On a recent EconTalk, Michael Munger discussed the underrated economist, Bruno Leoni. Leoni held that law should emerge in a manner similar to a market. The current system of topdown legislation is just as backwards as central planning for an economy. As an example, Munger suggested that rather than paving paths between buildings on a college campus, builders should wait a year and see where the muddy paths emerge. That is where you pave. Of course, we have all seen cases where the builders paved first only to find trails blazed through the grass thereafter. By this system, law would emerge through judicial rulings: case law. I have long disliked case law as creating bad precedents (e.g. Plessy v. Ferguson, Rowe v. Wade, etc.), but those eventually fell away by the same process that brought them into being. Could this be a reasonable means of enacting law?
Bruno Leoni was an Italian economist who was unfortunately murdered at the age of 54. However, such economists as James Buchanan and Friedrich Hayek - both Nobel Prize winners - credit Leoni for influencing their work. Had Leoni lived longer, his works might be as well-known as theirs.
The idea of law emerging like a market seems backwards, but it does harken back to how it was done in earlier days. There was a time when people would bring their disputes to the ruler and ask him to decide. His decision became law. As societies grew larger, this method became impractical. Or did it? Let the law emerge through judicial rulings. Other judges may adopt the reasoning of a deciding judge or overrule it. Over time, those muddy paths that persist will be paved while those that don't will see the grass return.
Seeing where legislatures have brought us, it looks like Leoni has a point. A legislator is there to legislate. That we already have far too many laws is beside the point. If you are a hammer, all you see is nails. If you are a legislator, you need to make laws. It might be that the US had hit the perfect number and balance of laws in 1972 and everything since has just been busywork for bored lawmakers. On the other hand, a judge exists to rule on the law. The judge could give the same ruling scores of times, further paving that well-tread path. The judge only needs to rule on those issues that are presented in court by plaintiffs, not write law suggested by lobbyists. Leoni is onto something here.
Outstanding episode and highly recommended.
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