Liberty Matters

Bruno Leoni on Freedom and the Law: Basic Building Blocks for a Libertarian and Evolutionary Theory of Law

In his article on Leoni ("Exchanges, Claims, and Powers: About Leoni's Social Theory"), Carlo Lottieri puts the focus almost exclusively on Leoni's theory of law as an individual claim. This focus is justified, as this theory is one of Leoni's most original contributions to legal theory. But it deserves clarification, as I will try to do further in this contribution.
We recall, however, that Leoni developed viewpoints on a wide span of subjects related to law, politics, and economics. In Freedom and the Law he discusses topics such as law and constraint, the rule of law and Rechtstaat, certainty of law, law and democracy, law and economics. Most of his viewpoints have become common among classical liberals. His theory on law as a legal claim remains less known.
To contextualize somewhat Leoni's theory, it is useful to make the following remarks. First, besides being an academic, Leoni was a practicing lawyer. This experience clearly influenced his theory. Second, Leoni published at a time when Hans Kelsen dominated legal theory. According to Kelsen, the law consists of norms enacted and sanctioned by state authorities. Leoni's theory reads quite like an anti-Kelsen manifesto.
Analogies with free-market economics
Against Kelsen's theory of the law, Leoni tried to develop an explanatory theory of the law that would not place the state, but rather legally acting individuals ("parties"), at the center of legal evolution. As Lottieri remarks, Leoni perceived some analogies with free-market views on the economy. As economic interaction is not explainable by quantified relationships between macroeconomic aggregates, but rather by the choices and actions of entrepreneurs, capitalists, workers, and consumers, so is law not explainable by a static pyramid of norms, but by the actions of the users of law, i.e., the claiming parties.
Moral and legal claims
Leoni considered legal claims, not norms connected with coercion, as the basic elements of law. Thereby he made a fundamental distinction between a moral claim and a legal claim. For positivists the difference concerns merely state coercion. A moral claim is not backed by state coercion; a legal claim is. According to Leoni, a claim is legal when it is based on a common opinion of duty and consequently motivated by the expectation that the claim has a high probability of being satisfied by corresponding people. Leoni illustrated this by the following comparison. A thief, waiting for me in a dark alley and asking for my purse, has a claim but not a legal claim. There is no common opinion to back theft, and I, the victim, will not give in spontaneously. So the thief will have to threaten me with violence. A creditor, able to prove his IOU and claiming the liquidation of the debt from the debtor, has a legal claim. Common opinion backs his claim, for people generally believe that debts should be paid, and the probability is high that the corresponding party will comply. A legal claim involves a probability of being satisfied, though not a certainty. The corresponding party may deny the legitimacy of the claim or parts of it, triggering either further negotiations and settlement, or a trial before a court. The legality of the claim resides in the common opinion in society, i.e., that claims of that kind should be satisfied. Of course, Leoni did not deny the normative element (the Sollen, the ought) within the claims. It exists, however, only as a legal norm insofar as it is part of a claim accepted by the common opinion in society.
Nomocracy and telocracy
Leoni'stheory of law as an individual claim is obviously not applicable to all of what current public opinion considers "law." Most regulations in present social-welfare states are mere instruments of public goals adopted by governments. They have nothing to do with claims linking individuals in a relationship of reciprocity. Leoni's theory applies rather to what F. A. Hayek and Michael Oakeshott[30] distinguished as the rules of nomocracy, contrasted to the rules of telocracy. The first type of rules concerns general rules of conduct, preventing individuals from using destructive methods to attain their goals (killing, stealing, destroying, deceiving, defamation, etc.). This type of rules does not impose the pursuit of any specific goal on individuals. It respects the Kantian imperative to consider every individual as an end in himself. In contrast, the rules of telocracy aim to influence the behavior of individuals in order to make it compatible with the goals adopted by the government. Unlike nomocratic rules, telocratic rules are most often technical and detailed.
Roman law: driven by actiones
To provide some flesh and blood to Leoni's theory, we expand briefly on the evolution of Roman law. No legal scholar will doubt that the Roman law tradition is one of the pillars of the legal culture in the West if not the whole world, for the Western legal tradition spread to the world through colonialism and voluntary transplants.
