Murray N. Rothbard, On Freedom and the Law

Murray N. Rothbard’s review essay, first published in 1962 and republished in the supplied 1981 version, examines Bruno Leoni’s Freedom and the Law. Rothbard welcomes Leoni’s challenge to legislative sovereignty but argues that decentralized legal institutions cannot secure liberty without a substantive standard governing what laws may enforce. The review consequently moves from institutional agreement to a normative reconstruction of Leoni’s position.

Rothbard situates the book within an intellectual landscape in which libertarian economics lacks comparable support in other disciplines:

WHILE AT LEAST a corporal's guard of libertarian economists exists in America today, the situation in the other disciplines of human action is indeed bleak.

Leoni’s contribution is to question the assumption that government legislation must supply the legal framework of a free society. Against an emphasis on general rules announced in advance, Rothbard stresses that predictable, universally applicable enactments may themselves violate freedom. Formal regularity therefore cannot establish legal legitimacy.

Leoni instead looks to traditions in which jurists discover and articulate law through the resolution of particular disputes:

Rather than accept either administrative law or legislation, Leoni calls for a return to the ancient traditions and principles of "judge-made law" as a method of limiting the State and insuring liberty.

Roman private law, Continental civil codes, and Anglo-Saxon common law furnish precedents for legal development less dependent on legislative command. Rothbard values the stability of slowly developing rules and the scope such arrangements leave for voluntary agreements and arbitration. Their significance lies not simply in decentralization but in the contrast between actual agreement and political decisions imposed in the name of collective consent:

Leoni brilliantly shows the analogy between these free rules and bargains, which truly express the "common will" of all participants, and the voluntary bargains and exchanges of the free market.

Rothbard especially welcomes the possibility that judges could obtain authority through voluntary recognition of their expertise, as physicians and scientists do. Although Leoni leaves unresolved the relationship between competing private courts and a governmental supreme court, his argument opens adjudication to institutional arrangements beyond state monopoly.

The central criticism is that a method of discovering law does not determine its legitimate content. Custom can perpetuate coercion, and Rothbard invokes conspiracy and seditious-libel laws to demonstrate the need for rational criticism of inherited rules. He similarly qualifies Leoni’s admiration for Roman law by pointing to imperial taxation, controls, and political power. Neither antiquity nor gradual development guarantees freedom.

Rothbard then tests alternative standards of legitimacy. Unanimity among existing members of a community cannot justify their persecution of outsiders. Appeals to implicit unanimity likewise fail when offenders actually reject the prohibitions enforced against them. The negative Golden Rule supplies no dependable boundary for legal coercion: someone willing to suffer mistreatment might consistently inflict it, while objectionable but nonviolent conduct might become punishable.

Leoni’s definition of freedom as absence of coercion, except against coercers, comes closer to Rothbard’s position. Yet Rothbard rejects any account that measures coercion through the complainant’s subjective distress rather than the defendant’s actions. Religious objections to another person’s conduct, for example, cannot by themselves justify compulsory observance.

This distinction also informs Rothbard’s objections to taxation and Leoni’s concessions to publicly supplied services. In discussing lighthouses, he denies that benefits received without payment establish a right to compel contributions. Voluntary support from shipping companies or property rights over illuminated sea surfaces are proposed as alternatives. The broader point is that the usefulness of a service does not settle the legitimacy of its financing.

Rothbard’s own criterion identifies coercion with initiating violence, or threatening it, against another person. Since legal enforcement itself threatens force, it requires justification by reference to prior aggression, not merely disapproval or perceived harm. He therefore proposes rationally correcting the common law and fixing its libertarian principles in a code or constitution, which competing private judges would interpret and apply. The review’s distinctive conclusion combines decentralized adjudication with a substantive constraint on enforcement: legal freedom requires both institutions independent of legislative command and principles protecting persons and property against initiated violence.