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Introduction - Bruno Leoni, Freedom and the Law (LF ed.) 
Freedom and the Law, expanded 3rd edition, foreword by Arthur Kemp (Indianapolis: Liberty Fund 1991).
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It seems to be the destiny of individual freedom at the present time to be defended mainly by economists rather than by lawyers or political scientists.
As far as lawyers are concerned, perhaps the reason is that they are in some way forced to speak on the basis of their professional knowledge and therefore in terms of contemporary systems of law. As Lord Bacon would have said, “They speak as if they were bound.” The contemporary legal systems to which they are bound seem to leave an ever-shrinking area to individual freedom.
Political scientists, on the other hand, often appear to be inclined to think of politics as a sort of technique, comparable, say, to engineering, which involves the idea that people should be dealt with by political scientists approximately in the same way as machines or factories are dealt with by engineers. The engineering idea of political science has, in fact, little, if anything, in common with the cause of individual freedom.
Of course, this is not the only way to conceive of political science as a technique. Political science can also be considered (although this happens less and less frequently today) as a means of enabling people to behave as much as possible as they like, instead of behaving in the ways deemed suitable by certain technocrats.
Knowledge of the law, in its turn, may be viewed in a perspective other than that of the lawyer who must speak as if he were bound whenever he has to defend a case in court. If he is sufficiently well versed in the law, a lawyer knows very well how the legal system of his country works (and also sometimes how it does not work). Moreover, if he has some historical knowledge, he may easily compare different ways in which successive legal systems have worked within the same country. Finally, if he has some knowledge of the way in which other legal systems work or have worked in other countries, he can make many valuable comparisons that usually lie beyond the horizon of both the economist and the political scientist.
In fact, freedom is not only an economic or a political concept, but also, and probably above all, a legal concept, as it necessarily involves a whole complex of legal consequences.
While the political approach, in the sense I have tried to outline above, is complementary to the economic one in any attempt to redefine freedom, the legal approach is complementary to both.
However, there is still something lacking if this attempt is to succeed. During the course of the centuries many definitions of freedom have been given, some of which could be considered incompatible with others. The result is that a univocal sense could be given to the word only with some reservation and after previous enquiries of a linguistic nature.
Everyone can define what he thinks freedom to be, but as soon as he wants us to accept his formulation as our own, he has to produce some truly convincing argument. However, this problem is not peculiar to statements about freedom; it is one that is connected with every kind of definition, and it is, I think, an undoubted merit of the contemporary analytical school of philosophy to have pointed out the importance of the problem. A philosophical approach must therefore be combined with the economic, the political, and the legal approaches in order to analyze freedom.
This is not in itself an easy combination to achieve. Further difficulties are connected with the peculiar nature of the social sciences and with the fact that their data are not so univocally ascertainable as those of the so-called natural sciences.
In spite of this, in analyzing freedom, I have tried, as far as possible, to consider it first as a datum, namely, a psychological attitude. I have done the same with constraint, which is, in a sense, the opposite of freedom, but which is also a psychological attitude on the part of both those who try to do the constraining and those who feel that they are being constrained.
One could hardly deny that the study of psychological attitudes reveals differences and variations among them, so that a univocal theory of freedom, and consequently also of constraint, with reference to the ascertainable facts is difficult to formulate.
This means that people belonging to a political system in which freedom is defended and preserved for each and all against constraint cannot help being constrained at least to the extent that their own interpretation of freedom, and consequently also of constraint, does not coincide with the interpretation prevailing in that system.
However, it seems reasonable to think that these interpretations on the part of people generally do not differ so much as to foredoom to failure any attempt to arrive at a theory of political freedom. It is permissible to assume that at least within the same society the people who try to constrain others and those who try to avoid being constrained by others have approximately the same idea of what constraint is. It can therefore be inferred that they have approximately the same idea of what the absence of constraint is, and this is a very important assumption for a theory of freedom envisaged as the absence of constraint, such as is suggested in this book.
To avoid misunderstandings, it must be added that a theory of freedom as the absence of constraint, paradoxical as it may appear, does not preach absence of constraint in all cases. There are cases in which people have to be constrained if one wants to preserve the freedom of other people. This is only too obvious when people have to be protected against murderers or robbers, although it is not so obvious when this protection relates to constraints and, concomitantly, freedoms that are not so easy to define.
However, a dispassionate study of what is going on in contemporary society not only reveals that constraint is inextricably intertwined with freedom in the very attempt to protect the latter, but also, unfortunately, that according to several doctrines, the more one increases constraint, the more one increases freedom. Unless I am wrong this is not only an evident misunderstanding, but also an ominous circumstance for the fate of individual freedom in our time.
