The first session of our virtual reading group on Bruno Leoni, last week, was exciting. We had many participants, and everybody had something interesting to say. I was pleased to see that Leoni’s book is still eliciting controversies and providing people with new ideas. I was particularly pleased that those who came from a legal background found Leoni’s work valuable and interesting.

Some participants had problems with one of Leoni’s most important points, which is that in Roman law and in the common law system jurisconsults and judges were entrusted with the idea of “discovering rather than enacting” the law.

Since common-law judges work on a case-by-case basis, Leoni conceived the common-law law making process as a vast, continuous and spontaneous collaboration between the judges and the other participants in order to discover “rules”. He also makes the point of comparing judges and jurisconsults to scientific experts. In particular, it is still surprising to many that Leoni considered “judge-discovered” law a less arbitrary approach than legislation.

Some of our friends argued that judge-discovered law is basically an ideological cover-up for judge-made law (a formulation which reminded some of contemporary legal activism). and hence is arbitrary and without even the not too strict limits that elected legislators face. These views reflect the criticism by Jeremy Bentham, who thought the common law had little to do with custom and reflected the ideas of the judges, period. He deemed the common law to be “sham law.”

Leoni’s point is that the operations of judges are limited by several factors. In particular, he assumes the process of adjudication to be a complex and expensive one; the judges will judge the cases brought to them by the people and this means, firstly, that the parties need to consider the controversy important and significant enough to appeal to a judge. The parties must also have arguments, which they’ll use in court and that the judge will evaluate, too.

Behind all this there is a conception of the law as something bound to change, because new claims appear because of technological changes and cultural shifts. Many assume that changes should be accommodated by legislators: and this is what happens today. Leoni thought that to be arbitrary – and perhaps we should too, when we see that legislators act to prevent or nudge technological and cultural changes. Judges would be more reactive and less proactive, but that’s not necessarily a bad thing: perhaps people could be left alone, accommodating change, with new rules being forged only when they reflect an evolved sensibility.

Leoni built this understanding on his knowledge on Roman law and the role of jurisconsults. In a splendid little work on ancient (Greek and Roman) thinking, recently published in a good Italian edition, he emphasize that the Roman jurisconsult had a “realistic and empirical conception of the law”:

the jurisconsult feels to be a dispassionate observer, a cold appraiser of legal relationships. As a consequence, jurisconsults are – as a rule – less the defenders of a case than the conveyors of an opinion pro veritate (…) The jurisconsult does not aim to persuade (as he does not intend to convince his audience, as opposed to the Greek rhetors), as instead to establish the facts of the case and this scientific, as it were, impartiality is recognized by both the citizens and the government, thus leaving to him always and everywhere the task of defining what is the law

In our online conversation, I mentioned a big tome on the law by C.K. Allen, Law in the Making. I’d like to quote a few passages on the matter. The quotation is long but, I believe, clear. The context is that of the English common law.

We have seen that the English judge exercises a function more avowedly creative than a Continental judge; and that at its early formative period much of our Common Law took its shape from doctrines  consciously evolved by the royal courts. … A great deal of controversy has centered on this question of how far the judge can and does legitimately ‘make’ law. We must use this word ‘make’ with caution; and I think we shall find that, in one sense of it at least, judges are to merely resorting to what Bentham called ‘a childish fiction’ when they disclaim the capacity to create new law.

There are … a number of cases by no means inconsiderable, in which judges have to lay down a rule for the first time without any assistance from express enactment or previous decision. …

A judge, in laying down a rule to meet these situations, is certainly making a new contribution to our law, but only within limits, usually well defined. If he has to decide upon the authority of natural justice, or simply ‘the common sense of the thing’, he employs that kind of natural justice or common sense which he has absorbed from the study of the law and which he believes to be consistent with the general principles of English jurisprudence. The ‘reason’ which he applies is, as Coke said, not ‘every unlearned man’s reason’, but that technically trained sense of legal right … with which all his learning imbues him. … The phrase commonly used is that he decides ‘not on precedent, but on principle’. The difference is that in the one case he is applying a principle illustrated by previous examples, in the other case he is applying a principle not previously formulated, but consonant with the whole doctrine of law and justice. Although, therefore, he is making a definitive contribution to the law, he is not importing an entirely novel element into it.

Still less, in that overwhelming majority of cases where precedent is cited and adopted, is the judge seeking to import anything novel into the law. His whole effort is to find the law, not to manufacture it. He is always working with materials which exist in the present or the past; his concern is not with the future effect of the rule which he is laying down, but with the application of what he conceives to be an existing rule to a concrete case before him…. In this sense it is no ‘childish fiction’ to say that he does not and cannot ‘make’ the law and it was not without reason that Lord Esher M.R. said:; ‘There is in fact no such thing as judge-made law, fior the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable’.

I don’t think either Leoni or Allen (or Hayek) thought judges were infallible, nor this process always conducive to lasting and uncontroversial outcomes. But you can argue that the pluralism of judges makes human fallibility less of an issue, than attempting to put all your eggs in the basket of legislated law.

Of course one may wonder if any of this is still relevant in our world these days. I am not a lawyer, so I won’t dare to opine. But I think it is relevant to get what Leoni had in mind right.