BRUNO LEONI: L’ORDINE SPONTANEO E IL PROBLEMA DEL POTERE

This essay offers a critical examination of Bruno Leoni’s philosophy of law, focusing on three interconnected dimensions: the formation of legal rules through individual claims, the representation of legal sources as a spontaneous order emerging from adjudication, and the liberal political theory underlying this framework. The paper advances a twofold argument. First, while Leoni’s conception of law as an order arising from jurisdictional practice convincingly captures an important strand of legal spontaneity, it remains descriptively incomplete and epistemically inadequate insofar as it systematically obscures the political and constitutive dimension of law. In particular, it fails to distinguish between claims operating within an established legal framework and claims that redefine that framework by resolving conflicts over values and power. Second, the article argues that in contemporary contexts marked by private infrastructural powers, digital platforms, and systemic environmental externalities, the realization of individual freedom – central to Leoni’s normative project – requires precisely those forms of positive and regulatory law that his theory sought to marginalize. Reconsidering Leoni in light of Hayek, Schmitt, and ordoliberal thought, the essay concludes that no genuine spontaneous legal order can exist without a complementary decisional and regulatory dimension capable of addressing structural power and safeguarding both freedom and justice.