Part two of my clarifying commentary on the topic of Murray Rothbard, customary law and Bruno Leoni.
Review of Bruno Leoni's Freedom and the Law, by Murray Rothbard.
For here at last is a political scientist with strong libertarian inclinations.
This is how Rothbard introduces Leoni. In part one, I demonstrated – through Rothbard’s writing – that one can find in Rothbard’s examination of libertarian law much that conforms to tradition and customary law. Unlike the impression given by Carlo Lottieri, Rothbard is both familiar with and respects much that is offered by a study of Leoni.
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.
In other words, a recognition of the impossibility of a minarchist state.
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.
I think of customary law as something that precedes even judge-made law, but this issue is clarified by Rothbard:
“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.
Pointing to one of the primary deficiencies of legislative law when compared to law based on custom and tradition, Rothbard offers:
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.
This is because custom and tradition evolve rather slowly and naturally; legislation comes with an army of thousands – if not millions – working to turn evolutionary law into revolutionary law.
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.
The twin of human action in the economy is human action in the law. In other words, just as markets – when left free – bring out the best in “goods,” (for example, specie as money), perhaps markets – when left free – bring out the best in law. Call it spontaneous order: of human action but not human design.
Rothbard does offer some criticism of Leoni’s work:
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.”
I don’t believe this was an “accident.” It seems to me that the customary law that survived was law that was conducive to man’s thriving. It is also certainly the case that in the west, customary law of the Middle Ages was law tempered not just by the “old,” but also the “good” – with good being found in the intersection of Christian ethics and the idea of Germanic honor. The “accident” might be that these two found each other at just the right place and time.
Leoni offers several different criteria for the content of the law, but none are very successful.
It is on this issue that Rothbard offers, perhaps, his strongest criticisms of Leoni. Briefly, Leoni offers concepts such as unanimity, the negative Golden Rule, the absence of coercion except against those coercing (which, per Rothbard, Leoni does not properly define). Rothbard, of course, defines the proper criteria for the content of law to be the non-aggression principle.
I cannot let Rothbard off scot-free:
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…In practice, this means taking the largely libertarian common law, and correcting it by the use of man’s reason…
There is that word again…”reason.” How about relying on the reason of countless generations, and placing the burden of proof on the “new,” instead of dismissing the old?
There were laws in the Middle Ages that certainly cannot be described as “libertarian.” Yet, overall, the law was infinitely more libertarian than anything that followed the establishment of so-called sovereign rulers and certainly the Enlightenment.
Perhaps it took some of these non-libertarian laws for society to function relatively peacefully and relatively supportive of life and property. Not to suggest that such laws might not have evolved, but only to suggest that countless generations carry a wisdom that no amount of “reason” by today’s judge can overcome easily.