden himself of liability by insuring his men in private insurance companies, but he is not obliged to do so. In Montana a law passed in 1909 provides a special tax of 1 per cent on the earnings of coal-miners and of one cent per ton on all coal