Liberty Matters

Towards a “Common Law of Nature”?


Leoni was a philosopher of law, and at the same time he was a political scientist and a scholar seriously interested in many discussions about economic theory, especially in the Austrian tradition. When some years ago I had the opportunity to work in his personal library in Turin, I realized that the two- most used and even "consumed" books in his collection were Human Action by Ludwig von Mises and Man, Economy, and State by Murray N. Rothbard. This is not surprising if we consider his quasi-anarchical vision and the fact that his research was grounded in the idea that the Austrian perspective helps us to better understand how law and politics emerge from individual interactions.
In a time dominated by normativism, mainly in the version elaborated by Hans Kelsen, Leoni's research project aimed to restore legal realism, explaining that juridical and political orders start from the actions of individuals.
Leoni focused on the special actions of individuals claiming specific behaviors from other people. In any positive legal system, "claim" has a peculiar role, but Leoni attributed a new meaning to this term. In his theoretical framework, a claim is legal not because it is supported by some legislative texts (as in the Kelsenian system), but because a large part of population shares interests, values, and preferences. We don't have claims because there is legislation; we have legislation (or other legal orders based on scholarly works, case-studies, etc.) because we have claims; and these claims produce effects. Consequently, following Leoni's approach, when we have an evolution of society, we start to recognize new claims and, as a result, different rules.
In my view, here is where we perceive the strength and weakness of Leoni's theory. On the one hand it is true that the positive legal order is largely the consequence of a "state of affairs," but on the other we have to understand that when a dispute about the norms arises, usually there is also the need to define what is just, not only what is accepted or imposed.
Boudewijn Bouckaert remarks that we cannot understand Roman law if we don't realize that society was composed of individuals who were owners, largely protected by their property and able to negotiate. In the words of Bouckaert, "a bottom-up process is not possible when no operational 'bottom' exists." This seems to me quite crucial for many reasons.
When you look at Leoni's theory as a description of what law is, it seems evident that his evolutionary schemes are much more apt to explain a pluralistic society (where no person or no group dominates all) than a society based on the decisions of a few people. And even when we consider the prescription, it seems evident that Leoni's thesis – promoting the libertarian spirit of legal systems based on judges and lawyers – can be contradicted by those societies where that "bottom" doesn't have autonomy or where it is pervaded by illiberal ideas. In similar contexts it is quite problematic to have a libertarian order protecting individuals.
In other terms, not only do we need some fundamental norms (essentially natural and not only historical), but they are better discovered and implemented if power is divided and dispersed.
For this reason Bouckaert underlines the importance of Leoni's contribution to classical-liberal legal theory and, at the same time, remembers the need for some principles because a pure realistic approach identifying human behavior and legal rules can open the door to an unjust society where some people tyrannize others. When "the legality of the claim resides in the common opinion in society" (as Bouckaert summarizes Leoni's idea), we don't have any safeguard against the arbitrary will of the majority and sometimes also against the decisions of the most influential and powerful minority.
Law largely needs practical wisdom (oriented to foster cooperation and reduce conflict ) supported by a highly specialized knowledge, and at the same time it implies a horizon of justice. But when we talk about justice and principles, we are immediately forced to evoke the tradition of natural law and what Edward Coke in 1628 called the "common law of nature" (in the first volume of the First Part of the Institutes of the Laws of England).[34] For that great English jurist, the historical development selecting the rules, from precedent, is an imperfect but reasonable way to approach what is just per se.
A confirmation of the need for principles comes from the fact that we have obligations which are the consequence of our choices and decisions (when we enter contracts), but also of other, extra-contractual obligations. If I am a tenant, I have to pay the rent on the flat, but at the same time I cannot aggress against my neighbors because they have rights (whatever the legal system says or doesn't say).
I agree with Edward Stringham when he remarks that the "Leoni model" of a society emerging from real exchanges can find a concrete application in the private governance of communities and cities based on mutual agreements. However, Leoni's idea that the rules are the result of converging claims does not refer only to the contracts, but also to the general legal order.
