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 Corpus Juris in the Middle Ages, people seem inclined to accept sometimes a rather rigid or obsolete or otherwise unsatisfactory rule before they find a more suitable one.
The problem of our time, however, seems to be just the contrary: not that of being content with unsuitable rules because of a fundamental scarcity and “hunger for rules,” but that of getting rid of a host of harmful or at least useless rules because of a tremendous glut and, so to say, an indigestible surfeit of them.
On the other hand, it cannot be denied that the lawyers” law or the judiciary law may tend to acquire the characteristics of legislation, including its undesirable ones, whenever jurists or judges are entitled to decide ultimately on a case. Something of this kind seems to have occurred during the postclassical period of the Roman law when the emperors conferred on certain jurisconsults the power to issue legal opinions (jus respondendi) which became ultimately binding on judges in given circumstances. In our time the mechanism of the judiciary in certain countries where “supreme courts” are established results in the imposition of the personal views of the members of these courts, or of a majority of them, on all the other people concerned whenever there is a great deal of disagreement between the opinion of the former and the convictions of the latter. But, as I try to stress in Chapter 8 of this book, this possibility, far from being necessarily implied in the nature of lawyers' law or of judiciary law, is rather a deviation from it and a somewhat contradictory introduction of the legislative process under the deceptive label of lawyers” or judiciary law at its highest stage. But this deviation can be avoided and is therefore not an insurmountable obstacle to the satisfactory performance of the judicial function of determining what the will of the people is. After all, checks and balances may well be applied within the sphere assigned to the exercise of the judiciary function, namely, in the highest stages of it, just as they are applied among the various functions and powers of our political society.
One final remark needs to be made. What I am dealing with here are mainly general principles. I do not offer particular solutions for particular problems. I am convinced, however, that such solutions can be found much more easily in accordance with the general principles I have proposed than by applying others.
On the other hand, no abstract principle will work effectively by itself; people must always do something to make it work. This applies to the principles that I have advanced in this book no less than it does to any others. I do not seek to change the world, but merely to submit some modest ideas that should be, unless I am wrong, carefully and fairly considered before concluding, as do the advocates of inflated legislation, that things are unchangeable and, although not the best, are the inevitable response to our needs in contemporary society.
Abraham Lincoln, in a speech at Baltimore in 1864, recognized both the difficulty of defining “freedom” and the fact that the Civil War between the North and the South was based, in a way, on a misunderstanding related to that word. “The world,” he said, “has never had a good definition of the word “liberty.” … In using the same word, we do not mean the same thing.”1
In fact, it is not easy to define “freedom” or to be aware completely of what we are doing when we define it. If we want to define “freedom,” we must first decide the purpose of our definition. A “realistic” approach removes the preliminary problem: “freedom” is something that is simply “there,” and the only question is to find the proper words to describe it.
An example of a “realistic” definition of freedom is that given by Lord Acton at the beginning of his History of Freedom: “By liberty I mean assurance that every man shall be protected in doing what he believes to be his duty against the influence of authority and majorities, custom and opinion.” Many critics would say that there is no reason to call “freedom” only the assurance that every man shall be protected in doing what he believes to be his duty, and not, for example, his right or his pleasure; nor is there any reason to say that this protection ought to be assured only against majorities or authority, and not against minorities and individual citizens.
As a matter of fact, when Lord Acton, at Bridgenorth in 1877, delivered his famous lectures on the history of freedom, the respect accorded to religious minorities by the English authorities and the English majority was still one of the big issues of the political life of the Victorian age in the United Kingdom. With the abrogation of such discriminatory laws as the Corporation Act of 1661 and the Test Act of 1673, and with the admission, in 1870, of the Protestant Dissenters and of the Catholics (the Papists, as they were called) to the universities of Oxford and Cambridge, the so-called Free Churches had just won a battle that had lasted two centuries. Previously these universities had been open only to students belonging to the Reformed Church of England. Lord Acton, as is known, was himself a Catholic and for this reason had been prevented, much against his will, from attending Cambridge. The “freedom” he had in mind was the freedom that Franklin Delano Roosevelt, in the most famous of his slogans, called “freedom of religion.” Lord Acton, as a Catholic, belonged to a religious minority at a time when respect for religious minorities in England was beginning to prevail against the hostility of the Anglican majorities and against such acts of the legal authority as, say, the Corporation Act. Thus, what he meant