People often mean by “freedom” (or “liberty”) both the absence of constraint and something else as well—for instance, as a distinguished American judge would have said, “enough economic security to allow its possessor the enjoyment of a satisfactory life.” The same people very often fail to realize the possible contradictions between these two different meanings of freedom and the unpleasant fact that you cannot adopt the latter without sacrificing to a certain extent the former, and vice versa. Their syncretistic view of freedom is simply based on a semantic confusion.
Other people, while contending that constraint is to be increased in their society in order to increase “freedom,” merely pass over in silence the fact that the “freedom” they mean is only their own, while the constraint they want to increase is to be applied exclusively to other people. The final result is that the “freedom” they preach is only the freedom to constrain other people to do what they would never do if they were free to choose for themselves.
Today freedom and constraint pivot more and more on legislation. People generally realize fully the extraordinary importance of technology in the changes that are taking place in contemporary society. On the other hand, they do not seem to realize to the same extent the parallel changes brought about by legislation, often without any necessary connection with technology. What they appear to realize even less is that the importance of the latter changes in contemporary society depends in its turn on a silent revolution in present-day ideas about the actual function of legislation. In fact, the increasing significance of legislation in almost all the legal systems of the world is probably the most striking feature of our era, besides technological and scientific progress. While in the Anglo-Saxon countries common law and ordinary courts of judicature are constantly losing ground to statutory law and administrative authorities, in the Continental countries civil law is undergoing a parallel process of submersion as a result of the thousands of laws that fill the statute books each year. Only sixty years after the introduction of the German Civil Code and a little more than a century and a half after the introduction of the Code Napoléon the very idea that the law might not be identical with legislation seems odd both to students of law and to laymen.
Legislation appears today to be a quick, rational, and far-reaching remedy against every kind of evil or inconvenience, as compared with, say, judicial decisions, the settlement of disputes by private arbiters, conventions, customs, and similar kinds of spontaneous adjustments on the part of individuals. A fact that almost always goes unnoticed is that a remedy by way of legislation may be too quick to be efficacious, too unpredictably far-reaching to be wholly beneficial, and too directly connected with the contingent views and interests of a handful of people (the legislators), whoever they may be, to be, in fact, a remedy for all concerned. Even when all this is noticed, the criticism is usually directed against particular statutes rather than against legislation as such, and a new remedy is always looked for in “better” statutes instead of in something altogether different from legislation.
The advocates of legislation—or rather, of the notion of legislation as a panacea—justify this way of fully identifying it with law in contemporary society by pointing to the changes continually being brought about by technology. Industrial development, so we are told, brings with it a great many problems that older societies were not equipped to solve with their ideas of law.
I submit that we still lack proof that the many new problems referred to by these advocates of inflated legislation are really brought about by technology1 or that contemporary society, with its notion of legislation as a panacea, is better equipped to solve them than older societies that never so blatantly identified law with legislation.
The attention of all the advocates of inflated legislation as an allegedly necessary counterpart of scientific and technological progress in contemporary society needs to be drawn to the fact that the development of science and technology, on the one hand, and that of legislation, on the other, are based respectively on two completely different and even contradictory ideas. In fact, the development of science and technology at the beginning of our modern era was made possible precisely because procedures had been adopted that were in full contrast to those that usually result in legislation. Scientific and technical research needed and still needs individual initiative and individual freedom to allow the conclusions and results reached by individuals, possibly against contrary authority, to prevail. Legislation, on the other hand, is the terminal point of a process in which authority always prevails, possibly against individual initiative and freedom. Whereas scientific and technological results are always due to relatively small minorities or particular individuals, often, if not always, in opposition to ignorant or indifferent majorities, legislation, especially today, always reflects the will of a contingent majority within a committee of legislators who are not necessarily more learned or enlightened than the dissenters. Where authorities and majorities prevail, as in legislation, individuals must yield, regardless of whether they are right or wrong.
Another characteristic feature of legislation in contemporary society (apart from a few instances of direct democracy in small political communities like the Swiss Landsgemeinde) is that the legislators are assumed to represent their citizens in the legislative process. Whatever this may mean—and this is what we shall try to discover in the following pages—it is obvious that representation, like legislation, is something altogether extraneous to the procedures adopted for scientific and technological progress. The very idea that a scientist or a technician should be “represented” by other people in the carrying on of scientific or technical research appears as ridiculous as the idea that scientific research should be entrusted, not to particular individuals acting as such even when they collaborate in a team, but to some kind of legislative committee empowered to reach a decision by majority vote.
Nonetheless, a way of reaching decisions that would be rejected out of hand in scientific and technological fields is coming to be adopted more and more as far as law is concerned.
The resulting situation in contemporary society is a kind of schizophrenia, which, far from being denounced, has been hardly noticed so far.
