Front Page Titles (by Subject) SPECULATIVE LEGISLATION - The Challenge of Facts and other Essays
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SPECULATIVE LEGISLATION - William Graham Sumner, The Challenge of Facts and other Essays 
The Challenge of Facts and other Essays, ed. Albert Galloway Keller (New Haven: Yale University Press, 1914).
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The Germans have lately invented a new department of social interest — Socialpolitik — which is neither politics, political economy, nor social science; it is in fact a department of speculation as to legislative measures which might be adopted to alter existing social relations. Any legislation which does not proceed out of antecedents, but is invented in order to attain to ideals, is necessarily speculative; it deals with unverified and unverifiable propositions and lacks all guarantees of its practicability or of the nature of its results. It is, however, very easy and fascinating to plan such legislation; the enterprise is sure to he popular and remonstrances against it are sure to produce irritation. Such remonstrances imply that the speculators have undertaken too much or are too confident and self-assured.
Nothing can be more antagonistic to the spirit of Anglo-American law than speculative legislation. That law is marked by slow and careful growth, historic continuity, practical sense, and aversion to all dogmatism and abstractionism. While it is as broad in its general maxims and generalizations as the facts will warrant and bold enough to draw all the deductions which legitimately follow, it refuses to assimilate unverifiable elements.
Speculative legislation is really advocated by assertions which are predictions, and it is impossible to meet it by arguments which are other than contradictory predictions. But all men of sober thought and scholarly responsibility dislike to argue by predictions.
The most remarkable case of speculative legislation in our history is the Inter-state Commerce Law: and, as it was not permitted to argue against it by predictions as to its effect, it is the more important to follow its workings closely.
Twenty-five years ago it would have been impossible to pass such a law. Part of the people would have said at once that it was unconstitutional, and these would have brought at once the sound instincts of their political sense to bear upon it. The real argument against it is now just what it always was and always will be: not that it produces one or another specific evil effect, but that it is opposed to the spirit of our institutions, wrong in principle, and sure to produce evil effects whether the specific evils could be predicted or not.
At present different interests are anxiously watching its workings to see whether they are to gain by it or not. They propose to take sides on it accordingly. But this means only that it will necessarily favor some interests at the expense of others, from which it follows that it must impair the prosperity and welfare of the commonwealth as a whole.
It is said of the law that it has come to stay, and that we shall never go back to the old state of things. It is to be feared that this is true; it is one of the worst facts in the case. When such a law has produced its effects, it has produced a distortion of the industrial system; but industry adjusts itself as soon as possible to new conditions of any kind. When the distortion is effected the chance of observing it has gone by. People get used to the new state of things; they suppose that it is the natural and only proper one. Reform or improvement is blocked by inertia, habit, and tradition; paper money and the tariff are already instances of this; this new law is making another.
It has been observed that the effect of the law is the same as that of the protective tariff on Ohio wool against California wool. It goes much further than this. If it bars California wool out of the European market, it is protective on other California industries which hitherto have not paid so well as wool. It will act as a protective tariff on all the separate local units or groups. It tends to divide the country up into separate economic units with a tariff around each.
Reasoning upon it in another way we reach the same result. There is no place in the world where railroads are as important as on this North American continent. It is a vast, solid piece of territory, cut by few water inlets when compared with Europe. Inside of it railroad communication is of commanding importance. So long as railroads are new, and their economic operation is as yet undeveloped, this continent must be the scene of many rude and abrupt changes, vicissitudes, and difficulties due to the development of transportation. The general effect, however, has been to open up the whole continent to superficial settlement, to unify the whole continent in industrial organization, to make local division of labor, to establish the widest and most healthful, because freest, industrial organization that ever has existed. In doing this railroads have often acted as if they laid one square mile over another or as if they drew a remoter place nearer than a nearer one. By giving greater mobility to capital and population they have distributed and redistributed them; have concentrated or dispersed them as the forces might act.
Now, to limit, counteract, and reverse the action of the roads, by the short-haul clause which really antagonizes the most peculiar and important fact in the economy of railroads, is to undo their action and to force (if the act could be carried out) the production of approximately that state of things which would have existed if there had been no invention of the locomotive, viz., local economic units, each complete in itself, with low division of labor as between parts of the country and less interchange of products between them.
The fact that the industry of the country is producing food and raw materials only makes the mischief greater, for these products cannot be produced on a large scale unless they are transported. The act may put an end to passes and limit railroad wars, but its effect is to destroy the transportation business.
The act was one which nobody could construe. It was said that the Commission would construe it, but they now decline to do so; they say they must wait for cases, with real parties in interest. Plainly here are two systems of jurisprudence and administration mixed together. On the administrative-regulative system, e. g., of Germany, the administrative body must establish ordinances and make known how it will act; it must solve the doubts of parties affected, give them directions, and relieve them of responsibility. It is the Anglo-American system to have no regulative-administrative officers, to leave administration to courts, and to let courts act only on cases. The Anglo-American system leaves the citizen to consult his legal adviser on the law, and to act on his own responsibility because it has left him free. If the law only defines terms and conditions of social and industrial life, it needs no regulative functionaries and has no place for them. Giving the citizen liberty, it holds him to responsibility. If our Commission does not interpret the law, what is it for? We have then only a blind enactment, and whatever course railroad officers take under it they may find after two or three years of litigation that they have made mistakes and incurred great liabilities. It is mischievous legislation to create any such situation.
The act is also producing a pooling system stricter than any which voluntary agreement could establish. Railroad authority of the highest rank has asserted that the effect of pooling in England has been to arrest railroad improvements there for the last fifteen years. Its effect must be to stereotype existing arrangements as to facilities and prices.
It is a characteristic of speculative legislation that it very generally produces the exact opposite of the result it was hoped to get from it. The reason is because the elements of any social problem which we do not know so far surpass in number and importance those which we do know that our solutions have far greater chance to be wrong than to be right. This act promises to be another conspicuous illustration—perhaps a stronger one than any previous instance, because in this case we did not know what we wanted to do, nor how we meant to do it, nor, when we got through, did we know what we had done.
Legislation among us is far too easy for us to endure speculative legislation. Among us the legislative machinery can be set in motion too readily and too frequently; it is too easy for the irresponsible hands of the ignorant to seize the machinery; a notion which happens to catch popular fancy for a moment can be too readily translated into legislation.