No More Legislation
Will Rogers wrote: "This country has come to feel the same when Congress is in session as when a baby gets hold of a hammer." Americans can breathe a sigh of relief that no new legislation is imposed on them during summer break. Unfortunately, that relief is very temporary, since much of that time is used by promising constituents new legislative "solutions" at others' expense in exchange for votes. And then Congress returns.
Both the temporary relief and sense of foreboding about the future of American liberty arise from what Bruno Leoni, in his Freedom and the Law, called "inflated legislation." Since there have been few with better insights into this issue than Leoni (who, although he has an Italian free-market think tank named after him, is unfortunately overlooked in our country), his insights are particularly worth consideration now in self-defense against the next round of promised violations of our liberties.
Bruno Leoni was a scholar, political philosopher, lawyer and newspaper columnist, and one of Italy's leading 20th century classical liberals. He was a Professor of Legal Theory and the Theory of the State at the University of Previa for a quarter century, from 1942 until his death 40 years ago. He founded and edited the political science journal Il Politico. He was secretary and then president of the Mont Pelerin Society. He was an admirer of Ludwig von Mises. He had a great influence on Friedrich Hayek, among others. He reportedly convinced Hayek that classical liberalism's origins were in Mediterranean Europe, not Scotland, and of Cicero's view of Roman law as the most perfect law because it was not created by an individual, but the result of an evolving process of accumulating wisdom, as can be seen in the changes from The Constitution of Liberty to his Law, Legislation, and Liberty.
Consider some of Leoni's insights in Freedom and the Law on inflated legislation and the threat it poses to liberty.
"…contemporary legal systems … leave an ever-shrinking area to individual freedom."
"Legislation … is … a process in which authority always prevails … individuals must yield, regardless of whether they are right or wrong."
"…we do not need to entrust to other people … how we have to speak or how we should spend our leisure time … the same should be true of a great many other actions and decisions that we take in the sphere of law."
"…the ever-growing power of governmental officials may always be referred to some statutory enactment enabling them to behave, in their turn, as legislators and to interfere in that way, almost at will, with every kind of private interest and activity … we are governed by men, not … because we are not governed by laws, but because we are…. Machiavelli himself would not have been able to contrive a more ingenious device to dignify the will of a tyrant who pretends to be a simple official acting within the framework of a perfectly legal system."
"If one values individual freedom of action and decision, one cannot avoid the conclusion that there must be something wrong with the whole system."
"…legislation is actually incompatible with individual initiative and decision when it reaches a limit that contemporary society seems already to have gone far beyond…"
"…this new meaning of legislation … 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…. [It] has come to resemble more and more a sort of diktat that the winning majorities in the legislative assemblies impose upon the minorities…"
"…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 … 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."
"…[under] the inflation of the legislative process … everybody will be confronted sooner or later with … perpetual unrest and general oppression."
"A very old principle appears to have been violated in contemporary society … the Confucian philosophy: 'Do not do unto others what you would not wish others to do unto you…'"
"…the celebrated rule of 'self-protection' … becomes actually applicable only if … [one relies] upon the judgment of each member of that society."
"There is no … 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."
"The advocates of inflated legislation … have [concluded that] 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."
"…only a limited measure of success can be attained through the extension of legislation and the threat of coercion that supports it."
"Ludwig von Mises [demonstrated] 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 … 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."
"…there should be a drastic reduction … in the number of matters in regard to which [people] are allegedly represented … [and] 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…"
"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…"
"…a legal system centered on legislation resembles … 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."
"…general rules, precisely worded, are an improvement over the sudden orders and unpredictable decrees of tyrants. But unfortunately, all this is no assurance that we shall be actually 'free' from interference by the authorities … [R]ules may be … precisely formulated, and be at the same time so tyrannical that nobody can be said to be 'free' by behaving according to them."
"…the ideal of 'the rule of law' … [was] individual freedom understood as freedom from interference on the part of everybody, including the authorities."
