Sotomayor, Freedom, and the Law
JULY 17, 2009 by SHELDON RICHMAN
The dreary Senate hearing on the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court left me so in the doldrums that my only chance for solace was to dig out my copy of Freedom and the Law (1961) by Bruno Leoni.
Leoni (1913-1967) was a professor of legal theory and a lawyer in Italy. He was also an eminent liberal scholar and champion of individual freedom, who served as president of the Mont Pelerin Society. Freedom and the Law has a provenance worth describing. In 1958 Leoni, F. A. Hayek, and Milton Friedman each gave a series of lectures at the Fifth Institute on Freedom and Competitive Enterprise at what is now Claremont McKenna College in California. To say this meeting was consequential would be a gross understatement. Hayek’s lecturers were incorporated into The Constitution of Liberty. Friedman’s grew into Capitalism and Freedom, and Leoni’s were collected as Freedom and the Law. (Readers of this column will know that I previously wrote about Leoni’s essay “Voting Versus the Market,” which appears in Freedom and the Law.)
Leoni’s work was critical in helping to launch the multidisciplinary movement known as Law and Economics, in which these two areas of knowledge are applied to each other in order to achieve an otherwise impossible depth of understanding of society.
His work is highly relevant to the Judiciary Committee’s hearing on Sotomayor. In speeches she has suggested that because of sex and ethnicity, judges either can’t or shouldn’t try to be impartial in their rulings. Moreover, President Obama said he wanted a Court nominee with empathy based on life experience, as well as knowledge of the law. However, under questioning by adversarial senators, Sotomayor seemed to back away from both approaches. At one point, she said, “They [judges] don’t determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it’s not the heart that compels conclusions in cases. It’s the law. The judge applies the law to the facts before that judge…. I look at the law that’s being cited. I look at how precedent informs it. I try to determine what those principles are of precedent to apply to the facts in the case before me and then do that…. We apply law to facts. We don’t apply feelings to facts.”
This is clearly what the conservative senators wanted to hear, but observers of varying ideological stripes were disappointed that Sotomayor stooped to feeding the television audience such pablum. She more than implied that a judge’s job is mechanistic: The facts plus the law plus precedent equals a ruling.
Nothing in human affairs is that simple. Judgment and interpretation are required every step of the way. This is why, contrary to popular fable, the line between the rule of law and the rule of men and women is so fine as to be nonexistent. (See John Hasnas’s important papers The Myth of the Rule of Law and the Depoliticization of Law [pdf]). Laws, which are intended to be applied to an unlimited number of unforeseeable future circumstances, do not speak for themselves. Human beings must interpret them. This does not mean language is inherently impenetrable. (I could hardly write if I believed that.) However, there is a broad middle ground between impenetrability and perfect clarity. As libertarian legal scholar Randy Barnett noted, “While I do not share [the] view of law as radically indeterminate, I sure think it is a whole lot more underdeterminate than Judge Sotomayor made it out to be in her testimony today.”
If the law is underdeterminate–if there is scope for interpretation and more than one competing interpretation can be reasonable–what is an advocate of liberty to do?
Leoni offers us hope. Let’s start at the beginning. Why do we care who is on the Supreme Court? We care because down the street from the Court is the legislation factory we call the U.S. Congress. It has virtually nothing to do but churn out bills. In fact, most “serious” pundits judge congresses by how many bills they churn out. All the incentives faced by members of Congress push in one direction: to legislate (that is, meddle in people’s affairs).
Furthermore, we know that much of this legislation, since it interferes with what people want to do, will spawn litigation. Eventually some of these cases will wind up before the Supreme Court, the rulings of which will become the law of the land. Hence the interest in Supreme Court nominees.
Thus it would matter far less who is on the Supreme Court if there were little or no legislation.
But we need legislation, don’t we?
Without legislation there would be no law, right?
Where did we get the idea that a group of mostly undistinguished men and women–absurdly claiming to be our representatives and sitting in what is surely the ultimate ivory tower–should make blanket rules for everyone (except perhaps for themselves), regardless of time, place, and circumstance? It certainly has not protected liberty. Why don’t more people realize how poorly this simpleminded procedure serves a complex society?
