Hasnas: Common Law, Anarchy, etc.: Common Law Liberalism: A New Theory of the Libertarian Society

Re the new book Common Law Liberalism: A New Theory of the Libertarian Society, by John Hasnas, of “Myth of the Rule of Law” fame.

Grok summary of two recent talks below.

1. Common Law vs. Legislation:

• Hasnas contrasts common law, which evolves organically through judicial decisions and precedent without intentional human design, with legislation, which is deliberately created by political agents. He argues that common law governs most societal interactions—contract law, tort law, property law, and much of criminal and commercial law—while legislation often serves politically powerful interests.
• His moderate thesis posits that public policy analysis should compare the effectiveness of common law and legislation as regulatory mechanisms, challenging the false dilemma that human behavior is either unregulated or government-regulated. Common law provides a third option: a decentralized, non-political regulatory framework.
• His radical thesis asserts that a peaceful, prosperous society can function entirely without legislation or a monopolistic state, relying solely on common law. He views common law as the “law of anarchy,” binding without requiring individual consent or state enforcement.

2. Applications of Common Law:

• Criminal Law: Hasnas highlights tort law’s historical precedence over criminal law, noting that tort law (compensation for harm) effectively deterred harmful behavior before criminal law emerged, partly as a tool for church control and crown revenue. He suggests evaluating criminal law’s effectiveness against tort law, which avoids political distortions (e.g., prosecutorial bias).
• Market Regulation: He rejects the notion that markets are either unregulated or government-regulated, arguing that ethical beliefs, customs, and common law (e.g., tort liability) already regulate markets effectively. Common law internalizes externalities (e.g., through civil liability), reducing the need for government intervention.
• Environmental Regulation: Hasnas critiques the “tragedy of the commons” narrative, which assumes government regulation or privatization as solutions. He advocates for common law-driven privatization, aligning incentives to preserve resources (e.g., the seahorse farming example), avoiding government’s coercive measures.
• Free Speech: He argues that common law regulates speech responsibly (e.g., through torts like defamation or negligence) without government censorship. The famous “fire in a crowded theater” example is already addressed by tort law, not requiring state intervention. Free speech, for Hasnas, is speech free from government regulation but subject to common law accountability.

3. Anarchy and Libertarianism:

• Hasnas defines common law as the “law of anarchy,” a system that enables cooperation and order without a state. He argues that common law predates government and underpins commercial society, suggesting no essential need for state-provided services like courts, police, or national defense.
• On courts, he notes that common law historically arose from competing, non-monopolistic courts (e.g., ecclesiastical, merchant, and royal courts), indicating that decentralized judicial systems can function effectively.
• For police, he points out that organized police forces are relatively recent (post-1749 in Britain), with private and community-based security sufficing previously.
• Regarding national defense, Hasnas argues that a prosperous, liberalized society would generate wealth sufficient to deter external threats, reducing the need for a state military.
• His libertarian vision emphasizes individual initiative and cooperation over political control, viewing government as prone to rent-seeking and serving special interests rather than the general good.

4. Critique of Government:

• Hasnas attributes the persistence of government to human imagination, which idealizes impersonal, objective state action despite evidence of self-interest (e.g., public choice theory). He contrasts this with common law’s “rent-seeking resistance,” as it evolves through trial and error, not political manipulation.
• He acknowledges the challenge of transitioning to common law liberalism, citing human impatience and desire for control as barriers. He suggests that divided government, which stalls legislative action, might allow common law solutions to emerge organically.

5. Why Common Law Liberalism is Superior:

• Hasnas argues that common law fosters prosperity through cooperation (e.g., contract and property law) and safety (e.g., tort law’s accountability). Unlike legislation, it resists capture by special interests and adapts through decentralized experimentation, as seen in his McDonald’s coffee case example, where tort law swiftly corrected a corporate safety issue without government involvement.

• Skepticism of Legislation: In The Myth, Hasnas argues that legislation cannot provide consistent, neutral rules due to interpretive flexibility, aligning with his lecture’s claim that legislation serves political interests rather than the general good.
• Preference for Common Law: Both works emphasize common law’s adaptability and independence from centralized control. In The Myth, he suggests that decentralized legal processes better reflect practical realities, mirroring his lecture’s portrayal of common law as evolving through trial and error to resolve conflicts effectively.
• Anti-Statism: The radical thesis in the lecture—that society can function without a state—echoes The Myth’s implication that centralized legal authority is unnecessary and often counterproductive, as it imposes arbitrary interpretations rather than fostering organic order.

