Thanks to thinkers such as F.A. Hayek and Milton Friedman, the economic case for liberty is strong. It’s the mainstream consensus that the private market does the best job of coordinating people and allocating resources than any other system. Markets also create new information that makes innovation possible. The operation of markets has lifted billions from poverty in recent years. We work to get the best from markets by keeping them unhampered by the dead hand of government regulation.
Markets must have basic rules, so law is necessary. But the best framework for lawmaking isn’t so clear. Leoni’s message was that the same spontaneous ordering that produces wealth in the economic sphere can produce the legal rules that let the economic sphere do its work.
It is our legacy in the Anglosphere to have law that arises from the wisdom of experience. In our proper tradition, as explicated by Leoni, judges “discover” law where common practice is so consistent that it merits that status. The civil law tradition in Europe, by contrast, regards law as a top-down exercise. They regard “law-givers” from Hammurabi to Napoleon as the ultimate source of legal rules.
That doesn’t mean that common law doctrines such as property, contracts, and torts are unsullied by modern, special-interest habits. To a greater or lesser degree, each of them are, and that merits reform. But bottom-up law-making seems more correctable than the major alternative, which is prescriptive government regulation. In legislation and regulation, the government itself is an interested party. We regularly see rules warped to maintain the relevance and grow the power of government for the sake of government power itself.
Common law judges (and other arbiters, including people acting on custom) generally gain by moving or keeping disputes off their dockets. George Mason University law professor Todd Zywicki ably distilled many of Leoni’s views in 2014, writing that common law “is largely insulated from the distorting rent-seeking and other distortions inherent in legislation.”
A tactical virtue of common law is that it provides opponents of top-down government regulation a complete story. If the one note in our songbook is that prescriptive government regulation and the administrative state are bad, we appear to skeptics as simple minions of a corporate sector indifferent to right and wrong. (Our skeptics can be quite skeptical, you know.)
There is a theory of justice and a system of rights that completes our story. Don’t hit other people. Don’t take their stuff. Keep your promises. These rules emerged bottom-up from the practical experience and wisdom of millennia.
People can manage their affairs, even drawing and administering the lines between right and wrong, without legislators and bureaucrats. Leoni asked whether individual freedom is fundamentally compatible with our present system of legislation as law. As Professor Zwicki says, “We must acknowledge this has become an even more relevant and pressing question today than it was 50 years ago.” RIP Bruno Leoni, a man with a timeless message.