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.

This is a typical case of the attitude of officials who substitute themselves for the law by so stretching the letter of the statute as to apply rules of their own under the pretext that the law would be insufficient if more scrupulously interpreted and applied to achieve its ends in a given circumstance. Incidentally, this is also a case of illegal behavior, that is, of behavior on the part of public officials in contravention of the law, and is not to be con fused with arbitrary behavior, such as that eventually allowed to British officials at the present time in view of the lack of a definite set of administrative rules. As a good example of arbitrary behav ior on the part of the British administration, one could probably cite the famous and rather complicated case of Crichel Down, which aroused so many strong protests in England some years ago. State officials who had legally requisitioned private property during the war in order to use it as a bombing range tried to dispose of the same property after the war for completely different purposes, such as conducting agricultural experiments and the like.

In cases of this kind, the existence of certain regulations, in the sense of precisely worded, written statutes, can be very useful, if Freedom and Legislation 101 not always in preventing officials from violating the law, at least in holding them legally responsible for their behavior before ordinary courts or before administrative tribunals such as the French conseil d'etat. But to move on to the important point of my argument= Indi vidual freedom in all countries of the West has been gradually reduced in the last hundred years not only, or not chiefly, because of encroachments and usurpations on the part of officials acting against the law, but also because of the fact that the law, namely, the statutory law, entitled officials to behave in ways that, accord ing to the previous law, would have been judged as usurpations of power and encroachments upon the individual freedom of the citizens. 2 This is patently demonstrated, for example, by the history of the so-called English "administrative law," which may be summed up as a succession of 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 we must not forget that the process itself, without considering cases of sheer usurpation (which are probably not so important or so numerous as we may imagine), has been rendered possible by legislation. I quite agree with some contemporary scholars, such as Pro fessor Hayek, who are suspicious of executive officials, but I think that people who praise individual freedom ought to be even more suspicious of the legislators, as it is precisely through legisla tion that the increase in the powers (including the "sweeping powers") of officials has been and still is being achieved. Judges too may have contributed, at least in a negative way, to this result in recent times. We are told by so eminent a scholar as the above quoted Sir Carleton Kemp Allen that the courts of judicature in England might have entered into a contest with the executive, as they were disposed to do in former ages, in order to assert and even to extend their authority in connection with an altered con ception of the relationship between the individual and the state.

In recent years, however, according to Sir Carleton, they have 102 Freedom and the Law done "precisely the opposite," as they have increasingly "tended to keep their hands off the 'purely administrative' and to refrain from any interference with executive policy." On the other hand, so distinguished a magistrate as Sir Alfred Denning, one of the present Lords of Her Majesty's Court of Appeal in England, in his book, The Changing Law} first pub lished in 1953, gives us a convincing account of several actions on the part of British courts in recent years designed to maintain the rule of law by keeping under ordinary judiciary control the government departments (particularly after the Crown Proceed ings Act of 1947) or such odd entitites as nationalized industries, departmental tribunals (against one of which the Court of the King's Bench issued a writ of certiorari in the famous Northumb erland case in 1951), private tribunals (like those set up by the rules of such organizations as trade unions), and so on. It is difficult to decide whether Sir Carleton is right in charging the ordinary courts with indifference toward the new powers of the executive or whether Sir Alfred Denning is right in pointing out their activity in the same respect.

A great many powers have been conferred on state officials in England as well as in other countries through the enactment of statutes on the part of the legislature. It would be sufficient simply to scan, for instance, the history of the delegation of powers in England in recent years to be quite convinced of this. 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 govern ment, as Dicey might have put it. I do not know to what extent this doctrine has any validity if we submit it to such criticis,ms as those suggested by my. fellow citizens, Mosca and Pareto, at the beginning of this century in their famous theories of the significance of leading minorities, or, as Pareto would say, of the elites, and still frequently quoted by sociologists and political scientists in the United States. Regardless Freedom and Legislation 103 of any conclusion we may reach about these theories, the "people"

