The Rain of Law

THE day of universal law has arrived. It seems to be a lap or two ahead of time. It is not just the kind of law that is written upon the hearts of men or upon the doorposts of their houses, and if is very difficult to teach it to our children, or to meditate upon it day or night. There is n’t time. It is printed on a rapid-fire printing-press and bound in unabridged sheep or blue sky boards. The kindly earth does not slumber in its lap; it fairly wallows in the litter of it. The law-abiding and the law-evading citizen lie down together in the confusion of it. He who reads must run if he would escape the deluge of it, and he who runs must read if he would keep up with the changing phases of it.

In Massachusetts, which leads the world in the volume and plasticity of its statutory output, President Eliot’s five-foot shelf will not begin to hold the volumes a man must read if he would know what he is bidden and what he is forbidden; and a new volume will be placed in his hands ere he can scan the current one. All the states need to conserve their natural resources to provide the paper and drive the presses of their legislative mills; and lest in their impotence they should fail to do full justice to the situation, Congress comes to their aid with ponderous volumes of its own. By yieldingits claim to be a deliberative body, the National House finds time to hear called off the captions of bills as they pass from its committees to enactment through the pneumatic tube of the government printing-office.

No official may venture upon an unusual public service until he has procured a law to authorize him; and if subsequently he desires to perform a similar but not identical service, it becomes him to examine anew his legislative authorization, and to go back to the legislature for an amendment if his new enterprise is not explicitly and precisely within its terms. To be sure, he will have little difficulty in securing the amendment, provided no one is sufficiently interested or sufficiently informed to appear in remonstrance. He may make his own law if he will observe the rules of the game, and the office-holding caste usually does observe them.

But the unofficial, the uninitiated, the plebeian citizen must also beware. It will not do for him to govern himself merely by sound principles of conduct, or even by a fair familiarity with the general law of the land. A neighbor, in securing a legislative proviso expressly to authorize a transaction that some random critic has challenged, may, by his very proviso, have read into the law an implied prohibition of all practices not thus explicitly provided for. One who, in all innocence, pursues the even tenor of his once legalized way, may awake any morning to find himself a law-breaker, not by enactment but by inference from some enactment which was procured for his neighbor’s benefit.

Some day, to be sure, there will be a revision and a codification of the statutes. Obsolete and conflicting and repeated and irrelevant provisions will be eliminated. The sifted contents of twenty or more huge volumes will be brought within the compass of one or two, with perhaps a third to serve as an index, and to make the contents of the other two available to the would-belaw-abiding citizen. Even these volumes will record not so much the will of the people as the impulses of the people; and if history repeats itself, before the index volume can be issued a new volume of unlimited bulk will have revised the revision and will have played havoc with the contents which the index purports to elucidate.

What precipitates such a rain of law, and to what sea of chaos will it find its way ?

It has been said that law is discovered, not made, and that is a notable truth when applied to law in the universal sense of the term. Although it is not so aptly applied to printed law, — law while you wait, — yet in seeking the origin of the mass of statute law in the midst of which we are floundering, we shall find that, like real law, it is both discovered and made. But while real law is discovered first and made afterwards, most of our statute law, like Mr. Pickwick’s archæological stone, is made first and discovered afterwards. The legislature discovers laws, but they are made by private individuals and only furbished up by legislative committees.

Laws are no longer enacted in general terms to be interpreted by the individual and, in last resort, by the court. Discretion is taken away from the learned court and reposed in the unlearned sub-committee. The committee devotes its hearings primarily to those who have legislation to promote for private reasons. The petitioner must present his bill ready for enactment. The committee will graciously accord him a hearing. It will grant a hearing also to a remonstrant. It will assume that each has some personal end to gain, and will endeavor to discover that end. Usually, if it fails to discover any motive but one of public spirit, it still assumes that there is a cat in the meal, some design too dark to appear on the surface, and is more distrustful of such a petitioner or remonstrant than of one whose personal motive is readily discovered or uncovered.

