As to the laws themselves, being the second aspect of the law as defined, that these are full of harm is universally admitted. Ten thousand new ones are yearly made; and straightway ten thousand more are made to modify and ameliorate the first ten thousand. We confess by their constant revision and repeal that we find the law-making habit persistently injurious.
As to the law-makers themselves, they are, like kingship and cannibalism, survivals of an ancient device. The primitive tribe which conquered had learned to obey, else it had not conquered; obedience meant conformity to rules; the rules were set down by others, not by those who obeyed them. The habit of having rules which others made had its advantages. Naturally we have held fast to the habit. And now, though better equipped than ever before by virtue of our racial experience, our individual training and our inherited tendencies, to guide ourselves wisely, we hug to ourselves too closely still the bad habit of having law makers. We are to-day strengthening the habit's hold upon us instead of weakening it.
That our lawmakers can not be otherwise than blunderingly if not maliciously harmful seems a foregone conclusion, if we consider, not their origin, but merely the manner of their selection. We do not pick them for proven skill in guidance, for experience gained as leaders in great social enterprises, or for their mastery of the problems of modern society—not at all. We do not even invoke in their selection the aleatory gods and submit our legislative fortunes to the unprejudiced decisions of a hatful of black and white beans. We do not select them with the aid of signs and omens such as are granted by the flight of birds or the entrails of hens. The last two methods would have some of the advantages of chance, for they would, if honestly conducted by a government priesthood, occasionally point to a man peculiarly well fitted for the task of law making.
But while the choice of our law makers is not determined by sacrificial inspection, it is accompanied by ceremonies and incantations of a quasi-religious nature; and it turns often on the relative persistence of the several candidates in the repetition of certain formulæ and the honoring of certain taboos. The law-maker group, like the group of privileged specialists in the technique of the law's action, the lawyers, derives itself from the king as high priest, and its work, as maker of laws, has a strong ecclesiastical and even a religious flavor. This is almost more true of the judge as law giver than it is of the legislator proper. The judge seems the more direct of the two in his descent from the god-given king. About his position and his utterances there is a special odor of sanctity. While both are in large degree taboo, the greater relative sanctity of the judge is illustrated by the fact that one may quite openly condemn a legislator, or even a legislative body as a whole, and be not
