WEBVTT NOTE Bruno Leoni and the Austrian Tradition 1 00:00:00.000 --> 00:00:04.000 With this presentation, I have basically three aims. 2 00:00:04.000 --> 00:00:09.600 First of all, OK, I guess not all of you know who Bruno Leone was. 3 00:00:09.600 --> 00:00:13.440 So my first aim is, of course, to tell you who was Bruno Leone 4 00:00:13.440 --> 00:00:16.320 and why he probably is underestimated 5 00:00:16.320 --> 00:00:18.480 into the Austrian tradition. 6 00:00:18.480 --> 00:00:22.800 The second aim is to make a brief sketch about his main ideas 7 00:00:22.800 --> 00:00:26.080 that contribute to the libertarian theory 8 00:00:26.080 --> 00:00:36.080 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. 9 00:00:36.080 --> 00:00:53.080 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. 10 00:00:53.080 --> 00:01:22.080 Usually 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. 11 00:01:22.080 --> 00:01:27.080 In Italy, he had a quite important academic position in Pavia University. 12 00:01:27.080 --> 00:01:35.080 He found an important review in Politico, that is still publishing, and he was a columnist for an important newspaper. 13 00:01:35.080 --> 00:01:44.080 But most of his activity, he was doing most of his activity abroad, in the English-speaking world, let's say. 14 00:01:44.080 --> 00:01:51.080 And he was quite well known in the classical liberal world. 15 00:01:51.080 --> 00:01:56.280 He was into the Mont Pelerin Society, was the secretary of the Mont Pelerin Society for several years, 16 00:01:56.280 --> 00:02:03.080 then he became president of the Mont Pelerin Society only for two months before his death. 17 00:02:03.080 --> 00:02:13.880 And in 1958 he was in Claremont in California and was presenting the ideas that then was published in his book, 18 00:02:13.880 --> 00:02:33.880 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. 19 00:02:33.880 --> 00:02:44.880 When Leoni died in 1967, his idea was almost forgotten for quite a long time. 20 00:02:44.880 --> 00:02:51.880 The reasons why his ideas were forgotten are different in Italy and abroad. 21 00:02:51.880 --> 00:02:59.880 In Italy, because he was extremely radical, so in the Italian academia, in the Italian intellectual world, 22 00:02:59.880 --> 00:03:04.600 The world was basically impossible for a lot of people to understand Leoni's ideas. 23 00:03:04.600 --> 00:03:16.120 It was too far from Italian culture and too close to a libertarianism that in Italy nobody knew what it was. 24 00:03:16.120 --> 00:03:20.120 In the rest of the world, there are different reasons. 25 00:03:20.120 --> 00:03:32.760 Basically, Leoni was not able to put in a systematic framework all his intuitions, or to translate from Italian to English some of his intuitions. 26 00:03:32.760 --> 00:03:37.000 So people were speaking about Leoni's ideas, but there was not a reference. 27 00:03:37.000 --> 00:03:42.120 It was not possible to say, okay, Leoni was saying this in this paper, in this book. 28 00:03:42.120 --> 00:03:49.800 So, it's why Leoni's ideas were circulating, but it was not possible to give a reference 29 00:03:49.800 --> 00:03:55.880 as to why Leoni's name was kind of lost for some years. 30 00:03:55.880 --> 00:04:03.800 And he became the man of one book, Freedom and the Law, that is sure an important book, 31 00:04:03.800 --> 00:04:10.920 but it's not all, not all the Leoni's ideas are in this book, there is for sure more. 32 00:04:10.920 --> 00:04:17.000 and also there is a kind of distortion because this book was extremely important, influential 33 00:04:17.000 --> 00:04:25.780 in the development of Hayek ideas. Hayek was moving more to look at the common law, production 34 00:04:25.780 --> 00:04:34.240 of law, evolutionism that developed in law, legislation and liberty after Leoni. So people 35 00:04:34.240 --> 00:04:40.260 were speaking about the influence of Leoni on Hayek but he's only a part of his ideas, 36 00:04:40.260 --> 00:05:07.260 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. 