In the abstract, Hibschman contends that the earliest functionality of Law is nothing more than the natural rules governing what he calls "our animal ancestors." Hibschman observes the writings of Joseph McCabe from 'Man and His Submission to Being Ruled,' on the thought that
[n]atural selection has brought about a tradition of conduct of behavior. Those who do not live on certain lines or within certain limits perish. It is the unconscious law of the animal world, and it is to some extent incorporated in the organism.
McCabe, Hibschman says, claims that children "follow the ways of the parents through imitation or correction, and habits are formed for the individual that lead him to conform to custom." These customs, he continues, reach beyond the lowest savage level of humanity without society, long before the written word and possibly before the true advent of spoken language, and yet that is where law begins. Hibschman continues that out of ancient custom came both morality and law, which was recorded upon the invention of written language. Such is the common law, which the United States acquired from England, the principles and rules of which came "to England from Babylon, Palestine and Phoenicia by way of Greece and Rome so that our modern law has roots in over half the earth."
To that largely unwritten inherited body of law we have added legislation, but Hibschman asks the question that when we enact laws, do we really make them. Custom, Hibschman claims (at least in his time) is still a tyrant, and asks the reader to consider critically the thought that "when we think we legislate, we do naught but register in rigid form customs already approved by the social conscience." Hibschman concludes his thoughts on the origins of the law with a comment from Woodrow Wilson's "The State," where Wilson declared 'Back of the Must there is first an Ought.' Law, Hibschman says, comes from that Ought.
From my own experience in observing the change in culture in the last 80 years both historically and while I have been alive, I can entirely see Hibschman's point about children learning from parents and conforming to custom. It's an oft-used example from the 1990s era of welfare reform, but three generations of welfare recipients in one house is enough. Or, if you prefer another example, the cultural acceptance of divorce and the single parent household in the 60s and 70s has given rise to the proliferation of single parent households today, some from divorce others because they simply never bothered to marry. Further, I can even see how given enough numberless generations how observed custom would become ironclad in the force of unwritten law. Further, we see in several historical contexts how custom evolved fully into law.
The Old Testament Biblical accounts of Moses giving the Israelites "The Law" (the Halakha) in Deuteronomy was largely a codification and a reminder of the rules that Moses had given the Israelites upon the Exodus from Egypt, and then left a specific instruction that the whole body of laws was to be read to the entire nation every seven years by the priests of Israel, and every king was to write an entire copy of the law on a scroll as one of his first acts upon taking the throne (Deuteronomy 17:18-19)
Hammurabi similarly codified what must have been customary action during his reign from 1792 BC to 1750 BC. Hammurabi's organization of the law likely made the code itself more easily understood and by replacing custom with the power of the kingdom gave it force. Further Hammurabi made sure that the law was visible by writing it on a large stone monument (a stele) and putting it in public, so that anyone who was literate could read it for themselves in order to understand exactly what their rights were and what was expected of them.
Today, in the legislative halls of both States and the Federal government, there is no question that we have abandoned the slow petrification of the growth of custom into the stone of law for the rapid-fire legislative antics of bare electoral majority rule. No longer is there widespread acceptance of the need for customary action or societal duty to settle into the culture before its codification. No. Today it is merely "that is what 50.1% of the voting public wants" (not even the entire citizenry).
Sometimes it is even worse than that, when the legislators themselves take it upon themselves to legislate what they think we SHOULD want because it is "in our best interest," such as the recent Health Care Reform act of 2010, which even now 60% of the people disagree with, although for a myriad of reasons. At least with this body, we can recognize their disdain for the will of the public and vote them out of office for abusing the public trust, hopefully undoing the damage done in the interim period.
What should frighten the public even more than this shotgun approach to lawmaking is that usually less than half of the eligible population actually does vote on who their lawmaker will be, concentrating ever-more power into the hands of the few politically active at the expense of those who merely follow along.
The final idea that should further horrify the public is the expansion of the Administrative bodies which promulgate rules and regulations with seemingly no oversight from the elected bodies who have ceded them power. They act, often without mandate, review, or even direction other than "department X shall promulgate regulations for industry Y for the protection of the public." While they are required to have comment periods, they have the authority to ignore all public commentary and to act, and usually must be challenged through administrative processes before any court challenge may be mounted. Even then, the burden is VERY high on the party seeking to overturn the administrative rule. The administrative state, through its bureaucracy is accountable to no one but itself.
As with the definition of "what is law" from the last commentary, we have lost something in the change from a slow, deliberate codification of custom into law. While being able to change law quickly can have its benefits, either by banning a new custom from taking hold or when a particular law or action is seen as being incredibly destructive, the approach of "legislate first, deal with the consequences later" is itself destructive to the fabric of the nation and to the larger historical context of what the law should be.