or the "electorate" is a concept not easily reducible to or even compatible with that of the individual person as a particular citizen acting according to his own will and therefore "free" from constraint in the sense we have accepted here. Liberty and democracy have been concomitant ideals. for the countries of the West since the times of the ancient Athenians. But it has been pointed out by several thinkers in the past, such as De Tocque ville 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 "ir reconcilables." Rousseau was aware of this when he pointed out that all rnajority 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 philoso .. phers, 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. Recent studies in the so-called science of policy and the nature of group decisions have tended to confirm this point in a rather convincing way.3 The attempts made by some scholars in recent times to compare such different forms of behavior as that of a buyer or a seller in the market and that, say, of a voter in a political election, with the object of discovering some common factor bet\veen them, seem to me rather stimulating, not only because of the methodo104 Freedom and the Law logical questions involved, relating to economic and to political science respectively, but also because of the fact that the question whether there is a difference between the economic and the politi M cal (or the legal) position, respectively, of the individuals within the same society has been one of the main issues in dispute between liberals and socialists during the last hundred or hun dred and twenty years.

This dispute may interest us in more than one respect, as we are trying to evidence a concept of freedom as absence of con straint exercised by other people, including the authorities, which implies freedom in business as well as in any other sphere of private life. Socialist doctrines have maintained that under a legal and political system which grants equal rights to everybody, no advantage in equal rights would accrue to those people who lack sufficient means to benefit from many of these rights. Liberal doctrines, on the contrary, have maintained that all the attempts at "integrating" political "freedom" with "freedom from want" on the part of the "have-nots," as suggested or imposed by the socialists, lead to such contradictions within the system that one cannot grant everybody "freedom," conceived as the absence of want, lvithout bringing about the suppression of political and legal freedom, conceived .as the absence of constraint exercised by other people. But liberal doctrines add something more. They maintain also that no "freedom from want" can be really achieved by decree or by the direction of the economic process on the part of the authorities, such as would be achieved on the basis of a free market.

Now what may be considered as a common assumption of both socialists and liberals is that a difference exists between the legal and political freedom of the individual, conceived as absence of constraint, on the one hand, and the "economic" or "natural" freedom of the individual, on the other, if we have to accept the word "freedom" also in the sense of "absence of want." This difference is appreciated from opposite points of view by liberals and by socialists, but in the last analysis both recognize that "free .. dom" may have different, if not also incompatible, meanings for individuals belonging to the same society.

Freedom and Legislation 105 There is no doubt that introducing "freedom from want" into a political or legal system implies a necessary alteration of the concept of "freedom," understood as freedom from constraint guaranteed by that system. This happens, as liberals point out, because of certain special provisions of the statutes and decrees of socialist inspiration that are incompatible with freedom in busi ness. But it happens also, and above all, because the very attempt to introduce "freedom from want" has to be made-as all socialists admit, at least in so far as they want to deal with pre existing historical societies and do not limit their efforts to promoting societies of volunteers in some remote part of the world-first through legislation and therefore through decisions on the basis of majority rule, regardless of whether the legislatures are elected, as they are in almost all present-day political systems, or are the direct expression of the people, as they were in ancient Rome or in the old Greek cities and as they are in the present-day Swiss Landsgemeinde. No free-trade system can actually work if it is not rooted in a legal and political system that helps. citizens to counteract interference with their business on the part of other people, including the authorities. But a characteristic feature of free-trade systems seems also to be that they are compatible, and probably compatible only, with such legal and political systems as have little or no recourse to legislation, at least as far as private life and business are concerned. On the other hand, socialist sys tems cannot continue to exist without the help of legislation. No historical evidence, as far as I know, supports the assumption that socialist "freedom from want" for all invididuals is compatible with such institutions as the common-law system or the Roman system, where the law-making process is directly performed by each and all of the citizens, with only occasional help from judges and such experts as the Roman jurists, and without having re course, as a rule, to legislation.

