Freedom and the Law

5. Freedom and Legislation

Law_051-100.indd 45 10/27/09 8:06 AM 5 FREEDOM AND LEGISLATION Avery important conclusion to be drawn from the preceding chapters is that the rule of law, in the classical sense of the expression, cannot be maintained without actually securing the certainty of the law, conceived as the possibility of long-run planning on the part of individuals in regard to their behavior in private life and business. Moreover, we cannot base the rule of law on legislation 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 powers that officials in the countries of the West have acquired and are still acquiring every day over their fellow citizens, notwithstanding the fact that these powers are usually supposed to be limited by legislation. 1 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 will for the provisions of the law in the belief that they are improving on the law and achieving, in some way not stated in the law, the very ends they 1 As far as Great Britain is concerned, cf. the very accurate analysis of Professor G. W. Keeton, The Passing of Parliament (London: E. Benn, 1952). In regard to the United States, see Burnham, Congress and the American Tradition (Chicago: Regnery, 1959), especially "The Rise of the Fourth Branch," p. 157, and Lowell B. Mason, The Language of Dissent (Cleveland, Ohio: World Publishing Co., 1959). 95 Law_051-100.indd 46 10/27/09 8:06 AM 96 FREEDOM AND THE LAW think the law was intended to achieve. There is often no doubt about the good will 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 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 damages 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 purpose) is too mild and too slow to meet successfully the new exigencies of modern traffic conditions. Some officials in my country 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 considered 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 Law_051-100.indd 47 10/27/09 8:06 AM FREEDOM AND LEGISLATION 97...