Law versus Legislation
Most of us are badly in need of reminding that what is admirable about the Western legal tradition–that which has made our progress and prosperity possible–is the product not of legislatures but of something rather different. This fact compels us to distinguish law from legislation. As Hayek wrote in the first volume of Law, Legislation, and Liberty,
Unlike law itself, which has never been “invented” in the same sense, the invention of legislation came relatively late in the history of mankind…. Law in the sense of enforced rules of conduct is undoubtedly coeval with society; only the observance of common rules makes the peaceful existence of individuals in society possible. Long before man had developed language to the point where it enabled him to issue general commands, an individual would be accepted as a member of a group only so long as he conformed to its rules…. To modern man … the belief that all law governing human action is the product of legislation appears so obvious that the contention that law is older than law-making has almost the character of a paradox. Yet there can be no doubt that law existed for ages before it occurred to man that he could make or alter it.
Or as Leoni put it, “[F]ewer and fewer people now seem to realize that just as language and fashion are the products of the convergence of spontaneous actions and decisions on the part of a vast number of individuals, so the law too can, in theory, just as well be a product of a similar convergence in other fields.”
He goes on, “The paradoxical situation of our times is that we are governed by men, not, as the classical Aristotelian theory would contend, because we are not governed by laws [legislation], but because we are.”
The question for Leoni is not how can we get good legislation and avoid bad legislation. The matter is much deeper than that: “It is a question of deciding whether individual freedom is compatible in principle with the present system centered on and almost completely identified with legislation.”
He tells us that in order to imagine an alternative to governance by legislatures, we need not visit Utopia. Rather, we may study Roman and English history: “Both the Romans and the English shared the idea that the law is something to be discovered more than to be enacted and that nobody is so powerful in his society as to be in a position to identify his own will with the will of the land.” This was law that judges discerned when resolving specific disputes brought before them by specific individuals; it was law based on custom and the expectations it gave rise to. (See Hasnas’s “Toward a Theory of Empirical Natural Rights” [pdf].)
Leoni lists three differences between judges in the sense just described and legislators:
“[J]udges or lawyers or others in a similar position are to intervene only when they are asked to do so by the people concerned, and their decision is to be reached and become effective, at least in civil matters, only through a continuous collaboration of the parties themselves and within its limits.”
“[T]he decision of judges is to be effective mainly in regard to the parties to the dispute, only occasionally in regard to third persons, and practically never in regard to people who have no connection with the parties concerned.”
“[S]uch decisions on the part of judges and lawyers are very rarely to be reached without reference to the decisions of other judges and lawyers in similar cases and are therefore to be in indirect collaboration with all other parties concerned, both past and present.”
Thus, “the authors of these decisions have no real power over other citizens beyond what those citizens themselves are prepared to give them by virtue of requesting a decision in a particular case.”
Free Markets versus Central Planning
Leoni draws important parallels between judge-discovered law and the free market on the one hand and legislation and central planning on the other: “[A] legal system centered on legislation resembles … a centralized economy in which all the relevant decisions are made by a handful of directors, whose knowledge of the whole situation is fatally limited and whose respect, if any, for the people’s wishes is subject to that limitation.”
He exposes the posturing of self-styled “representatives” with a refreshing bluntness not often encountered today:
No solemn titles, no pompous ceremonies, no enthusiasm on the part of applauding masses can conceal the crude fact that both the legislators and the directors of a centralized economy are only particular individuals like you and me, ignorant of 99 percent of what is going on around them as far as the real transactions, agreements, attitudes, feelings, and convictions of people are concerned…. The mythology of our age is not religious, but political, and its chief myths seem to be “representation” of the people, on the one hand, and the charismatic pretension of political leaders to be in possession of the truth and to act accordingly, on the other.
Finally, to bring this back to Judge Sotomayor and the job she will assuredly be awarded, Leoni noted that judiciary law can become like legislation “whenever jurists or judges are entitled to decide ultimately a case.” But isn’t that what a Supreme Court is entitled to do when it makes law for everyone everywhere?
“In our time,” Leoni wrote, “the mechanism of the judiciary in certain countries where ‘supreme courts’ are established results in the imposition of the personal views of the members of these courts, or of a majority of them, on all the other people concerned whenever there is a great deal of disagreement between the opinion of the former and the convictions of the latter.”
Thus the assertion that the Supreme Court must not become a legislature is wishful thinking. It must and it will–no matter who sits on it.
So what’s an advocate of liberty to do? Leoni concluded that we must limit legislatures to as few matters as possible. That in itself is a tall order. But it is a start in the right direction.