Only the so-called "utopians" who tried to promote special colonies of volunteers in order to realize socialistic societies imagined that they could do so without legislation. But they too actually managed to do without it only for short periods of time, until their voluntary associations turned into chaotic amalgams 106 Freedom and the Law of old volunteers, ex-volunteers, and newcomers without special beliefs in any form of socialism. Socialism and legislation seem to be inevitably connected if socialist societies are to keep alive. This is probably the main reason for the increasing weight that is being given in common law systems like the English and the American not only to statutes and decrees, but also to the very idea that a legal system is, after all, a legislative system and that "certainty" is the short-run cer.. tainty of written law. The reason why socialism and legislation are inevitably con nected is that while a free market implies a spontaneous adjust ..

ment of demand and supply on the basis of the preference scales of individuals, this adjustment cannot take place if the demand is not such as to be met by supply on the same basis, that is, if the preference scales of those who enter the market are not actually complementary. This can happen, for instance, in all cases in which the buyers think that the prices asked by the sellers are too high, or where the sellers think that the prices offered by the buyers are too low. Sellers who are not in a position to satisfy buyers, or buyers who are not in a position to satisfy sellers cannot make a market, unless sellers or buyers respectively have some means at their disposal of coercing their counterparts in the market into meeting their demands. According to socialists, poor people are "deprived" by rich people of what they need. This way of speaking is simply an abus.e of language, as it is not proved that the "haves" and the "have nots" were or are all entitled to the common possession of all things. True, historical evidence supports the socialist point of view in some cases like invasions and conquests, and generally in cases of robbery, piracy, blackmail, and so on. But these never occur in a free market, that is, in a system that enables individual buyers and sellers to counteract constraint exercised by other people. We have also seen, in this connection, that very few economists take into consideration such "misproductive" activities, since they are generally regarded as completely outside the market and therefore not worthy of economic inquiry. If nobody may be constrained, without the possibility of defending himself, to pay Freedom and Legislation 107 for goods and services more than he would pay for them without constraint, misproductive activities cannot take place, since in such cases no corresponding supply of goods and services will be met by demand and no adjustment between buyers. and sellers will be obtained.

Legislation may achieve what a spontaneous adjustment could never do. Demand may be obliged to meet supply, or supply may be obliged to meet demand, according to certain regulations enacted by legislative bodies, possibly deciding, as happens, at present, on the basis of such procedural devices as the majority rule. The fact about legislation that is immediately perceived by theorists no less than by the common people is that regulations are enforced upon everybody, including those who never partici pated in the process of making the regulations and who may never have had notice of it. This fact distinguishes a statute from a decision handed down by a judge in a case brought before him by the parties. The decision may be enforced, but it is not enforced automatically, that is, without the collaboration of the parties concerned or at least of one of them. At any rate, it is not directly enforceable on other people who were not parties to the dispute or who were not represented by the parties in the case.

Thus, theorists usually connect legislation with enforcement, while this connection is not directly emphasized, and in any case is ascertainable to a lesser· extent, in decisions of courts of judica ture. Very few people, on the contrary, have pointed out the fact that enforcement is connected with legislation not only as the result of the legislative process but also within the very process itself. Those ,vho have a share in that process are themselves sub~ ject, in their turn, to the enforcement of procedural rules, and this very fact gives a coercive character to the whole activity of legislation as performed by a group of people according to a previously settled procedure. The same holds· true of the actrivities of electorates, whose task may be defined as that of reaching a group decision about the people to be elected according to procedural rules that have been previously settled for all those participating in the formation of the decision itself.

