Monday, May 7, 2018

Rothbard on Leoni

Part two of my clarifying commentary on the topic of Murray Rothbard, customary law and Bruno Leoni.

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.


  1. Another home run! Kudos.

    I think the best chance for libertarian outcomes is a decentralized system that accounts/allows for different standards of morality within given regions that arise "spontaneously"(which is deceptive in terms of time frame connotations- as we all know custom and morality develop over long time frames in human terms).

    Voluntary association and a voluntary acceptance(or not- in which case "move") of the prevailing regional morality and customs are exceptionally important in creating libertarian outcomes. ("When in Rome, do as the Romans do"....)

    I've always felt that libertarian minded people need a proverbial "Galt's gulch". There are several ways to get it, Louisiana purchase style for example...but in the "big game" it will be easier to try to buy "freedom" by property ownership IMO than convincing the masses of the merits of libertarian philosophy generally speaking.

    I think that's our best chance for success strategically speaking.(even though there's been some failure in that area)

    1. Nick

      I think about the lack of success in this area - a Galt's Gulch strategy. It suggests to me that those who lean libertarian find other things more important than libertarianism: job, weather, family, social conditions, etc.

      It also might suggest that those who lean libertarian are less desirous to live amongst libertarians than amongst people with whom they share other characteristics. It still strikes me that left and right libertarians (forgive my shorthand) have less in common with each other than the left libs do with progressives and the right libs do with cultural conservatives.

      As I have mentioned before, I would rather have Pat Buchanan as a neighbor than many libertarians who show up at the various conventions and such.

    2. "It suggests to me that those who lean libertarian find other things more important than libertarianism: job, weather, family, social conditions, etc."

      It's hard to say because there's currently no place for anyone to go with a more libertarian structure.(easily anyway, Switzerland, Monaco, et al regulate their borders very well)

      "It also might suggest that those who lean libertarian are less desirous to live amongst libertarians than amongst people with whom they share other characteristics. "

      It's a huge undertaking, lined with a lot of risk and would need a fundamental operating charter that was properly written.

      You'd need the funds to both acquire the space and setup a community on an HOA type basis and then have to find a sovereign willing to relinquish all rights to said land after acquisition.

      I think it's such a monumental task that it's become a "non-starter" for most libertarian minded folks. Yet, I still believe it would be easier than convincing enough US citizens, for example, that libertarianism is the way to go over our hybrid socialist system we currently live under.

      Of course, there's always economic collapse, but who knows what that will usher in. It could go further down the road of authoritarianism.

      To your point though, I have to agree that I'd rather live next door to Pat Buchanan than some libertarians- but a properly written charter should be able to deal with the cultural issues. I'm reminded of the Swiss Canton that didn't allow a women citizenship because she was "too annoying".- LOL! (HT to LRC)

      Unfortunately, the Canton was overruled:

      I find the following quote sums it up well:

      "Tanja Suter, president of the local Swiss People’s Party, claimed Ms Holten had a “big mouth” and residents had not wanted to give her the gift of citizenship “if she annoys us and doesn’t respect our traditions”."

      They are very close to combining freedom of association and private property in cultivating/protecting their culture...even if Canton's aren't fully privatized or's an example of what a fully privatized organization could look like if sovereign.

    3. Nick, the "projects" I have in mind, for example The Free State Project, Doug Casey's Argentina getaway, the guy who found a spit of land between Serbia and Montenegro (or some such place), etc.

      I don't believe many libertarians have moved to any of these - sure, maybe not pure liberty, but the more like-minded people, the better chance to change the rules.

      So, why have't we all moved to New Hampshire?

    4. "So, why have't we all moved to New Hampshire?"

      I think because we all know it's not a libertarian society...(let the onslaught of comments crying foul begin)

      I actually had the wife call Doug Casey's project in exploration the other year because we both speak Spanish(she's fluent, I'm passable) and spent time in C. and South America. The timing and costs just aren't right(for now).

      I think though if competition can arise from similar communities and opportunities in said communities rise there's a chance we could see a breakthrough.

      Man wallowed at subsistence level(and still does in some areas of the globe) for most of his time here on takes time for true "progress"(I hate using that word).

