Tra giurisdizione e legislazione : leggendo «la libertà e la legge» di Bruno Leoni

The essay critically analyzes the relationship between jurisdiction and legislation as emerging from Bruno Leoni's Freedom and the Law. For Leoni, the supremacy of case law over the law of Parliament stems from the fact that case law infringes less than statutory law upon individual freedom, and ultimately also from its superior ability to safeguard the rule of law and the certainty of the law. In comparison to the arbitrariness and the everchanging and capricious nature of statutory law, case law is for Leoni the fruit of inventions which are instead rooted in tradition and legal precedent. The essay argues that Leoni's vision draws from a stereotyped and a-historical conception of the role of judges, which does not fit what are profoundly transformed contemporary legal systems. Furthermore, while being sympathetic to the vigorous defense of individual freedom that Leoni puts forward against the invasions of the law, the essay shows the contradictions of his strong critique of political representation within the framework of democracy.