Leoni Revisited: Freedom and the Laws (original) (raw)

Liberty and Law. Institutional Circumstances of Freedom

2007

My aim in this article is twofold. I will discuss different ways of conceptualising the relation between liberty and law. By ‘law’ I refer throughout to law in the sense of civil law: rules with accompanying sanctions, promulgated by a legislator for the regulation of action in political society. I do not intend to say anything about ‘natural law’, unless I explicitly state otherwise. For the purposes of my argument I will loosely group the positions I discuss under different labels: ‘liberty from the law’, ‘liberty by the law’, and ‘liberty under law’. There is nothing self-serving about these labels; indeed, they may appear simplistic and historically inept. I use them to direct our attention and in order to illustrate my second aim, which is to make a fairly general point that seems to me to fall out of the preceding discussion. That point is that concepts like liberty are institution dependent and that we cannot hope to understand or even talk about what they mean without adhering to that fact. I will argue that even when liberty is understood in terms of the absence of law, the presence of law or the possibility of its presence will have to be assumed in principle in order for its absence to make sense. Freedom from law refers to different kinds of absences, depending on whether the law that is not there is the institution itself or an instance of regulation within an institution that is present.

The Rule of Good Law: Form, Substance and Fundamental Rights

The Cambridge Law Journal, 2019

This paper explores the effect that conformity to the rule of law has on the ends which might legitimately be pursued within a legal system. The neat distinction between formal and substantive conceptions of the rule of law will be challenged: even apparently formal conceptions necessarily affect the content of law and necessarily entail the protection of certain fundamental rights. What remains of the formal/substantive dichotomy is, in fact, a distinction between conceptions of the rule of law which guarantee the substantive justice of each and every law and those which entail some commitment to basic requirements of justice while nevertheless leaving room for unjust laws. Ultimately, the only significant distinction between competing theories of the rule of law concerns the nature of the connection between legality and justice, not whether there is any such connection at all.

Bruno Leoni on Law and Freedom

In his 1961 work Freedom and the Law Bruno Leoni presents a detailed argument that law is an overlooked but critical component specifically of a free market and of individual freedom in general. He develops a detailed argument that common law, in which law is discovered rather than made, must be preferred to legislation, concluding that a centrally legislated system is analogous to, and subject to the same limitations of knowledge as, a centrally planned economy. Moreover, he argues that common law is the only possible legal system in which a free market system can survive, as only these economic and legal systems complement each other in permitting the desires of millions to spontaneously emerge. I offer a moderate criticism that, as a positive law system, the application of common law must be qualified by the ends to which it applied. I conclude that Leoni’s arguments merit serious consideration.

Freedom and legisprudence - A more substantial view: A reply to professor perju

Boston University Law Review, 2009

INTRODUCTION ............................................................................................. 1795 I. REFLEXIVITY AND EQUALITY ............................................................ 1797 A. Reflexivity as the First Normative Dimension of Freedom ........ 1797 B. From Origin to Principium: Equality as the Second Normative Dimension of Freedom ............................................ 1797 II. FREEDOM CONTEXTUALIZED: FREEDOM AS PRINCIPIUM IN CONTEXT ........................................................................................... 1799 III. LAW’S CONTEXT: FREEDOM AS DISTANCE ....................................... 1801