An Epidemic of Law

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An Epidemic of Law.

WHEN a disease reaches an epidemic stage, it is usually swiftly followed, in civilised communities, Virulent disease of the body politic, however, is not treated in that sensible manner. On the contrary. The state of Tennessee, for instance, has recently been afflicted with a grave malady. Its trouble has been largely enteric. It has become gorged with law to such an extent that its organs of digestion and assimilation have utterly failed to dispose of the accumulation.

But what does Tennessee do? Not what prudence and medical analogy would suggest—that is, try to remove the cause. She rather attempts (to paraphrase law. It is undeniable, of course, that this is the customary political treatment; but the form which it has taken in this instance seems grotesquely ridiculous, we blithely enact law after law, until there is such a mass of national, state and municipal legislation that no lawyer can possibly keep track of it, let alone attempt to understand it. But with the enactment our enthusiasm ends. Sometimes we become so indifferent before the job is completed that we neglect to appropriate money for the salaries of the officials who are designated to enforce the laws. Such instances are rather rare, however. Few bills ever reach a third reading if they don't carry a berth for a politician. Only simple-minded people and reformers have the hardihood or sanguinity to expect the enforcement of laws; hence only they are disappointed when the net result of legislation is to fatten the law printers and provide sinecures for the faithful henchmen of the prevailing boss.

But I was speaking of Tennessee. Its inhabitants are at the dawning of a new era. It seems that, by a margin so narrow as to leave a militant minority disputing it, some drastic measures have been enacted, as in many other southern states, prohibiting the sale of intoxicating liquors. As usual, especially in the cities, enforcement did not follow enactment, where was predominant, and where, in the opinion of the rural inhabitants, the enforcement of the laws is especially desirable. The consequence was that a special session of the legislature was called for the purpose of enacting laws for the enforcement of the laws already passed. The opposition to such legislation the prohibitionists desired; but a start has been made, the idea has been planted, and will eventually bear fruit. The optimistic governor is grateful that at least the people have "been granted the right to go into the courts with civil lawsuits and exterminate the lawless saloon." In other words the people can, as private citizens and at their own expense, hire lawyers and bring suit against faithless public officials who refuse to enforce the criminal laws.

This is indeed the sublimation of majority rule. We enact laws to coerce the minority, then we enact laws to enforce the laws previously enacted. The next step is, logically, to enact further laws to enforce the laws enacted to enforce the laws enacted in the first instance. This process may be extended to infinity, and it ought to reassure the politicians. There was consternation in their camp recently when a certain college professor (college professors are, by the way, sometimes taken seriously when they least expect it) predicted that laws were becoming so voluminous that the whole fabric of jurisprudence would soon topple over. But now we know that this wise man had based his calculations on insufficient data. And when we consider that, the enactment of criminal law having been carried ineffectually to infinity, we can still resort to courts of equity and bring suits to compel the enforcement of laws to enforce the enforcement of laws, we realise what an illimitable field of litigation is offered to us, even though all legislation should be exhausted.

This is interesting; yet still more interesting is a calculation made not long ago by an expert statistician. It was for the state of New York covering a period of ten years ending with December 31, 1912. He informs us that the increase in output of the legislative mills during that decade, in proportion to the population, was so great that were the increase maintained in the same ratio for the succeeding ten years, at the end of that term over half of the adult male population would be in the meshes of the law or engaged in the administration of it. To be exact, thirty-one per cent, would be connected with the public service in some way and twenty-six per cent would be imprisoned or prosecuted. It is true our statistician added the naïve proviso: "if all laws were strictly enforced." A saving "if"!

The proposition becomes much more instructive if we take pencil and paper and carry the computation a little further. It will then be seen that, by 1953, forty-eight per cent, of all people will be in prison or out on bail, while the other fifty-two per cent, will "be engaged in the business of sending them there and keeping them there. And this, too, without considering that, in the meantime, state socialism may be inaugurated. However, there is still consolation in the aforesaid "if."

Clarence Lee Swartz.

  • Clarence Lee Swartz, “An Epidemic of Law,” The New Freewoman 1, no. 12 (December 1, 1913): 225-226.