HABIT OF HA VING LAW MAKERS AND LAWYERS 89 



As to the laws themselves, being the second aspect of the law as 

 defined, that these are full of harm is universally admitted. Ten thou- 

 sand 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 per- 

 sistently injurious. 



As to the law-makers themselves, they are, like kingship and canni- 

 balism, survivals of an ancient device. The primitive tribe which con- 

 quered 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 ad- 

 vantages. 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 alea- 

 tory gods and submit our legislative fortunes to the unprejudiced deci- 

 sions 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 gov- 

 ernment 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 sacri- 

 ficial 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 f ormulae and the honor- 

 ing 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 



