habit of acquiescence, of dependence upon the verdicts of the courts and the arguments of the lawyers, may dull the edge of the political conscience of the community. It may fail to encourage a sense of responsibility or habits of criticism, of inquiry and of frank discussion without which efficient democracy is impossible. The solutions of living issues of social justice cannot remain always a matter of the technical pronouncements of judges who draw their conclusions, though ever so conscientiously, from a limited fund of political wisdom in a fixed body of law. This is injurious to a progressive democracy in two particulars. The moral discipline gained by thinking through the great issues of national life is thereby lost because this task is relegated to a body of legal experts. Their decisions, consequently, do not appeal to the masses of men as would popular thought-out conclusions, that are felt to be in close relation to life. This lack of political discipline doubtless explains our national trait characterized by Mr. H. G. Wells as "state blindness." Under a law-made democracy the element of authority, which is most important in its place, tends to overshadow political self-assertion and its accompaniment, the sense of responsibility. The problem of the future is to restore between the two elements of authority and freedom the healthful balance that has been disturbed by the long rule of a law-made democracy.

§ 4. CRITICISMS OF LAW-MADE DEMOCRACY

Much of the prevailing confusion as to the meaning of democracy with its unsettling effect upon our notion of political obligation is due to a conflict between this old legalistic conception and a more recent and vaguely defined notion of a socialized democracy. It may be well, therefore, to state and criticize the case for law-made democracy.

An able exponent of the legalistic idea of political obligation thus voices his protest against the prevailing uncertainty as to the nature of political loyalties. "It is peculiarly unfortunate at a time like the present, when the acceptance of just principles is vastly important, not only to the peace and

order of our country, but to the union of all nations upon some common ground, that new conflict regarding the fundamental principles of justice should arise, that the authority of the courts and the value of the judicial system should be called in question, and that the whole conception of social relations should be thrown into the melting pot; for it has been thought by many, and has been hoped by a still greater number, that the American conception of the state, yielding authority to great principles of equity and to the rule of just and equal laws, might afford a basis for the reorganization of the family of nations, now torn by so many dissensions, and plunged into a maelstrom of deadly conflict." Dr. Hill finds the essence of this new spirit of unrest in the disposition to annul the original act of popular renunciation, that is, to challenge" the voluntary self-limitation of power" which for him is the very essence of American democracy. This writer feels that once we let the increasingly self-assertive modern democratic spirit break away from its time-honored anchor in an indefectible body of law, it will have neither the virtue, the courage, nor the efficiency to preserve its own integrity in the stern struggle for existence.

The champion of the modern socialized democracy would doubtless agree with the scholarly author when he asserts, "It is only as men are able and willing to adopt fundamental principles of justice, of equity, of moderation, and of selfrestraint, to abide by them, to reverence them, to love them, and to be prepared if necessary to die for them, that any light falls upon our shadowed pathway." It is doubtful, however, whether we can ascribe the present uncertainty to the alleged unwillingness of men to accept principles of equity and selfrestraint. The problem lies much deeper. Men are eagerly, even anxiously, inquiring what is justice and what is equity between man and man. Their hesitation arises from the fact that fundamental social changes have altered their estimates of what was once accepted as final and right. They are seeking a revaluation of values. It is an unjust reflection upon 1 David Jayne Hill, Americanism: What is it?, pp. 38, 39.

the seriousness and integrity of the present generation to imply that the root of the evil is found in lack of moral earnestness or unwillingness to support the cause of the right. The distraught modern man who gives any thought whatever to these questions will doubtless reply to such criticism, "Show me the way of truth and righteousness and gladly will I walk therein."

Mr. Hill lays down a fundamental principle of democracy when he says, "Where there is no sense of personal duty, no acceptance of universally obligatory ethical principles which majorities as well as minorities must obey, there is no ground of permanence in a democratic form of government." It is not a question, however, of universal ethical principles which majorities as well as minorities must obey. It is ultimately a question as to the nature and the sanctions of those principles. For the champion of legalistic democracy, political sanctions are vested in a body of eternal principles that lie beyond the changing experiences of men, that belong to the "nature of things" (the phrase is Dr. Hill's). These principles have been most clearly formulated, we are told, in the bills of rights and the Constitution. They should be obeyed simply because they are final, indefeasible and can not be affected by the changing political experience of men. They occupy very much the same position in the political sphere that Kant attributed to his categorical imperative in the sphere of morals. They reflect an eternal and indefectible order of things.

