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