People behave as if their need for individual initiative and individual decision were almost completely satisfied by the fact of their personal access to the benefits of scientific and technological achievements. Strangely enough, their corresponding needs for individual initiative and individual decision in the political and legal spheres seem to be met by ceremonial and almost magical procedures such as elections of “representatives” who are supposed to know by some mysterious inspiration what their constituents really want and to be able to decide accordingly. True, individuals still have, at least in the Western world, the possibility of deciding and acting as individuals in many respects: in trading (at least to a great extent), in speaking, in personal relations, and in many other kinds of social intercourse. However, they seem also to have accepted in principle once and for all a system whereby a handful of people whom they rarely know personally are able to decide what everybody must do, and this within very vaguely defined limits or practically without limits at all.
That the legislators, at least in the West, still refrain from interfering in such fields of individual activity as speaking or choosing one’s marriage partner or wearing a particular style of clothing or traveling usually conceals the raw fact that they actually do have the power to interfere in every one of these fields. But other countries, while already offering a completely different kind of picture, reveal at the same time how much farther the legislators can go in this respect. On the other hand, fewer and fewer people now seem to realize that just as language and fashion are the products of the convergence of spontaneous actions and decisions on the part of a vast number of individuals, so the law too can, in theory, just as well be a product of a similar convergence in other fields.
Today the fact that we do not need to entrust to other people the task of deciding, for instance, how we have to speak or how we should spend our leisure time fails to make us realize that the same should be true of a great many other actions and decisions that we take in the sphere of law. Our present notion of the law is definitely affected by the overwhelming importance that we attach to the function of legislation, that is, to the will of other people (whoever they may be) relating to our daily behavior. I try to make clear in the following pages one of the chief consequences of our ideas in this respect. We are actually far from attaining through legislation the ideal certainty of the law, in the practical sense that this ideal should have for anybody who must plan for the future and who has to know, therefore, what the legal consequences of his decisions will be. While legislation is almost always certain, that is, precise and recognizable, as long as it is “in force,” people can never be certain that the legislation in force today will be in force tomorrow or even tomorrow morning. The legal system centered on legislation, while involving the possibility that other people (the legislators) may interfere with our actions every day, also involves the possibility that they may change their way of interfering every day. As a result, people are prevented not only from freely deciding what to do, but from foreseeing the legal effects of their daily behavior.
It is undeniable that today this result is due both to inflated legislation and to the enormous increase of a quasi-legislative or pseudo-legislative activity on the part of the government, and one cannot help agreeing with writers and scholars like James Burnham in the United States, Professor G. W. Keeton in England, and Professor F. A. Hayek, who, in recent years, have bitterly complained about the weakening of the traditional legislative powers of Congress in the United States or the “passing” of the British Parliament as a consequence of a corresponding enlargement of the quasi-legislative activities of the executive. However, one cannot lose sight of the fact that the ever-growing power of governmental officials may always be referred to some statutory enactment enabling them to behave, in their turn, as legislators and to interfere in that way, almost at will, with every kind of private interest and activity. The paradoxical situation of our times is that we are governed by men, not, as the classical Aristotelian theory would contend, because we are not governed by laws, but because we are. In this situation it would be of very little use to invoke the law against such men. Machiavelli himself would not have been able to contrive a more ingenious device to dignify the will of a tyrant who pretends to be a simple official acting within the framework of a perfectly legal system.
If one values individual freedom of action and decision, one cannot avoid the conclusion that there must be something wrong with the whole system.
I do not maintain that legislation should be entirely discarded. Probably this has never happened in any country at any time. I do maintain, however, that legislation is actually incompatible with individual initiative and decision when it reaches a limit that contemporary society seems already to have gone far beyond.
My earnest suggestion is that those who value individual freedom should reassess the place of the individual within the legal system as a whole. It is no longer a question of defending this or that particular freedom—to trade, to speak, to associate with other people, etc.; nor is it a question of deciding what special “good” kind of legislation we should adopt instead of a “bad” one. It is a question of deciding whether individual freedom is compatible in principle with the present system centered on and almost completely identified with legislation. This may seem like a radical view. I do not deny that it is. But radical views are sometimes more fruitful than syncretistic theories that serve to conceal the problems more than they solve them.
Fortunately we do not need to take refuge in Utopia in order to find legal systems different from the present ones. Both Roman and English history teach us, for instance, a completely different lesson from that of the advocates of inflated legislation in the present age. Everybody today pays lip service to the Romans no less than to the English for their legal wisdom. Very few realize, however, what this wisdom consisted in, that is, how independent of legislation those systems were in so far as the ordinary life of the people was concerned, and consequently how great the sphere of individual freedom was both in Rome and in England during the very centuries when their respective legal systems were most flourishing and successful. One even wonders why anyone still studies the history of Roman or of English law if this essential fact about both is to remain largely forgotten or simply ignored.
