# Popular Science Monthly/Volume 85/July 1914/The Bad Habit of Having Law Makers and Lawyers

Layout 4
* THE BAD HABIT OF HAVING LAW MAKERS AND LAWYERS
By JOHN COTTON DANA
NEWARK, N. J.
IN the process of social development early societies invented certain customs and institutions to satisfy certain more or less well-defined needs. That is to say, all customs and institutions have had their origins, in part, in sheer utility. All of them were therefore good; for they all helped, if they did nothing more, to establish and maintain that social stability which is a prime essential to progress. It is probable that we owe our present advanced position to cannibalism in precisely the same sense, though not necessarily in the same degree, in which we owe it to slavery, to polygamy, to autocracy, to monogamy and to property in land. At certain points in society's advance one and all of these customs were demanded by circumstances, were developed and gave humanity an uplift.
These several customs were adopted by social groups of a relatively low order. They were beaten out, as it were, by pressure of adverse circumstances, under the guidance of the barbarous and the semi-civilized. Crude as are many of our methods of so modifying our own customs as to meet wisely the changing conditions of our social life, the methods used in early days were very much cruder. The results were unsatisfactory. Cannibalism was doubtless a helpful custom in its day; but was not good for all time and in due course was abandoned. Slavery was more useful and for a longer period. It even helped bring to full flower a very refined civilization. But it demonstrated its own ill effects and was duly abandoned.
It is obvious that in all customs established in the early days of primitive society there are defects. Having been devised in a society of the socially unskilled they must all partake of a certain coarseness and crudity, and they must have fitted but ill the needs for which they were devised. If one of them by rare chance proved perfectly adapted to its purpose in the society for which and by which it was fashioned, it could not possibly fit the far more advanced and far more complex society into which the crude society gradually developed.
Now the law, meaning the power behind the law; and the law, meaning both rules given by legislators and judges and legislators and judges themselves; and the law, meaning the technique of its alignment as practised by a privileged class, the lawyers—the law in all these three forms or aspects, is a social eject of extreme antiquity. It is one of those ​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.
​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 ​greatly criticized therefor; whereas openly to condemn a judge, qua judge, shocks certain of our quasi-religious sensibilities.
This very ancient and now quite harmful habit of ascribing a certain sanctity to law makers means that we tend to look upon them with a certain religious reverence and submission. In further accordance with this habit we select our law makers primarily or largely for their adherence to a creed and for their activity in securing converts to that creed. The intrusion of those elements of religious enthusiasm, which make for the destruction of all judicious decision, into the work of selecting our law makers is alone sufficient reason for the conclusion that they must do us much harm.
The habit of having, in the alignment of the rules the king or the majority enforce an elaborate technique, practised by a privileged class, the lawyers, has a peculiar harmfulness.
The habit of having kings, or law-enforcers in any form, and the habit of having legislators or other kinds of law makers, are both survivals and both are doing injury through their failure to fit the more civilized communities which still retain them. But both were once quite essential to progress, and seem still to possess advantageous features, even to societies as advanced as our own. The tribal chief and abject obedience to him were once quite important factors in the struggle for tribal survival. In later forms of society it was as important that the elders of the tribe lay down rules adapted to changing conditions as it was that the grand chief enforce them. That is, the habit of having laws made, and the habit of obeying the one who was there to enforce them, were once quite markedly helpful habits and have some excuse for survival even down to our own day. But for the habit of having a privileged class in charge, as it were, of the technique of the distribution of the effects of the law, of this not so much can be said.
The origin of the lawyer-having habit at once discloses to us a sufficient reason for the power and persistence of the custom of making him a privileged member of society, and points also to its harmfulness.
The tribal chief of early days took on, from his earliest appearance, certain ecclesiastical trappings and powers. He was often a god himself, either during his life or immediately after his death. He was often chief priest as well as head man. The priestly class which grew up about him performed the accustomed sacerdotal rites, led the people through the mummeries of the tribal religion, took on much of the sanctity which custom gave to the head man himself, and, inevitably, became a specialized class with peculiar powers, immunities and dignities.
The fact of the descent of the lawyer class from this priestly class is familiar enough. The lawyer's special privileges have descended directly from those enjoyed by medicine men and priests who surrounded the tribal leader and helped him to exercise his more god-like functions and ​shared his god-like prestige. The habit of having a privileged priestly class was never as distinctly helpful to the tribe as were the king habit and the rules-of-conduct habit, and it was also, from the very nature of its origin, inevitably touched with a power for harm which just as inevitably increased as the social organism developed, expanded and became more sophisticated. In so far, therefore, as the lawyer caste of today takes its peculiar and exclusive powers from its direct precursor, the priestly caste, so far is it predestined to harmfulness.
