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Online Library of Liberty

The paradoxical situation of our times is that we are governed by men, not, as the classical Aristotelian theory would contend, because we are not governed by laws, but because we are. In this situation it would be of very little use to invoke the law against such men.


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.

I do not maintain that legislation should be entirely discarded. Probably this has never happened in any country at any time. I do maintain, however, that legislation is actually incompatible Edition: My earnest suggestion is that those who value individual freedom should reassess the place of the individual within the legal system as a whole.

It is no longer a question of defending this or that particular freedom—to trade, to speak, to associate with bruno leoni la libertad y la ley people, etc. It is a question of deciding whether individual freedom is compatible in principle with the present system centered on and bruno leoni la libertad y la ley completely identified with legislation.

This may seem like a radical view.

Freedom and the Law (LF ed.) - Online Library of Liberty

I bruno leoni la libertad y la ley not deny that it is. But radical views are sometimes more fruitful than syncretistic theories that serve to conceal the problems more than they solve them. Fortunately we do not need to take refuge in Utopia in order to find legal systems different from the present ones.

Both Roman and English history teach us, for instance, a completely different lesson from that of the advocates of inflated legislation in the present age. Everybody today pays lip service to the Romans no less than to the English for their legal wisdom.

Very few realize, however, what this wisdom consisted in, that is, how independent of legislation those systems were in so far as the ordinary life of the people was concerned, and consequently how great the sphere of individual freedom was both in Rome and in England during the very centuries when their respective legal systems were most flourishing and successful.

Freedom and the Law | Mises Institute

One even wonders why anyone still studies the history bruno leoni la libertad y la ley Roman or of English law if this essential fact about both is to remain largely forgotten or simply ignored.

Both the Romans and the English shared the idea that the law is something to be discovered more than to be enacted and that nobody is so powerful in his society as to be in a position to identify his own will with the law of the land.

This fact appears the more striking when we consider that Roman magistrates, on the one hand, and the British Parliament, on the other, had, and the latter still has, in principle, almost despotic powers over the citizens.

Legislation was intended chiefly as a compilation of past rulings, and its advocates used to stress precisely its advantages as an unequivocal and clear-cut abridgment as compared with the rather chaotic mass of individual legal works on the part of the lawyers.

As a parallel phenomenon, written constitutions were adopted on the Continent primarily bruno leoni la libertad y la ley a way of putting into black and white the series of principles already laid down piece-meal by English judges as far as the English constitution had been concerned.

In the nineteenth-century Continental countries both codes and constitutions were conceived as means of expressing the law as something that was by no means identical with the contingent will of the people who were enacting these codes and constitutions.

La libertad y la ley

In the meanwhile, the increasing importance of legislation in the Anglo-Saxon countries had chiefly the same function and corresponded to the same idea, namely, that of restating and epitomizing the existing law as it had been elaborated by the courts down through the centuries.

Today, both in the Bruno leoni la libertad y la ley and in the Continental countries, the picture has almost completely changed.

Ordinary legislation and even constitutions and codes are more and more presented as the direct expression of the contingent will of the people who enact them, while often the underlying idea is that their function is to state, not what the law is as a result of a secular process, but bruno leoni la libertad y la ley the law should be as a result of a completely new approach and of unprecedented decisions.

While the man on the street is becoming accustomed to this Edition: In this way, legislation has undergone a very peculiar development.

It has come to resemble more and more a sort of diktat that the winning majorities in the legislative assemblies impose upon the minorities, often with the result of overturning long-established individual expectations and creating completely unprecedented ones.

The succumbing minorities, in their turn, adjust themselves to their defeat only because they hope to become sooner or later a winning majority and be in the position of treating bruno leoni la libertad y la ley a similar way the people belonging to the contingent majority of today.

Legislation always involves a kind of coercion and unavoidable constraint of the individuals who are subject to it. The attempt made in recent times by some scholars to consider the choices made by individuals in their capacity as bruno leoni la libertad y la ley of a decision-making group such as a constituency or a legislature as equivalent to choices made in other fields of human action e.

True enough, both the individual choice in the market and the Edition: For instance, nobody can buy if there is nobody to sell.

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