37 00:05:07.260 --> 00:05:24.780 So 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. 38 00:05:24.780 --> 00:05:29.780 So, when he met the authors of the Austrian School, Mises and Hayek, 39 00:05:29.780 --> 00:05:34.780 there was a... meet them was something natural for him, 40 00:05:34.780 --> 00:05:42.780 because he found a tradition of thought that was working on the same topics, 41 00:05:42.780 --> 00:05:47.780 the topics on the spontaneous order and so on, in a systematic way, 42 00:05:47.780 --> 00:05:50.780 with a strong methodology. 43 00:05:50.780 --> 00:05:59.780 So, after we met Mises and Hayek, we speak about the maturity of Leoni, and in his Maturity Works there are basically two pillars. 44 00:05:59.780 --> 00:06:04.780 The first pillar is related with Freedom and the Law, his book published in 1961. 45 00:06:04.780 --> 00:06:11.780 And in Freedom and the Law there is a strong criticism of economic planning and a strong criticism of legislation. 46 00:06:11.780 --> 00:06:18.780 And Leoni is putting together economic planning and legislation, because for him there are two sides of the same coin. 47 00:06:18.780 --> 00:06:24.780 He said, how is it impossible in a centralized economy to use all the information that we have? 48 00:06:24.780 --> 00:06:27.780 Hayek and Mises, of course. 49 00:06:27.780 --> 00:06:33.780 We have the same problem in the production of law by the parliaments. 50 00:06:33.780 --> 00:06:40.780 The legislator, the parliament, cannot use the knowledge that is in the society. 51 00:06:40.780 --> 00:06:47.780 The production of law only by parliament is a characteristic of the contemporary world. 52 00:06:47.780 --> 00:07:11.780 The 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. 53 00:07:11.780 --> 00:07:29.780 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. 54 00:07:29.780 --> 00:07:36.980 and this process for Leoni is closer to the free market process economy. 55 00:07:36.980 --> 00:07:45.180 Think on what happens when two people go to a tribunal, both of them can bring their argumentation 56 00:07:45.180 --> 00:07:53.380 and they have to find an agreement so there is a possibility for everybody to use the reason and to discuss 57 00:07:53.380 --> 00:07:58.580 and this process is closer to the market process compared with legislation of course. 58 00:07:58.580 --> 00:08:09.580 Also, Leoni said that the problem of written law and in 1958 he said the Hayek was an important exponent of the written law. 59 00:08:09.580 --> 00:08:16.580 He said that with the written law we don't have certainty of law in the long term, 60 00:08:16.580 --> 00:08:25.580 because the parliament can change the law as you want, so we cannot trust the law produced by the parliament in terms of certainty. 61 00:08:25.580 --> 00:08:40.580 And 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. 62 00:08:40.580 --> 00:08:48.980 and his idea was that you have to try to reduce as much as possible the sphere of collective decisions 63 00:08:48.980 --> 00:08:58.180 because freedom is always, quite often, near always in contrast with democracy. 64 00:08:58.180 --> 00:09:03.180 So he was developing the idea of a spontaneous order formation before Hayek 65 00:09:03.180 --> 00:09:10.620 And also, he was giving a strong preference for the evolutionism and for the common law, 66 00:09:10.620 --> 00:09:13.300 but that he was using as an instrument. 67 00:09:13.300 --> 00:09:17.900 Common law for him was important because he was able to protect individual freedom. 68 00:09:17.900 --> 00:09:24.980 The second pillar of Leoni's ideas are more in the ground of political philosophy. 69 00:09:24.980 --> 00:09:29.740 So not seeing what law was in the historical development, 70 00:09:29.740 --> 00:09:34.580 but trying to explain what law has to be. 71 00:09:34.580 --> 00:09:38.460 What is in terms of what is a right law 72 00:09:38.460 --> 00:09:42.580 and a fair political system? 73 00:09:42.580 --> 00:09:46.340 So to understand the juridical phenomena for Leone, 74 00:09:46.340 --> 00:09:49.380 we don't have to look at the obligation 75 00:09:49.380 --> 00:09:51.500 as in Hans Kelsen's theory. 