And in so far, again, as it takes its special powers by direct inheritance from a quasi-ecclesiastical source, so far is the habit of tacitly granting those powers guarded with a quasi-religious zeal by those, the ignorant populace, who hold it. The divinity that was once of the very essence of the tribal chief, hedges still the kingly majority of the present social hierarchy and that majority's priest-born, privileged law exploiters. The creed of the devout believer in the efficacy of the law in all the aspects of it I have named—the law enforcer, the law maker and the law exploiter—this creed includes by implication, if not in so many words, an article declaring the divine origin of the power of those who give, those who enforce and those who align the law.
Inevitably, in view of its origin and character, the lawyer class forms the most powerful and self-assertive of labor unions. It is the most powerful, for it has behind it the authority of both the law-enforcing and the law-formulating powers. Indeed, it is itself, as already shown, the third in the trinity of powers which constitute to-day the whole of that habit-of-having-the-law which was once the habit-of-having-an-autocrat. A labor union, possessed of some of a ruler's supreme authority, of necessity becomes, in accordance with well-known laws of human nature, arrogant, overbearing and prone to serve its own personal ends at some sacrifice of the ends for which it was constituted. For an example, one may cite that habit of procrastination in which the caste still indulges in the exercise of its functions, a habit the painful effects of which an elaborate ritual and an esoteric terminology tend somewhat to mystify but not at all to mitigate.
Gaining its authority and its sanctity largely from a remote past, being desirous of retaining both, and feeling that both are accentuated by constant reference to their ancient and noble lineage, the lawyer caste draws, constantly for its pronouncements not on the merits of the case in hand, but on the whole body of ancient doctrine. Herein this caste resembles its foster sister, the ecclesiastical group; but while the latter is moved constantly to look forward, if not by the good sense of its units, then at least by the pressure of internal competition, the former is supported in its enjoyment of reminiscence and its scorn of evolution by the whole law-having habit of which it is a part.
In one aspect of the special powers of the lawyer class we find an ​astonishing survival of a rather special ancient custom. The tribal chieftain surrounded himself with satellites, priests, kin-folk and courtiers. He was compelled to delegate to these the exercise of some of his functions. It suited their needs to make it difficult for the common people to approach him and present their petitions and their grievances. In time it became the custom for the wealthier and more influential of those who would get word with the chief, or would, through his immediate friends, gain favor from him of a promise, a gift or a decree, to purchase, outright or indirectly, the help of an intermediary. This custom was handed down, became fixed in its details, and survives to-day in the lawyer's fee. Now as in the early days of this custom, a person specially authorized for the purpose stands between the faithful and the law-enforcing power. One may almost say that we license the door-keepers of the halls of justice and permit them to take toll of all who enter.
The chief direct beneficiaries of the survival of this law-having-habit are the lawyers. As such, one can not hope to find them zealous in modifying or weakening the habit. But lawyers are as ready as is any other special class to declare their devotion to the general welfare, and they are better situated and better fitted than is any other class to check the growth of this injurious law-having custom. And nearly all lawyers admit, when the question is of law-making by legislatures, that the law-habit is most harmful, and that it constantly grows stronger.
Ten thousand generations taught our race to love a king; we seem unable to get over the habit. We love him; we believe in him; we think he can make us prosperous, wise and happy; and when he comes to us in the guise of a legislative majority from our own political party our faith enjoys a veritable renaissance.
There was a time, say 50 or 80 years ago, when the law-having habit, among English speaking peoples at least, seemed on the decline. Then a change came, merely, one may dare hope, the inevitable temporary reaction we must always look for in such cases, and to-day we are again in the full tide of law building.
Now, are lawyers as a class attempting to check the growth of this law worshiping habit? Do they point out again and again to the populace that it is, after all, but the habit of worshiping a divinely appointed king under another nomenclature and another set of ceremonials?
In the layman's observation, they do not. They profit by the law's growing complexity. They hasten to become legislators themselves if only to equip themselves in the way of profitable legalizing.
But is there not here an opportunity for this social group, harmful in its very essence, to lessen to some degree the harm its existence causes, by attacking in an organized way this hurtful habit of worshiping the law?