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"AMERICAN LAWLESSNESS”: AN INQUIRY
VICTOR S. YARROS
A theme much discussed in a superficial way, in newspapers, after-dinner speeches, sermons, is the lack of respect for law which is supposed to be an American characteristic. Even men in public life, who would rather flatter their fellow-citizens than arraign them, make sweeping statements regarding American lawlessness. Men of judicial training and judicious views frequently support the charge in question without material qualification.
The theme is a serious one, and deserves a little deeper and closer study. Are the Americans a lawless or law-neglecting people? Are they peculiar in any real, palpable way with regard to their attitude toward law, regulation, social discipline? If they are, how is the fact to be explained ? And is the explanation, or are the explanations, creditable or discreditable to them?
We may set out on our little inquiry with a few representative utterances embodying the apparent indictment of the nation.
In a speech to the Young Republican Club of New York, Senator Borah of Idaho used these words a few months ago: “We are even now, in our youth, the most lawless of any of the great civilized nations. There is no country of first importance where there is so little respect for law because it is law (as here]."
President Taft, who followed the Senator on the occasion in question, subscribed to the statement. “I believe it is true," he said, “that we do not hold the law as sacred as we should," and he added that he doubted whether "we held anything as sacred as we should."
Professor Franklin H. Giddings, the head of the department of sociology at Columbia University, in an address delivered at a School of Philanthropy, stated that in the last fifteen or twenty years "a profound deterioration in private and public conduct” had taken place in this country. On all sides, he continued, "we see a desperate indifference" to morals and manners.
The editor of the Century, a few months since, while severely lecturing a citizen who, weary of American lawlessness, expressed his intention to shake our dust off his feet and move to some country where rules and regulations "mean something," made the following observations:
The fundamental difficulty we have is to obtain respect for law as a principle. Nor is this an academic question. In all our cities it is one of great practical importance. Take, for instance, the unrestrained littering of the streets with paper and banana peels. To object to this, while, every day burglaries and murders are being committed, seems to many an undue anxiety about the anise and cummin of good government. They do not see the value of enforcing public cleanliness, not only for itself, but as a discipline in obedience to law.
A Chicago educator, in an indignant letter to the press, declared that he sympathized with the citizen thus lectured, for he had himself felt, many times, the call to some such act of expatriation. He went on to specify:
There is so much playing fast and loose with law in this country, so much corruption and disorder, so much legislative partiality, so much positive anarchy on every hand.
Everybody in authority, from the individual policeman to the Supreme Court, takes it into his own hands to decide whether a law is to be enforced or not, and if so, how much. We are not a nation; we are a rabble.
Such quotations as these might be multiplied indefinitely. Are the facts as alleged? If they are, how does it happen that men and women who, in Europe, as Englishmen, Scotchmen, Irishmen, Germans, Frenchmen, Danes, Swedes, etc., are law-abiding citizens, become by their change of allegiance and habitat, wild and anarchical persons ? How does it happen that the descendants of such and most of us are such descendants-throw off the restraints of tradition and social discipline? It is, indeed, said that the American climate—although our continent has several varieties of climate—tends to make us restless, impatient, strenuous; but we have heard of no scientific attempt to demonstrate the proposition that the American climate produces immorality and crime.
Eliminating physical factors we must turn for hints and possible causes to our social, political, industrial, and moral conditions. We cannot assert that free institutions, democratic government, bills of rights, due process of law, free and univeral elementary education are necessarily demoralizing. To maintain this is to despair of civilization and of progress, to imply that tyranny, caste, privilege and artificial inequality are conducive or essential to reasonably moral conduct—“which is absurd.” Moreover, none of the factors just mentioned is peculiar to America. Democracy is advancing everywhere; feudalism and privilege are retreating everywhere. Few progressive thinkers believe that England, Germany, Austria, Italy, and Russia are threatened with moral deterioration and contempt of law and order as the direct result of the steady liberalization of their governmental systems. We welcome political, social, and economic reform in any part of the world, including the Orient, without any apprehension concerning the moral effects of such reforms. On the contrary, we generally contend, or admit, that equal opportunity, justice, and freedom make for responsibility, strength, dignity in the individual.
What, then, is the matter with Americans? What causes and feeds their alleged lawlessness?
