common law liberalism: a new theory of the libertarian society

In conventional political philosophy, law is understood as consciously created rules that are a necessary mechanism for regulating the excesses of the free market. Although coercive in nature, law is seen as a necessary defense against anarchy. But is the situation that simple? In his examination of the purpose and functioning of the legal system, John Hasnas challenges this false dichotomy, presenting a new theory of liberalism that demonstrates that the common law can serve as an effective alternative to traditional politically created legislation.

Hasnas argues that there are options beyond the unregulated market or a market regulated by consciously created government law. Instead, he suggests, law can arise through a process of unplanned evolution in which those subject to law are bound, but not by the will of any identifiable human beings. Anglo-American common law, which evolved without a guiding human intelligence, showcases this. Over the centuries of its development, the common law process created the rules of contract, property, tort, and commercial law that define key aspects of liberal society. Common law’s decentralized and continually evolving nature renders it resistant to political rent-seeking and responsive to changing economic and social conditions--allowing it to adapt to the needs of those it serves to protect, rather than to the desires of a powerful few.

Hasnas suggests that while the enforcement of law may involve coercion, law in and of itself is not destined to be a vehicle for domination. Common Law Liberalism demonstrates that the common law can provide all rules necessary to sustain a peaceful, prosperous, liberal society--without intervention by politically created legislation and the exploitation and oppression it so often engenders.

John Hasnas is Professor of Ethics at Georgetown University’s McDonough School of Business, Professor of Law (by courtesy) at Georgetown Law Center, and the Executive Director of the Georgetown Institute for the Study of Markets and Ethics. He received his BA in Philosophy from Lafayette College, his JD and PhD in Legal Philosophy from Duke University, and his LLM in Legal Education from Temple Law School.