… is from page 118 of the American jurist James Coolidge Carter’s posthumously published and sadly neglected 1907 volume, Law: Its Origin, Growth and Function:
My conclusion is that so far as Private Law – the law which governs our conduct in our ordinary transactions with each other – is concerned, the influence of legislation – of written law – has been exceedingly small.
DBx: Carter added, two pages later, that “its [legislation’s] own efficiency is dependent upon its conformity to habit and custom.” Workable law cannot be designed and imposed, any more than workable language can be designed and imposed. Insofar as legislation conforms to existing law, it stands a good chance of achieving its authors’ goals. Insofar as legislation conflicts with existing law, the goals of legislations’ authors can be achieved, if at all, only through the application (or the credible threat of the application) of coercion – and even then only at the additional price of suffering unintended ill consequences.
It seems to me that many people believe that we human beings left undirected by a sovereign power are either inert blobs, capable of achieving nothing, or unintelligent and brutal barbarians destined only to rob, rape, plunder, and kill each other until and unless a sovereign power restrains us and directs our energies onto more productive avenues. In the 16th and 17th centuries it was believed that the beneficent sovereign power must be monarchial; in the 19th, 20th, and (so far) 21st centuries it is believed that the beneficent sovereign power must be “the People,” usually in the form of democratic majorities. We moderns applaud ourselves for having discarded our ancestors’ unenlightened attachment to monarchy and for our having replaced that attachment with an attachment to majoritarian nationalist democracy. We moderns do not understand that our attachment to nationalist sovereignty itself is a far more dangerous superstition than is an attachment to a variety of sovereignty other than majoritarian nationalist democracy.
