V. Freedom and Legislation

5 Freedom and Legislation A very important conclusion to be drawn from the preceding chapters is that the rule of law, in the classical sense of the expres sion, cannot be maintained without actually securing the certainty of the la,v, conceived as the possibility of long-run planning on the part of individuals in regard to their behavior in private life and business. Moreover, ,ve cannot base the rule of law on legisla tion unless we have recourse to such drastic and almost absurd provisions as those contrived by the Athenians at the time of the nomotetai. Typical of our times is the tendency to increase the po,,,ers that officials in the countries of the West have acquired and are still acquiring every day over their fello,,, citizens, notwithstanding the fact that these powers are usually supposed to be limited by legislation.! A contemporary author, E. N. Gladden, summarizes this situation as a dilemma which he formulates in the title of his book, Bureaucracy or Civil Service. Bureaucrats enter the scene .as soon as civil servants seem to be above the law of the land regardless of the nature of that law. There are cases in which officials deliberately substitute their own ,vill for the provisions of the law in the belief that they are improving on the la,v and achieving, in some ,vay not stated in the lalv, the very ends they think the law ,vas intended to achieve. There is often no doubt about the good ,vill and the sincerity of the officials in these cases.

Permit me to cite an example taken from certain bureaucratic practices in my own country at the present time. We have legal 97 98 Freedom and' the Law regulations concerning vehicular traffic. These provide for a number of penalties for offenses committed by drivers of vehicles. The penalties are usually fines, although in exceptional cases those contravening the rules may be tried and put into prison. Moreover, in certain cases especially provided for by other legal regulations, offenders may be deprived of their driving licenses if, for instance, their offenses against the traffic regulations cause personal injuries or grave darnages to others or if they drive while drunk. As motor vehicle traffic of all kinds is constantly increasing in my country, accidents are becoming more and more frequent. The authorities are convinced that stricter discipline imposed on the drivers by the enforcement officers themselves is the best means, even though not a panacea, to reduce the number of traffic casualties all over the territory they control. Members of the executive, such as the minister of the interior and other state officials depending on his direction, the "prefects," the agents of the national police all over the country, the officers of the local police in the towns, and so on all down the line, try to apply this theory in dealing with offenses against traffic regulations. But some of them often do even more. They appear to be convinced that the law of the land in this connection (namely, the legal regulations concerning the penalties to be imposed by the judges on the offenders and the procedure to be followed for that pur pose) is too mild and too slow to meet successfully the new exigencies of modern traffic conditions. Some officials in my coun try try to "improve" on the existing procedure to be followed in accordance with the law of the land in these respects.

One of the officials explained all this to me when I tried to intervene on behalf of some clients of mine against what I con sidered an illegal practice on the part of the authorities. A man was reported by the police as having passed a vehicle in violation of the traffic regulations. Immediately and unexpectedly he was deprived of his driving license by the "prefect." As a result, he could no longer drive his truck, which meant that he ,vas prac tically without a job until the authorities consented to return his license. According to our written regulations, the "prefect" may Freedom and Legislation 99 deprive an offender of his driving license in a number of cases, but passing another vehicle against the traffic__ Iegulations and without causing any casualties is not one of them. When I brought this fact to the attention of the official concerned, he agreed with me that perhaps, according to a correct interpretation of the present rules, my client had not actually committed an offense punishable by depriving him of his license. The official also politely explained to me that, in several other cases, maybe in seventy per cent of the cas,es, offenders were now being deprived of their driving licenses by the authorities without having actually committed an offense that deserved such a punishment according to the law. "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 justi fied by the general result obtainable, according to the opinion of the authorities, in improving the movement of vehicular traffic in the public interest.

An even more striking example in this connection was related to me by a colleague. He had gone to protest against the issuance by a district attorney of an order of imprisonment against a driver who had run over and killed somebody in the street. Ac cording to our law, casual homicides may be punished with prison sentences. On the other hand, district attorneys are entitled to issue orders of imprisonment before the trial only in special cases prescribed by the rules of our criminal procedure whenever they consider that imprisonment may be advisable under the cir cumstances. It should be obvious that imprisonment before trial is not a punishment, but a security measure designed to prevent, for instance, the possibility that a man who has been accused of committing a crime may escape before being tried or even that 100 Freedom and the Law he may commit other crimes in the meantime. As this was obviously not true in the case of the above-mentioned man, my colleague asked the district attorney why he had issued an order of imprisonment under the circumstances. The reply of the district attorney was that in view of the increasing number of motor vehicle casualties it was legitimate and proper on his part to try to prevent offenders from causing further inconveniences by putting them into prison. Besides, ordinary judges are usually not very severe against people indicted for casual homicides; hence a little taste of prison before trial would be a salutary expe rience for offenders anyway. The official concerned candidly admitted that he was behaving this way in order to "improve" on the law, and he felt perfectly justified in employing means like imprisonment even though it was not properly prescribed by the law for that purpose, in order to achieve the desired end of reduc ing traffic casual ties.