Classical Natural Law and Libertarian Theory
If libertarianism wishes to give up modern political categories, it has to think about law in a different way. Murray N. Rothbard, the most important exponent of the radical libertarian school, is right when he rejects the historicism and relativism of legal realism and when—for the same reasons—he criticizes Hayek and Leoni.
But unfortunately, he does not really grasp the function of the evolution into classic natural law. Furthermore, his idea of building a libertarian code is completely inconsistent with his frequent references to the Greek and Christian legal heritage.1
In For a New Liberty, Rothbard points out that the history of a changing and evolving law can be useful in order to find just rules: “since we have a body of common law principles to draw on, however, the task of reason in correcting and amending the common law would be far easier than trying to construct a body of systematic legal principles de novo out of the thin air.”2
But the relationship between common law and natural law must be seen differently. Common law is not only an interesting tool for discovering natural law: it has its specific role. Positive law needs to interact with natural law principles, but even the latter cannot be considered as self-sufficient.
Moreover, in his defense of rationality, Rothbard does not realize that law cannot be entirely read into the praxeological framework, which is axiomatic and deductive. The division of theory and history puts some disciplines into opposition with others, but above all it makes a distinction within any single field of study.
Economics, for instance, is a theoretical science if considered as political economics, but a historical and empiric activity if it analyzes what happened in the past.3 This is also true for legal studies, because they have a theoretical part but, at the same time, include many other aspects which, on the contrary, are historical and cannot be examined using logical and a priori methods.
In his methodological writings, Rothbard distinguishes between empiricism and experience, and remarks that the refusal of the first does not imply a devaluation of the second. When he criticizes Mises for his Kantian approach, he finds in human experience exactly the main source of the axioms, the fundamental truths that are the starting point of a theory based on deductive logic.4 But before the law, Rothbard seems to minimize the contextual and nontheoretical dimension of a large part of legal controversies and especially of positive law.
Using the Thomist framework, in this essay I will emphasize the importance of the lex naturalis, at the same time highlighting a lex humana deeply rooted in the complexity of different ages and societies, related to the subjectivity and specificity of opinions which cannot be fruitfully examined by a praxeological approach. Many problems, and even some inconsistencies of Rothbardian theory, are a consequence of it.
Moreover, the way Rothbard deals with the arguments of causality and liability shows an inadequate understanding of the anthropology of the Austrian School, which moves from a study of human action (intentional and rational) and not by a simple behaviorist analysis.
In integrating Rothbardian libertarianism with positive law, an important contribution comes from Bruno Leoni, who in Freedom and the Law and other writings developed an original contribution to classical liberalism. The Italian scholar can help to improve some parts of Rothbard’s libertarian theory of law. If the author of The Ethics of Liberty is much more grounded in natural law and even less naïve before Wertfreiheit,5 Leoni can correct some limits of the Rothbardian approach and its incapacity to perceive the specificity of law: a practical and largely empirical science, historically situated and essentially oriented to finding reasonable solutions for very specific cases.
If philosophy of law has to investigate the eternal and immutable principles of justice, juridical scholarship must find the best translation of these for the specific problems of a society. For this reason, taking Leoni seriously means imagining a meeting point of natural law doctrine and the requirements of a positive law as a reality in evolution. And it implies an effort to transfer into the legal context the Misesian methodology and its radical separation of theory and history: the sphere of axiomatic and deductive studies (praxeology) and the sphere of research based on experience (history).
We have to remember that specific attention to the historical and evolving features of legal orders has been a crucial element of the Austrian School since its origins. In his Investigations into the Method of the Social Sciences, Carl Menger praises the Historical School of Jurisprudence (Gustav Hugo, Friedrich Carl von Savigny, Barthold Georg Niebuhr), whose origins he dated back to Edmund Burke.