The great bulk of legislation in the United States is not the product of our legislative bodies, nor is it shaped by the expert advisers of our legislatures. It is drawn up by the officials, or by the private parties whose activities it is designed to regulate, or to justify, or to protect, or to promote. It is then submitted to a legislative committee, and possibly revamped more or less intelligently by that always inexpert and usually inept body; then reported favorably or unfavorably to the enacting body, which plays the part of discoverer. In short, the legislative function which, in the days of absolute monarchy, was the prerogative of the hereditary sovereign, in our day of popular sovereignty becomes the prerogative of the volunteer sovereign. Many a citizen goes through the statute book with pride and points out sections and chapters couched in his own phraseology, modified—or rather amplified — only by the insertion of certain traditional elaborations which seem to be insisted on for the sole purpose of furnishing busy work for the state printer. For law-English bids fair to rival the limpid lucidity and romantic beauty of law-Latin.

Some pessimist has defined democracy as a system of government based on the economic principle that two thieves will steal less than one. Our democratic legislative system seems to be based on the political theory that everybody knows more about everything than anybody does. We refuse to trust any duly constituted authority to exercise discretion, while we leave the most critical problems of statecraft to the workmanship of any Tom, Dick, or Harry who can ‘get by with the job.’ The presumption is in favor of the enactment of any bill presented with plausible support, unless it meets with serious remonstrance. Indeed our legislatures have come to be, not lawmaking bodies, but bazaars for marketing the product of amateur lawmakers.

It is a physical impossibility for the legislators, as a body, to scrutinize with any care such a mass of bills as every legislature enacts at every session. Equally is it impracticable for the public-spirited citizen to attend the hearings and protest a fraction of the foolish and dangerous bills that, if enacted, would affect interests with which he is especially conversant. Not only is the responsible citizen thus at the mercy of the irresponsible and self-constituted law-maker, but the tendency even of those public-spirited organizations which, like the prophets of old, are often more representative of the state in its better nature than are its duly constituted official bodies, is to frame legislation in specific instead of general terms, and thus to make the laws both more numerous and more complex. The modern statute begins with a section defining in detail the terms it is to employ, and may give the same term a significance different from that in which it is used in another statute enacted by the same legislature at the same session. Its subsequent sections then attempt, in accordance with this glossary, to point out the acts which it prohibits or authorizes, in terms so precise that the deed and the person it applies to may be sharply discriminated from those to which it does not apply.

The purpose of this precision in detail is to avoid inconsistencies and uncertainties. It may be doubted if this is usually the result. Precise definition is a readier weapon to the evader than to the enforcer of law. The schoolmaster who attempts to elaborate an all-inclusive set of rules is likely to find that his rules tie his own hands more than they do those of his pupils. The government is likely to make a similar discovery. The exigencies which even the most specific law omits specifically to provide for will be found so numerous as to call for continuous and repeated amendment.

The so-called uniform child-labor law, already adopted in some states and designed for adoption in all, is a case in point. In its attempt to specify precisely what a child of a certain age may or may not do, as distinguished from a child of a slightly different age, it has forbidden the child to perform certain functions for one person or at one time, which it neglects to forbid him to perform under even less favorable conditions for another person or at another time. The law will doubtless be amended to correct such inconsistencies as they come to attention; but in the nature of the case they will continue to come to attention, making its amendment a continuous process. Nor can there be doubt that these inconsistencies will arise differently and in different order in different states, and being thus differently amended, will defeat one prime purpose of the sponsors, which was to have the law remain uniform in the several states. The National Women’s Trade-Union League of America is just now urging that no child should receive an employment certificate until he knows the laws bearing upon his employment. The fact is that school officials, employers, laborunionists, and lawyers, are at sea regarding the complex provisions of the law, and if children were refused employment certificates until they were able to comprehend its mysteries, they might all graduate from college first.

