Freedom and the Law. Bruno Leoni
there is little or no difference in this respect between the political attitude of the English settlers in the American colonies of the British Crown and that of such people as the Africans, the Indians, or the Chinese, who are now praising “freedom” in their respective countries.
The English and American political systems have been imitated to a certain extent, and are imitated still in many respects, by all the peoples of the world. European nations have contrived some very good-looking imitations of these systems, and this is also due to the fact that their history and their civilization were somewhat similar to those of the English-speaking peoples. Many European countries, imitated now in their turn by their former colonies all over the world, have introduced into their political systems something similar to the English Parliament or to the American Constitution and thus flatter themselves that they have political “freedom” of the kind presently enjoyed by the English or the Americans or which these countries once enjoyed in the past. Unfortunately, even in countries which have, as Italy does, for example, the oldest European civilization, “freedom” as a political principle means something different from what it would mean if it were actually connected, as it is in both England and the United States, with the institution of habeas corpus or with the first ten amendments to the American Constitution. The rules may seem to be almost the same, but they do not work in the same way. Neither the citizens nor the officials interpret them as the English or the Americans do, the resulting practice being rather different in many respects.
I can find no better example of what I mean here than the fact that in England and the United States criminal cases must be settled“and are actually settled—by “a speedy and public trial” (as called for in the Sixth Amendment to the American Constitution). In other countries, including Italy, notwithstanding laws such as certain special articles (e.g., 272) of the Italian Codice di Procedura Penale that contain several provisions relating to persons suspected of a crime and kept in prison awaiting trial, a man who has been held to answer for a crime may stay in prison for as much as one or two years. When at last he is found guilty and condemned, he perhaps must be set free immediately since he has already spent in prison all the time of his sentence. Of course, if he is proved not guilty, no one can restore to him the years lost in jail. One is sometimes told that in Italy the judges are not sufficiently numerous and that the organization of the trials probably is not so efficient as it could be, but public opinion is obviously not alert or active enough to denounce these defects of the judiciary system, which do not appear so clearly incompatible with the principle of political freedom as they would to public opinion in England or the United States.
“Freedom,” then, as a term designating a general political principle, may have only apparently similar meanings for different political systems. It must be pointed out also that this word may have different meanings and different implications at different times in the history of the same legal system, and, what is even more striking, it may have different meanings at the same time in the same system under different circumstances and for different people.
An example of the first case is provided by the history of military conscription in the Anglo-Saxon countries. Until comparatively recent times, military conscription, at least in time of peace, was considered both by the English and by the American people as incompatible with political freedom. On the other hand, Continental Europeans such as the French or the Germans (or the Italians since the second half of the nineteenth century) considered it almost self-evident that they had to accept military conscription as a necessary feature of their political systems without even wondering whether the latter could still therefore be called “free.” My father—who was Italian—used to tell me that when he went to England for the first time in 1912, he asked his English friends why they had no military conscription, confronted as they were with the fact that Germany had become a redoubtable military power. He always received the same proud reply: “Because we are a free people.” If my father could visit the English or the Americans again, the man in the street would not say to him that because there is military conscription these countries are no longer “free.” The meaning of political freedom in these nations has simply changed in the meantime. Because of these changes, connections which were taken for granted before are now lost, and contradictions appear which are strange enough to the technicians, but which other people accept unconsciously or even willingly as natural ingredients of their political or economic system.
Unprecedented legal powers conferred upon trade unions both in the United States and in the United Kingdom today are a good example of what I mean by “contradictions” in this respect. In the language employed by the Chief Justice of Northern Ireland, Lord MacDermott, in his recent Hamlin Lectures (1957), the Trade Disputes Act of 1906 “put trade unionism in the same privileged position which the British Crown enjoyed until ten years ago in respect to wrongful acts committed in its behalf.” This law accorded protection to a series of acts committed in pursuance of an agreement or combination by two or more people in contemplation or furtherance of a trade dispute which had been always actionable before—for example, acts inducing the breach of a contract of service or interfering with the trade, business, or employment of some other person or with the right of some other person to dispose of his capital or of his labor as he wishes. As Lord MacDermott points out, this is a broad provision and can be used to cover acts which are done outside the trade or employment involved and which must inevitably cause loss or hardship to interests having no part in the dispute. Another statute, the Trade Union Act of 1913, repealed by another Trade Disputes and Trade Union Act in 1927, but fully restored by the Trade Disputes and Trade Union Act of 1946 when the Labour Party had returned to office, gave British trade unions an enormous political power over their members and also over the whole political life of that country by authorizing the unions to spend the money of their members for purposes not directly related to trade and without even consulting the members themselves about what they actually wanted done with their money.
Before the passage of these Trade Union Acts there was no doubt that the meaning of political “freedom” in England was connected with the equal protection of the law, accorded, against the constraint of anyone, to everyone to dispose of his capital or of his labor as he pleased. Since the enactment of these statutes in Great Britain there is no longer protection against everyone in this respect, and there is no doubt that this fact has introduced a striking contradiction in the system so far as freedom and its meaning are concerned. If you are now a citizen of the British Isles, you are “free” to dispose of your capital and of your labor in dealing with individuals, but you are no longer free to do so in dealing with people who belong to trade unions or who act in behalf of trade unions.
In the United States, by virtue of the Adamson Act of 1916, as Orval Watts writes in his brilliant study of Union Monopoly, the Federal government for the first time used its police power to do what the unions probably “could not have accomplished without a long and costly struggle.” The subsequent Norris-LaGuardia Act of 1932, in a certain sense the American counterpart of the English Trade Union Act of 1906, restricted federal judges in their use of injunctions in labor disputes. Injunctions in American and English law are court orders that certain people shall not do certain things which would cause a loss that could not be remedied later by a damage suit. As Watts pointed out, “injunctions do not make the law. They merely apply principles of laws already on the statute books, and labor unions often use them for this purpose against employers and against rival unions.” Originally, injunctions were usually issued by federal judges in favor of employers whenever a large number of people with small means could cause damage with an unlawful purpose and by unlawful acts, such as the destruction of property. American courts used to behave in a way similar to that of the English courts before 1906. The English Act of 1906 was conceived as a “remedy” on behalf of labor unions against the decisions of the English courts, just as the Norris-LaGuardia Act of 1932 was intended to defend the unions from the orders of American courts. At first sight one might think that both the American and the English courts were prejudiced against the unions. Many people said so both in the United States and in England. As a matter of fact, the courts adopted against the unions only the same principles that they still apply against all other people who conspire, for instance, to damage property. Judges could not admit that the same principles that worked to protect people from constraint by others could be disregarded when those others were union officials or union members. The term “freedom from constraint,”