ancient folkways, whose ancestry bespeaks its imperfections and whose close kinship to other folkways, long since found injurious and sloughed off, prophesies for it a like fate. It is an ancient and imperfect tool, retained thus far partly because it is still of some use in our still very imperfect society, and partly because its harmfulness is not yet fully recognized. It never fitted perfectly the purpose which it is supposed to serve. It fits less well each succeeding generation and works upon each more and more harm.
If it is said that the law in its three-fold form differs from all other institutions in that it underlies them all; that the sum of all habits is the very law itself, this answer is offered:
We speak of the bad habit of polygamy, of the bad habit of cannibalism, of the bad habit of having slaves; and we speak in the same way, and with as little thought of law, of the bad habit of having absolute monarchs. Now, the absolute monarch is the source of all law. In theory, he states it, aligns it and enforces it. Yet we conceive readily of the habit of having an absolute monarch as a bad habit, to be in due course given up.
It is precisely upon this thought of the law as a bad habit that this argument for its harmfulness is based. It was essential in a certain stage of social development that one man should rule a tribe, just as it was essential that the same tribe should eat its neighbors. It was essential that a few men—kings, nobles or what not—should rule a nation, just as it was essential that that nation should make slaves of its neighbors. It was, and in a sense still is, essential that the majority of a nation should rule the minority; just as it was, and in a sense still is, essential that the same nation wage perpetual commercial warfare with its neighbors.
Now the king, the aristocracy and the majority are each and all of the essence of the law; the cannibalism, the slavery and the commercial warfare are not. Formal statements of the existence of the latter institutions, if such were made, might be called laws; and kings, aristocracy or majority may be said to have enforced them. But the difference between them and the first three is that they are not thought of as touched with legality, with the majesty of law-givers and courts. They may be thought of directly as evil customs working harm to those who practised them. And just as we may think of having cannibalism or slavery as bad habits, so may we think of having a king or an aristocracy or a ruling majority as bad habits.
The first aspect, then of the law as I defined it—kingship, rule of man by man—is itself a habit and not an aggregate of all habits. It was born to fill a certain need, and was therefore good; but it was born of the ignorant and socially inept, and is therefore bad. Like other ancient devices, it is outliving its usefulness. Our native conservatism holds it fast long after its evil results have begun to outweigh its good results.
