This year might have been Bruno Leoni's 101st but for his tragic murder in 1967. (1) Leoni was an Italian lawyer-cum-academic who was one of Europe's leading classical liberal thinkers in the postwar era. Friend to the leading classical liberals of the age--including F. A. Hayek, James M. Buchanan, and Armen Alchian--Leoni was not only a pioneer of law and economic thought but also an early adopter of public choice theory (Kemp 1990). However, Leoni's legal philosophy is largely ignored today.
To examine Leoni's continuing relevance to the law, I would like to consider a claim he makes in the introduction to his 1961 book Freedom and the Law. "My earnest suggestion is that those who value individual freedom should reassess the place of the individual within the legal system as a whole. It is no longer a question of defending this or that particular freedom--to trade, to speak, to associate with other people, etc.; nor is it a question of deciding what special 'good' kind of legislation we should adopt instead of a 'bad' one.... It is a question of deciding whether individual freedom is compatible in principle with the present system centered on and almost completely identified with legislation. This may seem like a radical view; I do not deny that it is. But radical views are sometimes more fruitful than syncretistic theories that serve to conceal the problems more than to solve them" (Leoni 1991, p. 11; emphasis original).
This article takes up Leoni's radical challenge and asks: Is individual freedom compatible in principle with a legislation-centered system? Even more so, is individual freedom compatible with a system centered on executive fiat ("rulemaking" hardly being an accurate term to capture the arbitrary edicts emanating from the executive branch today)?
The essence of Leoni's argument lies in the contrast between lawmaking by legislatures versus lawmaking via a common-law-like process, which he describes broadly as "judicial decisions, the settlement of disputes by private arbiters, conventions, customs, and similar kinds of spontaneous adjustments on the part of individuals" (Leoni 1991, p. 7). In articulating this understanding of law, Leoni anticipates the arguments made by Hayek in Law, Legislation and Liberty ("LLL") a decade later. Leoni and Hayek's approaches consider common law as a spontaneous-order process, as distinguished, for example, from other philosophies that see the common-law process through a lens of legal positivism, effectively treating judges as functionally equivalent to legislators. In fact, there is more than just a similarity between Leoni's and Hayek's thinking on this point; it appears that it was Leoni that introduced Hayek to the common law, which then became the heart of LLL (Shearmur 1996, p. 88). In so doing, of course, Leoni also introduced Hayek to his distinctive interpretation of the common law as an alternative to the modern realist-positivist view. Indeed, the novelty of the focus on the common law in LLL is striking. The common law gets very little mention in either The Road to Serfdom (Hayek 1944) or The Constitution of Liberty (Hayek 1960), both of which focus on the formalist Rechtsstaat notion of the rule of law. Then, the common law appears full blown in LLL, with virtually no prior mention, and with a clear similarity to Leoni's version (Hayek 1973).
What happened during the period between The Constitution of Liberty and Law, Legislation, and Liberty to transform Hayek's thinking so dramatically? By all indications, the intellectual change comes from a single, identifiable influence: Hayek met Leoni, and Leoni inculcated in him the importance of the common law. (2) In Freedom and the Law, Leoni grounds his understanding of law in his interpretation of the Roman jurisconsult. He compares the lawmaking process by the Roman jurisconsults to the common-law judge that Hayek describes in LLL. Indeed, Leoni uses the Roman law made by the jurisconsults and English common law essentially interchangeably as an analytical matter, so that the structure he uses in describing Roman law developed by the jurisconsult is essentially the same one that Hayek later identifies as distinctive in the common-law process under the English common law.
Law, for Leoni, as made by the jurisconsults and the common-law judges, is a spontaneous-order process focused on how the law emerges from the resolution of discrete disputes between private individuals and an ongoing conversation among different judges to determine what the law should be. As Leoni writes, "the whole process can be described as a sort of vast, continuous, and chiefly spontaneous collaboration between the judges and the judged in order to discover what the people's will is in a series of definite instances--a collaboration that in many respects may be compared to that existing among all the participants in a free market" (1991, p. 22).
For Leoni, the significance of Roman law (and later English common law), and its unique compatibility with individual liberty, stems from distinctive characteristics of the common law that are lacking in the legislative process. At the heart of his model is the importance of what he calls "law as individual claim." (3) What does he mean by that, and why is it significant?
For Leoni, the idea of "law as individual claim" means that the law essentially leaves individuals alone, unless two private citizens seek intervention by a judge to resolve a dispute between them. That particular ruling is technically applicable only to those two parties (although by the force of precedent, it may potentially be invoked by other parties as...
Bruno Leoni's legacy and continued relevance.
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