• He champions English common law for its decentralized evolution, trial-and-error adaptability, and resistance to political capture. His examples (e.g., tort law, property rights) are rooted in the Anglo-American tradition, suggesting a preference for its mechanisms.
• Roman law is not directly addressed, but Hasnas’s discussion of civil law systems (which often derive from Roman law) indicates openness to their potential. He notes that civil law systems, like Louisiana’s, can achieve similar outcomes through judicial reasoning, even without binding precedent, as judges tend to follow effective rules to save effort (Transcript, 46:24–49:44). This implies that Roman law’s principles, when applied in a decentralized manner, could align with his vision.
• However, his emphasis on common law’s historical precedence and organic development (e.g., predating state courts) suggests he views it as a more robust example of non-state law compared to Roman law’s association with codified systems (e.g., Justinian’s Corpus Juris Civilis), which later influenced centralized legal traditions.

• Kinsella’s Argument: Kinsella posits that Roman law, like English common law, developed in a decentralized manner before its codification (e.g., through jurists’ opinions in the Roman Republic). Modern civil codes, while legislated, incorporate these evolved principles, suggesting they retain some organic legitimacy compared to purely top-down statutes.
• Hasnas’s Likely View:
• Hasnas would likely view modern civil codes skeptically as legislation, which he critiques for serving political interests and enabling rent-seeking (Transcript, 36:31–37:22). Unlike common law, civil codes are intentionally designed by state authorities, conflicting with his preference for law as a “product of human action but not human design” (Transcript, 4:12–4:19).
• However, he acknowledges that civil law systems can mimic common law’s outcomes through judicial adaptation (Transcript, 46:24–46:59). If civil codes incorporate Roman law’s decentralized principles (as Kinsella suggests), Hasnas might concede they have some merit, provided judges apply them flexibly to resolve conflicts rather than rigidly enforcing state mandates.
• Despite this, Hasnas’s radical thesis—that society can function without legislation—implies that civil codes, as state-imposed frameworks, are inferior to common law’s stateless evolution. He would likely argue that their legislative nature undermines their ability to resist political capture, unlike common law’s dynamic, case-by-case development (Transcript, 37:14–37:41).
• He does not explicitly call civil codes inferior, but his emphasis on common law’s “rent-seeking resistance” and anarchy-compatible nature suggests a preference for English common law over codified systems, even those with Roman roots.
• Comparison with Common Law:
• Hasnas would likely agree with Kinsella that Roman law’s historical decentralization resembles common law’s organic growth, but he would diverge on modern civil codes. While Kinsella sees potential in their Roman heritage, Hasnas’s distrust of legislation (Transcript, 43:06–43:14) suggests he would view codification as a step toward centralization, reducing adaptability compared to common law’s iterative process (Transcript, 47:57–48:32).
• For example, he praises common law’s ability to learn from mistakes (e.g., Kentucky vs. Tennessee rules, Transcript, 47:23–48:08), a flexibility he might find constrained in civil codes, which prioritize statutory text over judicial experimentation.