    5. One other point, Casey is relying on the Argentinian government's incompetence in "leaving him alone"- so it's still not a true private property thing yet. In fact, I can't remember if it was his development or the Chilean experiment that had some issues with squatters/water rights and historical custom related to access thereof by the local populace.

      I expect many more failures from such endeavors before success.

    6. Yeah, in retrospect after thinking about your point a little more I'd say "Job" is probably the big one- or let's just say economic "opportunity".

    7. "So, why have't we all moved to New Hampshire?"


      This hints at one of the main "flaws" of libertarians. "You cannot herd cats".
      As almost fierce independents libertarians can never agree on anything, and have NO IN-GROUP PREFERENCE.

      Forget N.H., just create a virtual libertarian paradise, ruled by NAP, where libertarians will only trade with fellow libertarians. Nope, did not happen, and any attempts in that direction are dead within a few years.

      If libertarians truly wanted to change the world, they would use in-group preference to achieve it. Its the only thing that works. Instead most libertarians are only virtue signalling.

      Even the giants often withdraw into theoretics, seemingly wanting to prove the impossible platonic libertarian ideal from first principles, rather than creating a workable living society that follows their proposed rules (law).

      Since Law is the subject: sure defining the perfect law is all fine and dandy, but what about the people that implement it? What if this group of people is an in-group that looks after their own interest? what if this in-group stays in power for hundreds of years? What use is law if an elite in-group is the one to wield it?

      OK, I admit it, I am ranting... sometimes the frustration needs to go somewhere... I should be fine for the next months now...

    8. So instead of "towards a free society," this is tending more towards a "free" gated community in some foreign country?

      In what way exactly does moving to e.g. Argentina, based on the claims of some dubious real estate pushing "anarchast" diminish the power of the (US) State?

      Sounds like flight instead of fight.

    9. "Sounds like flight instead of fight."

      Sometimes the best thing to do is "flight".

      I'm sure everyone here is thankful that Ludwig Von Mises decided to flee the Nazi's.

      It's important to know when to fight, or not. And to further expand on Rien's point about "in group preference", there's nothing that solidifies that more than a founding charter/contract, to which people voluntarily subscribe(or not, and be on their way) that may include a "custom" disclaimer.

      "So instead of "towards a free society," this is tending more towards a "free" gated community in some foreign country?"

      I think you're not seeing that a free society can and probably should have a "gate", border, etc. In fact, I'd say it's a prerequisite for property rights on the most fundamental basis.

      @ Rien

      "where libertarians will only trade with fellow libertarians"

      That doesn't sound very libertarian to me, but I may be missing a greater point. Even "gated communities" need trade with the outside world.

      In summation, I'll also reinforce per my original statement that it's hard to claim that libertarians have preferences for things like weather or people over "libertarianism" when there appear to be no easy libertarian options in the world.

      That includes "jobs", as it's really not an option to move to a libertarian community(if one were to ever appear) and then starve.

      I guess maybe you could say I prefer to live under other systems of governance over starvation-lol, but my point is that because there aren't many libertarian options in the world it's hard to quantify people's preferences over libertarianism in general.

    10. “…there's nothing that solidifies that more than a founding charter/contract, to which people voluntarily subscribe…”

      Nick, I don’t know that this is true. There may be some way to read into medieval European history to make this statement, but it is a stretch. I am not even comfortable with hinting at it, but if I think about it enough I might find a thin string.

      I have been watching events in Armenia, wondering if the US and west would use the opportunity to turn it into a Ukraine. Armenia is geographically located in a place that the US would love to destabilize (near Russia, Russian bases, a border with Iran) – maybe more valuable for this end than was Ukraine.

      But there is something different: a 3000 year remembered history; 1700 years of Christianity; surrounded by enemies – religious or otherwise. Most recently, and perhaps most important, a nation that survived a genocide – just a couple of generations removed.

      I don’t put anything past the possible when it comes to the USG destroying that which it chooses to destroy, but there is something that “solidifies” Armenians, it seems to me, that is far more important than a “founding charter/contract, to which people voluntarily subscribe.”

      Of course, there are internal divisions – as events of the last couple of weeks have made plain for the world to see. But, like a family squabble, they seem to treat this as a family issue. No one was “voluntarily” born Armenian, yet the people seem unified. It is difficult to see the nation torn apart the way Ukraine (with Poles, Russians, Catholics and Orthodox) has been.