76 00:09:51.500 --> 00:09:53.780 So we don't have to look at public authority 77 00:09:53.780 --> 00:09:58.340 that is producing law, but we have to look at the human behavior, at the human action, 78 00:09:58.340 --> 00:10:03.540 we can say following Mises, and at the concept of exchange. 79 00:10:03.540 --> 00:10:08.380 Leone was introducing the idea of individual claim. 80 00:10:08.380 --> 00:10:14.180 He said when people use sentences like, I have the right to do this, or you don't have 81 00:10:14.180 --> 00:10:22.540 the right to do that, the person who is using the sentence, the person who presumes this 82 00:10:22.540 --> 00:10:30.400 is right, first claim that the third part actually behave in a certain way. 83 00:10:30.400 --> 00:10:38.500 So this behavior is probably and is determinable by an advisement, by an exhortation, by the 84 00:10:38.500 --> 00:10:42.140 treatment from another person. 85 00:10:42.140 --> 00:10:48.940 Who claims, who make claims think is able to determine the behavior alone or with the 86 00:10:48.940 --> 00:10:50.320 help of other people. 87 00:10:50.320 --> 00:10:53.920 So in the concept of the individual claim, we have three elements. 88 00:10:53.920 --> 00:10:56.520 The first element is a personal interest. 89 00:10:56.520 --> 00:10:58.760 The second element is a forecast. 90 00:10:58.760 --> 00:11:04.720 You think other people are going to attend what is your claim, because you know what 91 00:11:04.720 --> 00:11:08.080 is the most probable behavior of other people. 92 00:11:08.080 --> 00:11:14.960 And the third one is the possibility to determine the behavior if it's not spontaneously adopted 93 00:11:14.960 --> 00:11:17.840 by other people. 94 00:11:17.840 --> 00:11:22.840 But not all the claims of folks, of course, are individual, are legal claims. 95 00:11:22.840 --> 00:11:31.840 There are individual claims, the claims that have a very high probability to be satisfied. 96 00:11:31.840 --> 00:11:38.240 Leone was using the Roman idea of iduquod plerunque accedit, so what usually happened 97 00:11:38.240 --> 00:11:39.240 in the society. 98 00:11:39.240 --> 00:11:45.160 Everybody can forecast what other people are doing because they know how usually the situation 99 00:11:45.160 --> 00:11:51.160 are learned in this society and so there is also an element of statistical probability 100 00:11:53.160 --> 00:11:59.320 what is going to match the common expectation of the people and they can be 101 00:11:59.320 --> 00:12:05.240 determined directly or indirectly by the other people so the key element in this 102 00:12:05.240 --> 00:12:13.320 in the idea of individual claim is that the claims are complementary because who complies 103 00:12:13.320 --> 00:12:20.280 with someone else claim assume a correspondent obligation by other people. So the real power 104 00:12:20.280 --> 00:12:27.080 is in the fact that all other individuals want to see satisfied similar claims. And so also the 105 00:12:27.080 --> 00:12:32.040 humble people in the society has this power because he knows that also the rest of society 106 00:12:32.040 --> 00:12:38.360 won't see this kind of claim satisfied. 107 00:12:38.360 --> 00:12:45.040 So also claim in Leone's idea come logically 108 00:12:45.040 --> 00:12:49.000 before the obligation, which is, as Kelsen idea, 109 00:12:49.000 --> 00:12:54.460 as the demand in economics come logically before supply. 110 00:12:54.460 --> 00:12:59.040 So how economists see the price as a social phenomenon, 111 00:12:59.040 --> 00:13:04.280 as a result of individual choices between scarce goods, 112 00:13:04.280 --> 00:13:08.000 the legal philosopher must see the legal norms 113 00:13:08.000 --> 00:13:11.440 as a social phenomena, as a result of individual acts 114 00:13:11.440 --> 00:13:15.720 and attitude, so the claims of demand. 