Bruno Leoni filosofo del diritto, della politica, della società. Per una lettura critica di Freedom and the Law: note in margine ad alcuni problemi aperti

In this paper, I will try to address some criticism to Bruno Leoni’s general theory of law and society. In his well known book Freedom and the Law (1961) –in the opinion of some Italian scholars, to be considered a libertarian Manifesto–, he stressed at least five main points: i) legislation is incompatible with the long-run certainty of the law, that is when the law is not properly the result of the exercise of the arbitrary will of particular men; ii) courts of justice describe or discover the law, and do not make the law; iii) courts cannot be considered as legislators, not only because of their psychological attitude towards the law, which they discover, and do not create, but above all because of their fundamental dependance on the parties concerned in their process of making the law: so, a court must not be allowed to reverse its precedents – at least to a certain extent; iv) the whole process, and so the law, can be described as a sort of vast, continuous, and chiefly spontaneous collaboration between the judges and the judged in order to discover what the people’s will is in a series of definite instances –a collaboration that in many respects may be compared to that existing among all the partecipants in a free market; v) in our time, the mechanism of the judiciary in certain countries where supreme courts are established results in the imposition of the personal views of the members of these courts, or of a majority of them: it is a somewhat contradictory introduction of the legislative process under the deceptive label of lawyers’ or judiciary law at its highest stage. It seems to me that Leoni’s theory of law and society as a normative doctrine for a «libertarian», or «post-hayekian», society is not entirely successful: in particular, topics as the relation between law and legislation, the proper sense of legal concepts (if any), and the possibility to survive for individual freedom as a non-historical but ideological concept within an open, i.e. democratic , society, will be put under scrutiny in the paper, according to Leoni’s doctrine of law as an individual claim.