This Dark Age

A manual for life in the modern world.

By Daniel Schwindt

Law becomes subjective and ambulatory

“The end of political Power is to realize the Law.”

~ Leon Duguit

Such was the opinion of the political philosophers of old. Today, whatever the rhetoric, there is no such thing as law, in an objective sense. There is only the will of the majority, and the law is a reflection of this will. It is nothing of itself, but changes as the will changes, and there is no political principle to be found which suggests to us that this will adheres to or makes any effort to discover such an objective rule.

This process destabilizes the whole system:

The life of democracies has been marked by a growth in the precariousness of laws…anything that might have checked the immediate translation into law of whatever opinion was in vogue, have everywhere been swept aside or rendered powerless. The law is no longer like some higher necessity presiding over the life of the country: it has become the expression of the passions of the moment.[1]

By attaching the process of legislation to a machinery so fickle as the majority will, democracies develop what can be called “ambulatory law”—a form of law that never stands still, never proceeds along the straight course, but is constantly shifting, reversing, and at war with itself. The Middle Ages knew nothing of this difficulty; for them the law was fixed, the rule a premise. But from the time that the divine law was rejected as superstition, and custom as a mere routine, the law had to be made. And so we end where Jouvenel predicted, with a deluge of fictional legislation:

Loud and clear we proclaim it— the mounting flood of modern laws does not create law. What do they mirror, these laws, but the pressure of interests, the fancifulness of opinions, the violence of passions? When they are the work of a Power which has become, with its every growth, more enervated by the strife of factions, their confusion makes them ludicrous. When they issue from a Power which is in the grip of one brutal hand, their planned iniquity makes them hateful. The only respect which they either get or deserve is that which force procures them. Being founded on a conception of society which is both false and deadly, they are anti-social.[2]

James Madison himself saw this coming, but because the cause lay in his own principles, he could only lament the inevitable effect:

The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?[3]

[1] Jouvenel, op. cit., p. 236.

[2] Ibid., 326.

[3] James Madison, Federalist Papers, #62.

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