This month is the 100th anniversary of the birth of Bruno Leoni, one of the most penetrating political thinkers of the post-World War Two era. His 1961 book, Freedom and the Law, helped me get a handle on the perils of majority rule. (E-text versions of that book are available free from the Liberty Fund site here.) Leoni warned: “What we are confronted with today is nothing less than a potential legal war of all against all, carried on by way of legislation and representation.”
He crafted one of the most lucid axioms on the potential conflict of democracy of liberty: “Whenever majority rule is unnecessarily substituted for individual choice, democracy is in conflict with individual freedom.”
Alberto Mingardi, the chief of the Istituto Bruno Leoni in Italy, had an excellent piece in the Wall Street Journal last week on Leoni’s life and legacy. Here is an excerpt:
War has midwifed political theory since at least the time of the Ancient Greeks. John Rawls, the doyen of political liberalism, embarked on his grand theoretical quest after he came back from the Pacific theater, where he witnessed the aftermath of the Hiroshima bombing. Italian legal philosopher Bruno Leoni, who would have been 100 years old today, does not enjoy Rawls’s international renown. But Leoni, who died in 1967, wrote a book, “Freedom and the Law” (1961), that deserves a place in the canon of modern libertarianism. He was likewise deeply influenced by World War II, although in an unpredictable way.
As Hitler and Mussolini exited the stage of history, Leoni did not think the battle for freedom was won. He was a successful lawyer and academic, a vibrant polemicist for 24 Ore, Italy’s business daily, and an indefatigable cultural organizer.
And Leoni had had a “good war.” As liberty mattered more to him than blood, he fought with the Allies, leading dangerous missions to free British prisoners behind enemy lines. In the process he perfected his mastery of the English language and developed a distinctive appreciation of the British mind.
Leoni saw a basic difference in the understanding of freedom between the Anglo-Saxons, who never flirted with totalitarianism, and Continental Europeans. This, in his view, could be traced to the differences between the commonlaw tradition, on the one hand, and the Continent’s legislation-focused approach to the law.
Theorists of freedom have repeatedly argued that laws should be general, abstract, universally applicable and written down, so they could be knowable by the sovereign’s subjects. We are free when everybody is subject to the very same law. Certainly, as Leoni wrote, general rules-“written laws”-are “an improvement over the sudden orders and unpredictable decrees of tyrants.”
But parliaments and regulatory bodies all over the world produce written laws, which typically come out of meticulously followed procedures. Is that enough to give us freedom and legal certainty?