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Freedom and the Law the William Volker Fund Series in the Humane Studies Freedom and the Law The William Volker Fund Series in the Humane Studies EPISTEMOLOGICAPLROBLEMSOF ECONOMICS by Ludwig von Mises THE ECONOMIC POINT OF VIEW by Israel M. Kirzner ESSAYS IN EUROPEAN ECONOMIC THOUGHT Edited by Louise Sommer SCIENTISM AND VALUES Edited by Helmut Schoeck and James W. Wiggins A SOCIALISTEMPIRE:THEINCASOF PERU by Louis Baudin RELATMSM AND THE STUDY OF MAN Edited by Helmut Schoeck and James W. Wiggins FREEDOM AND THE LAW by Bruno Leoni Freedom and the Law by BRUNO I,EONI D. VAN NOSTRAND COMPANY, INC. PRINCETON, NEW JERSEY TORONTO LONDON NEW YORK Bs_ • Do• __o, o'•;; " ' ".I I.'. * "" .... , . I• I• • • "'" " :!':.i:: ,%" """: , ",:" "i] * :•e o , i..!:,::.,,..:,. : D. VAN NOSTRAND COMPANY, INC. 120 Alexander St., Princeton, New Jersey (Principal o_ce) 24 West 40 Street, New York 18, New York D. VAN NOSTRAND COMPANY, LTD. 358, Kensington High Street, London, W.14, England D. VAN NOSXXANV COMPANY (Canada), LTD. 25 Hollinger Road, Toronto 16, Canada Copyright, _ 1961 by WILLIAM VOLKER FUND Published simultaneously in Canada by D. VANNOSTRaNDCOMPANY(Canada), LaD. No reproduction in any form of this book, in whole or in part (except /or brief quotation in critical articles or reviews), may be made without written authorization from the publishers. K 230 PRINTED IN THE UNITED STATES OF AMIIRICA ": . .'_:..',. .o ,'.: .- ...:.... ":It b: tt.: i : :" :.'. J¢..........*p t t*t- t •i • t *t .tt. m 7**:' :.,:.:* Foreword Beginning in 1954, a series of six Institutes on Freedom and Competitive Enterprise was held at Claremont Men's College, Claremont, California. The Institutes were designed to present a program of graduate lectures in economics and political science of interest to the teaching faculties in the social sciences at colleges and universities. At each Institute each of three dis- tinguished scholars presented his analysis of freedom as the source of economic and political principles; an analysis of the develop- ment of the free market mechanism and its operation; and a study of the philosophical bases, characteristics, virtues, and defects of the private enterprise system. Approximately 30 Fellows were selected for each Institute from a long list of applicants and nominees--professors and in- structors in economics, political science, business administration, sociology, and history; a few research scholars and writers, and even a dean or two. Some 190 Fellows participated in the six Institutes, representing 90 different colleges" and universities located in 40 different States, Canada, and Mexico. g' Lecturers included: Professor Armen A. Alchian (University of California at Los Angeles); Professor Goetz A. Briefs (George- et_ town University); Professor Ronald H. Coase (University of Vir- ginia); Professor Hen'ell F. DeGraff (Cornell University); Pro- lessor Aaron Director (University of Chicago); Professor Milton 0. Friedman (University of Chicago); Professor Friedrich A. Hayek (University of Chicago); Professor Herbert Heaton (University of Minnesota); Professor John Jewkes (Merton College, Oxford); eq Professor Frank H. Knight (University of Chicago); Professor , Bruno Leoni (University of Pavia); Dr. Felix Morley (former President, Haverford College); M. Jacques L. Rueff (Chief Justice, European Coal-Steel Community, Court of Justice); Professor So far as it was possible to do so, each Institute had at least David McCord Wright (McGill University). 59i33 .i vi Foreword one lecturer representing the European scholarly tradition in an effort to increase both the quantity and the quality of interna- tional scholarly communication. The lectures comprising this volume were delivered by Professor Bruno Leoni at the Fifth Institute on Freedom and Competitive Enterprise, June 15 to June 28, 1958. Bruno Leoni is Professor of Legal Theory and the Theory of the State at the University of Pavia, Italy. He is also Chairman of the Faculty of Political Science, Director of the Institute of Political Science, and editor of the quarterly review II Politico. He resides in Turin, where he is President of the Center of Methodological Studies and a practicing lawyer. Since 1949 he has been a contributing columnist to the Italian financial and economic newspaper 24 ore of Milan. During the first semester, 1960-61, he has been the Distinguished Visiting Professor at the Thomas Jefferson Center for Studies in Political Economy at the University of Virginia. The lectures contained in this volume were delivered in essentially their present form with only a minimum of editing in the interests of written rather than oral presentation. No effort has been made to bring them up to date by revising refer- ences to materials that have since been made more widely avail- able than they were at that time (1958). The response of the Fellows participating in the 1958 Institute was so enthusiastic that efforts were made to publish the lectures, thus preserving them in more permanent form. Those of us who had the pleasure of hearing these lectures in person and of discussing the ideas contained in them with Professor Leoni and our other colleagues in the seminars at the Institute, sincerely hope that some small part of the investigative urge, the scholarly repartee, and the intellectual atmosphere of good fellowship generated by them has been transferred to these printed pages. ARTHUR KEMP Director of the Institute on Freedom and Competitive Enterprise Claremont Men's College Claremont, California Table of Contents PACE Introduction 1 1 WHICH FREEDOM? 