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Masonic jurisprudence
The theory that law is the will of the sovereign, that a sovereign democracy, or its representatives or delegates in its name, can make law by the simple process of translating its will for the time being into chapters and sections, the magic words "be it enacted" justifying all that follow, arose by applying to sovereign peoples the ideas which had been worked out with reference to absolute personal sovereigns. The will of the emperor had the force of law; hence the will of the people is to have the force of law. But a confusion was involved here. The emperor owed it to his subjects to use his will rationally when willing law. The power to give his declarations of will the force of law did not absolve him from obligation to measure the content of those declarations by reason. Our fathers were conscious of this and so sought to limit law-making and give security against arbitrary and capricious action by bills of rights. But these securities are available only within comparatively narrow limits. So long as the theory of law as will prevails, the flood of law-making will continue.
In American Masonry we have generally a similar situation, for like reason.
Having no bills of rights in Masonry and hence nothing beyond a handful of vaguely defined landmarks to restrain him, what then are our barriers against the ravages of the zealous, energetic, ambitious Masonic law-maker? Legal barriers, there are none. But some of the most sacred interests of life have only moral security and on the whole do not lose thereby.
Another constraining influence is coming forward with the development of Masonic study. Nothing is so dogmatic as ignorance. A better and more general acquaintance with the history, philosophy, and legal traditions of the craft is certain to make our law-makers more cautions, more intelligent, and more effective.

Excerpted from : Roscoe Pound, Masonic Jurisprudence, "IV—Masonic Law Making" pp. 116-118 (1919). Also see The Builder Magazine, November 1918.


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