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Please do not think that I am recommending such political cynicism. I am merely pointing out the scientific implications of this cynicism, if we may indeed qualify the doctrines as cynical. He who has the power makes the law. True, but what about people who do not have the power? The saying is apparently silent about this, but I suppose that a rather critical view of the limits of the law as centered on political power is the natural conclusion to be drawn from the doctrine. This is probably the reason why my fellow countrymen do not know by heart their written constitution as many Americans do. My fellow countrymen are convinced, I would say instinctively, that written laws and constitutions are not the end of the political story. Not only do they change and may change rather frequently, but also they do not always correspond to the , as Lord Bacon would have said. I dare say that there is a sort of cynical common-law system which underlies the written-law system of my country and which differs from the English common-law system in so far as the former is not only unwritten but also officially unrecognized.

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People behave as if their need for individual initiative and individual decision were almost completely satisfied by the fact of their personal access to the benefits of scientific and technological achievements. Strangely enough, their corresponding needs for individual initiative and individual decision in the political and legal spheres seem to be met by ceremonial and almost magical procedures such as elections of “representatives” who are supposed to know by some mysterious inspiration what their constituents really want and to be able to decide accordingly. True, individuals still have, at least in the Western world, the possibility of deciding and acting as individuals in many respects: in trading (at least to a great extent), in speaking, in personal relations, and in many other kinds of social intercourse. However, they seem also to have accepted in principle once and for all a system whereby a handful of people whom they rarely know personally are able to decide what everybody must do, and this within very vaguely defined limits or practically without limits at all.

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Substituting legislation for the spontaneous application of nonlegislated rules of behavior is indefensible unless it is proved that the latter are uncertain or insufficient or that they generate some evil that legislation could avoid while maintaining the advantages of the previous system. This preliminary assessment is simply unthought of by contemporary legislators. On the contrary, they seem to think that legislation is always good in itself and that the burden of the proof is upon the people who do not agree. My humble suggestion is that their implication that a law (even a bad law) is better than nothing should be much more supported by evidence than it is.

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Supporters of group decisions (for instance, of legislation) are always inclined to think that in such or such a case individual choices are mutually incompatible, that the issues concerned are necessarily of the all-or-none variety, and that the only way to make a final choice is to adopt a coercive procedure like majority rule. These people pretend to champion democracy. But we ought always to remember that whenever majority rule is unnecessarily substituted for individual choice, democracy is in conflict with individual freedom. It is this particular kind of democracy that ought to be kept to a minimum in order to preserve a maximum of democracy compatible with individual freedom.

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It seems to me that this argument is even less convincing than the preceding one. We moved from the rather realistic assumption that shrewd minorities know better than their fellow voters what costs and benefits will emerge for them from a decision that they try to have passed by the group, notwithstanding the possible overinvestment that this decision implies for the group. If such a decision is to pass, it is precisely because other voters are to foot the bill, which means that they are careless or less organized or ignorant of the real consequences for them emerging from the decision. Ignorance may be, therefore, one of the reasons overinvestment occurs, although it is not the only one. But let us assume that ignorance (on the part of the losing voters) the only reason. Downs counters that ignorance may also produce a government budget which is “too small.” But this is a completely different case which has very little to do with the case of overinvestment that we have just considered. Downs’s argument would be acceptable only if we could assume that merely because of the ignorance of the voters who are footing the bill for a decision promoted by a shrewd minority, the benefits of that decision for the group may not only be less but also greater than the costs. But this would imply that investment is a form of gambling in which rational and well-informed operators are no more likely to succeed than irrational or ignorant ones. If ignorance could randomly produce the same beneficial effects as information, economic activities would obviously be very different from what they are now. In the world in which we live, the assumption that ignorance may pay as well as information seems to be rather inappropriate to explain human action—not only in the economic field but in the other fields as well. On the other hand, it is reasonable to assume that minorities who promote a group decision for their own benefit know what they are doing better than the other voters. They have a precise idea of what they want and of the possible results for them of the corresponding group decision. They may know equally well that the benefits of the decision for the other members of the group will be less than the costs for those same members. But they can disregard this fact. The final result will very probably be an investment that will cost much more than it would have cost under different conditions.

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When I was told this story, I reflected with amusement that there are people who think that all we need to be happy are new laws. On the contrary, we have impressive historical evidence to support the conclusion that even legislation in many cases, after centuries and generations, has reflected much more a spontaneous process of law-making than the arbitrary will of a majority decision by a group of legislators.