"…central authorities always lack a sufficient knowledge of the infinite number of elements and factors that contribute to the social intercourse of individuals…. The authorities can never be certain that what they do is actually what people would like them to do, just as people can never be certain that what they want to do will not be interfered with by the authorities…"
"Individual freedom in all countries of the West has been gradually reduced in the last hundred years … [because] statutory law entitled officials to behave in ways that, according to the previous law, would have been judged as usurpations of power and encroachments upon the individual freedom of the citizens."
"…statutory delegations of legislative and judiciary powers to executive officials. The fate of individual freedom in the West chiefly depends on this 'administrative' process. But … the process itself, without considering cases of sheer usurpation, has been rendered possible by legislation."
"…people who praise individual freedom ought to be even more suspicious of the legislators, as it is precisely through legislation that the increase in the powers of officials has been and still is being achieved. "
"…whenever a decision taken by a majority is…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…"
"…free-trade systems…are compatible, and probably compatible only, with such legal and political systems as have little or no recourse to legislation…If nobody may be constrained…to pay for goods and services more than he would pay for them without constraint, misproductive activities cannot take place…"
"If…there is no way of discovering by some objective method which is the most suitable choice for a political community, we ought to conclude that political decisions always imply an element that is not compatible with individual freedom, and therefore not compatible with a true representation of the will of those people…"
"…nobody is more competent to know what one's own will is than one is oneself. Therefore, the true representation of that will must be the result of a choice on the part of the individual who is to be represented."
"In fact, no representative system based on elections can work properly while elections are held with the object of reaching group decisions by way of majority rule or any other rule of which the effect is to coerce the individual on the losing side of the electorate."
"Blind acceptance of the contemporary legal point of view will lead to the gradual destruction of individual freedom of choice … for the contemporary legal point of view means the increasing substitution of group decisions for individual choices…"
"To sum up my views on this subject: There is far more legislation, there are far more group decisions, far more rigid choices … far fewer individual decisions, far fewer free choices in all contemporary political systems than would be necessary in order to preserve individual freedom of choice."
"…the extent of the area in which group decisions are deemed necessary or even suitable has been grossly overestimated and the area in which spontaneous individual adjustments have been deemed necessary or suitable has been far more severely circumscribed than it is advisable to do if we wish to preserve the traditional meanings of most of the great ideals of the West."
"A golden rule in this reform … ought to be that all individual decisions that have proved to be not incompatible with one another ought to be substituted for corresponding group decisions in regard to alternatives among which incompatibilities have been wrongly assumed to exist."
"…whenever majority rule is unnecessarily substituted for individual choice, democracy is in conflict with individual freedom. It is this particular kind of democracy that ought to be kept to a minimum in order to preserve a maximum of democracy compatible with individual freedom."
"But whenever decisions are at issue constraining minorities … there will be no unanimity on the part of all the members of the group … [since] reform would be to restore individual freedom … we shall find no reason to grant a place in our system to those decisions which involve the exercise of constraint over less numerous people on behalf of other, more numerous people. There could be no 'common will' in these kinds of decisions unless one simply identifies the 'common will' with the will of the majorities regardless of the freedom of the people belonging to the minorities."
"…decisions are made that simply consist in committing some robbery against other people, namely, against people belonging to a minority of the group…"
"Group decisions of the latter type would have to be removed altogether … terminating once and for all the sort of legal warfare that sets group against group in contemporary society because of the perpetual attempt of their respective members to constrain, to their own benefit, other members of the community to accept misproductive actions and treatment."
"Minorities constrained to accept the results of legislation they would never agree to under other conditions feel unjustly treated and accept their situation only in order to avoid worse or consider it as an excuse for obtaining on their behalf other laws that in turn injure still other people…"
"…the law … [becomes] the mere will of winning majorities within the legislative bodies."
"…there is no doubt about the choice in favor of individual freedom, conceived of as the condition of each man making his own choices without being constrained by anybody else to do unwillingly what the latter imposes."