      It is difficult to see people sticking together for 3000 years because their ancestors 100 generations removed signed some charter. Something else “unifies” people, far more solidly.

    11. " Something else “unifies” people, far more solidly."

      I don't dispute this, but for me it's not an "either/or" proposition.

      I have a mentor in business that once made the made the following statement to me(paraphrasing):

      "Contracts really just clarify an understanding between parties."

      It was a conversation about how some people get offended when suggesting them in business dealings when the other party might feel it's not necessary(for whatever reason).

      My point being is that I agree with you about the nature of blood & culture bonds, but contracts/charter reinforcing rarely hurt and more often help.

    12. @nick

      "That doesn't sound very libertarian to me, but I may be missing a greater point."

      I am assuming that doing business with people that share our morals is better than doing business with people that do not share our morals.
      Why would you even want to do business with immoral people?

    13. @nick

      Btw: I was not suggesting no outside trade, but a (virtual) platform where we can be reasonably sure that when we do business, it will be with fellow libertarians.

    14. "Why would you even want to do business with immoral people?"

      That's a loaded and complicated question.

      It deserves more thought on my part and I'm not fully prepared to hash it out, but I'll say that there are many subjective standards by which people might feel on another are "immoral".

      For example, I find the practice of cutting off a childs hand when he steals as immoral and reprehensible.

      Many such places are rich in oil reserves- maybe I want to buy oil from other people as a "protest", but what if they are far and away the least expensive? Going further, what if by not buying oil from them I don't hurt their system of governance, but instead it harms those people producing oil, some of which don't want to see a child's hand cut off?

      I'm not taking your questions lightly, but I do question the notion of restricting transactions to include people that you feel may have elements of "immorality" in their systems of governance, culture, etc.

      I will have to think about it more. It's a very complex topic.

      I just don't see a society that limits trade as libertarian per se(personal choice is another matter however). But then again, if a charter made such a distinction and people voluntarily agree to it, who am I to protest?

    15. @nick

      The question is indeed provocative, and I admit that it arose rather spontaneously and I have no answer prepared myself. I will prepare one however, and maybe when B.M. spends a post on it we get an opportunity to discuss it.

    16. Rien / Nick

      A difficult topic. One aspect might be addressed via the NAP, another aspect could be addressed morally. But the line between the two is very thin and very gray.

      Via the NAP: I recall very early in the bionic days writing about Richard Maybury's advocacy of investing in defense contractors. This is something not comprehensible to me as a libertarian.

      Conversely, investing in companies that sell tobacco - some would consider this immoral, yet I find no violation of the NAP in this.

      Morally: A real continuum here. On one level, just about every transaction we are involved in offers gain to someone that many people might consider immoral (and I am not speaking of the taxman).

      Even if the local shopkeeper is an upstanding individual, many of the products on his shelf come from someone who is gaming the system or somewhere where the system is corrupt.

      Buying anything from many major corporations offers even more moral questions.

      Then there is the aforementioned tobacco (and I will add liquor, porn, etc.) industry. I suspect any group of 100 people will offer the full spectrum of the morality or immorality of these and the morality or immorality of doing business with or investing in these.

      If you feel this is worth a broader discussion, let me know. I will think through it more, maybe read a couple of things and write a post on this specific issue.

    17. BM, I have known the NAP now since about 2000/2001. And I have read a great many articles, some books and listen to many podcasts. And yet, I do not remember hearing about this subject. So either it is something so simple that there is no need to bring it up, or it has been overlooked.

      I tend towards the later. This may be terra incognita.

      I for one, would love some thoughts on it.

      Idea: a morality stack. I.e. every person is responsible for the people he "morally forwards" through his actions. The shopkeeper is thus morally responsible for the articles he offers for sale.

      We can see this principle at work in calls for boycots: boycot a certain chain because they sell T-shirts made with child labor. Even though the T-shirts may be only 1% of their revenue.

      Advertisers will pull their ads from a TV station if that station has a presentator that did something wrong.

      So there seems to be precedence for assigning morality to people for the people they do business with.