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1. Common Law vs. Legislation:
   • Moderate Thesis: Hasnas reiterates that good public policy requires comparing common law and legislation as regulatory mechanisms (Cato Transcript, 23:28–25:16). He challenges the “false dilemma” that markets are either unregulated or government-regulated, emphasizing that common law—through civil liability, contracts, and property law—regulates interactions organically, alongside ethics and customs. This aligns with the Texas Tech lecture’s call for a comparative assessment to determine which system better addresses societal issues (Texas Tech Transcript, 4:43–5:14).
   • Radical Thesis: He restates that a society can function without legislation or a monopolistic state, relying on common law as the “law of anarchy” (Cato Transcript, 31:39–34:37; Texas Tech Transcript, 25:09–26:32). The Cato talk adds an epistemological argument: centralized legislation fails because it cannot amass sufficient knowledge to predict optimal rules, whereas common law evolves through a trial-and-error learning process (Cato Transcript, 14:01–14:44). This reinforces his view that common law’s decentralized nature makes it superior for fostering cooperation without coercion.
   • New Insight: Hasnas clarifies that common law’s advantage lies not in judges’ superior insight but in its internal structural constraints (Cato Transcript, 50:28–54:52). Unlike legislation, which relies on external limits (e.g., a Bill of Rights) that often fail (e.g., the Alien Sedition Act of 1798, Cato Transcript, 35:27–35:33), common law self-corrects through increased litigation when rules fail to resolve conflicts, stabilizing effective rules (e.g., assault and battery rules from 1348, Cato Transcript, 52:55–53:07). This trial-and-error process, facilitated by jurisdictional competition (e.g., Brandeis’s “laboratory of the states,” Cato Transcript, 53:26–53:32), ensures responsiveness to societal needs, contrasting with legislation’s susceptibility to special interests.
2. Applications of Common Law:
   • Criminal Law: Hasnas repeats that tort law historically suppressed harmful behavior before criminal law, advocating for a comparison of their effectiveness (Cato Transcript, 25:38–26:30; Texas Tech Transcript, 7:31–11:31). The Cato talk adds that tort law’s civil liability avoids the political distortions inherent in criminal prosecution, reinforcing its role as a non-coercive alternative.
   • Market Regulation: He reasserts that civil liability powerfully regulates markets by internalizing externalities, often more effectively than government fines (Cato Transcript, 26:44–27:52; Texas Tech Transcript, 11:37–15:29). A new example is the fear of massive tort judgments (e.g., punitive damages) deterring corporate misconduct, contrasting with minor regulatory penalties.
   • Environmental Regulation: Hasnas revisits the tragedy of the commons, arguing that common law privatizes resources through property rights, aligning incentives for preservation (Cato Transcript, 28:04–29:12; Texas Tech Transcript, 15:43–21:04). The Cato talk responds to a question about global issues like carbon emissions, conceding that common law may struggle with urgent, global problems but suggesting it remains a learning system capable of evolving rules over time (Cato Transcript, 1:00:22–1:02:04). He references Jonathan Adler’s work on global common law-like solutions, indicating openness to decentralized approaches beyond local contexts (Cato Transcript, 1:40:05–1:40:45).
   • Free Speech: He reaffirms that common law regulates speech responsibly (e.g., through torts like defamation or negligence) without political control, debunking the “fire in a crowded theater” non sequitur as already addressed by tort law (Cato Transcript, 29:18–31:33; Texas Tech Transcript, 21:11–24:48). The Cato talk emphasizes that free speech should be free from government regulation but accountable to civil liability, ensuring responsibility without censorship.
   • New Insight: Hasnas uses a soccer analogy to illustrate common law’s strength: like a defenseman slowing an attacker to allow the team to adjust, common law takes time to derive effective rules, unlike legislation’s hasty interventions (Cato Transcript, 1:08:01–1:09:00). However, he acknowledges that emergencies (e.g., a “breakaway” in soccer) may justify political action, though this should not be the default (Cato Transcript, 1:09:41–1:10:07). This nuance strengthens his moderate thesis by recognizing rare cases where legislation might outperform common law, provided the comparison is made.
3. Anarchy and Libertarianism:
   • Hasnas reinforces that common law is the “law of anarchy,” enabling cooperation without a state (Cato Transcript, 31:53–32:00; Texas Tech Transcript, 25:34–26:32). He argues that historical evidence—non-monopolistic courts before the late 19th century, no government police before 1749, and private service provision (e.g., tontines before Social Security)—shows society can function without state monopolies (Cato Transcript, 32:32–34:04; Texas Tech Transcript, 27:30–30:45). The Cato talk cites his uncle’s stories of early 20th-century private solutions, grounding his radical thesis in lived experience.
