Libertarianism and the Common Law (original) (raw)

Abstract

What are the qualities and characteristics of the common law that feature or reflect libertarianism? The common law is both a historical phenomenon and an active process or a juridical mode of settling disputes. Therefore, a precise answer to questions about the compatibility between libertarianism and the common law is difficult to articulate. This Essay describes elements of the common law—both its manifestation in history and its theoretical approaches to judging—that illuminate its libertarian attributes and tendencies. It suggests that the common law has epistemological importance as a kind of bottom-up ordering based on traceable patterns of human behavior. The common law enables us to break down the continuous, spontaneous process of data accumulation about human action into immediately usable and discrete units, coordinate fragmentary and scattered knowledge to manage and resolve concrete cases, and differentiate precedential and binding decisions about situational variables to facilitate a resilient system of rules and principles. This system is the sum of individual cases that trends towards libertarian conceptions such as due process, trade and exchange, religious toleration, freedom of speech and association, freedom of the press, rule of law, separation of powers, and private property rights, even if the outcomes of specific cases are, occasionally, contrary to these. The common law economizes the knowledge that judges need to rule well and wisely because, in this system, they need not possess or hold in their mind the distributed information that the system writ large makes available for efficient and effective acquisition or application.

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