108 Freedom and the Law The existence of a coercive procedure in the decision-making process whenever people are to decide, not as single individuals, but as members of groups, is precisely ,vhat renders. it possible to distinguish between the process of making decisions on the part of individuals and the same process on the part of groups. This difference has been ignored by those theorists ,vho, like the English economist Duncan Black, have tried to elaborate a theory of group decisions that would include both the economic decisions of individuals in the market and group decisions on the political stage. According to Professor Black, who has just pub lished a new book about this subject, there is no substantial difference between these two kinds of decisions. Buyers and sellers in the market may be compared, if taken as a whole, to the members of a committee whose decisions are the result of the interrelations of their preference scales according to the law of supply and demand. On the other hand, individuals on the political scene, at least in all those countries where political decisions are taken by groups, may be considered as members of committees, regardless of the special functions of each committee.

The electorate could be considered one of these "committees" no less than a legislative assembly or a council of ministers. In all these cases, according to Professor Black, the preference scales of every mem.ber of the conlmittee are confronted with the prefer ence scales of every other member of the same committee. The only difference-but a minor one, according to Professor Black is that ,vhereas in the market preferences confront each other according to the law of supply and demand, in political prefer ences the selection of some of them rather than others. takes place according to a definite procedure. If we know this procedure, Professor Black maintains, and moreover if we know ,vhat politi cal preferences are to confront each other, we are in a position to calculate in advance which preferences "vill emerge in the group decision, just as \ve are in a position to calculate in advance, provided that we know the preferences at stake on the market, ,vhich ones among them ,\Till emerge according to the law of supply and demand.

As Professor Black assumes, one could speak of :a tendency Freedom and Legislation 109 toward an equilibrium of preference scales on the political stage in the same way as one speaks of an equilibrium to which prefer ence scales tend in the market. In brief, '\ve ought to consider, according to Black, both eco nomics and political science as two different branches of the same science, since they have the common task of calculating which preferences will emerge in a market or on the political scene, given a set of known preference scales and a definite law govern ing their confrontation. I do not want to deny that there is something correct in this conclusion. But what Ido want to point out is that by putting political and economic decisions on the same level and considering them comparable, we deliberately ignore the differences that exist between the law of supply and demand in the market and any procedural law whatever governing the process of confrontation among political preferences (and the subsequent emergence of the preferences to be accepted by the group in its decision), like, for example, the rnajority rule.

The law of supply and demand is only a description of the way in which a spontaneous adjustment takes place, given certain circumstances, between several preference scales. A procedural law is completely different, notwithstanding the fact that it is also called a "law" in all European languages, just as the Greek lan guage (at least since the fourth century before Christ) used the same word, nomos) to mean both a natural law and a man-made law, like a statute. Of course, we could say that the law of supply and demand is also a "procedural" la,v, but once again we would be confusing, under the same ,vords, hvo very different meanings. The main difference bet\veen individual decisions in the market and individual contributions to the decisions of groups on the po litical scene is that in the market, at least by virtue of the divisibil ity of the goods or services available in it, the individual not only can foresee exactly what the outcome of his decision is (for in stance, what kind and quantity of chickens he will buy with a cer tain 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 110 Freedom and the Law 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.

As a distinguished American economist, Professor James Buchanan, acutely pointed out in this connection, "alternatives of market choice normally conflict only in the sense that the law of diminishing returns is operating .... If an individual desires more of a particular commodity or service, the market normally requires only that he take less of another commodity or service." 4 By contrast, "alternatives of voting-choice are more exclusive, that is, the selection of one precludes the selection of another." Group choices, so far as the individuals belonging to the group are concerned, tend to be "mutually exclusive by the very nature of the alternative." This is the result not only of the poverty of the schemes usually adopted and adoptable for the distribution of the voting strength, but also of the fact (as Buchanan points out) that many alternatives that we usually call "political" do not allow those "combinations" or "composite solutions" which render market choices so flexible in comparison with political choices.

An important consequence, already illustrated by von Mises, is that in the market the dollar vote is never overruled: "The indi vidual is never placed in the position of being a member of a dissenting minority," 5 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 process,es, is comparable to a market in \vhich 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.

