The Private Supply of Legislation (English translation)

(GIOVANNI BIRINDELLI, text of the speech at the Interlibertarians conference – Lugano (Switzerland), 24,25-11-2012)

Good evening. I wish to thank Interlibertarians for organizing this meeting. In particular, I wish to thank Franco Bertelli, Rivo Cortonesi, Leonardo Facco, Luca Fusari and Emanuela Gini.

“How can libertarians gather consensus to influence or change the existing institutions?” My answer is: “By putting the law back on the stage”.

Of course, by “law” I do not mean what is usually intended today in our countries, that is the particular measure, the decision of the legal authority elected by the majority, the instrument of arbitrary political power.

Quite the opposite: by law I intend the limit to arbitrary political power, the abstract and general principle, the rule of just individual conduct.

By putting the law back on the stage I do not mean discussing about it in conferences or in newspaper articles. Philosophical discussion is fundamental, but I don’t mean that. I don’t mean convincing people.

I mean creating an institutional framework which is compatible with the rule of law, and confronting citizens with it.

Such institutional framework is one in which political power (i.e. the power to impose particular measures) is separated from and submitted to legislative power (i.e. the power to discover, protect and defend the law, which cannot be ‘made’ as it exists independently of the legislators, exactly like the rules of language exist independently of the linguists).

Since in our totalitarian and lawless states, in which these two powers are confused and combined with one another, such institutional framework does not exist and cannot emerge, I suggest that we create it ourselves, privately.

In what follows, I will try to sum up a pragmatic proposal to do this by using the current totalitarian institutional framework, and therefore, paradoxically, not only in a peaceful way, but even in a legal one.

Let us suppose that in a country (say Italy) there is a libertarian party campaigning for the next elections.

Instead of presenting only a political programme, this Libertarian Party also presents:

1. a first list of abstract and general principles (that is of laws) which it promises to defend. Let’s call it “List 1”.
2. a private company, (let’s call it “Legislator Ltd.”)

Legislator Ltd.is a consulting business whose scientific directors are some social scientists of the highest international reputation, of international origin and of libertarian political views.

Let us call “Beta” any individual or business (national or foreign).

Now, let us suppose that the Libertarian Party, during the election campaign, tells Beta the following:

“If you believe that any norm of the Italian State, of any type or level, violates one or more of the principles (that is of the laws) included in List 1, you can submit the case to Legislator Ltd., at your expense.

We don’t expect the price of submission to be cheap, so we encourage you to team up with other individuals or businesses in your situation (many) to share the costs of submission, which therefore could become very small.

Legislator Ltd. will arbitrarily filter the cases submitted and it will not be possible to appeal against its decisions.

If the case submitted did pass the filter and Legislator Ltd. decided that the norm called into question does indeed violate one or more of the laws included in List 1, then it would produce an in-depth study (“Delta”) in which:

1. it explains the reason of its decision;
2. it indicates in detail the solution of the problem (say, abolition of the entire norm or exactly how to modify it);
3. it specifies the date by which its suggestion should be implemented.

While asking for your vote, and to the extent that we have majority in Parliament, we commit ourselves to blindly follow the instructions given us within the time-constraint specified.

Given the informality of the arrangement, in some cases we may not apply (or we may fail to do so by the time specified) some of the instructions given us by Legislator Limited. We promise to disappear from the political scene forever should these cases be more than x%. X% is therefore the measure of our credibility”

This is the basic mechanics of my proposal. In order to understand its potential, one would have to make examples and discuss its implications, which cannot be done here for reasons of time. However, here it is possible to hint at some of the reasons why it could increase the consensus of a libertarian political force, which is the theme of this meeting. These reasons are essentially four:

1. This proposal would create a structure of incentives which would attract the vote also of non-libertarians: for example, let us think of      the owner of a barn to whom the state prohibits to transform it into a house for the child (thus violating the abstract principle according to which every one has the right to do whatever he or she wants of his or her own property unless it produces illegitimate damage to others); or let us think of the entrepreneur who is forced by the state to perform some tax collection activities, etc.
2. This proposal would contribute to satisfy in a credible way the demand for limitation of political power, which today is huge even among  collectivists, even though they are not able to understand the cause of the problem they have created;
3. in what at first may appear a paradox, this proposal may be voted by the enemies of freedom for reasons of principle. In fact, what differentiates us from them are not our principles but our consistency. Liberal principles are often clearly felt by the collectivist; unlike the liberal, however, he invokes them only when he can perceive that their defence can immediately favour his interests or passions. To increase consensus, however, for us it is sufficient that the elector feels these principles and has the opportunity to defend them in a particular situation in which he has an immediate interest. We don’t need him to be consistent (through this proposal, consistency      would be the Legislator Ltd.’s business).
4. last but not least, the novelty factor represented by the separation of powers.

In conclusion, if we want the rule of law, and therefore the free market and minimum state, in my opinion our priority should not be to convince people of the libertarian vision of the economy, nor to look for their consensus on a libertarian political programme. In most cases, this would be a waste of time: the enemies of freedom do not have the intellectual ability to conceive of a spontaneous order. Instead, our priority should be to confront them with an institutional framework which is compatible with the rule of law, and which will provide a structure of incentives for them to actively defend such rule of law. In this way, piece by piece, they would contribute to promote a spontaneously grown libertarian political programme without even realizing it.

In time, seeing its benefits (also in economic terms), some citizens could get used to the rule of law and to the separation of powers.

Thank you.