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Finally, individual freedom is perfectly compatible with all those processes the result of which is the formation of a common will without recourse to decision groups and group decisions. Ordinary language, day-to-day economic transactions, customs, fashions, spontaneous law-making processes, and, above all, scientific research are the most common and most convincing examples of this compatibility—indeed, of this intimate connection—between individual freedom and the spontaneous formation of a common will.
In fact, a system of checks and balances could easily be developed within the judiciary in this respect, just as a corresponding system has been developed, notably in the United States, among the different functions or “powers” within the political organization. If the position of a supreme court like that of Great Britain, which is bound by its precedents, seems inadequate in meeting with changes and new exigencies, and it is assumed, on the contrary, that a supreme court must be allowed to reverse its precedents or to change its previous interpretation of the written law, i.e., of the written constitution, like the Supreme Court of the United States, special devices could still be introduced to limit the power of supreme courts as far as the binding character of their decisions is concerned. For example, unanimity could be requested for decisions that reverse long-established precedents or that change substantially previous interpretations of the constitution. Other checks could also be devised; it is not my task to suggest them here.
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The same criticism of the purported possibility of creating the law from nothing on the part of a legislator has been shared by the most famous lawyers in the West. For instance, the greatest German lawyer of the nineteenth century, Savigny, the so-called founder of the Historical School in law, wrote at the beginning of that century that what binds the rules of our behavior (including legal behavior) into one whole “is the common conviction of the people, the kindred consciousness of an inward necessity, excluding all notion of an accidental and arbitrary origin.” And another great lawyer, Eugen Ehrlich, whose influence in the United States has become more and more important in recent times through lawyers such as Pound, Timasheff, Cairns, and Julius Stone, stated flatly in our century that, “At the present as well as at any other time, the centre of gravity of legal development lies not in legislation . . . but in society itself.” To these critics of the idea of the legislative process as an unconditioned way of producing the law at will, we should add many of the economists, both of the classical and of the neoclassical school. (We shall go back later to legislation and to the idea that underlies all the attempts to substitute legislation for any other kind of law-making process.)
In fact, the power of supreme courts is usually more important under a common-law system than under other legal systems centered around legislation. The latter try to attain the “consistency of judicial decision” through the binding force of precisely formulated rules. The former usually perform the task of introducing and keeping that consistency through the principle of precedent whenever a common opinion among judges or lawyers would not be likely to emerge. In fact, all common-law systems probably were and are based somehow on the principle of precedent (or of “president,” as the English lawyers of the Middle Ages used to say) although this principle is not to be simply confused with that of binding precedent in the common-law systems of the Anglo-Saxon countries at the present time.
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James M. Buchanan, “Individual Choices in Voting and the Market,” , LXII, 1954, p. 334. The essay is reprinted in (Chapel Hill: University of North Carolina Press, 1960).
Murray N. Rothbard, “On Freedom and the Law,” in , Vol. 1, No. 4, Winter 1962, pp. 37-40. Complete edition of reprinted by Liberty Fund, Indianapolis, 1981. Pages 163-166.
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