"Nobody likes arbitrary orders…. But legislation is not the appropriate alternative to arbitrariness, for arbitrariness may be and actually is exercised in many cases with the help of written rules that people must endure…"
"…free markets and free trade, as a system as much as possible independent of legislation, must be considered not only as the most efficient means of obtaining free choices of goods and services on the part of the individuals concerned, but also as a model for any other system of which the purpose is to allow free individual choices, including those relating to the law and legal institutions."
"Individual freedom cannot be consistent with the 'common will' whenever the latter is only a sham to conceal the exercise of constraint by majorities … over minorities that, in turn, would never accept the resulting situation if they were free to reject it."
"History evidences the fact that legislation does not constitute an appropriate alternative to arbitrariness, but that it often ranks alongside the vexatious orders of tyrants…"
"From the point of view of the supporters of individual freedom it is not only a question of being suspicious of officials and rulers, but also of legislators … As Benjamin Constant remarked… 'No doubt there is no liberty when people cannot do all that the laws allow them to do; but laws could forbid so many things as to abolish liberty altogether.'"
"…it belongs to the very nature of such a [liberal] system to let people work as they think best, provided that they do not interfere with the similar work of other people."
"Everyone probably has more to gain from a system in which his decisions would not be interfered with by the decisions of other people than he has to lose by the fact that he could not interfere in turn with other people's decisions."
"…whenever there is no possibility of any objective solution of a problem, the conclusion to be drawn is … that the authorities should refrain from giving instructions that cannot be based on objective solutions of the problems … choices are to be left to the individual and not to the authorities … "
"The more that people become aware of these limits of legislation, the more they will accustom themselves to the idea that present-day legislation … is actually much less capable of organizing social life than its supporters seem to believe."
"…avoiding as far as possible the suppression of individual freedom … we should reject legislation whenever (a) it is used merely as a means of subjecting minorities in order to treat them as losers in the field, and (b) it is possible for individuals to attain their own 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."
"…we have to reduce the powers of the legislators in order to restore as much as possible individual freedom … enabling individuals to make their own plans…"
"…there is much to say in favor of … the general rule, according to which life and property of the citizens could not be disposed of by the state. Compare that general rule with those prevailing in almost all contemporary states, in which confiscatory practices or other limitations to the free choice of the individuals in the market [apply] … to all citizens."
"…contemporary rules … have the power in principle, only provided that they abide by some legal formalities, to deprive all citizens of practically all of their property if not their lives."
"You cannot have at the same time maximized powers both for the man who wins and the man who loses in a struggle for power."
"If I grant you the power to prevent me from hurting you, provided that you grant me a similar power to prevent you from hurting me, we are both better off … a political community starts precisely when this exchange of powers takes place — an exchange that is preliminary to any other…"
"…practically every member of these societies wants to be given the possibility of preventing at least some actions by any majority."
"In fact, the market process and the legislative process are inescapably at variance. While the market allows individuals to make free choices provided only that they are prepared to pay for them, legislation does not allow this."
Bruno Leoni's Freedom and the Law (available in its entirety at Liberty Fund's Online Library of Liberty) clearly lays out the case against inflated legislation, which he recognized as the result of people seeking "the freedom to constrain other people to do what they would never do if they were free to choose for themselves."
In other words, such inflated legislation is incompatible with liberty, and the more its coercive reach expands, the more liberty is lost. He also saw what was the only ultimate solution for reclaiming liberty: "a redrawing of … the areas occupied respectively by individual choices and by group decisions … with their appendage of coercive procedures…"
Bruno Leoni makes it clear that any politician who will not reduce the reach of legislation cannot protect our liberty. Unfortunately, however, while some politicians wrap themselves in boilerplate language of freedom, those who really act to support liberty beyond certain narrow areas are as rare as hen's teeth, as my grandmother used to say.
As in so many other areas, the solution to this critically important issue is not in the legislature. If there is a solution, it can only be in individuals first exercising the liberties that remain in their defense, and then in fostering their expansion. In other words, the solution is deflated legislation.