Bruno Leoni and the Austrian Tradition

0:00With this presentation, I have basically three aims. First of all, OK, I guess not all of you know who Bruno Leone was. So my first aim is, of course, to tell you who was Bruno Leone and why he probably is underestimated into the Austrian tradition. The second aim is to make a brief sketch about his main ideas that contribute to the libertarian theory and then see which are the problems of Leoni's vote and also which are the suggestions that we can still use today in his vote. Bruno Leoni was born exactly 100 years ago, in 1930, and he died in 1967 in tragic circumstances when he was pretty young, 54, and when he was developing a lot of new ideas.

0:53Usually we define Leoni as a political philosopher or a jurist, but actually he was interesting also a lot in economics and in political science and was trying to put all this knowledge all together and Hayek was defining him as a man of a renaissance because he was working on a lot of different kinds of knowledge and trying to put this knowledge together. In Italy, he had a quite important academic position in Pavia University. He found an important review in Politico, that is still publishing, and he was a columnist for an important newspaper. But most of his activity, he was doing most of his activity abroad, in the English-speaking world, let's say.

1:44And he was quite well known in the classical liberal world. He was into the Mont Pelerin Society, was the secretary of the Mont Pelerin Society for several years, then he became president of the Mont Pelerin Society only for two months before his death. And in 1958 he was in Claremont in California and was presenting the ideas that then was published in his book, Freedom and the Law. At the same seminar there were also Hayek and Friedman and Hayek was presenting the basic ideas of the Constitution of Liberty and Friedman was presenting the ideas of Capitalism and Freedom and Leone was together with these two guys so he was quite well known and in an important position.

2:33When Leoni died in 1967, his idea was almost forgotten for quite a long time. The reasons why his ideas were forgotten are different in Italy and abroad. In Italy, because he was extremely radical, so in the Italian academia, in the Italian intellectual world, The world was basically impossible for a lot of people to understand Leoni's ideas. It was too far from Italian culture and too close to a libertarianism that in Italy nobody knew what it was. In the rest of the world, there are different reasons.

3:20Basically, Leoni was not able to put in a systematic framework all his intuitions, or to translate from Italian to English some of his intuitions. So people were speaking about Leoni's ideas, but there was not a reference. It was not possible to say, okay, Leoni was saying this in this paper, in this book. So, it's why Leoni's ideas were circulating, but it was not possible to give a reference as to why Leoni's name was kind of lost for some years. And he became the man of one book, Freedom and the Law, that is sure an important book, but it's not all, not all the Leoni's ideas are in this book, there is for sure more.

4:10and also there is a kind of distortion because this book was extremely important, influential in the development of Hayek ideas. Hayek was moving more to look at the common law, production of law, evolutionism that developed in law, legislation and liberty after Leoni. So people were speaking about the influence of Leoni on Hayek but he's only a part of his ideas, The situation is changing, Leoni is becoming more popular, let's say, also in the English world where we have more articles that we found and in Italy especially we found a lot of unpublished papers and lessons in the university that are making more richer Leoni's contribution.

5:07So in his early works, Leoni was studying historical school of law, theory of probability, basically he was looking at the classics authors on how economy could be an important mechanism to understand social order. So, when he met the authors of the Austrian School, Mises and Hayek, there was a... meet them was something natural for him, because he found a tradition of thought that was working on the same topics, the topics on the spontaneous order and so on, in a systematic way, with a strong methodology. So, after we met Mises and Hayek, we speak about the maturity of Leoni, and in his Maturity Works there are basically two pillars.

5:59The first pillar is related with Freedom and the Law, his book published in 1961. And in Freedom and the Law there is a strong criticism of economic planning and a strong criticism of legislation. And Leoni is putting together economic planning and legislation, because for him there are two sides of the same coin. He said, how is it impossible in a centralized economy to use all the information that we have? Hayek and Mises, of course. We have the same problem in the production of law by the parliaments. The legislator, the parliament, cannot use the knowledge that is in the society. The production of law only by parliament is a characteristic of the contemporary world.

6:47The law was not like that before, for a long time, and in the past, the law was produced in a more similar way, as Leoni said, of how scientific discoveries come, so not in the position of the majority, but a process of discovery that is starting from individual freedom. Leon is looking at Roman history and the British history from a long time, where the law was not something that is created by the majority, but is discovered by the judge, by the expert, by the jurist, by the people basically. and this process for Leoni is closer to the free market process economy.

7:36Think on what happens when two people go to a tribunal, both of them can bring their argumentation and they have to find an agreement so there is a possibility for everybody to use the reason and to discuss and this process is closer to the market process compared with legislation of course. Also, Leoni said that the problem of written law and in 1958 he said the Hayek was an important exponent of the written law. He said that with the written law we don't have certainty of law in the long term, because the parliament can change the law as you want, so we cannot trust the law produced by the parliament in terms of certainty.