    18. "Via the NAP: I recall very early in the bionic days writing about Richard Maybury's advocacy of investing in defense contractors. This is something not comprehensible to me as a libertarian."

      I didn't become a libertarian until around 2006(as a result of Ron Paul) and I had spent YEARS calling on British Aerospace and around that time I landed them as a customer....after a year or so I realized I was a hypocrite and had to drop them as a customer as I already had "blood" on my hands(without realizing it at the time, I'm a little slow sometimes) after re-evaluating my life in the context of libertarianism.

      If I would have stayed with them I'd have been filthy was a painful decision for me as I have young kids to support.

      I made the right one, but when I have one of my "down" moments as a small business owner and the kids expenses/activities are piling up I can't help to think about the money I'd have made had I sold my soul...

      There's another prominent libertarian that has given investing advice that included MIC investing and obviously I guess it doesn't bother him.


      I'm not sure it's a topic I want to discuss personally, but I'd certainly appreciate reading others thoughts on the whole matter, so if you're inclined I think it's an interesting topic.

    19. Hi Nick,

      That Mises/Nazi thing was a rather funny comparison. Thanks for the laugh!

      "Sometimes the best thing to do is "flight".

      You didn't answer the question Nick, so I'll ask again:

      How does moving to Argentina diminish the power of the (US) State?

    20. "You didn't answer the question Nick, so I'll ask again:"

      First, I think you should ask yourself what principle you think justifies a positivist charge that I be required to "diminish the power of the (US) State".

      I reject your implication to start. (for a variety of reasons I've a feeling we'll get to later)

      Regardless, my movement from the US to Argentina deprives the US State of my income in answer your your positivist charge.

      Lastly, what specifically did you find "funny" in my comparison regarding Mises leaving the Nazi empire? I'm truly curious to understand your sense of humor. Maybe once I understand what you find funny in the comparison we can have a discussion and all enjoy a good laugh.

  2. "I cannot let Rothbard off scot-free"

    Nobody is asking you too. Certainly Rothbard would appreciate and encourage your intellectual independence and your honest search for the truth. =)

    "Perhaps it took some of these non-libertarian laws for society to function relatively peacefully and relatively supportive of life and property."

    Or perhaps it was these non-libertarian aspects of the law which assisted in the germination of the statist seed planted by Protestantism's Doctrine of Passive Obedience and the reemergence of Roman Popular Sovereignty in the high middle ages through the Enlightenment. Perhaps without this seed of legitimized aggression the progeny of the middle ages would have rebelled against or otherwise rejected the encroachment of centralized aggressive authority.

    "All varieties of (government) interference with the market phenomena not only fail to achieve the ends aimed at by their authors and supporters, but bring about a state of affairs which — from the point of view of the authors' and advocates' valuations — is less desirable than the previous state of affairs which they were designed to alter. If one wants to correct their manifest unsuitableness and preposterousness by supplementing the first acts of intervention with more and more of such acts, one must go farther and farther until the market economy has been entirely destroyed and socialism has been substituted for it." - Mises, Human Action

    I think the above quote is also true with respect to interventions in the social sphere.

    Here's another jewel from Mises that I think we both can appreciate:

    "Progress of any kind is always at variance with the old and established ideas and therefore with the codes inspired by them. Every step of progress is a change involving heavy risks. - Mises, Bureaucracy, p. 67

    1. "Or perhaps it was these non-libertarian aspects of the law..."

      Fair enough. The ones I am thinking of include usury (a topic rather complex) and the right of the property owner to destroy his property.

      It seems to me (but I am greatly underqualified in this) that the Reformation came about because of legitimate protests against the Church that went unanswered for too long. I would have to read this again, but I do not recall Luther's list including such topics as the ones I have mentioned.

    2. Hi BM,

      "It seems to me (but I am greatly underqualified in this) that the Reformation came about because of legitimate protests.."

      Perhaps grab a copy of Eamon Duffy's "The Stripping of the Altars"?

      Even if you'd disagree with the author's main conclusions, it's still a joy to read.

    3. Yeah I think Luther was against the selling of indulgences, the materialistic aspects of the church, and the corrupt behavior of the clergy. I would not be surprised if most of his criticisms were well founded, but as is often the case, his "solution" ended up being worse.

