Does Law Require Legislation?

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Book
Review: Freedom
and the Law
by Bruno Leoni. This review first appeared
in New
Individualist Review
, edited by Ralph Raico.

While at
least a corporal’s guard of libertarian economists exists in America
today, the situation in the other disciplines of human action
is indeed bleak. Most political scientists, for example, are either
engaged in spinning fallacious scientistic “models” or in solemnly
recording the empirical minutiae of the workings of government
bureaucracy. The small minority of political philosophers (those
who still grapple with such basic questions as the nature and
proper function of the State) trumpet the alleged glories of Order,
Tradition, Community, the “Leap in Being,” and Good Manners, but
somehow remain silent about the liberty of the individual. This
pervading miasma makes all the more welcome the publication of
a notable series of lectures by Professor Bruno Leoni, eminent
jurist and political scientist of the University of Pavia, Italy.
For here at last is a political scientist with strong libertarian
inclinations.

Professor
Leoni’s major thesis is that even the staunchest free-market economists
have unwisely admitted that laws must be created by governmental
legislation; this concession, Leoni shows, provides an inevitable
gateway for State tyranny over the individual. The other side
of the coin to increasing intervention by government in the free
market has been the burgeoning of legislation, with its inherent
coercion by a majority – or, more often, by an oligarchy
of pseudo-”representatives” of a majority – over the rest
of the population. In this connection, Leoni presents a brilliant
critique of F.A. Hayek’s recent writings on the “rule of the law.”
In contrast to Hayek, who calls for general legislative rules
as opposed to the vagaries of arbitrary bureaucracy or of “administrative
law,” Leoni points out that the real and underlying menace to
individual freedom is not the administrator but the legislative
statute that makes the administrative ruling possible.[1]
It is not enough, demonstrates Leoni, to have general rules applicable
to everyone and written down in advance; for these rules themselves
may – and generally do – invade freedom.

Leoni’s great
contribution is to point out to even our staunchest laissez-faire
theorists an alternative to the tyranny of legislation. Rather
than accept either administrative law or legislation,
Leoni calls for a return to the ancient traditions and principles
of “judge-made law” as a method of limiting the State and insuring
liberty. In the Roman private law, in the Continental Civil Codes,
in the Anglo-Saxon common law, “law” did not mean what we think
today: endless enactments by a legislature or executive. “Law”
was not enacted but found or discovered; it
was a body of customary rules that had, like languages or fashions,
grown up spontaneously and purely voluntarily among the people.
These spontaneous rules constituted “the law”; and it was the
works of experts in the law – old men of the tribe, judges,
or lawyers – to determine what the law was and how the law
would apply to the numerous cases in dispute that perpetually
arise.

If legislation
is replaced by such judge-made law, says Leoni, fixity and certainty
(one of the basic requirements of the “rule of law”) will replace
the capriciously changing edicts of statutory legislation. The
body of judge-made law changes very slowly; furthermore, since
judicial decisions can only be made when parties bring cases before
the courts, and since decisions properly apply only to the particular
case, judge-made law – in contrast to legislation –
permits a vast body of voluntary, freely-adopted rules, bargains,
and arbitrations to proliferate as needed in society. Leoni brilliantly
shows the analogy between these free rules and bargains, which
truly express the “common will” of all participants,
and the voluntary bargains and exchanges of the free market.[2]
The twin of the free-market economy, then, is not a democratic
legislature ever grinding out new diktats for society,
but a proliferation of voluntary rules interpreted and applied
by experts in the law.

While Leoni
is vague and wavering on the structure that his courts would take,
he at least indicates the possibility of privately competing judges
and courts. To the question, who would appoint the judges? Leoni
answers with the question, who now “appoints” the leading doctors
or scientists in society? They are not appointed, but gain general
and voluntary acceptance on their merits. Similarly, while in
some passages Leoni accepts the idea of a governmental supreme
court, which he admits becomes itself a quasi-legislature,[3]
he does call for the restoration of the ancient practice of separation
of government from the judicial function. If for no other reason,
Professor Leoni’s work is extremely valuable for raising, in our
State-bemused age, the possibility of a workable separation of
the judicial function from the State apparatus.

A great defect
in Leoni’s thesis is the absence of any criterion for the content
of the judge-made law. It is a happy accident of history that
a great deal of private law and common law is libertarian –
that they elaborate the means of preserving one’s person and property
against “invasion” – but a good deal of the old law was antilibertarian,
and certainly custom can not always be relied on to be consistent
with liberty. Ancient custom, after all, can be a frail bulwark
indeed; if customs are oppressive of liberty, must they still
serve as the legal framework permanently, or at least for centuries?
Suppose ancient custom decrees that virgins be sacrificed to the
gods by the light of the full moon, or that redheads be slaughtered
as demons? What then? May not custom be subject to a higher test
– reason?