   • He clarifies that his anarchism is epistemological, not a blueprint for statelessness (Cato Transcript, 13:43–14:54). By avoiding predictions about how anarchy would look, he avoids undermining his argument that solutions emerge unpredictably through decentralized processes, unlike centralized planning’s hubris.
   • New Insight: Hasnas contrasts his anarchism with others’ (e.g., David Friedman’s “bloodless” models or Bruce Benson’s “bloody” historical examples), emphasizing that common law’s existing presence in modern society (e.g., private policing, international arbitration) makes it a practical alternative (Cato Transcript, 11:22–12:16). He also critiques the U.S. Constitution as creating a strong central government, preferring the Articles of Confederation’s decentralized model, which required unanimous agreement akin to a market (Cato Transcript, 33:16–35:09). This historical preference underscores his libertarian skepticism of centralized power.
4. Critique of Government:
   • Hasnas reiterates that government fails due to its inability to centralize knowledge effectively, producing legislation driven by special interests rather than the public good (Cato Transcript, 43:04–45:59; Texas Tech Transcript, 34:36–36:43). The Cato talk elaborates on legislation’s complexity (e.g., 12,000-page bills no one reads) and delegation to unelected agencies, amplifying opportunities for rent-seeking.
   • He critiques constitutional limits as “paper barriers” that erode over time (e.g., the First Amendment’s ineffectiveness against the Alien Sedition Act, Cato Transcript, 35:27–35:33; 54:20–55:04), contrasting them with common law’s internal checks through litigation-driven evolution.
   • New Insight: Hasnas engages David Schmidtz’s critique that common law, per The Myth of the Rule of Law, can devolve into the “rule of men” due to conflicting precedents (Cato Transcript, 35:04–35:47). He counters that common law’s trial-and-error process, unlike legislation, structurally limits oppression by requiring rules to reduce conflict, not serve political agendas (Cato Transcript, 50:28–54:08). He also acknowledges human impatience as a barrier to common law’s adoption, using the 1990s junk science example to show that divided government, by stalling legislation, allowed common law to resolve issues effectively (Cato Transcript, 1:09:07–1:09:45).
5. Why Common Law Liberalism is Superior:
   • Hasnas emphasizes that common law promotes individual liberty by minimizing coercion, unlike legislation’s interference with autonomy (Cato Transcript, 51:07–51:36). Its trial-and-error process ensures rules align with societal cooperation, as seen in stable tort rules (e.g., battery, Cato Transcript, 52:55–53:02).
   • He contrasts common law’s historical origins in customary practices (e.g., the law merchant, ecclesiastical courts’ good faith principles) with modern judicial decisions, arguing that both reflect human action without design, fostering peace and prosperity (Cato Transcript, 55:43–57:53).
   • New Insight: Hasnas explicitly ties common law to England’s liberal development, arguing that its accusatorial system and evolved “rights of Englishmen” (e.g., life, liberty, property, per Locke) outshone continental inquisitorial systems, explaining England’s relative freedom (Cato Transcript, 58:00–58:54). This historical comparison strengthens his claim that common law inherently supports libertarian values.
6. Challenges and Limitations:
   • Hasnas admits common law’s slowness, conceding that emergencies may require legislation (Cato Transcript, 1:08:41–1:09:52; Texas Tech Transcript, 50:10–50:33). However, he insists political action should be a last resort, as common law’s learning process typically yields better outcomes.
   • On transitioning to common law liberalism, he confesses ignorance about political strategies, focusing on philosophical justification rather than a roadmap (Cato Transcript, 13:28–15:07; Texas Tech Transcript, 45:50–46:09). He suggests looking to historical private solutions (e.g., friendly societies, Cato Transcript, 1:26:17–1:26:37) to inspire progress, but warns against assuming centralized planning can predict outcomes.
   • New Insight: Responding to civil rights concerns, Hasnas argues that statutory measures (e.g., Jim Crow, Dred Scott) enabled oppression, whereas common law, while not guaranteed to be fair, resists systemic suppression because it evolves through decentralized interactions (Cato Transcript, 1:22:06–1:23:53). He cites Jennifer Roback’s work showing market-driven integration before Jim Crow laws, suggesting common law’s potential to align with fairness absent political interference.

