The Common Will, Part 7 to blupete's Essay
"Legislation: Robbers' Rules"
"... a 'common' will, that is, a will that may be presumed as existent in all citizens, but to the expression of 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."12 (Leoni.)The common will -- again, if it can be identified at all -- will be identified in a negative sense, not in a positive sense. Survey any randomly selected group of people and it will likely be found, and then only in its simplest terms, a commonality as to what it is they do not want; there will be a great diversity as to what they do want. Thus, reasonable persons might agree on what it is they do not want to see happen within their community. Criminal law (the state versus the person) and the law of tort (the person versus the person) evolved because there are forms of behaviour which will generally not be tolerated in a community. Elaborate, positive, legislation is not necessary to keep the peace; nor, I assert, will such legislation cure injustice which certain people perceive exists in society; indeed, such legislation, is, I further assert, on a separate head, inherently unjust.
The common will can only be had by a survey of the market of ideas, including legal ideas. Common law, by its nature is, in fact an ongoing survey; and, more than that -- it, in time, identifies the legal problems and brings a specific remedy tailored to the aggrieved party; and, not much at the general expense. It is a myth that in a collectivist system the law passing body is guided by the common will. A country which attempts to set itself up extensively under legislative law, at the expense of common law, is like a country 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." As Leoni points out, there is more than an analogy between the market economy and common law, "just as there is much more than an analogy between a planned economy and legislation."13
We all seem to make the assumption that, somehow, legislators not only know how to cure a particular social problem; but that they understand, in the first place, what the problem, or rather what the antecedents of the problem are. "Social scientists" do not have the power to follow out in thought, with any correctness, the sequences of even simple phenomena, much less those of a more complex nature such as those which societies display. It would be to our considerable advantage, in these circumstances, to restrict these "social scientists" in their interferences with the natural state of things. Herbert Spencer, in his usual precise manner, put his finger on the difficult problems that face our elective representatives when it comes to exercising "legislative judgment":
"The decision is one of those small holes through which a wide prospect may be seen, and a disheartening prospect it is. In a very simple case there is here displayed a scarcely credible inability to see how much effect will follow so much cause; and yet the business of the assembly exhibiting this inability is that of dealing with causes and effects of an extremely involved kind. All the processes going on in society arise from the concurrences and conflicts of human actions, which are determined in their nature and amounts by the human constitution as it now is - are as much results of natural causation as any other results, and equally imply definite quantitative relations between causes and effects. Every legislative act presupposes a diagnosis and a prognosis; both of them involving estimations of social forces and the work done by them. Before it can be remedied, an evil must be traced to its source in the motives and ideas of men as they are, living under the social conditions which exist - a problem requiring that the actions tending toward the result shall be identified, and that there shall be something like a true idea of the quantities of their effects as well as the qualities. A further estimation has then to be made of the kinds of degrees of influence that will be exerted by the additional factors which the proposed law will set in motion: what will be the resultants produced by the new forces co-operating with pre-existing forces - a problem still more complicated than the other.No matter the wisdom of it, our unread politicians trumpet themselves into the legislative arena, anyway: badly advised, they eagerly jump in with their "legislative solutions," ones that invariably do not work, but which, ultimately, bring them and their laws into disrespect.
We are quite prepared to hear the unhesitating reply, that men incapable of forming an approximately true judgement on a matter of simple physical causation may yet be very good law-makers. So obvious will this be thought by most, that a tacit implication to the contrary will seem to them absurd; and that it will seem to them absurd is one of the many indications of the profound ignorance that prevails. It is true that mere empirical generalizations which men draw from their dealings with their fellows suffice to give them some ideas of the proximate effects which new enactments will work; and, seeing these, they think they see as far as needful. Discipline in physical science, however, would help to show them the utter inadequacy of calculating consequences based on simple data. And if there needs proof that calculations of consequences so based are inadequate, we have it in the enormous labor annually entailed on the Legislature in trying to undo the mischiefs it has previously done."14
What the vote seeking politicians, and the social engineers from whom they take their advise, fail to understand, seemingly, is that there is a difference between that which is imaginable, and that which is probable. Nonetheless, on account of the seductive lure of socialism, philanthropic laws (general welfare by general plunder) do exist; but one cannot, at the same time, have philanthropic laws and just laws; one cannot, at the same time, be both a slave and a free man.
Passing laws in areas where laws should not be passed, considering the fundamental reason for the existence of laws, is a perversion. It brings on: first, disregard; then, contempt; and then, social disorder. At all points "it gives an exaggerated importance to political passions and conflicts, and to politics in general." (Bastiat.)
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[Essays, First Series]
[Essays, Second Series]
[Essays, Third Series]
[Essays, Fourth Series]