Freedom and the Law - Bruno Leoni

Скачать книгу

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 power 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.”3 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”4 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 whom, 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 À 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.

      On the other hand, the very fact that constraint is in some way inevitably linked with “freedom” in all political societies gave rise to or at least favored the idea that “increasing freedom” could be somehow compatible in those societies with “increasing constraint.” This idea was, in its turn, connected with a confusion about the meaning of the terms “constraint” and “freedom” which is chiefly due, not to propaganda, but to the uncertainties that can arise about the meaning of these words in ordinary usage.

      Professor Mises says that “freedom” is a human concept. We must add that it is human in so far as some preference on the part of men is always implied when we use that term in ordinary language. But this does not mean that a man can be said to be “free” only from the power of other men. A man also can be said to be “free” from a disease, from fear, from want, as these phrases are employed in ordinary language. This has encouraged some people to consider “freedom from other men's constraint” on a par with, say, “freedom from want,” without observing that the latter kind of “freedom” may have nothing to do with the former. An explorer may be starving in the desert where he wanted to go alone without being constrained by anybody else. Now, he is not “free from hunger,” but he is, as he was before, completely “free from coercion or constraint” on the part of other people.

      Several thinkers, ancient as well as modern, have tried to connect the fact that some people are not free from hunger or from disease with the fact that other people in the same society are not free from the constraint of their fellow men. Of course, the connection is obvious when someone is in bondage to other people who treat him badly and let him die, for instance, through starvation. But the connection is not at all obvious when people are not in bondage to others. However, some thinkers have erroneously believed that whenever someone lacks something he needs or simply desires, he has been unjustly “deprived” of that very thing by the people who do have it.

      History is so full of examples of violence, robbery, invasions of land, and so on, that many thinkers have felt justified in saying that the origin of private property is simply violence and that it is therefore to be regarded as irremediably illicit at present as well as in primitive times. The Stoics, for example, imagined that all the land on earth was originally common to all men. They called this legendary condition communis possessio originaria. Certain Fathers of the Christian Church, particularly in the Latin countries, echoed this assumption. Thus, Saint Ambrose, the famous archbishop of Milan, could write in the fifth century C. E. that while Nature had provided for things to be common to all, private property rights were due to usurpation. He quotes the Stoics, who maintained, as he says, that everything in the earth and in the seas was created for the common use of all human beings. A disciple of Saint Ambrose, called the Ambrosiaster, says that God gave everything to men in common and that this applies to the sun and to the rain as well as to the land. The same

Скачать книгу