The development and great sophistication of Roman law were not due to wise legislators who resembled Lycurgus. Roman law developed through a gradual bottom-up process of accumulating actiones, which allowed citizens to sue other citizens to enforce their claims. Although the Roman law developed initially from a primitive legal code, the "Law of the XII Tables," further development during the ensuing centuries occurred through an interaction of claims by citizens and the acceptance of these claims by the public authority. When citizens had a specific claim on another citizen, the praetor had to decide whether it could be allowed either within the framework of the already endorsed actiones or by the adoption of a new actio.[31] When the claim was deemed  actionable, a trial before a judge (apud judicem, litis contestatio) could be initiated. In practice the praetores adopted the actiones approved by their predecessors in their Edictum Perpetuum and the list of actiones became longer and longer. The body of Roman law was further enriched by the comments (responsa) of the jurisconsultes, who explored the meaning and range of the actiones in order to discover whether the concrete claim of their client could be fitted into the actio. These comments ( Digests) constitute by far the richest part of the Corpus Juris Civilis of Justinian.[32]
This bottom-up process fits quite well into Leoni's theory of the law as legal claims. Through their claims Roman citizens constantly tested the legal system on whether their claims were legal, i.e., were more or less compatible with common opinion in the Republic and therefore deserved enforcement after a judge (judex) sustained them.
We remark, however, that this process of incremental growth of Roman law did not start from scratch. This bottom-up process was possible because the original Roman Kingdom and the later Roman Republic were basically political communities of free farmers enjoying a strong protection of their dominium. This start in relative freedom and independence allowed the further bottom-up process. A bottom-up process is not possible when no operational "bottom" exists. In a totalitarian society of slaves, no independent actors at the "bottom" are present to trigger a further evolutionary process catering to a further sophistication of the nomocratic order.
This brief outline of the evolution of the Roman law tradition[33] shows that Leoni's theory is useful to explain the richness of such traditions. They do not owe their richness to the endless wisdom of a genius at the top, but rather to the ingenious interaction between citizens as claimants, lawyers, courts, and political authorities. Legal claims, sustained by common opinion about legality, were the ultimate drivers. The other actors were crucial to integrate these claims into the conceptual framework of the prevailing legal tradition and to make them consistent with already-embedded principles. The private-law traditions in the West were mainly, at the same time, citizens-as-lawyers' law. To a much lesser extent, they were the product of a central political authority imposing its views on society.
The mentioned historical examples, however, show also that a mere evolutionary theory is not sufficient to elaborate a consistent libertarian theory of law. In societies without liberty an evolutionary process of law will not develop because they lack independent actors at the "bottom." In unfree societies the interaction occurs between "dependents" (slaves, serfs, political clients, but also dependents of modern welfare states) and the master in order to get privileges. The evolution in unfree societies is not about widening and refining the rules of interactions among free individuals, but rather about power relationships among groups, factions, and cliques. This means that a normative libertarian theory of the basic principles of society has to supplement an evolutionary theory of law. In his quasi-exclusive reliance on the common opinion about the legality of claims, Leoni is probably too conventionalist. This critical remark, however, does not diminish at all the major esteem we should have for Bruno Leoni as one of the most prominent libertarian legal scholars of our time.
[30.] F. A. Hayek, Law, Legislation and Liberty, volumes 1-3 (Routledge and Kegan: London, 1973-1978); M. Oakeshott, On Human Conduct (Oxford: Clarendon Press, 1975).
[31.] For more details see J.C. Van Oven, Leerboek van Romeinsch Privaatrecht  (Leiden: E. J. Brill, 1948).
[32.] The Corpus Juris Civilis was enacted in 527-528 AD and consisted of three parts: the Codex, i.e., the collection of edicts by the Emperors; the Institutiones, i.e., a legal-theoretical treatise; and the Digestae, the collection of responsa by the jurisconsultes
[33.] A similar analysis can be made of the common law in England (see Arthur R. Hogue, Origins of the Common Law (Indianapolis, IN: Liberty Press, 1966). The development of the "law merchant" in Europe is another striking example of a bottom-up genesis of a body of sophisticated law. See Leon E. Trakman, The Law Merchant: The Evolution of Commercial Law (Littleton, CO: Fred B. Rothman & Co., 1983).