Both the Romans and the English shared the idea that the law is something to be discovered more than to be enacted and that nobody is so powerful in his society as to be in a position to identify his own will with the law of the land. The task of “discovering” the law was entrusted in their countries to the jurisconsults and to the judges, respectively—two categories of people who are comparable, at least to a certain extent, to the scientific experts of today. This fact appears the more striking when we consider that Roman magistrates, on the one hand, and the British Parliament, on the other, had, and the latter still has, in principle, almost despotic powers over the citizens.
For centuries, even on the Continent, legal tradition was far from gravitating around legislation. The adoption of Justinian’s Corpus Juris in the Continental countries resulted in a peculiar activity on the part of the jurists, whose task it was once again to find out what the law was, and this, to a great extent, independently of the will of the rulers of each country. Thus, Continental law was called, quite appropriately, “lawyers’ law” (Juristenrecht) and never lost this character, not even under the absolutist regimes preceding the French Revolution. Even the new era of legislation at the beginning of the nineteenth century began with the very modest idea of reassessing and restating lawyers’ law by rewriting it afresh in the codes, but not in the least by subverting it through them. Legislation was intended chiefly as a compilation of past rulings, and its advocates used to stress precisely its advantages as an unequivocal and clear-cut abridgment as compared with the rather chaotic mass of individual legal works on the part of the lawyers. As a parallel phenomenon, written constitutions were adopted on the Continent primarily as a way of putting into black and white the series of principles already laid down piece-meal by English judges as far as the English constitution had been concerned. In the nineteenth-century Continental countries both codes and constitutions were conceived as means of expressing the law as something that was by no means identical with the contingent will of the people who were enacting these codes and constitutions.
In the meanwhile, the increasing importance of legislation in the Anglo-Saxon countries had chiefly the same function and corresponded to the same idea, namely, that of restating and epitomizing the existing law as it had been elaborated by the courts down through the centuries.
Today, both in the Anglo-Saxon and in the Continental countries, the picture has almost completely changed. Ordinary legislation and even constitutions and codes are more and more presented as the direct expression of the contingent will of the people who enact them, while often the underlying idea is that their function is to state, not what the law is as a result of a secular process, but what the law should be as a result of a completely new approach and of unprecedented decisions.
While the man on the street is becoming accustomed to this new meaning of legislation, he is adapting himself more and more to the notion of it as corresponding, not to a “common” will, that is, a will that may be presumed as existent in all citizens, but to the expression of the particular will of certain individuals and groups who were lucky enough to have a contingent majority of legislators on their side at a given moment.
In this way, legislation has undergone a very peculiar development. It has come to resemble more and more a sort of diktat that the winning majorities in the legislative assemblies impose upon the minorities, often with the result of overturning long-established individual expectations and creating completely unprecedented ones. The succumbing minorities, in their turn, adjust themselves to their defeat only because they hope to become sooner or later a winning majority and be in the position of treating in a similar way the people belonging to the contingent majority of today. In fact, majorities may be built and pulled down within legislatures according to a regular procedure that is now being methodically analyzed by certain American scholars—a procedure that American politicians call “log-rolling” and that we should call “vote-trading.” Whenever groups are insufficiently represented in the legislature to impose their own will on some other dissenting group, they resort to vote-trading with as many neutral groups as possible within the legislature in order to place their intended “victim” in a minority position. Each of the “neutral” groups bribed today is in its turn prepared to bribe other groups in order to impose its own will on other intended “victims” tomorrow. In this way, majorities change within the legislature, but there are always “victims,” as there are always beneficiaries of the sacrifice of these “victims.”
Unfortunately, this is not the only grave disadvantage of the inflation of the legislative process today. Legislation always involves a kind of coercion and unavoidable constraint of the individuals who are subject to it. The attempt made in recent times by some scholars to consider the choices made by individuals in their capacity as members of a decision-making group (such as a constituency or a legislature) as equivalent to choices made in other fields of human action (e.g., in the market) fail to observe a fundamental difference between these two types of choice.
True enough, both the individual choice in the market and the choices made by individuals as members of a group are dependent for their success on the behavior of other people. For instance, nobody can buy if there is nobody to sell. Individuals making choices in the market, however, are always free to repudiate their choice, in part or as a whole, whenever they do not like the possible results of it. Poor as it may seem, even this possibility is denied to individuals trying to make their choices as members of a group, whether a constituency or a legislature or other. What the winning part of the group decides is deemed to be decided by the group itself; and unless they leave the group, the losing members are not even free to reject the result of a choice when they do not like it.
It may be held by the advocates of inflated legislation that this is an unavoidable evil if groups are to decide at all and their decisions are to be effective. The alternative would be to split the groups into an increasing number of smaller factions and finally into individuals. In that event the groups could no longer work as units. Thus, loss of individual freedom is the price paid for the alleged benefits received from the groups’ working as units.
