Rothbard on Customary Law – LewRockwell

An email from a reader (offered here with permission):

I read with great interest your excellent essay for today on “Integrating Classical Natural Law and Libertarian Theory.” I wonder, though, whether the criticisms of Rothbard given in Carlo Lottieri’s essay, which you quote, are correct.

Lottieri suggests that Murray, in contrast to Leoni, neglects the contextual nature of law. Unlike Leoni, Murray sought to devise a libertarian law code that would cover all contingencies. Precisely the opposite is the case. In his essay on pollution, he emphasizes the role of custom and precedent in applying law.

Also, Murray wrote an essay praising Leoni for his emphasis on judge-made law, as opposed to legislative law. In Rothbard’s view, though, judge-made law must be evaluated by the standard of natural law, interpreted in a libertarian way. Rothbard’s view expresses exactly the dependence of libertarianism on cultural conditions that you have done so much in your excellent essays to emphasize.

In your essay, you ask about the meaning of “positive law.” This would I think refer to law as enacted by a sovereign body, rather than to a contrast with negative laws.  [In a follow-up email (and within the context of our exchange), I was offered this link on the topic of legal realism.]

I always enjoy your essays. You are shedding much-needed light on difficult issues, and all of your readers are in your debt.

From a comment by A Texas Libertarian to this same post:

Is the author suggesting that Rothbard’s “libertarian code” was not rooted in Aristotle and Aquinas? In the “Ethics of Liberty” Rothbard repeatedly draws inspiration from both.

The Ethics of Liberty
Murray N. Rothbard
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