The
common law contains such antilibertarian elements as the law of
“conspiracy,” and the law of “seditious libel” (which outlawed
criticism of the government), largely injected into the law by
kings and their minions. And perhaps the weakest aspect of the
volume is Leoni’s veneration for the Roman law; if the Roman law
provided a paradise of liberty, how account for the crushing taxation,
the periodic inflation and currency debasement, the repressive
network of controls and “welfare” measures, the unlimited imperial
authority, of the Roman Empire?

Leoni offers
several different criteria for the content of the law, but none
are very successful. One is unanimity. But while superficially
plausible, even explicit unanimity is not necessarily libertarian;
for, suppose that there are no Moslems in a country, and everyone
unanimously decides – and it passes into custom – that
all Moslems should be put to death. And what if, later, a few
Moslems should appear in the land? Further, as Leoni recognizes,
there is the problem of the criminal; certainly he
does not join in favoring his own punishment. Here Leoni falls
back on a tortured construction of implicit unanimity, i.e., that,
in such a case as murder or theft, the criminal would
agree to the punishment if anyone else were the criminal,
so that he really agrees to the justice of the law. But
suppose that this criminal, or others in the community, have the
philosophical belief that certain groups of people (be they redheads,
Moslems, landlords, capitalists, generals, or whatnot) deserve
to be murdered. If the victim is a member of one of these abhorred
groups, then neither the criminal nor others holding this belief
would agree to the justice of either the general law against murder
or to the punishment of this particular murderer. On this ground
alone, the implicit-unanimity theory must fall.

A second
proffered criterion for the content of the law is the negative
Golden Rule: “Do not unto others what you would not wish them
to do unto you.” But this too is unsatisfactory. For one thing,
some acts generally considered criminal would still pass the negative
Golden Rule test: thus, a sadomasochist can torture another person,
but since he would be delighted to be tortured, his act,
under the negative Golden Rule, could not be considered criminal.
On the other hand, the Golden Rule is much too wide a criterion;
many acts would be condemned as criminal that certainly should
not be. Thus, the Rule decrees that men shouldn’t lie to each
other (a man would not want to be lied to) and yet few would urge
that all lies be outlawed. Also, the Golden Rule would decree
that no man should turn his back on a beggar, because the former
would not want the beggar to turn his back on him were they to
change places – and yet it is hardly libertarian to outlaw
the refusing of alms to a beggar.[4]

Leoni hints
at a much more promising criterion: that freedom be defined as
the absence of constraint or coercion – except against constrainers.
In this case, the initiation of coercion is outlawed,
and the “governmental” function becomes strictly limited to coercing
the coercers. But, most unfortunately, Leoni falls into the very
same trap that snared Hayek in his Constitution
of Liberty
: “coercion” or “constraint” is not defined
in a proper or cogent manner.[5]
At first, Leoni gives promise of a correct understanding of coercion
when he says that a man cannot be said to “constrain” another
when he refuses to buy the latter’s goods or services, or when
he refuses to save a drowning man. But then, in his unfortunate
chapter 8, Leoni concedes that constraint may occur when a religiously
devout person feels “constrained” because another man
does not observe the former’s religious practices. And this feeling
of constraint may appear to justify such invasions of liberty
as Sunday blue laws. Here again, Leoni errs in placing his test
of constraint or coercion not on the objective acts of the defendant
but on the subjective feelings of the plaintiff. Surely this is
an extremely wide highroad for tyranny!

Furthermore,
Leoni apparently does not see that taxation is a prime example
of coercion, and is hardly compatible with his own picture of
the free society. For if coercion is to be confined to the coercers,
then surely taxation is the unjust coercive extraction of property
from a vast body of noncoercing citizens. How, then,
is it to be justified? Leoni, again in chapter 8, also concedes
the existence of some legislation in his ideal society, including,
mirabile dictu, some nationalized industries![6]
One specific nationalization favored by Leoni is the lighthouse
industry. His argument is that a lighthouse could not charge individual
consumers for its service, and that therefore it should be supplied
by government.

The basic
answers to this argument are threefold:

  1. the taxation
    for lighthouses imposes coercion and is therefore an invasion
    of freedom;

  2. even
    if the lighthouse could not charge individuals, what prevents
    shipping lines from constructing or subsidizing their own
    lighthouses? The usual reply is that then various “free riders”
    would benefit from the service without paying. But this is
    universally true in any society. If I make myself
    a better person, or if I tend my garden better, I am adding
    to the benefits enjoyed by other people. Am I then entitled
    to levy tribute upon them because of this happy fact?