115 00:13:15.720 --> 00:13:20.480 So the exchange in this construction 116 00:13:20.480 --> 00:13:24.200 is, of course, the key concept to understand the economy, law, 117 00:13:24.200 --> 00:13:27.280 and politics, and to understand the social order. 118 00:13:27.280 --> 00:13:35.120 Of course, Leoni, in this case, was using Mises categories, because the starting point is the human action, 119 00:13:35.120 --> 00:13:42.720 which is individual rational subject to natural limitation, and he was looking at human action, at the claims of individual, 120 00:13:42.720 --> 00:13:47.120 to see how norms can become a legal order. 121 00:13:49.120 --> 00:13:52.720 So, which are the problems in this concept of law? 122 00:13:52.720 --> 00:14:00.720 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. 123 00:14:00.720 --> 00:14:07.720 So there is an absent of any criterion for the content of judgment law. 124 00:14:07.720 --> 00:14:17.720 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. 125 00:14:17.720 --> 00:14:25.420 This is the first problem, and this is exactly what Rothbard was saying in a review of Leoni's books in 1962. 126 00:14:25.420 --> 00:14:32.920 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. 127 00:14:32.920 --> 00:14:39.220 After this review of Rothbard, what was doing Leoni, basically what a smart guy has to do, 128 00:14:39.220 --> 00:14:46.720 he started to read Rothbard and think about libertarian, about natural law more and more. 129 00:14:46.720 --> 00:14:56.720 So, and he was proposing an empirical recovery. He said he was using this expression, empirical recovery of natural law. 130 00:14:56.720 --> 00:15:06.720 What is it? It was not time to develop this concept of empirical recovery, but we can have some suggestion from this idea. 131 00:15:06.720 --> 00:15:15.720 So the first point is that Rothbard was right when he said that we don't have the content in the common law. 132 00:15:15.720 --> 00:15:23.720 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. 133 00:15:23.720 --> 00:15:33.720 So individuals are not abstracted from social process, and reason is never the only judge to judge the social process. 134 00:15:33.720 --> 00:15:44.720 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. 135 00:15:44.720 --> 00:15:46.680 This is related with the historical dimension. 136 00:15:46.680 --> 00:15:50.080 Then we have also a problem with rational natural law, 137 00:15:50.080 --> 00:15:51.880 with this idea of Rothbard. 138 00:15:51.880 --> 00:15:54.800 And the problem with the rational natural law 139 00:15:54.800 --> 00:15:59.960 is what happens if people using the reason 140 00:15:59.960 --> 00:16:03.480 discover a different idea of natural law? 141 00:16:03.480 --> 00:16:07.280 Because Rothbard discovered an idea of natural law 142 00:16:07.280 --> 00:16:09.920 thinking about the freedom of the people. 143 00:16:09.920 --> 00:16:12.280 But in the past, a lot of philosophers, 144 00:16:12.280 --> 00:16:14.200 a lot of thinkers discovered a natural law 145 00:16:44.200 --> 00:17:14.200 historical 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 146 00:17:14.200 --> 00:17:21.160 Also, Rothbard was going in this direction because for a new liberty in 1963, he wrote, 147 00:17:21.160 --> 00:17:27.760 since we have a body of common law principle to draw on, however, the task of reason in 148 00:17:27.760 --> 00:17:33.920 correcting and demanding the common law would be far easier than trying to construct a body 149 00:17:33.920 --> 00:17:39.120 of systematic legal principle de novo out of a thin air. 150 00:17:39.120 --> 00:17:47.720 So the Leoni teaching is my conclusion is that there is a big challenge in the libertarian 151 00:17:47.720 --> 00:17:48.720 law. 152 00:17:48.720 --> 00:17:53.800 This big challenge is try to put together these two different traditions, the tradition 153 00:17:53.800 --> 00:17:59.160 of evolutionism with a common law and the tradition of natural law based on reason. 154 00:17:59.160 --> 00:18:04.320 And Leoni was giving a quite important contribute to try to solve this problem. 155 00:18:05.320 --> 00:18:07.320 Thank you very much.