Freedom and the Law. Bruno Leoni
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