I do not deny that group decisions may often be reached only at the cost of the loss of the individual’s freedom to choose and, concomitantly, to refuse to make a choice. What I wish to point out is that group decisions actually are worth that cost much less frequently than it would appear to a superficial observer.
Substituting legislation for the spontaneous application of nonlegislated rules of behavior is indefensible unless it is proved that the latter are uncertain or insufficient or that they generate some evil that legislation could avoid while maintaining the advantages of the previous system. This preliminary assessment is simply unthought of by contemporary legislators. On the contrary, they seem to think that legislation is always good in itself and that the burden of the proof is upon the people who do not agree. My humble suggestion is that their implication that a law (even a bad law) is better than nothing should be much more supported by evidence than it is.
On the other hand, only if we fully realize how much constraint is implied by the very process of legislation are we in a position to decide how far we should go in introducing any legislative process whatsoever while trying at the same time to preserve individual freedom.
It seems to be unquestionable that we should, on this basis, reject the resort to legislation whenever it is used merely as a means of subjecting minorities in order to treat them as losers in the field. It seems also unquestionable that we should reject the legislative process whenever it is possible for the individuals involved to attain their objectives without depending upon the decision of a group and without actually constraining any other people to do what they would never do without constraint. Finally, it seems simply obvious that whenever any doubt arises about the advisability of the legislative process as compared with some other kind of process having for its object the determination of the rules of our behavior, the adoption of the legislative process ought to be the result of a very accurate assessment.
If we were to submit existing legislation to the kind of trial I am here proposing, I wonder how much of it would survive.
A completely different question is to ascertain how such a trial could be carried out. I do not contend that it could be easily accomplished. Too many vested interests and too many prejudices are obviously ready to defend the inflation of the legislative process in contemporary society. However, unless I am wrong, everybody will be confronted sooner or later with the problem of a resulting situation that seems to promise nothing but perpetual unrest and general oppression.
A very old principle appears to have been violated in contemporary society—a principle already enunciated in the Gospel and, much earlier, in the Confucian philosophy: “Do not do unto others what you would not wish others to do unto you.” I do not know of any other statement in the modern philosophy of freedom that sounds so strikingly concise as this. It may seem dull in comparison with the sophisticated formulae sometimes clothed in obscure mathematical symbols that people seem to like so much today in economics as well as in political science. Nevertheless, the Confucian principle would appear to be still applicable for the restoration and the preservation of individual freedom at the present time.
To be sure, the task of finding out what people would not want others to do to them is not easy. However, it seems to be comparatively easier than the task of determining what people would like to do by themselves or in collaboration with others. The common will, conceived as the will common to each and every member of a society, is much more easily ascertainable, as far as its content is concerned, in the “negative” way already evidenced by the Confucian principle than in any other “positive” way. Nobody would contest the fact that an inquiry among any group whatsoever conducted with the object of ascertaining what its members do not want to suffer as a result of the direct action of other people on them would give clearer and more precise results than any inquiry relating to their wishes in other respects. Indeed, the celebrated rule of “self-protection” propounded by John Stuart Mill not only can be reduced to the Confucian principle but becomes actually applicable only if so reduced, for nobody could effectively decide what is and what is not harmful to any particular individual in a given society without relying in the end upon the judgment of each member of that society. It is for all of them to define what is harmful, and this is, in fact, what any one of them would not want others to do to him.
Now experience shows that, in a sense, there are no minorities in any group relating to a whole series of things that “should not be done.” Even people who are possibly ready to do these things to others admit that they do not want others to do these same things to them.
Pointing out this simple truth is not the same as saying that there is no difference between one group or one society and another in this respect, still less that any group or society always retains the same feelings and convictions throughout its history. But no historism and no relativism could prevent us from recognizing that in any society feelings and convictions relating to actions that should not be done are much more homogeneous and easily identifiable than any other kind of feelings and convictions. Legislation protecting people against what they do not want other people to do to them is likely to be more easily determinable and more generally successful than any kind of legislation based on other “positive” desires of the same individuals. In fact, such desires are not only usually much less homogeneous and compatible with one another than the “negative” ones, but are also often very difficult to ascertain.
To be sure, as some theorists emphasize, “there is always some interrelation between the state machinery which produces legislative changes and the social opinion of the community in which they are intended to operate.”2 The only trouble is that this interrelation may mean very little in disclosing the “social opinion of the community” (whatever this may mean) and even less in expressing the actual opinions of the people concerned. There is no such thing as “social opinion” in many cases, nor is there any convincing reason to dignify as “social opinion” the private opinions of groups and individuals who happen to be in a position to enact the law in those cases, often at the expense of other groups and individuals.