8:25And he was able to make a strong division. He was putting on one side the legislation and the economic planning and on the other side the common laws of the tradition of evolutionism and the free market. and his idea was that you have to try to reduce as much as possible the sphere of collective decisions because freedom is always, quite often, near always in contrast with democracy. So he was developing the idea of a spontaneous order formation before Hayek And also, he was giving a strong preference for the evolutionism and for the common law, but that he was using as an instrument.

9:13Common law for him was important because he was able to protect individual freedom. The second pillar of Leoni's ideas are more in the ground of political philosophy. So not seeing what law was in the historical development, but trying to explain what law has to be. What is in terms of what is a right law and a fair political system? So to understand the juridical phenomena for Leone, we don't have to look at the obligation as in Hans Kelsen's theory. So we don't have to look at public authority that is producing law, but we have to look at the human behavior, at the human action, we can say following Mises, and at the concept of exchange.

10:03Leone was introducing the idea of individual claim. He said when people use sentences like, I have the right to do this, or you don't have the right to do that, the person who is using the sentence, the person who presumes this is right, first claim that the third part actually behave in a certain way. So this behavior is probably and is determinable by an advisement, by an exhortation, by the treatment from another person. Who claims, who make claims think is able to determine the behavior alone or with the help of other people.

10:50So in the concept of the individual claim, we have three elements. The first element is a personal interest. The second element is a forecast. You think other people are going to attend what is your claim, because you know what is the most probable behavior of other people. And the third one is the possibility to determine the behavior if it's not spontaneously adopted by other people. But not all the claims of folks, of course, are individual, are legal claims. There are individual claims, the claims that have a very high probability to be satisfied. Leone was using the Roman idea of iduquod plerunque accedit, so what usually happened in the society.

11:39Everybody can forecast what other people are doing because they know how usually the situation are learned in this society and so there is also an element of statistical probability what is going to match the common expectation of the people and they can be determined directly or indirectly by the other people so the key element in this in the idea of individual claim is that the claims are complementary because who complies with someone else claim assume a correspondent obligation by other people. So the real power is in the fact that all other individuals want to see satisfied similar claims. And so also the humble people in the society has this power because he knows that also the rest of society won't see this kind of claim satisfied.

12:38So also claim in Leone's idea come logically before the obligation, which is, as Kelsen idea, as the demand in economics come logically before supply. So how economists see the price as a social phenomenon, as a result of individual choices between scarce goods, the legal philosopher must see the legal norms as a social phenomena, as a result of individual acts and attitude, so the claims of demand. So the exchange in this construction is, of course, the key concept to understand the economy, law, and politics, and to understand the social order.

13:27Of course, Leoni, in this case, was using Mises categories, because the starting point is the human action, which is individual rational subject to natural limitation, and he was looking at human action, at the claims of individual, to see how norms can become a legal order. So, which are the problems in this concept of law? First of all, the classic problem we can say of evolutionism and of the common law, we don't have the content of the law. So there is an absent of any criterion for the content of judgment law. So a big part of the old law, of the common law, and certainly the customs and the tradition, are not always consistent with liberty.

14:17This is the first problem, and this is exactly what Rothbard was saying in a review of Leoni's books in 1962. He said it's a great book with a strong libertarian position, but the problem is that we don't have the content of the book. After this review of Rothbard, what was doing Leoni, basically what a smart guy has to do, he started to read Rothbard and think about libertarian, about natural law more and more. So, and he was proposing an empirical recovery. He said he was using this expression, empirical recovery of natural law. What is it? It was not time to develop this concept of empirical recovery, but we can have some suggestion from this idea.

15:06So the first point is that Rothbard was right when he said that we don't have the content in the common law. and the Common Law. So we have this problem. But there is also the historical dimension of the law, related with the situation of a society. So individuals are not abstracted from social process, and reason is never the only judge to judge the social process. Think, for example, about child labor. In a rich society we can condemn child labor, but in a poor society maybe it's a way to survive also for children. This is related with the historical dimension. Then we have also a problem with rational natural law, with this idea of Rothbard.

15:51And the problem with the rational natural law is what happens if people using the reason discover a different idea of natural law? Because Rothbard discovered an idea of natural law thinking about the freedom of the people. But in the past, a lot of philosophers, a lot of thinkers discovered a natural law

16:44historical experience and vice versa, only experience tell us if the use of human reason is successful and human reason has always to evaluate and improve the result of the evolution, so we have to keep together these two elements and reason alone cannot shape the law as it wants and the discovery of a good law cannot be only in the historical development, in a sense Also, Rothbard was going in this direction because for a new liberty in 1963, he wrote, since we have a body of common law principle to draw on, however, the task of reason in correcting and demanding the common law would be far easier than trying to construct a body of systematic legal principle de novo out of a thin air.

17:39So the Leoni teaching is my conclusion is that there is a big challenge in the libertarian law. This big challenge is try to put together these two different traditions, the tradition of evolutionism with a common law and the tradition of natural law based on reason. And Leoni was giving a quite important contribute to try to solve this problem. Thank you very much.