  3. In fact,
    lighthouses could easily charge ships for their services,
    if they were permitted to own those surfaces
    of the sea which they transform by their illumination. A man
    who takes unowned land and transforms it for productive
    use is readily granted ownership of that land, which can henceforth
    be used economically; why should not the same rule apply to
    that other natural resource, the sea? If the lighthouse owner
    were granted ownership of the sea surface that he illuminates,
    he could then charge each ship as it passes through. The deficiency
    here is a failure not of the free market but of the government
    and the society in not granting a property right to the rightful
    owner of a resource.

On the necessity
of taxing for government lighthouses and other services, Leoni
adds the astonishing comment that “in these cases the principle
of free choice in economic activities is not abandoned or even
put in doubt.” (p. 171) Why? Because “it is admitted” that people
would be willing to pay for these services anyway, if available
on the market. But who admits it, and to what extent?
And which people would pay?

Our problem
can be solved, however; a cogent criterion does exist
for the content of libertarian law. That criterion defines coercion
or constraint, simply, as the initiation of violence, or the
threat thereof, against another person. It then becomes clear
that the use of coercion (violence) must be confined to coercing
the initiators of violence against their fellow men. One reason
for confining our attention to violence is that the unique weapon
employed by government (or by any other enforcing agency against
crime) is precisely the threat of violence. To “outlaw” any action
is precisely to threaten violence against anyone who commits it.
Why not then use violence only to inhibit those who are
initiating violence, and not against any other action or nonaction
that somebody might choose to define as “coercion” or “constraint”?

And yet the
tragic puzzle is that so many quasi-libertarian thinkers have,
over the years, failed to adopt this definition of constraint
or have failed to limit violence to counteracting violence, and
have instead opened the door to statism by using such vague, jumbled
concepts as “harm,” “interference,” “feelings of constraint,”
etc. Decree that no violence may be initiated against another
man, and all the loopholes for tyranny which even such men as
Leoni concede – blue laws, government lighthouses, taxation,
etc., – would be swept away.

In short,
there exists another alternative for law in society,
an alternative not only to administrative decree or statutory
legislation, but even to judge-made law. That alternative is the
libertarian law, based on the criterion that violence may only
be used against those who initiate violence, and based therefore
on the inviolability of the person and property of every individual
from “invasion” by violence. In practice, this means taking the
largely libertarian common law, and correcting it by the use of
man’s reason, before enshrining it as a permanently fixed libertarian
code or constitution. And it means the continual interpretation
and application of this libertarian law code by experts and judges
in privately competitive courts.

Professor
Leoni concludes his highly stimulating and important book by saying
that “law-making is much more a theoretical process than an act
of will” (p. 189). But certainly a “theoretical process” implies
the use of man’s reason to establish a code of law that will be
an unbreachable and unflawed fortress for human liberty.

Notes

[1]
Leoni also presents an effective critique of Hayek’s defense of
special “administrative courts.” If there is to be one law for
bureaucrats and yet another for ordinary citizens, then there
is no equality under the law for everyone, and therefore there
is no genuine “rule of law.” Here, as elsewhere, Leoni rehabilitates
the stringent rule of law championed by the great 19th-century
English jurist, A.V. Dicey, as contrasted to the weaker modern
versions of Hayek and C.K. Allen.

[2]
This contrasts to the mocking claim of “democratic” legislatures
– which coercively impose their rules upon dissenters –
to be expressions of the “common will.” To be “common,” Leoni
points out, the common will must be a unanimous one.

[3]
At one point, Leoni seems to believe that the requirement of unanimity
on the Supreme Court bench for any change over previous rulings
would approximately establish the “Leoni model” on the American
scene. But here all depends on the “zero point” at which a unanimity
requirement is introduced. In the present heavily State-ridden
world, a unanimity requirement for change would tend to fasten
our Statist regulations permanently upon society.

[4]
A critical error – in this and other places – is Leoni’s
tendency to make the test of criminality the subjective feelings
of participants, rather than their objective actions.

[5]
For an excellent critique of Hayek’s conception of coercion, see
Ronald Hamowy, “Hayek’s Concept of Freedom: A Critique,” New
Individualist Review, (April, 1961), pp. 28–31.

[6]
Thus, Leoni asserts that, in those fuzzy cases where criminality
or constraint cannot be objectively determined, there exists room
for coercive legislation on the subject. But surely the proper
– and libertarian – rule is that fuzzy cases be decided
in favor of “laissez-faire” – of letting the activity go
on.

Murray
N. Rothbard
(1926–1995) was the author of Man,
Economy, and State
, Conceived
in Liberty
, What
Has Government Done to Our Money
, For
a New Liberty
, The
Case Against the Fed
, and many
other books and articles
. He
was also the editor – with Lew Rockwell – of The
Rothbard-Rockwell Report
, and academic vice president of
the Ludwig von Mises Institute.

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