To contend that legislation is “necessary” whenever other means fail to “discover” the opinion of the people concerned would only be another way of evading the solution of the problem. If other means fail, this is no reason to infer that legislation does not. Either we assume that a “social opinion” on the matter concerned does not exist or that it exists but is very difficult to discover. In the first case, introducing legislation implies that this is a good alternative to the lack of a “social opinion”; in the latter case, introducing legislation implies that the legislators know how to discover the otherwise undiscoverable “social opinion.” In either case one or the other of these assumptions should be carefully proved before legislation is introduced, but it is only too obvious that nobody attempts to do so, least of all the legislators. The suitability or even the necessity of the alternative (i.e., legislation) appears to be simply taken for granted even by theorists who should know better. They like to state that “what could once be regarded as more or less technical lawyers” law may today be a matter of urgent economic and social policies,” that is, of statutory regulations.3 However, both the way of ascertaining what is “urgent” and the criteria required to decide its urgency, including the reference to “social opinion” in this respect, remain in the dark, while the possibility of reaching a satisfactory conclusion by way of a statute is simply taken for granted. It seems to be only a question of enacting a statute—and that is all.
The advocates of inflated legislation at the present time have drawn from the reasonable assumption that no society is centered on exactly the same convictions as other societies and that, moreover, many convictions and feelings are not easily identifiable within the same society the very peculiar conclusion that therefore what real people decide or do not decide within a society should be neglected altogether and replaced by what any handful of legislators may happen to decide for them at any time.
In this way, legislation is conceived as an assured means of introducing homogeneity where there was none and rules where there were none. Thus, legislation appears to be “rational,” or, as Max Weber would have said, “one of the characteristic components of a process of rationalization . . . penetrating into all spheres of communal action.” But, as Weber himself took care to emphasize, only a limited measure of success can be attained through the extension of legislation and the threat of coercion that supports it. This is due not only to the fact that, as Weber again pointed out, “the most drastic means of coercion and punishment are bound to fail where the subjects remain recalcitrant” and that “the power of law over economic conduct has in many respects grown weaker rather than stronger as compared with earlier conditions.” Legislation may have and actually has in many cases today a negative effect on the very efficacy of the rules and on the homogeneity of the feelings and convictions already prevailing in a given society. For legislation may also deliberately or accidentally disrupt homogeneity by destroying established rules and by nullifying existing conventions and agreements that have hitherto been voluntarily accepted and kept. Even more disruptive is the fact that the very possibility of nullifying agreements and conventions through supervening legislation tends in the long run to induce people to fail to rely on any existing conventions or to keep any accepted agreements. On the other hand, the continual change of rules brought about by inflated legislation prevents it from replacing successfully and enduringly the set of nonlegislative rules (usages, conventions, agreements) that happen to be destroyed in the process. What could have been deemed a “rational” process then proves in the end to be self-defeating.
This fact cannot be ignored simply by saying that the idea of a “limited” sphere of state norms “has now lost its validity and meaning in the increasingly industrialized and articulated society of our time.”4
One may well say that von Savigny’s deprecation, at the beginning of the last century, of the trend toward codification and written legislation in general seems to have faded among the clouds of history. One may also observe that at the beginning of the present century a similar fate appears to have befallen the reliance placed by Eugen Ehrlich on the “living law of the people” as against legislation enacted by the “representatives” of the people. However, not only do Savigny’s and Ehrlich’s criticisms of legislation remain unrefuted today, but the serious problems they raised in their own times, far from having been eliminated, are proving more and more difficult to solve or even to ignore in the present age.
This is certainly due, among other things, to the conventional faith of our time in the virtues of “representative” democracy, notwithstanding the fact that “representation” appears to be a very dubious process even to those experts on politics who would not go so far as to say with Schumpeter that representative democracy today is a “sham.” This faith may prevent one from recognizing that the more numerous the people are whom one tries to “represent” through the legislative process and the more numerous the matters in which one tries to represent them, the less the word “representation” has a meaning referable to the actual will of actual people other than that of the persons named as their “representatives.”
The demonstration—already adduced in the early twenties by economists like Max Weber, B. Brutzkus, and, more completely, Professor Ludwig von Mises—that a centralized economy run by a committee of directors suppressing market prices and proceeding without them does not work because the directors cannot know, without the continuous revelation of the market, what the demand or the supply would be has remained so far unchallenged by any acceptable argument advanced by its adversaries, such as Oskar Lange, Fred M. Taylor, H. D. Dickinson, and other supporters of a pseudo-competitive solution of the problem. Indeed, this demonstration may be deemed the most important and lasting contribution made by the economists to the cause of individual freedom in our time. However, its conclusions may be considered only as a special case of a more general realization that no legislator would be able to establish by himself, without some kind of continuous collaboration on the part of all the people concerned, the rules governing the actual behavior of everybody in the endless relationships that each has with everybody else. No public opinion polls, no referenda, no consultations would really put the legislators in a position to determine these rules, any more than a similar procedure could put the directors of a planned economy in a position to discover the total demand and supply of all commodities and services. The actual behavior of people is continuously adapting itself to changing conditions. Moreover, actual behavior is not to be confused with the expression of opinions like those emerging from public opinion polls and similar enquiries, any more than the verbal expression of wishes and desires is to be confused with “effective” demand in the market.