Perhaps, after all, the truth is that Americans are not peculiar, not really more lawless than any other civilized people, and that their apparent lack of reverence for law is the product of a combination of factors which beget precisely the same results wherever they operate to the extent or degree in which they operate. Should this be the case, the phenomena deplored might indeed give us pause, but no indictment of Americans as Americans would be warranted. There would still be great need of propaganda, effort, work; but there would be no cause for national self-castigation, for sackcloth and ashes, for gloomy fears and painful reflections.
To bring home the peculiar nature of certain American conditions—conditions under which laws are made and enforced, or enforced with great difficulty and against discouraging odds-it may be well to dwell on the character and meaning of “law.” It is axiomatic to say that unenforceable laws cannot be successfully enforced. It is a truism that an act or ordinance which offends the general sense of fairness or outrages the general intelligence of a community is foredoomed to failure. This was substantially true even in the ages of despotic rule; it is emphatically true under
popular representative government. Law is not a command issued by a superior to an inferior. Sociologically speaking, law is a rule of action, a code of rules of action, which the community, with virtual unanimity, recognizes as essential to its peace, order, comfort, prosperity. In other words, law is public sentiment and public reason embodied in statutes. Custom, instinct, tradition, reason, common-sense--these underlie law and give it vitality and sanction.
Machinery and technique may obscure these truths, but truths they are. Laws may be made by means of the initiative and referendum, the simple town meeting, the representative or semirepresentative parliament. Laws may be passed in responseready or reluctant-to public clamor, or they may be enacted by statesmen (or politicians) who, with regard to certain subjects, are a little ahead of the electorate. An act may be placed on the statute books in opposition to the wishes of a strong and agitated minority. Usually, however, there is no real chasm between the minority which frantically protests and the majority which apparently rides rough-shod over opposition and “enslaves" the minority. To watch the game of practical politics is to receive almost daily demonstrations of this fact. The bottom truth is as stated—that law must reflect public sentiment and grow out of realized need.
Now laws which stand this test are enforceable and are generally enforced. Not even the habitual criminal will venture to assert that society is wrong, and that murder, manslaughter, robbery, forgery, fraud, embezzlement are safe, respectable, and harmless practices. The scoundrel has no love for the law, but he is perfectly aware that he is a scoundrel and that it would be impossible for society to grant him freedom of action.
On the other hand, ordinances and laws which majorities or strong minorities do not ask or desire, of which they do not perceive the necessity or reason, to which they are hostile or profoundly indifferent, are laws and ordinances that are not enforceable. For even those who do perceive necessity and reason in them cannot, in the course of time, fail to be affected by the attitude of legions of their fellow-men. We are social animals; things for which many entertain contempt and which they habitually ignore cannot inspire in the rest of us the emotions that are inspired by things which are
universally respected and admired. Suggestion, unconscious imitation, the subtle influence of example have much to do with the conduct of the most superior of men.
This is why in the making and enforcement of law "likemindedness" is so important and valuable an asset to any community.
In the address of Professor Giddings referred to above, stress is laid on the "absolute necessity of like-mindedness" in the United States, but the bearing of this theme on the problem of lawenforcement requires considerable elucidation. To quote from the same address:
We have in the United States one of the largest populations ever gathered together, a population of many races, of very many nationalities, having different histories, different experience of life, different languages, and profound difference of knowledge. Our people range from the most ignorant to the most learned. There are profound moral differences, from vice and crime to altruism, and profound economic differences, from direct poverty to enormous luxury. Add to this, intricate differences of ideals, temperaments, and ambitions.
Remembering the proper definition of “law,” it is obvious enough that homogeneity of a population, common traditions, common standards, mutual understanding and sympathy are potent aids to law-enforcement. Where these aids are lacking, where laws demanded and secured by one element of an extremely heterogeneous population are misunderstood, questioned, opposed, ridiculed, or scorned by other elements, extraordinary burdens are thrown on officials, policemen, inspectors, and naturally, the result is meager and unsatisfactory. The community which leans on policemen and inspectors leans on a broken reed. These functionaries can do a little; nowhere can they do everything or even much.
We come, then, to our first proposition—that laws are not enforced in the United States as successfully, as easily, as thoroughly as in any advanced European county because “like-mindedness" is largely absent.
Two or three illustrations drawn from current and burning questions will suffice.
Take our Sunday laws. A state legislature composed almost entirely of Americans of, say, British descent, passes a statute