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
