[This is part of the series of posts on Bruno Leoni's "Freedom and the Law," and covers chapter five—"Freedom and Legislation."]
Leoni concluded at the end of the previous chapter that “certainty of the law” refers to long-run certainty, the guarantee that laws will not change overnight. And legislation does not offer such certainty. The Athenians, while resorting to legislation, had a system to curtail its misuse, something Leoni calls “drastic” and “almost absurd.” The system, was as follows-
A rigid and complex procedure was then introduced in Athens in order to discipline legislative innovations. Every bill proposed by a citizen (in the Athenian direct democracy every man belonging to the general legislative assembly was entitled to present a bill, whereas in Rome only the elected magistrates could do so) was thoroughly studied by a special committee of magistrates (nomotetai) whose task was precisely that of defending the previous legislation against the new proposal. Of course, proponents could freely argue before the general legislative assembly against the nomotetai in order to support their own bills, so that the whole discussion must have been based more on a comparison between the old and the new law than on a simple oration in favor of the latter.
But this was not the end of the story. Even when the bill had been passed at last by the assembly, the proponent was held responsible for his proposal if another citizen, acting as a plaintiff against the proponent himself, could prove, after the law had been approved by the assembly, that the new legislation had some grave defects or that it was in irremediable contradiction with older laws still valid in Athens. In that case, the proponent of the law could be legitimately tried, and the penalties could be very serious, including the death sentence, although, as a rule, unfortunate proponents suffered only fines.
So legislators, at least in theory, paid for their mistakes. But this does not happen in modern democracies.
Leoni then writes about how the civil servant becomes a bureaucrat in modern times, and wields enormous power over the lives of citizens. Some of them go about “improving” the law by “deliberately [substituting] their own will for the provisions of the law.” He gives examples, like that of police confiscating driving licenses in cases where the law doesn’t prescribe such an action. And rationalizing the action-
“But you see,” he said, “if we do not do this, people in this country [sometimes officials seem to consider themselves natives of other countries] will not be sufficiently cautious, for they do not give a damn about penalties of a few thousand lire such as are imposed by our law. On the other hand, if you deprive them of their license for a while, offenders feel the loss more keenly and will be much more cautious in the future.” He also said, rather in a philosophical vein, that he thought the injustice done to a comparatively small number of citizens could be justified by the general result obtainable, according to the opinion of the authorities, in improving the movement of vehicular traffic in the public interest.
What such officials indulge in, Leoni notes, is not arbitrary action, but illegal ones. Some people are (rightly) worried about the increasing powers of bureaucrats, he continues, but they should be even more worried about the legislators, because “it is precisely through legislation that the increase in the powers (including the ‘sweeping powers’) of officials has been and still is being achieved.”
The process of legislation enjoys approval because democracy enjoys approval.
It is still one of the deeply rooted political beliefs of our age that because legislation is passed by parliaments and because parliaments are elected by the people, the people are the source of the legislative process and that the will of the people, or at least that part of the people identifiable with the electorate, will ultimately prevail on all subjects to be determined by the government.
But what is democracy but majoritarianism?
[I]t has been pointed out by several thinkers in the past, such as De Tocqueville and Lord Acton, that individual freedom. and democracy may become incompatible whenever majorities are intolerant or minorities rebellious, and in general, whenever there are within a political society what Lawrence Lowell would have called “irreconcilables.” Rousseau was aware of this when he pointed out that all majority systems must be based on unanimity, at least in regard to the acceptance of majority rule, if they are to be said to reflect the “common will.”
If this unanimity is not merely a fiction of political philosophers, but also has to have actual meaning in political life, we must admit that whenever a decision taken by a majority is not freely accepted, but only suffered by a minority, in the same way as individuals may suffer coercive acts to avoid worse on the part of other people like robbers or blackmailers, individual freedom, in the sense of absence of constraint exercised by other people, is not compatible with democracy, conceived as the hegemonic power of numbers.
If we consider that no legislative process takes place in a democratic society without depending on the power of numbers, we must conclude that this process is likely to be incompatible with individual freedom in many cases.
He then discusses the conflict between the liberal definition of freedom (“absence of constraint”) and the socialist definition (“freedom from want”) and makes a telling comment—while free markets can exist without legislation (all they need is a political system where interference is absent), “socialist systems cannot continue to exist without the help of legislation.” They have to take recourse to force in order to achieve “freedom from want,” and will in the process “[bring] about the suppression of political and legal freedom.”
Many people compare decision-making in democracies with the market. But the similarities are an illusion. Politics—voting—is an all-or-nothing proposition. The market is not.
The main difference between individual decisions in the market and individual contributions to the decisions of groups on the political scene is that in the market, at least by virtue of the divisibility of the goods or services available in it, the individual not only can foresee exactly what the outcome of his decision is (for instance, what kind and quantity of chickens he will buy with a certain amount of money), but he can also put in a definite relation every dollar he spends with the corresponding things he can acquire. Group decisions, on the contrary, are of the all-or-none variety: if you are on the losing side, you lose your vote. There is no other alternative, just as there would be none if you went to the market and could find neither goods nor services nor even parts of them that could be bought with the money you have at your disposal.
An important consequence, already illustrated by von Mises, is that in the market the dollar vote is never overruled: “The individual is never placed in the position of being a member of a dissenting minority,” at least so far as the existing or potential alternatives of the market are concerned. To put the point the other way round, there is a possible coercion in voting which does not occur in the market. The voter chooses only between potential alternatives; he may lose his vote and be compelled to accept a result contrary to his expressed preference, whereas a similar sort of coercion is never present in market choice, at least on the assumption of production divisibility. The political scene, which we have at least provisionally conceived as the locus of voting processes, is comparable to a market in which the individual is required to spend the whole of his income on one commodity or the whole of his work and resources in producing one commodity or service.
The voter who loses makes one choice initially, but eventually has to accept another that he previously rejected; his decision-making process has been overthrown.
[T]he conditions under which group decisions occur seem to render it difficult to employ the notion of equilibrium in the same way in which it is employed in economics. In economics equilibrium is defined as equality of supply and demand, an equality understandable when the individual chooser can so articulate his choices as to let each single dollar vote successfully. But what kind of equality can exist between, for instance, supply and demand for laws and orders through group decisions when the individual can ask for bread and be given a stone?
The conclusion—legislation entails coercion, and breeds uncertainty, and both direct democracy as well as representative democracy suffer from this lacuna.