Menger also highlights the individualistic content of evolutionary law with the goal of helping the classical liberal tradition to rediscover its lost roots:
law, like language, is (at least originally) not the product in general of an activity of public authorities aimed at producing it, nor in particular is it the product of positive legislation. It is, instead, the unintended result of a higher wisdom, of the historical development of the nations.6
It is exactly in this sense that we can understand Leoni’s preference for evolutionary law (Anglo-Saxon law and Roman jus civile): a law not oriented to preserve tradition or spontaneous order per se. On the contrary, Leoni thinks that a polycentric and evolutionary order is in a better position to safeguard individual rights. Rules that emerge from the interpersonal exchange of claims are tools that can effectively protect society from the rulers.
As a student of English legal history, Leoni shows a strong interest in the common law of nature that was at the heart of Edward Coke’s perspective. In fact, in that theory law does not express an antirationalist attitude, but, on the contrary, embodies natural reason emerging in an evolutionary way. This legal culture is improved by various contributions (practical, pragmatic, professional) of many people. In this way, law is the consequence of a human activity oriented towards bettering reality using intelligence and experience.
Criticizing modern legal systems, Leoni remarks that
there is far more legislation, there are far more group decisions, far more rigid choices, and far fewer “laws written in living tables,” far fewer individual decisions, far fewer free choices in all contemporary political systems that would be necessary in order to preserve individual freedom of choice.7
Even if he never adhered to a consistent natural law theory, Leoni tried a sort of reconciliation of natural law and legal realism (positive law rightly understood), exploring the possibility of conjugating the flexibility of ancient common law and the just principles of a universal moral theory.
Leoni had a strong interest in the exploration of the libertarian potentialities of a similar perspective. In his writings, there are many elements of a radical libertarianism refusing any coercion. When some participants of the Claremont seminar about Freedom and the Law asked him who should choose the judges in a free society, he answered: “it is rather immaterial to establish in advance who will appoint the judges, for, in a sense, everybody could do so, as happens to a certain extent when people resort to private arbiters to settle their own quarrels.”8
In his opinion, the contemporary, statist system should disappear, leaving room for a competitive order of private courts. The convergence of Leoni and Rothbard is evident on many levels, because both imagine the end of the state monopoly on justice and security, with the purpose of opening the road to an institutional competition between people in charge to avoid criminal behaviors.9
It is also for this reason that Rothbardian libertarian theory can find in Leoni and, above all, in his understanding of law the way to overcome its theoretical and practical difficulties.
From Praxeology to Thymology: The Role of Positive Law
In its daily development, law refers back to principles, but at the same time it concerns modest but not negligible disputes. Legal reasoning lives essentially in this pragmatic context and it leaves the specific topics of natural law in the background.
In Mises’s thought, there is a notion that is extremely useful in helping us grasp the relationship between theory and practice in the law. In fact, in Theory and History, he opposes praxeology to thymology, which is in close relationship with history.10 Thymology is a branch of history and “derives its knowledge from historical experience.”11 It stands for that set of empirical knowledge of psychological, sociological and even factual character that we use to find our way in relationships with other people. This “literary psychology” is the condition of a rational behavior: “for lack of any better tool, we must take recourse to thymology if we want to anticipate other people’s future attitudes and actions.”12
When Leoni returns to the legal realism tradition (to the law in action that Roscoe Pound opposes to the law in books) and remarks on a correspondence between positive law and what is foreseeable (often using the formula id quod plerumque accidit),13 the highlights that the positive law is always intelligible in a thymologic perspective. In his explicit purpose of applying Misesian methodology to law, Leoni discovers a praxeological dimension (the most theoretical part, coinciding with the analysis of the individual claims and their interaction), but also another thymological dimension (entirely depending on experience, common opinions and traditions).
His idea is that positive law has a strong relationship with customs. As practical activity, law must reduce uncertainty: it is for this reason that a creditor’s claim is legal, because generally a debtor pays back what he has received, while the thief’s claim is illegal, because generally people do not steal. The probabilistic analysis is purely empirical, but it is not unreasonable. Our behavior is led very often by the rationality of our past experiences and by our prejudices.
In this sense, Leonian theory of the individual claim is at the same time praxeological and thymological.
It is praxeological because it draws in a deductive way the theoretical conditions of the exchange and the meeting of differen
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