88 THE POPULAR SCIENCE MONTHLY 



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, re- 

 tained thus far partly because it is still of some use in our still very im- 

 perfect 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 cannibal- 

 ism, 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 essen- 

 tial 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 neigh- 

 bors. It was, and in a sense still is, essential that the majority of a na- 

 tion 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 insti- 

 tutions, 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. 



