Ginsburg’s question presupposes an inaccurate (to put it mildly) narrative about the development of marriage law.
What is the “certainty of the law”? Freedom from arbitrary rule is at the heart of the liberal project right from the beginning. Such “certainty” indeed has various dimensions: law ought to be generally applicable, therefore implying a degree of equality; law ought to be relatively stable; and law ought to be accessible. Therefore, it needs to be written so that people may get to know it in the easiest and most convenient way.
This could be—and was—somewhat confusing: most people, even today, would assume the key feature for the law to be certain is to be written and, if possible, condensed in volumes like the Corpus Juris Civilis. So shall we assume that, in the age of the Internet and transparency, the law is happily, certain at last?
Bruno Leoni would shake his head: not quite. A critical reflection on the concept of the “certainty of the law” is the core of his 1961 book, Freedom and the Law. Originally published by Van Nostrand, in the series sponsored by the Volcker Fund, the expanded third edition of Freedom and the Law was issued by Liberty Fund in 1991. Liberty Fund has kept it in print ever since: this has contributed greatly to whatever scholarly interest Leoni’s work roused in the last few years. For sure Liberty Fund has called for imitators: while the Spanish translation is the one that came first (in Argentina, in 1962, later to be reissued by Union Editorial in Spain), today the book is available in Russian, Chinese, Czech, Polish, German, and even French. The Italian translation was first published in 1995, some thirty-four years after the first English one. Nemo propheta in patria.
A Frenetic Life
The anarchist Benjamin Tucker published a book called: Instead of a book by a man too busy to write one. This would go well as a subtitle for Freedom and the Law: its chapters were lectures he gave at Claremont Men’s College (now Claremont McKenna College), assembled in book form by his friend Arthur Kemp, and later complemented with three essays as an appendix to the Liberty Fund edition. Yet the hyperkinetic Leoni was a prolific writer: he generously produced book chapters, papers, book reviews, newspaper articles. The e-book edition of his Collected Works that the Istituto Bruno Leoni is now publishing will count eleven volumes.
Bruno Leoni made a substantial contribution in a very short life. He was born in 1913 and died in 1967, killed by a tenant. Hayek described him as “a Renaissance man” and for once this grandiloquent locution appears apt. He was a theorist, an academic, a publicist, a lawyer, a consultant, a politically active person, an art aficionado, a gourmet, and on top of all that, a beloved father and husband. He spoke many a language and he imbibed the grand cultures of Europe. He studied in Turin, as a young man knew the fascist dictatorship and, shortly after having been awarded a chair at the University of Pavia, fought in the Second World War. After the armistice, he joined the Allies and helped in rescuing escaped POWs from behind enemy lines.
In the aftermath of the war, Leoni greatly contributed to the rebirth of the social sciences in Italy, serving as the dean of the Department of Political Science in Pavia. Reading Ludwig von Mises and F.A. Hayek’s criticism of socialism, in particular, was very important for him and shaped his thoughts. He was also interested in developing public choice, which was, in turn, indebted to Italian scienza delle finanze and early political science. Leoni was only nine years old when Benito Mussolini seized power, but certainly grasped that democracy per se is not a sufficient guarantee of individual liberty.
But where could such a guarantee lie? If we look at post-WW II classical liberal theorizing, we may easily detect a pattern: the search for a legal framework that was solid enough to resist the potent drive for authoritarianism in modern-day electorates. We can see that Hayek wanted to update The Constitution of Liberty, public choice investigated how consent comes and goes in a modern democracy and attempted to divine how better rules of the game may be sorted out, the Ordoliberals more than all others wanted good procedures and rules to safeguard a competitive market.
In a sense, Bruno Leoni complemented these works, yet he also aimed to point to the weakness in the usual classical liberal approach. He taught us to avoid deluding ourselves with the hope that an enlightened lawmaker could provide us with true “certainty of the law,” let alone a good political order. Better than many of his contemporaries, Leoni understood that a planned economy is basically an economy run by decree, and therefore it cannot be effectively opposed if not with an adequate understanding of the law.
Freedom and the Law is by and large a critical reflection on four lectures Hayek gave at the National Bank of Cairo, lectures that were developed further in The Constitution of Liberty and more recently published in The Market and Other Orders.
Leoni thought that Hayek, while considering “the certainty of the law … probably the most important requirement for the economic activities of society,” which “has contributed much to the greater prosperity of the Western world as compared with the Orient, where the certainty of the law was not so early achieved,” did not think deeply on “what the term ‘certainty’ properly means when referred to the law.” At the end of the day, Hayek endorsed a venerable tradition. Its core principle was embedded in written codes and constitutions, that European countries have adopted “accepting the idea that precisely worded formulae could protect people from the encroachments of all possible kinds of tyrants.” So, Leoni concludes, “in brief, the Continental idea of the certainty of the law was equivalent to the idea of a precisely worded, written formula. This idea of certainty was to a great extent conceived as precision.”