To this it may be replied that laws are but the rationalizations of the experience of men. They depend, therefore, upon the growth of experience for their material; they must constantly be referred back to this experience for the test of their validity. Constitutions and bills of rights are "obligatory" only in so far as they formulate those norms of action which best enable men to adjust their differences and preserve a social order in which men and women can live together with the least friction and the richest unfolding of human values. The legalist rests the binding character of the law upon the inherent moral and political merit it possesses independent of

what men think or do. He asserts that the law can not be invalidated by the altered opinions of men or by changes of an economic, social or political nature. The progressive answers that the ultimate sanction of the law is based upon a loyal acceptance of its mandates due to a reasoned and intelligent appreciation of the principles upon which it is based. For the legalist the law is binding because it expresses eternal and transcendent right; for the progressive, the law is binding because it expresses the tested moral convictions of the masses of intelligent men and women. When the law no longer meets with the approval of men it is at that very moment invalidated in spirit, if not in fact. The progressive contends that it is psychologically absurd to expect rational and moral creatures to order their lives according to principles which reason and conscience do not sanction; the legalist contends that without an ultimate political sanction independent of the fluctuations of the passions and prejudices of erring mankind all guarantees of rights and liberties are futile.

The real issue as between these two points of view depends upon the interpretation placed upon reason to which both appeal. Reason does not necessarily mean the will of the immediate and transient majority, the vociferous and more or less irrational vox populi as it finds expression in a political campaign. Reason may also be identified with the mature and tested experience of men stretching over years and even generations and embodied in their laws. If we magnify the latter notion of reason sufficiently we shall soon reach the transcendental realm of political verities in which the thought of the legalist moves and we shall be talking of "inalienable rights," "a body of unalterable principles," and the like, that persist with unchallenged authoritativeness from age to age.

It would seem, then, that the mistake of the legalist is due to his over-emphasis of a phase of the truth. Law must, for the sake of the continuity and preservation of the body politic, embody principles more comprehensive and binding than the immediate dictates of the will of the majority. This explains the feeling that justice and equity transcend the individual, the

community or the experience of one generation no matter how enlightened that generation may be. On the other hand, these principles of right owe their claim upon the loyalty of the individual, the group or the generation, not to the sheer fact of their universality but to the fact of an intelligent appreciation of their vital connection with the problems of the present. Where this appreciation is lacking obedience to the law, if it is secured at all, must from the nature of the case be mechanical; it can not be conducive to a self-conscious democracy. There is indeed a very real sense in which the moral ideas of the individual and the community will always be superior to the law. Time makes ancient good uncouth. This is true of laws as well as of morals. When, therefore, after any length of time the moral sense of men repudiates a law the question may well be raised as to whether the law has not outlived its usefulness. The moral values underlying a law are seldom invalidated through logic or metaphysical analysis; they die through disuse. When the need for the ways of acting provided for in a law has disappeared, the law is worse than useless for it merely beclouds the moral and political horizon.

It is obvious from the foregoing that legalist and progressive differ as to the nature of political sovereignty. The legalist insists that the people have magnanimously and wisely abrogated their sovereignty in favor of a written Constitution, which contains those ultimate principles which must find expression in true democracy. In the interest of freedom and of justice we must accept implicitly the authority of this body of law. The exponent of a socialized democracy, guided by the principle of evolution that has slowly permeated all modern thought, insists that government and law are a growth and spring from the life of the people. They can not, therefore, be made absolutely superior to the living experience that gave them birth. Their claim upon the loyalty of the people extends just as far as they serve the needs of the people. No body of laws can possibly be the last word of political wisdom since they are the result of a social process which is itself constantly