Freedom and the Law

Summary

Freedom and the Law is a short book of legal and political philosophy by the Italian jurist Bruno Leoni, based on lectures he gave at Claremont Men's College in California in 1958 at a summer institute on freedom and competitive enterprise. It was published in English in 1961 by D. Van Nostrand in the William Volker Fund series in the humane studies. Leoni's question is how individual freedom depends on the way law is made. He begins by noting that freedom is a word with many meanings and asks what kind of freedom the classical tradition of the rule of law protected: chiefly freedom from constraint by other people, including the authorities. The heart of the book distinguishes two senses of the certainty of the law. In the first, law is certain when it is a precise written text, such as a statute or code, that anyone can consult. In the second, law is certain when people can rely over long periods on the rules that govern their dealings without fearing that a legislature will change them tomorrow. Leoni argues that modern legislation offers the first kind of certainty at the cost of the second, since statutes can be rewritten at any session. He contrasts this with law that is found rather than made: the private law of the Romans, developed by jurisconsults who described and discovered rules already present in the practice and expectations of citizens, and the English common law, developed by judges deciding particular cases. In such systems no single body can impose its will on everyone at once, and lawmaking resembles the spontaneous order of a market. Leoni then compares centralized legislation with centralized economic planning: just as a planner cannot know the prices and preferences of millions of people, a legislature cannot know the rules that millions would agree to. He questions whether representation can make legislation express the will of the people, since the more decisions are taken by majority vote, the more people are bound by decisions they opposed. He suggests that a common will can emerge only where individuals' claims and expectations converge, as in language or the market, rather than through majority decision. A chapter answers objections, including the worry that judges may themselves act as legislators. Leoni does not reject legislation entirely, but argues that its range should be kept much narrower than in the welfare states of his day. Later editions, from 1972 and in an expanded Liberty Fund edition of 1991, added essays and lectures from his later work.

Top Lessons

• Two kinds of legal certainty

  Leoni separates the certainty of a clear written rule from the certainty of a rule that will still be there in twenty years. A statute can be perfectly precise and still unpredictable if the legislature may change it at any session. The distinction gives students a precise tool for thinking about what citizens need from law.

• Law discovered, not made

  Leoni draws on Roman private law and the English common law to argue that much law can be found in the settled expectations of a people and stated by judges and jurists, rather than invented by a legislature. The idea has deep roots in the medieval belief that the king must keep the law of the land, not create it.

• Legislation and planning

  Leoni applies to lawmaking the economists' argument that a central planner lacks the knowledge spread among millions of people. A legislature, he argues, faces the same limit when it tries to set the rules of private life for an entire nation. The comparison links legal philosophy with economics in an original way.

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A work of legal and political philosophy with no medical subject matter.