The result of this tendency to specific legislation is a curious kind of casuistry, verging upon that of the days of the Rabbinical Law, when human conduct was reduced to a code so petty that one must consider what he might carry in his hand or attach to his garment, and the number of steps he might take, if he would make a Sabbath day’s journey. Already our patriotism is being meted out by law. We must not give way to our impulses, but must study the statute book if we would know when and how we must fly our flag. We are also regulated in such detail as to our methods of conducting our business that it is necessary for state and nation to employ hordes of inspectors to keep us advised of what our duties and responsibilities are; and so narrow are the margins between what is permitted and what is prohibited that these inspectors are largely occupied, not with forcing people to obey the law, but with citing to them certain ‘rulings’ which they find it necessary to make as to whether the law need be obeyed or enforced under certain circumstances or not. The interpretation of law is thus being transferred from the judge on the bench to the inspector behind the door. We are confronted with the curious spectacle of the government and the accused party disputing as to whether the law has been broken or not, and the government offering to waive prosecution if the accused will accede to certain demands as to the future conduct of his business. This, to the lay mind, appears not very different from the compounding of felony, which used to be regarded as a serious offense.

With laws made in such irresponsible fashion, changed in such haste as to make it impossible for the citizen to keep up with them, couched in such terms as to leave the law-evader in quite as dignified a position as the lawabider, and enforced or not enforced according as the accused can or cannot make terms with the prosecuting authorities, reverence for law does not thrive. Somehow the output must be reduced in quantity and improved in quality or it will cease to be regarded as law. It becomes casuistry and leads to more casuistry, and the people will not long stand for progressive casuistry even if they do not balk at the piling up of such costly monuments of unread and unreadable print. Some check must be found, but what check and how to apply it does not yet appear. It is not likely that we shall repeal all statutes and return to common law, much as might seem to be gained by such a revolution. There is little hope that any conflagration, of the many for which we are laying the fuse, will be extensive enough to destroy the Babel of print. It is less combustible than hollow tiles. A hopeful step might be to shut down the legislative mill for a time and wait for the real law to precipitate or crystallize out of the turgid mass of guess-work law.

There is already, in certain fields of public affairs, indication of a reaction against the tendency to substitute legislation for intelligence in administration, and toward lodging in public officials a new kind of discretion, delegating to them power to make necessary regulations within their respective fields, and to enforce these regulations as if they were law. This is illustrated by enactments authorizing boards of health to designate the diseases to which certain provisions of law shall apply, or to make regulations which shall have the force of law as to the handling of food-products or the observance of quarantine. Labor and factory legislation also to some extent fixes penalties upon certain prohibitions or requirements made in general terms, the particulars of which are to be specified by commissions or inspectors, and may by them be extended or modified or changed from time to time. The National Banking law lodges in the Reserve Board a similar discretion as to the extension, suspension, and limitation of some of its provisions. This method again affords hope of relief. It seems possible that legislatures, which are themselves beginning to realize their helplessness, may reduce the volume of their output by delegating to administrative officials the power to make and to modify, as conditions may require, many of the regulations which in recent years have been made subjects of hasty legislation and amendment, and have thus clogged the wheels of deliberate law-making.

There is also possible relief in the establishment of a permanent office or bureau in connection with the legislatures, to serve as a filter, if not as a dam, to which all proposed legislation shall be submitted. The duty of this bureau should be to point out needless or vicious provisions, to reshape meritorious bills in such way as to reconcile them with existing law, to give them their due effect with least possible addition to the body of law, and to guard them against taking effect in matters to which they are not designed to apply. Such an adjunct to the legislative mill, exercising that part of the function now presumed to be exercised by legislative committees which requires a knowledge and experience not to be expected of such committees, has brought a degree of relief where it has been tried. But to take adequate advantage of it requires a change of attitude on the part of the public, a deeper confidence in the expert as against the inexpert, and a larger patience to await the full effect of one law before superimposing another. A necessary corollary, too, would be a change in the atmosphere of legislative chambers from one of presumption in favor of every unopposed bill to one of presumption against every bill whose sponsors cannot show public necessity therefor.

By whatever method it may come to pass, it must needs be that by some method, and at no distant day, the common sense of most shall reassert itself to hold in awe this fretful and impulsive realm; that the rain of laws shall cease; and that this great people shall establish itself under the reign of law.