Freedom and Legislation 111 In other words, the voter is limited by some coercive procedures in the utilization of his capacities for action. Of course, we can approve or disapprove of this coercion, and we can occasionally discriminate between different hypotheses in order to approve or disapprove of it. But the point is that the voting process implies a form of coercion and that political decisions are reached through a procedure that implies coercion. 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. This is certainly the main, although it is not the only, differ ence between individual decisions in the market and group decisions taking place on the political scene. The individual in the market can predict, with absolute cer tainty, the direct or immediate results of his choice. "The act of choosing," says Buchanan, "and the consequences of choosing stand in ,a one-to-one correspondence. On the other hand, the voter, even if he is fully omniscient in his foresight of the con sequences of each possible collective decision, can never predict with certainty which of the alternatives presented will be chosen." 6 This uncertainty, of the Knightian type (that is, the impossibility of assigning any number to the probability of an event) must in some degree influence the voter's behavior, and there is no acceptable theory of the behavior of a decision-maker in uncertain conditions.

Moreover, the 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 equilib,rium 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? Of course, if the members of the groups are free to rank in changing majori ties and can partake in revisions of earlier decisions, this pos sibility may be conceived of as a sort of remedy for the lack of 112 Freedom and the Law equilibrium in group decisions, because it gives to each individual in the group, at least in principle, the possibility of having the group decision some time or other coincide with his personal choice. But this is not "equilibrium." Freedom to form part of changing majorities is a typical feature of democracy as tradition ally understood in Western countries, and this is, incidentally, the reason why many authors feel that they may describe "political democracy" as similar to "economic democracy" (the market system). In fact, democracy appears to be, as we have seen, only a substitute for economic democracy, although it is prob.ably its best substitute in many cases.

Thus, ,ve reach the conclusion that legislation, being always -at least in contemporary systems-a product of group decisions, must inevitably imply not only 'a certain degree of coercion of those who have to obey the legislative rules, but also a correspond ing degree of coercion of those who directly participate in the process of making the rules themselves. This inconvenience can not be avoided by any political system ,\There group decisions ,are to take place, including democracy, although democracy, at least as it is still conceived of in the West, gives to each member of the legislating body a chance to form a part sooner or later of "vinning majorities and so to avoid coercion by making the rules coincide with his personal choice. Coercion is not, however, the only characteristic of legislation as compared with other law-making processes, such as that of the Roman law or of the common la,v. We have seen that uncertainty proves to be another characteristic of legislation, not only on the part of those who have to obey the legislated regulations, but also on the part of the members of the legislative body itself, since they vote "vithout knowing the results of their vote until the group decision has been made.

Now the fact that coercion and uncertainty cannot be avoided by the members of the legislative bodies themselves in the process of legislation leads to the conclusion that not even political sys tems based on direct democracy allow individuals to escape coer cion or uncertainty in the sense "ve have described. No direct democracy could solve the problem of avoiding both Freedom and Legislation 113 coercion and uncertainty, since the problem is not itself related to direct or indirect participation in the law-making process through legislation resulting from group decisions. This ,vams us also of the comparative futility of all attempts to secure more freedom or more certain ty for the indi vid uals in a country as far as the law of the land is concerned by letting them participate as frequently and as directly as possible in the law-making process through legislation by universal adult suffrage, proportional representation, referendum, initiative, recall of repre sentatives, or even by other organizations or institutions revealing the so-called "public opinion" about as many subjects as possible and making the people more efficient in influencing the political behavior of the rulers.

On the other hand, representative democracies are much less efficient than direct democracies in obtaining the actual participa tion of individuals in the law-making process through legislation. There are many senses in ,vhich representation may be thought of, and some of them certainly do give the people the impression that they are participating in a serious, although indirect, way in the process of law-making through the legislation of their country or even in the process of administering the affairs of the country through the executive apparatus. Unfortunately, what is actually happening in all the countries of the West at present is something that does not afford us any real basis for gratification if we undertake a cold analysis of the facts.