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On the Law Enactment Trap

On the Law Enactment Trap Economy Near Us (II)

A free society is that society in which the general law governs, that is, the law which concerns all the members of society in relation to the norm which that general law establishes. And, on the contrary, society is not free when the private law governs, that is, the law that concerns only a very small number, a minority or, to the limit, an individual or a few individuals. Such a law is also referred to as a privilege (private law). The current effervescence in Romania on amending the laws of justice is an example within reach for philosophers of law, but also for social philosophers or moral philosophers, to reflect on this fundamental aspect of freedom (I refer here to the concept of individual freedom, which is the source of all punctual liberties, which must under no circumstances be confused) in the Romanian society.

In this context, I would like to examine a possible law enactment trap, that is, a situation in which the establishment of the general law is under mimicry, and, in fact, the privilege, the private law, is really established.

A general law, as the name suggests, must (this deontological term is mandatory here) address all members of society (i.e., all citizens) who are eligible for that rule, i.e. all individuals verifying the constitutive conditions to fall under application of the rule in question. Of course, the current (or most of them) proposals to amend the Penal Code may fall under this rule: it can be shown that whenever a citizen checks the premises of the application of the general rule, it will be applied without any exonerations or legal privileges. In other words, it might appear that we are dealing with a general law, and not a private law, that is, it might appear that we remain in the context of a free society (not to confuse the free society with the democratic one!).

This conclusion, of a theoretical nature, must, however, be complemented by one of an empirical nature and even of a contextual-historical nature. Let's take the following hypothetical example: a rule is issued, after all the procedural rules and, of course, in accordance with constitutional provisions, whereby anyone with six fingers in the left hand will benefit from an allowance of, say, anatomical non-conformance, at a level with equals the minimum wage in the economy. A brief theoretical analysis will immediately reveal the fact that we are dealing here with a general law. Indeed, there is no obstacle for any citizen who fulfils the law enforcement condition ("holding" a left hand with six fingers) to benefit from the law (we exclude cases of law enforcement eligibility – falsification of a finger in the left hand – because such a situation may arise in any law, and it is provided in the law, so that the forger will pay that according to the law's rigors, as in any other case).

This was the theoretical analysis (which we can call logical analysis). Now, let's also perform an empirical analysis or historical background analysis. We will certainly find, given the anatomical stability of the human species, that there is an extremely small number of citizens with such a particularity. We could see, for example, that the only citizen who has six fingers in his left hand is the head of the ruling party. We could also see that this citizen has already proposed himself the normative act in question. Having the majority of the Parliament, the citizen mentioned will in all likelihood succeed in imposing the adoption of this “general” law (we have here – but we will discuss this issue another time – a peremptory example of the dictatorship of the majority, from which we must be saved by the Constitution, through the Constitutional Court). So the adopted law is it general or not? In other words, the adopted law is it a genuinely law (i.e. has it a general applicability character) or is it a privilege (a law of particular applicability)?

The conclusion, obvious from the above, is that, in order to decide on the general nature of a law, we must carry out a double analysis: a theoretical (or logical) analysis, and an empirical (or historical) one. Sometimes the law allegedly general “falls” the exam of theoretical analysis, sometimes the one of empirical / historical analysis. Here lies what can be called the law enactment trap: a law is (or rather it seems be) general from the perspective of theoretical analysis, but in reality the way it will work (this results from the empirical / historical analysis) qualifies it as a private law (a privilege).

What is the threshold (number or share of citizens) possibly eligible for a law, so that it is undoubtedly considered to be general? This is a problem in itself and we do not want to venture into it now (it would be necessary, in this case, an intervention of moral philosophers), although we can advance, for the sake of discussion, the famous Paretian pair (80/20). Or we can even adopt the general rule of the simple majority.

There would still be a question to be interrogated. As it is well known, the most concise definition of individual freedom is the absence of private coercion on the formulation of individual goals. In passing, there is only individual freedom, that is, there is no freedom of group, ethnic, professional, cultic, etc. There is only individual freedom in the same way in which there is only individual consciousness, that is, there is no consciousness of a social, professional group etc. In this context, how can we assess a law of the type above discussed, which seems general from a logical perspective, but is obviously private from an empirical (or concrete-historical) perspective? Since the law in question is obviously issued by the public authority (legislative power), it results that we are dealing with a hybrid institution: a private law (in the sense of law which grants a privilege) issued by a public authority.

Returning to the concrete case in Romania these days and reviewing the specific proposals for amending the Penal Code, it is obvious that most of the citizens are not (or most likely will not be) eligible to apply these proposals. Based on the above developments, it seems obvious that we are dealing with a law enactment trap, which is allowed to carry out an act of majority dictatorship. So we call the law enactment trap a situation in which the Parliament's political forces allow the adoption of a private law. This act may and must be annulled by the Constitutional Court, otherwise we will find ourselves in the situation where the Parliament adopts private laws under the guise of democracy. And this would be a deadly precedent for both the freedom and the democracy of the Romanian society.

 
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OEconomica No. 1, 2016