Gil Guillory

"Leoni (1961) provides a theoretical framework on which we can build an answer to this question. We offer a sketch of his theory. In a market, economic operators regard prices to be ultimate data upon which they base their calculations and actions, fully realizing that these are flexible to some extent, but quite fixed for a particular transaction. By analogy, Leoni suggests that legal operators regard legal norms to be the ultimate data upon which they base their actions, fully realizing these are flexible to some extent, but fixed for a particular adjudication. Extending the analogy, Leoni notes that the economist does not regard prices to be fixed at all, but subject to immutable rules of distribution acting on contingent facts. Likewise, the proper legal theorist does not regard legal norms to be fixed, but subject to immutable rules of argumentation acting on contingent facts of cases within particular cultural contexts. Indeed, the direction of causation of these social elements is often misapprehended. It is the offers to buy and sell in the market that causes prices (the norms of the market) to settle into relative fixity; they are not fixed before agents enter the market, though it appears that way to most economic agents. Likewise, it is the advancing of legal claims in an adjudicative setting and hearing the arguments on both sides that determines the outcomes of proceedings; and the outcomes of many proceedings thereby establish legal norms. It is not the case that legal norms are fixed before legal agents advance their arguments, although it appears that way to lawyers who learn legal norms in law school and then apply them to cases to guess how judges will rule on cases.

But does this mean that legal norms could be anything at all? No, and a number of libertarian theorists have explained why.

As Hoppe pointed out, by rationally advancing your claim against another, you are implicitly claiming that your claim is rationally defensible to a greater extent than your opponent’s: “…any ethical proposal, as well as any other proposition, must be assumed to claim that it is capable of being validated by propositional or argumentative means.” (Hoppe 1993, Ch. 10) All who make claims; or who criticize torts, crimes, legislation, laws, and judicial decisions—in short, all who debate legal norms—implicitly hold that there is a standard against which these decisions are to be measured..." - The Role of Subscription-Based Patrol and Restitution in the Future of Liberty, Gil Guillory