The inescapable conclusion is that in order to restore to the word “representation” its original, reasonable meaning, there should be a drastic reduction either in the number of those “represented” or in the number of matters in regard to which they are allegedly represented, or in both.
It is difficult to admit, however, that a reduction in the number of those represented would be compatible with individual freedom if we assume that they are entitled to express their own will at least as electors. On the other hand, a reduction in the number of matters in regard to which people are to be represented does definitely result in a corresponding increase in the number of matters in regard to which people can make free decisions as individuals without being “represented” at all. The latter reduction thus seems to be the only path left for individual freedom to take at the present time. I do not deny that those who are accustomed to taking advantage of the process of representation, either as representatives or as members of represented groups, have something to lose by such a reduction. However, it is obvious that they also have much to gain from it in all those cases in which they would have been the intended “victims” of an unrestricted legislative process. The result should be, in the end, as favorable for the cause of individual freedom as, according to Hobbes, it is for all human beings to be ultimately restrained from interfering with one another’s lives and property so that they may emerge from the pitiful stage which he describes as “the war of all against all.”
In fact, what we are often confronted with today is nothing less than a potential legal war of all against all, carried on by way of legislation and representation. The alternative can only be a state of affairs in which such a legal war cannot any longer take place, or at least not so widely or so dangerously as it now threatens to do.
Of course, a mere reduction in the area covered by legislation today could not completely solve the problem of the legal organization of our society for the preservation of individual freedom, any more than legislation now solves that problem by actually suppressing that freedom step by step.
Usages, tacit rules, the implications of conventions, general criteria relating to the suitable solutions of particular legal problems also with reference to possible changes in the opinions of people at any given time and in the material background of those opinions—all these are yet to be discovered. One may well say that this is an undeniably difficult, sometimes painful, and very often long process. It always was. According to the experience of our ancestors, the usual way of meeting this difficulty—as we have already pointed out—not only in Anglo-Saxon countries but everywhere in the West, was to entrust the process to specially trained persons like lawyers or judges. The very nature of the activity of such people and the extent of their personal initiative in finding legal solutions are still open questions. It cannot be denied that lawyers and judges are men like any others and that their resources are limited; neither can it be denied that they may be subject to the temptation to substitute their own personal will for the impartial attitude of a scientist whenever the case is obscure and their own deeply rooted convictions are concerned. Moreover, one could contend that the activity of such types of honoratiores in contemporary society seems to be as devoid of real sanction as that of the legislators, as far as a true interpretation of the people’s will is concerned.
However, the position of lawyers and judges in the countries of the West as well as that of other honoratiores in similar societies in the past is fundamentally different from that of legislators, at least in three very important respects. First, judges or lawyers or others in a similar position are to intervene only when they are asked to do so by the people concerned, and their decision is to be reached and become effective, at least in civil matters, only through a continuous collaboration of the parties themselves and within its limits. Second, the decision of judges is to be effective mainly in regard to the parties to the dispute, only occasionally in regard to third persons, and practically never in regard to people who have no connection with the parties concerned. Third, such decisions on the part of judges and lawyers are very rarely to be reached without reference to the decisions of other judges and lawyers in similar cases and are therefore to be in indirect collaboration with all other parties concerned, both past and present.
All this means that the authors of these decisions have no real power over other citizens beyond what those citizens themselves are prepared to give them by virtue of requesting a decision in a particular case.
It means also that this very power is further limited by the unavoidable reference of every decision to decisions issued in similar cases by other judges.5 Finally, it means that the whole process can be described as a sort of vast, continuous, and chiefly spontaneous collaboration between the judges and the judged in order to discover what the people’s will is in a series of definite instances—a collaboration that in many respects may be compared to that existing among all the participants in a free market.
If we contrast the position of judges and lawyers with the position of legislators in contemporary society, we can easily realize how much more power the latter have over the citizens and how much less accurate, impartial, and reliable is their attempt, if any, to “interpret” the people’s will.
In these respects a legal system centered on legislation resembles in its turn—as we have already noticed—a centralized economy in which all the relevant decisions are made by a handful of directors, whose knowledge of the whole situation is fatally limited and whose respect, if any, for the people’s wishes is subject to that limitation.