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• Consistency with Common Law Liberalism: In The Myth, Hasnas argues that legal indeterminacy undermines the rule of law’s objectivity, as interpretations vary. The Cato talk aligns this with his preference for common law, which embraces indeterminacy as a strength—allowing rules to evolve through litigation rather than being fixed by political fiat (Cato Transcript, 50:28–54:08). This contrasts with legislation’s false promise of certainty, which he sees as prone to capture (Cato Transcript, 43:20–45:16).
• Addressing Schmidtz’s Critique: Hasnas counters that common law’s “rule of men” risk is mitigated by its structural incentives: bad rules increase litigation, prompting correction, unlike legislation’s external checks (e.g., constitutional rights), which often fail (Cato Transcript, 54:20–54:33). This directly ties The Myth’s skepticism of legal objectivity to his book’s argument that common law’s trial-and-error process better serves liberty.
• Radical Thesis Support: The Myth’s rejection of centralized law as inherently subjective supports the radical thesis that society needs no state, as common law provides binding rules without domination (Texas Tech Transcript, 25:45–26:00). The Cato talk reinforces this by noting common law’s historical independence from state courts (Cato Transcript, 32:32–32:50).

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• English Common Law Preference: Hasnas explicitly states that England’s common law was “superior to the kind of law we had on the continent” (Cato Transcript, 58:00–58:06), attributing England’s liberal development to its accusatorial system and evolved rights (e.g., life, liberty, property). He contrasts this with continental inquisitorial systems, which he associates with less liberty due to centralized control (Cato Transcript, 58:36–58:48). While he does not name Roman law directly, continental law often derived from Roman law’s codified traditions (e.g., Justinian’s Corpus Juris Civilis), suggesting an implicit critique.
• Historical Context: He notes that common law, as the “customary law of England litigated in the royal courts,” emerged from decentralized practices, not designed rules (Cato Transcript, 56:08–56:26). This aligns with his Texas Tech remarks praising common law’s organic evolution (Texas Tech Transcript, 3:00–4:19). Roman law, while decentralized in its early juristic phase, became associated with state codification, which Hasnas likely views as less libertarian.
• Nuance on Civil Law: As in the Texas Tech talk, Hasnas acknowledges that civil law systems (rooted in Roman law) can achieve similar outcomes if judges adapt rules flexibly (Texas Tech Transcript, 46:24–49:44). The Cato talk does not contradict this but emphasizes England’s unique liberal trajectory, suggesting a stronger preference for common law’s structure (Cato Transcript, 58:48–58:54).
• Taking a Side: Unlike the Texas Tech talk’s ambiguity, Hasnas clearly favors English common law in the Cato talk, citing its role in fostering a “more liberal society” compared to continental systems (Cato Transcript, 58:48). He credits common law’s trial-and-error and customary roots (e.g., law merchant, ecclesiastical courts, Cato Transcript, 56:32–57:02) over Roman law’s eventual codification, which aligns with centralized authority he distrusts.

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• Hasnas’s General Stance on Legislation: He consistently critiques legislation as prone to special-interest capture and lacking the knowledge to produce optimal rules (Cato Transcript, 43:04–45:59; Texas Tech Transcript, 36:31–37:22). Modern civil codes, as legislated frameworks (e.g., Napoleonic Code), would fall under this critique, as they are intentionally designed by state authorities, unlike common law’s organic evolution (Cato Transcript, 55:35–55:43).
• Continental Law Critique: Hasnas’s claim that England’s common law outshone continental law (Cato Transcript, 58:00–58:06) implies skepticism of codified systems, including modern civil codes. He associates continental traditions with inquisitorial processes, which he sees as less liberty-preserving than England’s accusatorial common law (Cato Transcript, 58:36–58:48). This suggests civil codes, despite Roman law roots, are inferior due to their centralized enactment.
• Kinsella’s Argument: Kinsella argues that Roman law developed decentrally before codification, and modern civil codes retain some of this evolved wisdom, making them less arbitrary than purely statutory law (Kinsella, p. 133–135). Hasnas might agree that civil codes incorporate decentralized principles (e.g., good faith in contracts, Cato Transcript, 56:52–57:02), but his distrust of legislation’s political nature would likely override this.
• Hasnas’s Likely View:
  • As in the Texas Tech analysis, Hasnas would view civil codes as inferior to common law because they are legislation, subject to political agendas (Cato Transcript, 54:08–54:15). Their Roman law heritage might lend some legitimacy if applied flexibly by judges, but their statutory form conflicts with his preference for law as a “product of human action but not human design” (Cato Transcript, 56:26–56:32).
  • The Cato talk’s soccer analogy—common law as a slow, adaptive process versus legislation’s hasty tackles—reinforces this (Cato Transcript, 1:08:25–1:08:55). Civil codes, as fixed rules, lack the dynamic correction of common law’s litigation-driven evolution (Cato Transcript, 53:50–54:03).
  • Hasnas’s response to global issues (e.g., carbon emissions, Cato Transcript, 1:40:25–1:40:38) suggests that civil codes might struggle with complex, modern problems unless adapted through common law-like processes, but he remains skeptical of their centralized enforcement.
• Explicit Judgment: Hasnas does not say civil codes are inferior, but his critique of legislation and preference for common law’s structural liberty (Cato Transcript, 51:31–54:52) imply they are less desirable. Their Roman law origins might mitigate this if judges prioritize cooperation over statutory rigidity, but their legislative basis aligns them with the “constitutional approach” he deems less effective (Cato Transcript, 54:40–54:45).
• Comparison with Common Law: Hasnas’s Cato remarks strengthen the case for common law’s superiority, as its customary origins (e.g., law merchant, Cato Transcript, 56:32–56:40) and trial-and-error adaptability (e.g., learning from state jurisdictions, Cato Transcript, 53:26–53:44) outshine civil codes’ static, state-imposed nature. While Kinsella sees potential in civil codes’ Roman heritage, Hasnas’s focus on legislation’s failures (e.g., 12,000-page bills, Cato Transcript, 44:52–45:10) suggests he would prioritize common law’s libertarian compatibility.

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