      To me it's sort of like how socialists and communists slander liberty for its materialism or its consumerism, meanwhile their whole philosophy is about consumerism (redistribution of wealth) and materialism (this world is all there is, there's no human soul, and no God). Marx had some legitimate criticisms of the economic model of his time.

      He was right that there are and have always been to some degree the exploiters and the exploited classes, but as Hoppe would say, he got his class analysis all muddled up and consequently his work authorized some of the most exploitative regimes in all history. Its not a struggle between workers and capitalists, but rather the social, peaceful class and the political, aggressive class.

      Here's a wonderful talk Hoppe gave on the subject.

      Throughout the middle ages heretical Christians criticized the church for its indiscretions and its extravagances, but often these movements, once a taste of power was achieved, were much more tyrannical and corrupt (the leaders often ended up believing they were God and thus incapable of committing sin). It seems ubiquitous of the groups outlined in Norman Cohn's book "The Pursuit of the Millennium" that these groups contained strong libertine (free spirit - moral degeneracy) and communist (redistributionist /"common" ownership) impulses.

      Protestantism was probably just the most respectable and successful of these groups, so perhaps it should be no surprise that the seeds of socialism came along for the ride.

    4. "I would not be surprised if most of his criticisms were well founded, but as is often the case, his "solution" ended up being worse."

      Luther was apparently saddened / upset by the direction taken after his spark; he had not intended what we now call the Reformation.

      He was also not the first to raise similar complaints.

      It may have been before your time here, but the following touch on aspects of this history:

      Also, look in the bibliography tab for entries under:

      John C. Rao, editor: Luther and His Progeny: 500 Years of Protestantism & its Consequences for Church, State, and Society

    5. I just put that book on one of my Amazon wish lists! I'm always looking for the definitive (BS dispersing, de-bamboozling, truth approaching...) books on subjects pertaining to liberty and history. I collect them, so that even if I don't get around to reading them all the way through, I'll at least have them in my family to pass down to my children. Would you say that the John C. Rao's work you mentioned is this kind of book on Luther and Protestantism?

      Do you have an opinion on Rodney Stark's book "The Victory of Reason: How Christianity Lead to Freedom, Capitalism and Western Success?" This one looks interesting to me. I have not read it, nor do I own it, but after reading some of the introduction available on Amazon, I can say that he contends that: capitalism was not born of Protestantism or the Protestant Work Ethic, since capitalism preceded it by centuries under the Catholic Church's watch; and the idea that the progress of the West happened despite religious barriers is absurd - it happened precisely because of the social foundations, steeped in reason and logic, laid down by the medieval Christian church. I think I would agree with all that.

      "To sum up: the rise of the West was based on four primary victories of reason. The first was the development of faith in progress within Christian theology. The second victory was the way that faith in progress translated into technical and organizational innovations, many of them fostered by monastic estates. The third was that, thanks to Christian theology, reason informed both political philosophy and practice to the extent that responsive states, sustaining
      a substantial degree of personal freedom, appeared in medieval Europe. The final victory involved the application of reason to commerce, resulting in the development of capitalism within the safe havens provided by responsive states. These were the victories by which the west won." - Stark

      Interesting. I did notice that he mentions both "egalitarian" and "democratic" in a favorable light, so perhaps there are some things I would disagree with in here.

    6. ATL

      Regarding the book edited by Rao, it is in a similar vein. I will suggest that you read one or two of my posts on this book and then you can better decide if it is worth the investment.

      I have not read Stark's book, but I agree with the premise presented that capitalism in the west has its roots in a time and tradition well before the Reformation.

  3. "The twin of the free market economy, then, is not a democratic legislature ever grinding out new diktats for society"

    Speaking of the devil (democracy), I've been reading the book in the link below for a few weeks now, and I think you would very much enjoy it. It is written by an Austrian Catholic monarchist who critiques liberalism (for its egalitarianism) and especially democracy. His main thesis seems to be that monarchy is a much better vehicle for the preservation of liberty than is democracy. He certainly shares your view of the Reformation. The book is full of interesting quotes by other notable thinkers as well.

    "Liberty or Equality" by Eric Ritter von Kuehnelt Leddihn