Why I Oppose Building Laws.—A Rejoinder
WHY I OPPOSE BUILDING LAWS.—A REJOINDER.
MR. EDWARD HENRY has done me the honor to reply to my former indictment of Building Laws. He is evidently a well-read man—a man of advanced and liberal tendencies, and of an earnest and sympathetic temperament. I congratulate myself upon my adversary.
Mr. Henry states with admirable clearness the grounds of the general confidence in the efficacy of Building Laws, “I am free to confess myself one of that very large class, the public, who believe in a building law because there is one, * * * ” Why he should add, “though not as unreasonably or blindly as Mr. Robinson would have us believe,” I do not understand. To believe in a building law—notice the creed formula, “I believe in”—because there is one, is hardly to be called other than a blind belief. Although Mr. Henry states the grounds of the public confidence probably with perfect accuracy, he would, I think, on reexamination revise the statement as applying to himself.
Leaving such criticism of mere words and looking at the substance of his article, I am at a loss to understand how much weight Mr. Henry is willing to grant to general principles. What is the use of laboriously establishing a general principle if we are not to apply it to the solution of special cases? Or is it Mr. Henry’s argument that not enough facts have been collated for the induction yet of a general principle? It was to meet this objection that I quoted Spencer whose insistence upon an array of facts before reaching his conclusions is strongly marked. What validity attaches to the decision of a majority?
“The majority is not always right,” says Mr. Henry, and again he says, halting between two opinions, “it must not be inferred that the majority is always wrong.” When then is the majority right, and when is it wrong? If the existing state of affairs at any given time were the best possible, an argument that the majority was always right might be sustained. Atone time people did think that nothing better was possible than the way they had arranged things. Each obsolete institution has, in its day, been regarded as the ne plus ultra of perfection. Much of this feeling survives still, as for instance, in Mr. Henry’s naive assertion that he believes in the building law because it exists. We have, however, reached the point of admitting with our intellects, what our hearts often fail to respond to, that better things even than what we have are attainable; that “ the latest novelties “ may be improvements in social as well as in plumbing arrangements.
In a progressive society opinions must constantly change; the existing general opinion must always be in process of adaptation by the influence of the ideas of some individuals, at first few in number, and only slowly gaining numerical strength. So we may say that it is mathematically demonstrable that in a progressive society the majority is necessarily and invariably wrong, the minority inevitably right, and that at any period one individual is more right than any other, and than all others, if we had but the ability to pick him out from the rest.
It would be bad enough in all conscience if we were ruled by a majority: the actual state of affairs is far worse. Does Mr. Henry really suppose that the members of the Legislature are intelligent and benevolent? Is he infantile enough to imagine that they discuss measures upon the basis of abstract justice? Does he not know that the knock-down arguments are the smallest and meanest political expediencies, or, still worse, conclusive arguments from the powerful, because rich, parties who are demanding privileges through legislation?
The majority of the people is supposed to govern; in point of fact, just as in any college class or literary society, the few who value the emoluments or honors work to control and do control the nominal majority. The difference is that in the minor societies the officers must do tolerably well, or members drop out and funds vanish: in our political societies a protesting member may secede in spirit, but he is forced to pay all the same.
Admit, for the moment, as I will cheerfully admit, that some laws are made because of a surviving belief in their efficacy, and with the best intentions. Suppose, for instance, as will probably happen, that Mr. Henry’s wishes are gratified and that more inspectors are hired and all buildings, even completed ones, are systematically inspected, what will be the result?
After six or eight years some other accident will happen and then the cry will be, as Mr. Henry urges now, that people move in and out so frequently that inspection is useless. “People ought not to be allowed to move without a permit!” Forthwith we shall have laws compelling an inventory and statement of goods and weights and so on, to be filed with the police before anybody can move in or out, and following that, more restrictions, until we reasonably and properly enact that each citizen must have a passport, certifying that he is permitted to exist by the bounty of Mike Flannigan—his mark—Chief of Police and type of the watchful care of the State, viz., the ward caucus, over the unfortunate engineer, architect or literary man who does not know enough to take care of himself. Why not?
Let Mr. Henry understand that the law is not, as he suggests, an interesting curiosity, to be preserved in a glass case and admired along with the Venus Anadyomene and the Parthenon ruin. The law is a regiment with murderous weapons. The law means the rule of force. It is as Mr. Henry in his previous paragraph says, “ the solitary fetish of modern life.” The law is a survival of the time when it was held that knowledge and ability rested with the few, which is true, and that therefore the few should have power to force the rest to obey them, which is false; and the falsity of which Democracy arose triumphant to demonstrate. That the many should not have power to force the few to obey them is a new truth, to which Democracy is as yet a stranger, and to support which but a few have as yet come forward.
Whoever may be wise it is for him to persuade others that he is so. Power, whether in the hands of one or of many, is sure to be used by those who wield it for their own advantage, regardless of the wishes of the rest, even though ostensibly, perhaps even sincerely, intended for their good. The most severe oppressions have been committed always by those who have been most sincerely benevolent. The Inquisition was a benevolent institution. The present Czar is said to be gentle and well-meaning toward his subjects; he is certainly not devoid of power: yet witness the misery to which his people have been reduced by the well-meant exertions of their guardians the State functionaries.
Liberty is to be the watchword of the future, as it has been the watchword of the past, through the advancing ages. Though, for the moment, the crowd sees no salvation but in the intensification of law, the time will come when Liberty shall again be adored as the supreme good.
