Carmichael convincingly develops a principle of process that ought to be taken into consideration of the formulation of law at all times and all places. His analysis of the rules, particularly sexual prohibitions, in Leviticus reveal that conscious lawmaking at that time was not codification and probably bears little in common with our perception of legislation, even in its simplest form. It was, however, lawmaking rather than adjudication in the sense that hypothetical, rather than real disputes were the object of the rules.

Let me first propose a model of legislation and codification that I believe is part of our legal folklore. There is a legislative process that occurs regularly in our legislatures that can be described: An issue arises that appears to be a problem that may be solved by legislative intervention, that is to say, a law or laws may ameliorate an existing social problem. Based on the subject matter of the problem, it is entrusted to a particular committee of the legislature, which discusses it and may choose to propose a legislative solution by way of lawmaking. The committee's proposed legislation is discussed and debated by the whole legislature and a final law is drafted and enacted. Note, by the way, that this description does not require any oversight. The discussion and debate may be based entirely on lies, untested theories or models of society, or simply political expediency. The efficacy of the law is left to the judgment of some vague electorate of the future. The desirability of the law is based primarily on its present appearance and appeal.

This process must be distinguished from laws which exist from time immemorial, what I would call 'custom.' I am thinking in particular of the common law, which in the American system creates law through adjudication of disputes in the form of precedents. I like to characterize this as custom for two reasons. First, judges are much more likely to rely on societal values that have been internalized (their articulation is a self-consciously awkward). Second, they reflect a diachronic consensus. This is analogous to the oral traditions of non-literate peoples: A person of authority articulates the rules that everybody knows and sometimes goes beyond because an immediate problem is not answered by traditional rules. The power of the rule is based on its apparent conformity to what the community (here more appropriate than 'society') believes to be its values and rules. The legitimacy of the exercise of authority to make the rules depends on his ability to make the lawmaking reside comfortably within the community's perception of the tradition of right conduct.

What my model of legislation does not take into account, besides politics, etc., is the origin of the catalyst for the discussion in the first place. The model presumes that the legislature addresses real problems and implicitly assumes that the legislature apportions its energy in accordance with the seriousness of a problem. A cursory look at Congress reveals this to be untrue. While creating a national health care system consumes much more attention than raising the national speed limit, it is apparent that the time spent on any piece of legislation is directly proportional to its political significance and ideological conflicts.

The subjects that come to Congress' attention are nearly as haphazard as the disputes that come before the courts. Long ago Llewellyn questioned the desirability of a system that relied for its laws on the accident of cases decided by an elite corps of judges not responsible any any real sense to the community. How is Congress different, other than the number of people who participate? I submit that any major social problem would as likely come before our courts for resolution as it would be raised in the legislature. All other issues are raised by accident, whether in court or the legislature.*

The lawmaking in Leviticus, according to Carmichael's analysis, was neither derived from the immediate need to solve a social problem nor part of a general codification movement (even narrowly focused). The ordering of the rules, a perennial puzzle, is explained by Carmichael in reference to more ancient texts, namely, Genesis and Exodus. I am quite convinced by Carmichael's analysis that the authors of Leviticus 18-20 were concerned lest their contemporaries follow the incestuous practices of their illustrious forbears. It does not appear that brothers were marrying their half-sisters in large numbers or that grandchildren were seducing their grandparents. Rather, for whatever reason, the writers decided to tackle what must have been a nagging question: Were the incestuous actions of the ancestors a legal approval of contemporary conduct. The answer was clearly negative. And the writers decided to address each incident of improper sexual conduct in order (which produced what appeared to be a confused order of rules, until Carmichael came along) in their presentation in the texts.

The writers of Leviticus, therefore, were attempting to clear up any confusion of conduct that the ancient texts may have presented. No, it's not all right to marry your half-sister even though Abraham did so. The root cause of this lawmaking was something which gave rise to questioning the texts and the felt need to clear up any confusion between contemporary rules and the legends of the ancestors. Carmichael criticizes our tendency to attribute modern legislative process to the lawmaking in Leviticus. I would go farther and argue that the model does not even apply to modern lawmaking. Carmichael is fully aware of the accidental nature of modern law; he provides analogous examples.

Carmichael argues that our attitudes toward incest may well be based on a misreading of Leviticus. For many centuries we may have been attributing a sacred quality to these prohibitions which bears no relation to the initial intent. To carry this to its logical extreme, I could characterize Leviticus 18-20 as housekeeping rules, designed to clear up the confusion between what was considered appropriate sexual behavior and the scandalous behavior of illustrious ancestors. This is a new way of looking at the ancients - they were as concerned as we that the law be consistent. In fact, it may be a feature of conscious lawmaking that form is more important than substance, in contrast to custom, which elevates substance over form.

What is the point of all this? I submit that what we call 'law,' most commonly the written product of conscious deliberation, may well be accidental, ephemeral, and the product of transitory expediency. That same law may become etched in granite, more or less immutable. It is, nevertheless, subject to the judgment of time. Inevitably, custom absorbs law. Custom often comes in the guise of legality. The British invoke their unwritten constitution, we refer to public policy, equity, or twist stare decisis to rewrite the law. Justice Harlan once said that the U.S. Supreme Court, when confronted with a law they did not like, discovered that it was unconstitutional. These resorts to higher authority may be similarly motivated by ideology or momentary passion or prejudice, but their arguments are measured on a different scale. Legislation is validated by conformity to the legislative process. Basically, the legislature can do whatever it wants as long as it follows proper procedure. A judicial appeal to custom on the other hand must have some ring of truth about it. For example, on the issue of same-sex marriage, the courts first confronting it ignored the fact that the statutes did not explicitly require marriage partners to be of different sexes and argued that public policy required it because the overriding purpose of marriage was to foster and protect procreation, an argument difficult to refute. The ensuing controversy revolves around the primacy of procreation in marriage law and the discrimination it causes to those unable to marry. The dialogue is about custom, not law, and much like the writers of Leviticus 18-20 often invokes legend as a justification (for both sides).

*The regularity of the law is more a product of the structure of the law than any conscious effort to order it. That is, laws must conform to the existing legal environment. Where a law is proposed by the legislature or the court, which intrudes on other laws, an adjustment is necessary. In a society like ours, with a plethora or laws, much of legislation and adjudication is concerned with making each law fit in with existing law or rescinding existing law to make way for the new law. It is this part of the process which gives lawmaking an orderly appearance rather than the nature of the process itself.