Stringham underlines that in some cases people build political institutions using contracts and, in fact, by engaging in market exchanges. The history of the institutions conceived in the spirit of "clubs" shows that sometimes our negotiations produce new orders. But even in these cases the parties to the game have to be recognized as legitimate actors: free, able to negotiate, legitimate owners of their goods, and so on. The contract generates some obligations, of course, but before the contract, we need some previous obligations as a condition of fair play by the participants.
For this reason I am unsatisfied by the fact that Leoni tried a sort of "reduction," explaining the entirety of social life by the exchange relationship. Trades and contracts are crucial in economic life, but for Leoni exchange also generates law and politics.
As Peter T. Leeson says, exchange is both consensual and beneficial. And at the same time, Leeson remarks that what is beneficial is not necessarily also consensual. For instance, many economists suggest that some decisions (i.e., coming from the government) can improve the condition of all even if they imply violence or, more simply, avoid exploring if all people agree to an imposed arrangement.
Leeson suggests that the metaphor of "market exchange," when used for law and politics, can be misleading because it can be pushed to regard as consensual something that only implies net benefits for the participants.
Moreover, what can we exchange? Basically, we exchange titles to property and services. So when Leoni talked about the exchange of claims, his language was only metaphorical (as Leeson remarks) because the act of claiming something from someone else is not an object we can trade. Leoni's idea probably is that in social negotiations we reduce the number of our claims in our relationships with others (who do the same), but this interpretation doesn't show a real trade between specific people; rather, it shows a social convention involving a large population when it becomes majoritarian.
This also can help us to understand that Leoni's theory can be much more effective when we refer to small groups. In other terms, "size matters" because it is more reasonable to imagine "exchanges" of claims and powers in small communities, and even in historical contracts, than in large nation-states. In the Second Treatise of Civil Government John Locke described the birth of old political compacts (he referred to Rome and Venice) with the idea that people can organize communities as they build commercial activities, avoiding coercion and aggression.[35]
When there are "exchanges of power" as those described by Stringham and we have people signing specific contracts limiting their autonomy and generating authorities, in fact we are not anymore in the realm of politics because we are talking about market exchanges. Some people dispose of their titles in order to have a better arrangement of their property: the same situation we have, for example, when two small companies merge into  a larger one.
It seems to me that we are coming back to the starting point: we are leaving metaphorical exchanges of claims and powers and are talking again about economic exchange protected by the old principles of private law. But what remains quite problematic, at the end of this exploration, is how we can define the legitimate rules charged to defend our liberty and how we can do it without any reference to fundamental ethical principles (even if, of course, there is a clear-cut distinction between ethics and law) and by ignoring that any real legal system refers to some basic morality, as Lon Fuller – among others – effectively highlighted in some of his writings.
[34.] Edward Coke, First Part of the Institutes of the Laws of England, vol. I, 1628 (anastatic edition: Garland, New York 1979), p. 138.
[35.] John Locke, Two Treatises of Government, ed. Thomas Hollis (London: A. Millar et al., 1764). . Of Civil Government, CHAP. VIII. Of the Beginning of Political Societies, §. 102.:
He must shew a strange inclination to deny evident matter of fact, when it agrees not with his hypothesis, who will not allow, that the beginning of Rome and Venice were by the uniting together of several men free and independent one of another, amongst whom there was no natural superiority or subjection. And if Josephus Acosta's word may be taken, he tells us, that in many parts of America there was no government at all. There are great and apparent conjectures, says he, that these men, speaking of those of Peru, for a long time had neither kings nor common-wealths, but lived in troops, as they do this day in Florida, the Cheriquanas, those of Brasil, and many other nations, which have no certain kings, but as occasion is offered, in peace or war, they choose their captains as they please, l. i. c. 25. If it be said, that every man there was born subject to his father, or the head of his family; that the subjection due from a child to a father took not away his freedom of uniting into what political society he thought fit, has been already proved. But be that as it will, these men, it is evident, were actually free; and whatever superiority some politicians now would place in any of them, they themselves claimed it not, but by [285] consent were all equal, till by the same consent they set rulers over themselves. So that their politic societies all began from a voluntary union, and the mutual agreement of men freely acting in the choice of their governors, and forms of government.