Freedom and the Law, de Bruno Leoni

"Freedom" is a word used by people in their ordinary language to mean special kinds of psychological experiences. These experiences are different at different times and in different places and are also connected with abstract concepts and technical words, but they cannot merely be identified with abstract concepts or reduced to a mere word. Finally, it is possible, and probably also useful or even necessary, to formulate a stipulative definition of "freedom," but stipulations cannot avoid lexicographic research because only the latter can reveal the meanings people actually attach to the word in ordinary  usage."Freedom," by the way, is a word ,vith favorable connotations. Perhaps it may be useful to add that the word "freedom" sounds good because people use it to point to their positive attitude toward what they call "being free." As Maurice Cranston has observed in his essay on Freedom [...] people never use expressions such as "I am free" to mean that they are without something they consider to be good for them. Noone says, at least in speaking of day-to-day affairs, "I am free from money" or "I am free from good health." Other words are used to express the attitude of people toward the absence of good things: they say that they lack something; and this applies, so far as I know, to all the European languages at present as well as in the past. In other words, to be "free" from something means "to be without something that is not good for us," while, on the other hand, to lack something means to be without something that is good.

Of course, freedom has little meaning when it is complemented only by the expression "from something," and we expect people to tell us also what it is that they are free to do. But the presence of a negative implication in the word "freedom" and in certain related words like "free" seems unquestionable. This negative implication is also present in derivative words connected with the term "liberty," which is simply the Latin counterpart of "freedom" and not a word with a different meaning. For instance, "liberal" is a word that designates both in Europe and in America a negative attitude toward "constraint," regardless of the nature of the "constraint" itself, which in its turn is conceived of very differently by American and by European "liberals."

Thus, "freedom" and "constraint" in ordinary language are antithetical terms. Of course, one can like "constraint" or some kind of "constraint," like the Russian army officers of whom Tolstoy said that they liked military life because it turned out to be a sort of "commanded idleness." Many more people in the "vorld like "constraint" than we probably imagine. Aristotle made a penetrating remark when he said at the beginning of his treatise on politics that people are divided into two broad categories, those who were born to rule and those who were born to obey rulers. But even if one likes "constraint," it would be an abuse of words to say that "constraint" is freedom. Nevertheless, the idea that "constraint" is something very closely connected with freedom is at least as old as the history of political theories in the Western world.

I think that the main reason for this is that no one can be said to be "free from" other people if the latter are "free" to constrain him in some way. In other words, everyone is "free" if he can constrain in some way other people to refrain from constraining him in some respect. In this sense, "freedom" and "constraint" are inevitably linked, and this is probably too often forgotten when people speak of "freedom." But "freedom" itself in ordinary language is never constraint, and the constraint that is linked inevitably with freedom is only a negative constraint; that is, a constraint imposed solely in order to make other people renounce constraining in their turn. All this is not merely a play on words. It is a very abridged description of the meaning of words in the ordinary language of political societies whenever individuals have any power whatever to be respected or, as one might say, whenever they have any power of a negative kind entitling them to be called "free." 

In this sense, we can say that the "free market" also inevitably implies the idea of a "constraint" in that all the members of a market society have the po,ver to exercise restraint against people like robbers or thieves. There is no such thing as a "free market" with some constraining power superadded. A free market is rooted in a situation in which those engaged in market transactions have some power to constrain the enemies of a free market. This point probably is not emphasized sufficiently by those authors who, in focusing their attention on the "free market," end by treating it as the very antithesis of governmental constraint.

Thus, for instance, Professor Mises, an author whom I admire greatly for his adamant defense of the "free market" on the basis of lucid and compelling reasoning and a superb mastery of all the issues involved, says that "liberty and freedom are terms employed for the description of the social conditions of the individual members of a market society in which the power of the indispensable hegemonic bond, the state, is curbed lest the operation of the market be endangered." We notice here that he has qualified as "indispensable" the hegemonic bond of the state, but he means by liberty, as he also says, "restraint imposed upon the exercise of the police power" without adding exactly, as I would consider it reasonable to add from the point of view of a free-trader, that liberty means also restraint imposed on the exercise of the power of anyone else to interfere with the free market. As soon as we admit this meaning of liberty, the hegemonic bond of the state is not only something to be curbed, but also, and I would say first of all, something we make use of to curb other people's actions.

Economists do not deny, but also do not take into direct consideration, the fact that every economic act, as a rule, is also a legal act the consequences of which may be enforced by the authorities if, for instance, the parties to the transaction do not behave as they are expected to behave on the basis of their agreement. As Professor Lionel Robbins pointed out in his "The Nature and Significance of Economics", studies of the connection between economics and the law are still rather unusual on the part of the economists, and the connection itself, although indisputable, is rather neglected. Many economists have debated about the distinction between productive and nonproductive work, but few have examined what Professor Lindley Frazer, in "Economic Thought and Language" calls "misproductive" work-i.e., work that is useful for the worker, but not for those for whom, or against ,v"hom, he works. "Misproductive" work, such as that of beggars, blackmailers, robbers, and thieves, remains outside the scope of economics, probably because the economists take it for granted that "misproductive" work is usually against the law. In this way economists recognize that the utilities that they usually take into consideration are only those compatible with the existing law of most countries,. 

Thus, the connection between economics and the law is implied, but it is rarely regarded by economists as a special object worthy of their research. They consider, for instance, the exchange of goods, but not the behavioral exchange that makes possible an exchange of goods, regulated and occasionally enforced for that purpose by the law of all countries. Hence, a free market seems something more "natural" than

government or at least independent of government, if not, indeed, something that it is necessary to maintain "against" the government. In fact, a market is no more "natural" than government itself, and both are no more natural than, say, bridges. People who ignore this fact ought to take seriously a couplet once sung in a cabaret in Montmartre:

Voyez comme la nature a en un bon sens bien profond

A faire passer les fleuves justement sous les ponts.

(See how Nature had the extreme good sense

To make the rivers flow exactly under the bridges.)

To be sure, economic theory has not ignored the fact that it is the government that gives people the practical power to avoid constraint on the part of other people on the market. Robbins aptly emphasized this in his essay, "The Theory of Economic Policy in English Political Economy" (London, 1952), noting that "we would get an entirely distorted view" of the significance of the doctrine of what Marshall called the system of economic freedom "unless we see it in combination with the theory of law and the functions of government which its authors (from Smith onwards) also propounded." As Robbins says, "the idea of freedom in vacuo was entirely alien to their conceptions." But Professor Robbins also pointed out, in Economic Planning and International Order (London, 1937), that the classical economists paid too little attention to the fact that international trade could not emerge as a simple consequence of the theorem of comparative costs, but required some kind of international legal organization to ward off the enemies of international free trade, who, to a certain extent, are comparable to such enemies of the free market within a nation as robbers or thieves."

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