Aiming at Certainty
Legal certainty was equated with precisely worded and easily accessible laws: norms that are general and yet not vague and that can be known by those who need to obey them. Is that really enough, as a concept of legal certainty? Generals tend to fight the last war, and sometimes political theorists do the same. With universal franchise, the tapestry of representation changed dramatically. Universal franchise seems to be perfectly consistent with an individualistic approach: one man, one vote. But by his introduction, the sphere of political action was widely extended; the more individuals were “represented” in Parliament, the wider such “representation” became.
Representative democracy has often been compared with the market process: in one people vote daily in the market place, in other other people vote once in a little while for certain “political brands.” Leoni thought the analogy weak.
Political producers [legislators] … are at the same time the sellers and the buyers of their products, both in the name of their fellow citizens. The latter are not expected to say, ‘I do not want that statute, I do not want that decree,’ since, according to the theory of representation, they have already delegated this power of choice to their representatives.
Representatives are thus not people explicitly charged with a specifically delegated power, but they can indeed legislate on all matters, if so nudged by the whims of public opinion or by whatever “emergency” may come by.
Economic planning required a cornucopia of special rules, whose object was micro-managing production rather than defining a legal framework for free and responsible adults. But any challenge to “special” law would not mean much if even ostensibly “general” rules could be changed at will by an act of Parliament.
Leoni wanted to advance the concept of the “certainty” of the law beyond the mere verbal precision, and easy availability, of statutes. He thought “the rule of law… cannot be maintained without actually securing the certainty of the law, conceived as the possibility of long-run planning on the part of individuals in regard to their behaviour in private life and business.”
Such long-run planning requires “long-run certainty.” This latter entailed a separation of jurisdictio from imperium, a healthy distance between law-makers and those who exercise executive commands.
But such distance was not a sufficient condition. Today, ever more complex businesses (and the ever more complex lives people live) need stabler norms. Investment (in one’s company or in oneself) is by definition risky, and ought not to be subject to the hidden tax implied by the change in rules that destroy the prospect of profit when it is eventually ripe.
In search of such stability, Leoni went back to “Roman law, based mainly on the authority of the jurisconsults, customs, and judiciary law.” He also turned to the British common law as the epitome of a process by which law is “discovered” and not “written.” In his understanding of courts of justice “discovering” the correct solution of a case, he was indebted to Carleton Kemp Allen, another prominent and now almost forgotten libertarian jurist. In this view, by listening to plaintiffs and looking into precedents, judges were able to come up with a set of principles consistent with public opinion and with the commonly held understanding of right and duty. This “bottom-up” vision of law combines flexibility (as new problems arise, plaintiffs will knock at the judge’s door) with stability, as legal controversies are expensive affairs and judges ought to be really sure of their ground before introducing substantial innovations to precedent. Leoni thus appreciated “the legal spirit” of English institutions, that, quoting A.V. Dicey, he deemed to be based on general principles resulting “from judicial decisions determining the rights of private persons in particular cases brought before the courts.”
Back to the Common Law
Before reading Freedom and the Law, Hayek’s appreciation of the British common law was less radically positive than Leoni’s. He equated to the rule of law concept similar ones such as the German Rechstaat, or indeed the idea of a written constitution. In The English Constitution, Walter Bagehot points out that England’s free government can claim many advantages over the continental powers, but perhaps not that of administrative efficiency. The French system and the Prussian one, he mused, were “new machines, made in civilised times to do their appropriate work.” Contrary to that, “historical complexities” accounted for the checks and balances of English administration. “The English offices… were never made, but grew as each could.” In time, Leoni came to feel increasingly sympathetic towards this “sort of free trade which prevailed in public institutions in the English middle ages.”
Such sympathy allowed Leoni to reject legal positivism and look for something different, better suited as a foundation to his liberalism. Legal positivism, he argued, “becomes untenable as soon as we discover that legislation and constitutions, on the basis of which we ought to decide whether something is ‘legal,’ are themselves frequently rooted in something that is not ‘legal’ at all.” He mentions that the Italian Constitution was drafted by an assembly convened in rather irregular circumstances: it was called by the King of Italy Umberto II before his abdication, to draft the Constitution of the new Republic. The king, however, did not have any legal power to change the Italian constitution or to summon an assembly to do so. He approvingly quoted Leslie Stephen’s remark that “if a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal; but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it.” Experience of perfectly legal mass murder was of course, in the mid 20th century, more than a matter of speculation.
Leoni has been criticized for idealizing the common law and many wondered how feasible a “Leonian” legal framework would be today. As he died in 1967, we don’t know how he would have commented over the rise of judicial activism, in the US or in his native country of Italy. But Freedom and the Law is to this day a challenging and ambitious book: a criticism of more standard visions of “legal certainty,” an attempt to investigate bottom-up, spontaneous law (a concept dear to Austrian economists that nonetheless seldom of them had explored before him), and a source of interesting questions about representation and democracy.