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An independent judiciary which applies rules of law, whether the laws are derived from old or relatively recent sources of values, is a pain in the neck to any government that wants to get things done. Whether the government is democratic or totalitarian, right-wing or left-wing, courts get in the way. Courts are a great source of political transaction costs—they create inertia when the government wants to change course.

This is not solely an American phenomenon. In Italy, for example, a newly elected government of the right is fighting with its magistrates, who persist in following their view of the law rather than carrying out the policies of the new administration. One of the most dramatic examples of this conflict in Italian history can be found in the time of fascism, when Italian judges were formalists to a degree unknown almost anywhere else in the world. In contrast to functionalists, who make the law respond to certain societal ends, these formalists carried out old law and thereby preserved its values. Those values, which were economically and politically libertarian values from the nineteenth century, got in the way of fascism.

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