No solemn titles, no pompous ceremonies, no enthusiasm on the part of applauding masses can conceal the crude fact that both the legislators and the directors of a centralized economy are only particular individuals like you and me, ignorant of 99 percent of what is going on around them as far as the real transactions, agreements, attitudes, feelings, and convictions of people are concerned. One of the paradoxes of our era is the continual retreat of traditional religious faith before the advance of science and technology, under the implied exigency of a cool and matter-of-fact attitude and dispassionate reasoning, accompanied by a no less continual retreat from the same attitude and reasoning in regard to legal and political questions. The mythology of our age is not religious, but political, and its chief myths seem to be “representation” of the people, on the one hand, and the charismatic pretension of political leaders to be in possession of the truth and to act accordingly, on the other.
It is also paradoxical that the very economists who support the free market at the present time do not seem to care to consider whether a free market could really last within a legal system centered on legislation. The fact is that economists are very rarely lawyers, and vice versa, and this probably explains why economic systems, on the one hand, and legal systems, on the other, are usually analyzed separately and seldom put into relation to each other. This is probably the reason why the strict relationship between the market economy and a legal system centered on judges and/or lawyers instead of on legislation is much less clearly realized than it should be, although the equally strict relationship between a planned economy and legislation is too obvious to be ignored in its turn by scholars and people at large.
Unless I am wrong, there is more than an analogy between the market economy and a judiciary or lawyers” law, just as there is much more than an analogy between a planned economy and legislation. If one considers that the market economy was most successful both in Rome and in the Anglo-Saxon countries within the framework of, respectively, a lawyers” and a judiciary law, the conclusion seems to be reasonable that this was not a mere coincidence.
All this does not mean, of course, that legislation is not useful—besides those instances in which it is a question of determining what “should not be done” according to the commonly shared feelings and convictions of people—in cases where there may be widespread interest in having some definite rules of behavior even when the people concerned have not yet come to any conclusions about what the content of such rules should be. It is well known that people sometimes prefer to have any rule whatsoever rather than none at all. This may happen in several contingent cases. The very need of some definite rule was probably the reason why, as Karl Hildebrand said of the archaic Roman legal rules, or as Eugen Ehrlich said of Justinian’s Corpus Juris in the Middle Ages, people seem inclined to accept sometimes a rather rigid or obsolete or otherwise unsatisfactory rule before they find a more suitable one.
The problem of our time, however, seems to be just the contrary: not that of being content with unsuitable rules because of a fundamental scarcity and “hunger for rules,” but that of getting rid of a host of harmful or at least useless rules because of a tremendous glut and, so to say, an indigestible surfeit of them.
On the other hand, it cannot be denied that the lawyers” law or the judiciary law may tend to acquire the characteristics of legislation, including its undesirable ones, whenever jurists or judges are entitled to decide ultimately on a case. Something of this kind seems to have occurred during the postclassical period of the Roman law when the emperors conferred on certain jurisconsults the power to issue legal opinions (jus respondendi) which became ultimately binding on judges in given circumstances. In our time the mechanism of the judiciary in certain countries where “supreme courts” are established results in the imposition of the personal views of the members of these courts, or of a majority of them, on all the other people concerned whenever there is a great deal of disagreement between the opinion of the former and the convictions of the latter. But, as I try to stress in Chapter 8 of this book, this possibility, far from being necessarily implied in the nature of lawyers
” law or of judiciary law, is rather a deviation from it and a somewhat contradictory introduction of the legislative process under the deceptive label of lawyers” or judiciary law at its highest stage. But this deviation can be avoided and is therefore not an insurmountable obstacle to the satisfactory performance of the judicial function of determining what the will of the people is. After all, checks and balances may well be applied within the sphere assigned to the exercise of the judiciary function, namely, in the highest stages of it, just as they are applied among the various functions and powers of our political society.
One final remark needs to be made. What I am dealing with here are mainly general principles. I do not offer particular solutions for particular problems. I am convinced, however, that such solutions can be found much more easily in accordance with the general principles I have proposed than by applying others.
On the other hand, no abstract principle will work effectively by itself; people must always do something to make it work. This applies to the principles that I have advanced in this book no less than it does to any others. I do not seek to change the world, but merely to submit some modest ideas that should be, unless I am wrong, carefully and fairly considered before concluding, as do the advocates of inflated legislation, that things are unchangeable and, although not the best, are the inevitable response to our needs in contemporary society.
[1 ] It seems reasonable to believe that universal suffrage, for instance, has given rise to as many problems as technology, if not more, although it may well be conceded that there are many connections between the development of technology and universal suffrage.
[2 ] W. Friedmann, Law in a Changing Society (London: Stevens & Sons, 1959), p. 7.
[3 ] Ibid., p. 30.
[4 ] Ibid., p. 4.
[5 ] The special position of supreme courts in this last respect is only a qualification of the general principle underlined above, and we shall revert to it later.