In the hamlet where I live each person who wants a street lamp in front of his house gets it by paying for it. That is freedom. Before long, no doubt, we shall have street lamps forced upon us, and those who might not pay would have their houses sold and be turned out into the street. This is slavery, much to the advantage of those who prefer brilliantly-lighted streets to the welfare of their neighbors. They will have indeed obtained their lamps, but at the expense of others.
To obtain things at the expense of others is held to be a virtue, at the present time, if done in accordance with the rules of the hayseed and ward-bummer legislature.
All this is known to a few people; known I judge, to Mr. Henry; he perhaps does not realize that this knowledge is a possible basis for practical affairs. Few, even of those who read Mill, Spencer, Buckle, Ibsen, Tchernychefsky, and the rest of the advocates of liberty, realize what their teachings lead up to.
No force at all must be the goal toward which we strive and at present as little force as possible. That is to say we should use force only as far as we are compelled by others who use force against us.
This at once bars all statute laws save such as are destined to protect against violence. Even for this end statute law is unavailable, simply because it is impossible to define aggression. The old institution of jury trial is far more efficient. But when I say jury trial I do not mean the wretched affair of to-day. The pure jury trial regards the jurors as sovereigns, each with a veto. They are superior to any law. The attempt to limit their function to ascertaining facts is an encroachment by the judges. Not even now could a juror be called in question for refusing to coincide in a verdict without giving any reason for his refusal. The most that could be done would be the intolerable and tyrannical course of some judges in refusing the verdict and ordering a new trial. In a real trial by jury the lectures and scoldings that are sometimes administered by judges would be out of place.
With such a jury trial the widest opportunity for experiment and improvement in methods would be obtained, while people would use dangerous buildings at their own risk. Only such injury as might be done to passers could be properly taken cognizance of, and only then if malice or criminal carelessness were proved.
We are not entitled to make laws helter-skelter for every object that, in our limited conceptions, seems desirable. How about the people who think the opposite is desirable? If others do not injure us we must not attempt to control them. Even if we must control them by force or perish under their attack, we must remember that it is a bad business at the best, and resorted to only under protest and with full knowledge of its temporary character. Such are the principles which will prevail after the present fetish worship of law subsides.
I have spoken of general principles. One or two specific points I will mention. Mr. Henry speaks of the fire-limit laws as manifestly beneficent. I have already pointed out that manifest beneficence is not a valid ground for a resort to force.
In this particular case, however, fire-limit laws are not usually made for the sake of their beneficence. A city that is already built up with wood never enacts laws compelling people to take down their wooden buildings and rebuild with brick, although that would be quite as beneficent.
The real object of fire-limit laws is to favor speculators. Where there is reason to suppose cities will grow, speculators buy up in advance and have fire-limit laws passed to keep out buildings that would lower the speculative price of their land. They are on just the same plane as the restrictions that are sometimes put into deeds; favorable to those who profit by them, unfavorable to the one who cannot afford to build a brick house. As for the increase in the number of inspectors, if Mr. Henry owns a building and wants it inspected, why doesn’t he pay for it himself? Why should he make people who don’t want buildings inspected pay for his gratification? Fire-escapes, too, may be good things for those that want them. Are those who choose to take their chances to be deprived of all responsibility? If they estimate the cost of a fire-escape to be a inadvisable expenditure; if they should perhaps prefer to donate the money to some church as a more necessary fire-escape, who shall forbid them?
Or, if people are to be compelled to pay for fire-escapes because they are good things, why stop there? Fresh air is a good thing; let us have inspectors who will compel the riddling of every house with pipes and registers and whirligigs. Well-cooked food is an excellent thing. A corps of efficient inspectors should be appointed to enter each house while dinner is in preparing and throw into the street what is not good enough for their fastidious noses; as they now destroy poor venders selling stocks of food.
Mr. Henry’s “dishonest and wicked contractor” is but slightly inconvenienced by the building laws; the false security they engender by placing bad work on an equality with good in the general estimation is really a far more active agent to produce poor work, than their literal prohibitions are to prevent it.
An end to it all. There was a time when America led in the march toward freedom. There was a time when a man named Jefferson had much influence; when the principle prevailed that the best government governs least. But now we are in a stampede. Socialism is our goal. Let the State own everything and dole out to us, her servants, our portions,—what we work for, or what we can steal or wheedle her out of, like other slaves. Nothing less is the avowed object of the new Nationalist party and many who sympathize with it.
Each year the province of government extends. Each year the State encroaches on our liberties; and we do not even know that they are encroached upon!—do not even know that the assuagement of our ills is to be looked for in more liberty than in less.
More liberty! We do not even know that we lack liberty, we think that there could be nobody freer than we.
Yet we have gone too far to retreat. Already Europe is pushing us hard. To this young and favored land liberty will again return. Liberty, golden-pinioned, grown to her full strength, shall again lead us to a civilization that the present dreams not of, in comparison with which the present can scarcely be called civilization; when man shall meet man in friendship, not in struggle; when the rifle and the gallows and the jail shall go the way of the sword and the stocks and the rack; when truth and peace shall flourish out of the earth.
- John Beverley Robinson, “Why I Oppose Building Laws.—A Rejoinder,” Engineering Magazine 2, no. 2 (November 1891): 246-251.