25 2 "FREEDOM" AND "CoNsTV_XNT" 43 3 FREEDOMANDTHE RULE OF LAW 59 4 FREEDOMAND ThE CERTAXNTYOF THE LAW 77 5 FREEDOMAND LEGISLATION 97 6 FREEDOMAND REPRESENTATION 114 7 FREEDOM AND THE COMMON WILL 135 8 SOME DIFFICULTIES ANALYZED 156 CONCLUSION 176 NOTES 191 INDEX 197 vii t Introduction It seems to be the destiny of individual freedom at the present time to be defended mainly by economists rather than by lawyers or political scientists. As far as lawyers are concerned, perhaps the reason is that they are in some way forced to speak on the basis of their professional knowledge and therefore in terms of contemporary systems of law. As Lord Bacon would have said, "They speak as if they were bound." The contemporary legal systems to which they are bound seem to leave an ever-shrinking area to individual freedom. |i Political scientists, on the other hand, often appear to be in- ] clined to think of politics as a sort of technique, comparable, S say, to engineering, which involves the idea that people should be dealt with by political scientists approximately in the same | way as machines or factories are dealt with by engineers. The engineering idea of political science has, in fact, little, if anything, in common with the cause of individual freedom. Of course, this is not the only way to conceive of political science as a technique. Political science can also be considered (although this happens less and less frequently today) as a means of enabling people to behave as much as possible as they like, instead of behaving in the ways deemed suitable by certain technocrats. Knowledge of the law, in its turn, may be viewed in a perspec- tive other than that of the lawyer who must speak as if he were bound whenever he has to defend a case in court. If he is 1 2 Freedom and the Law sufficiently well versed in the law, a lawyer knows very well how the legal system of his country works (and also sometimes how it does not work). Moreover, if he has some historical knowledge, he may easily compare different ways in which successive legal systems have worked within the same country. Finally, i£ he has some knowledge of the way in which other legal systems work or have worked in other countries, he can muke many valuable comparisons that usually lie beyond the horizon of both the economist and the political scientist. In fact, freedom is not only an economic or a political concept, but also, and probably above all, a legal concept, as it necessarily involves a whole complex of legal consequences. While the political approach, in the sense I have tried to outline above, is complementary to the economic one in any at- tempt to redefine freedom, the legal approach is complementary to both. However, there is still something lacking if this attempt is to succeed. During the course of the centuries many definitions of freedom have been given, some of which could be considered incompatible with others. The result is that a univocal sense could be given to the word only with some reservation and after previous enquires of a linguistic nature. Everyone can define what he thinks freedom to be, but as soon as he wants us to accept his formulation as our own, he has to produce some truly convincing argument. However, this problem is not peculiar to statements about freedom; it is one that is connected with every kind of definition, and it is, I think, an undoubted merit of the contemporary analytical school of philos- ophy to have pointed out the importance of the problem. A philosophical approach must there[ore be combined with the economic, the political, and the legal approaches in order to analyze freedom. This is not in itself an easy combination to achieve. Further difficulties are connected with the peculiar nature of the social sciences and with the fact that their data are not so univocally ascertainable as those of the so-called "natural" sciences. In spite of this, in analyzing freedom, I have tried, as Far as Introduction possible, to consider it first as a datum, namely, a psychological attitude. I have done the same with constraint, which is, in a sense, the opposite of freedom, but which is also a psychological attitude on the part of both those who try to do the constraining and those who feel that they are being constrained.
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