Freedom and the Law. Bruno Leoni
made it possible for early European explorers to make themselves understood by the inhabitants of other parts of the world and that still makes it possible for thousands of contemporary American tourists to spend their holidays, say, in Italy without knowing a word of Italian. In spite of this ignorance on their part they are understood perfectly for many practical purposes by Italian waiters, taxi drivers, and porters. The common factor in conversation is the possibility of pointing to material things like food, luggage, and so on. Of course, it is not always possible to point out the material things we refer to by our words. But whenever two different words refer to material things, they prove easily interchangeable. Natural scientists agree quite easily about the use of words designating newly discovered phenomena. Usually they choose Greek or Latin words, and their method is successful, since uncertainty can be avoided by pointing out which phenomena are designated by these words.
This calls to mind the wisdom of the reply made by an old Confucian pedagogue to his heavenly disciple, a very young Chinese emperor who had been asked by his teacher the name of some animals they met while taking a walk through the countryside. The young emperor replied, “They are sheep.”
“The Son of Heaven is perfectly right,” the pedagogue said politely. “I must add only that these kinds of sheep are usually called pigs.”
Unfortunately, much greater difficulty arises if we try to define things that are not material and if our listener does not know the meaning of the word we are using. In such a case we cannot point out to him any material object. Our way of understanding each other is completely different and it is necessary to resort to altogether different ways of discovering a common factor, if any, between our language and his. Banal and self-evident as it appears, this fact is probably not noticed, or at least it is not emphasized sufficiently, when we consider the use of our language. We are so accustomed to our vocabularies that we forget the importance we attached to pointing out things at the beginning of our learning process. We are inclined to think of our linguistic achievements mainly in terms of definitions simply read in a book. On the other hand, as many of these definitions refer to material things, we often behave as if nonmaterial things were simply “there” and as if it were only a question of attaching to them a verbal definition.
This explains certain metaphysical trends among those ancient Greek philosophers who treated nonmaterial things—justice, for example—as if they were similar to visible, material things. It also explains more recent attempts to define the “law” or the “state” as if they were entities like the sun or the moon. As Professor Glanville Williams points out in his recent essay (1945) on the controversy concerning the word “law,” the English jurist John Austin, the celebrated founder of jurisprudence, maintained that his definition of “law” corresponded to “law properly defined,” without having the least doubt that there exists such a thing as “the law properly defined.” In our day a view rather similar to that of Austin has been advanced by the well-known Professor Hans Kelsen, who boasted in his General Theory of Law and the State (1947) and still boasts of discovering that what is “properly called” the “State” is nothing but the legal order.
The naive belief that nonmaterial things can easily be defined comes to an abrupt end as soon as we try to translate, for instance into Italian or French, legal terms like “trust,” “equity,” or “common law.” In all these cases not only are we unable to point to any material thing that would permit an Italian or a Frenchman or a German to understand what we mean, but we can find no Italian, French, or German dictionary that will give us the corresponding words in these languages. Thus, we feel that something has been lost in passing from one language to the other. As a matter of fact, nothing has been lost. The problem is that neither the French nor the Italians nor the Germans have exactly such concepts as those denoted by the English words “trust,” “equity,” and “common law.” In a certain sense, “trust,” “equity,” and “common law” are entities, but as neither the Americans nor the English can simply point them out to the French or to the Italians, it is difficult for the former to be understood by the latter in this respect.
It is this fact that still renders it practically impossible to translate an English or American legal book into German or Italian. Many words could not be translated into corresponding words because the latter are simply nonexistent. Instead of a translation, it would be necessary to supply a long, cumbrous, and complicated explanation of the historical origin of many institutions, their present way of working in Anglo-Saxon countries, and the analogous working of similar institutions, if any, in Continental Europe. In turn, the Europeans could not point out to the Americans or to the English anything material to indicate a conseil d'état, a préfecture, a cour de cassation, a corte costituzionale, or the like.
These words are often so firmly rooted in one definite historical environment that we cannot find corresponding words in the language of other environments.
Of course, students of comparative law have attempted on several occasions to bridge the gap between the European and the Anglo-Saxon legal traditions. For instance, there is the very recent essay included in the Bibliographical Guide to the Law of the United Kingdom, published by the London Institute of Advanced Legal Studies and devoted mainly to foreign scholars, that is, to the students of “civil law.” But an essay is not a dictionary, and this is precisely the point I am making.
Thus, reciprocal ignorance is the result of different institutions in different countries, and historical ignorance is the result of changing institutions within the same country. As Sir Carleton Kemp Allen reminds us in his recent book, Aspects of Justice (1958), most English reports of medieval cases are now simply unreadable, not only because they are written—as he so wittily puts it—in “dog Latin” and “bitch French,” but also because the English (and everybody else) lack the corresponding institutions.
Unfortunately, this is not the only difficulty of being unable to point to material things in the definition of legal concepts. Words that have apparently the same sound may have completely different meanings relating to different times and places.
This is often the case with nontechnical words or with words originally having a technical use, but which were introduced into everyday language rather carelessly without paying heed to their technical sense or without even recognizing it. If it is unfortunate that strictly technical words, such as those belonging, for instance, to legal language, cannot be translated at all into corresponding words in other languages, it is even more unfortunate that nontechnical or half-technical words can be translated only too easily into other words in the same language or into cognate words of other languages that have a similar sound. In the first case a confusion is created between words that actually are not synonyms, while in the latter case people speaking a different language think that the meaning they attach to a word in their language corresponds to the different meaning you attach to an apparently similar word in yours.
Many terms belonging both to the language of economics and to the language of politics are typical in this respect. The German philosopher Hegel once said that anyone can determine the suitability of a legal institution without being a lawyer, just as anyone, without being a shoemaker, can decide whether a pair of shoes is suitable for his feet or not. This does not seem to apply to all legal institutions. Few people actually are suspicious and inquisitive about the framework of such legal institutions as contracts, evidence, etc. But many people think that political and economic institutions are just their business. They suggest, for instance, that governments must adopt or reject this or that policy in order to redress, say, the economic situation of a country or to modify the terms of international trade or both.
All these people use what we call “ordinary language,” which includes many words that belonged originally to such technical vocabularies as the language of law or of economics. These languages use terms in a definite and unambiguous way. But as soon as such technical words are introduced into ordinary language, they quickly become nontechnical or half-technical words (I use the word “half” as in the expression “half-baked”), because no one bothers to recognize their original meaning in the technical languages or to fix upon a new meaning for them in ordinary language.
When, for instance, people speak of “inflation” in America, they usually