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
