KOL474 | Where The Common Law Goes Wrong (PFS 2025)

by Stephan Kinsella on September 19, 2025

Kinsella on Liberty Podcast, Episode 474.

“Where The Common Law Goes Wrong,” 2025 Annual Meeting, Property and Freedom Society, Bodrum, Turkey (Sep. 19, 2025). This will also be podcast later on the Property and Freedom Podcast. Below are my notes, Shownotes provided by Grok, and the transcript. This recording is from my iphone. Professional recording and video will be uploaded later. See also Sebastian Wang, “Stephan Kinsella on the Common Law: Lessons from Bodrum 2025,” Libertarian Alliance [UK] Blog (Sep. 19, 2025). Pix.

Grok Shownotes

Show Notes: Stephan Kinsella’s “Where the Common Law Goes Wrong” – Property and Freedom Society 2025 Annual Meeting

Introduction and Context

Stephan Kinsella delivered his talk, “Where the Common Law Goes Wrong,” at the Property and Freedom Society’s 2025 Annual Meeting in Bodrum, Turkey, on September 21, 2025. Introduced by Hans-Hermann Hoppe, who shared a brief anecdote about media bias in translating Donald Trump’s interactions, Kinsella’s presentation revisits themes from his earlier PFS talks in 2012 and 2021, focusing on the interplay between libertarian principles, Roman law, and the common law. Drawing on his recent work, including the Universal Principles of Liberty (co-authored with Alessandro Fusillo, David Dürr, FreeMax, and Patrick Tinsley, under Hoppe’s guidance), Kinsella emphasizes the organic development of law and critiques the modern tendency to equate law with legislation. He humorously recounts preparing for the talk with his trainer, who mistook “common law” for “common law marriage,” highlighting the need to clarify legal concepts for a broader audience.

Defining Law and Its Evolution

Kinsella begins by distinguishing types of law: descriptive (e.g., laws of physics, economics) and normative (e.g., moral codes, legal systems). Legal laws, he argues, blend normative guidance with descriptive consequences, aiming to achieve justice through property rights. He contrasts the modern view of law as statutory decrees—illustrated by tax protesters demanding to “show me the law”—with its historical roots in decentralized systems like Roman law (500 BC–565 AD) and English common law (1066–present). These systems evolved organically through court decisions, with Roman law preserved in Justinian’s Corpus Juris Civilis and later rediscovered in Bologna around 1070, influencing European civil codes. Kinsella notes that post-1789 democratic shifts and bureaucratic growth led to an explosion of legislation, overshadowing these private law traditions.

Roman Law vs. Common Law

The talk explores why Anglo-American scholars, like Hayek and Leoni, often praise the common law’s spontaneous order while overlooking Roman law’s similar decentralized origins. Kinsella cites Hoppe’s observation, from Democracy: The God That Failed, that the common law’s non-codified nature may serve lawyers’ interests by making it less accessible to laypeople, unlike Europe’s clearer civil codes. He refutes the misconception that civil law systems inherently embody totalitarian principles (“all that is not permitted is forbidden”), attributing Europe’s socialism to separate legislation, not civil codes. Both Roman and common law, Kinsella argues, offer valuable insights for libertarians, despite the former’s neglect in free-market scholarship.

Libertarian Law and Rationalism Critique

Kinsella critiques the rationalistic tendency among libertarians to design top-down “libertarian law codes,” as exemplified by Rothbard’s hope for a comprehensive code in The Ethics of Liberty. Such approaches, he argues, ignore context and the limits of deductive reasoning, echoing Hayek’s critique of constructivist rationalism. Law, as a practical response to scarcity and conflict, developed through real-world judicial decisions over centuries. Kinsella suggests that libertarian law should evolve organically, using Roman and common law as starting points, guided by principles like non-aggression but subject to scrutiny for compatibility with liberty. He references G.K. Chesterton’s “fence paradox” to caution against discarding established legal traditions without understanding their purpose.

Where Common Law Goes Wrong and Right

Kinsella identifies aspects of common law incompatible with libertarian principles, including the doctrine of consideration in contracts (unnecessary, as Roman law shows), blackmail, trademark, defamation, trade secret laws, common law copyright, coverture (denying married women’s property rights), and primogeniture. Conversely, he praises common law solutions like mens rea, joint and several liability, and the felony murder rule, which holds felons liable for deaths during dangerous crimes. He highlights the “but for” causation test’s limitation in cases of multiple actors (e.g., two hunters simultaneously shooting a victim) and the common law’s ingenious solution of treating independent actors as jointly liable, ensuring accountability.

Vision for Libertarian Legal Development

Kinsella envisions a future libertarian society where judges apply core principles, such as those outlined in his Universal Principles of Liberty, while drawing on Roman and common law traditions. These traditions would serve as presumptively valid starting points, subject to rejection if they conflict with libertarian justice. He argues that a fixed libertarian law code is neither feasible nor desirable, given law’s contextual and evolutionary nature. Instead, advocates would argue cases based on libertarian principles and private law precedents, gradually building a distinct libertarian jurisprudence. Kinsella’s talk, rooted in his Legal Foundations of a Free Society and decades of scholarship, underscores the importance of learning from historical legal systems while refining them through libertarian reasoning.

Kinsella’s Notes

Where The Common Law Goes Wrong

Background

Today I’m going to talk about law
- In particular, about libertarian law, and about decentralized law like the common law and Roman law
- Returning to a topic I have touched on here before
  - KOL001 | “The (State’s) Corruption of (Private) Law” (PFS 2012)
  - KOL359 | State Constitutions vs. the Libertarian Private Law Code (PFS 2021)
- But hopefully with some more wisdom about this topic
Stephanie discussion
- Telling her what my talk would be about
- She said we are not all lawyers
  - I said well I don’t think most lawyers know about Roman law, or even much about the common law other than how to use it in their daily practice
  - I should have known this already
- In short, I realized that, contrary to a recent meme, not everyone thinks of Rome once a day
- Much less knows about Roman Law, or even much about common law
So I decided to try to start from some basics
- And to speak slowly, as Renata Jacobs keeps asking me to do

What is Law?

That said, let me start from some basics.
The word “law” has a broad meaning in different contexts.
Law refers some regularity in events;
- to order, regularity, or rule, depending on the context
Various types: descriptive, and normative/prescriptive
Descriptive: causal laws; economic laws; laws of logic
Normative: moral laws, narrow codes of ethics (doctors, lawyers)
Legal laws: are a blend of normative and descriptive.
Normative: Just as humans aspire to do good or right—things they “should” do—they are interested in what interpersonal actions involving force are justified, and what enforceable rules are just—what are normally called “laws”. The purpose of law is to do justice, which is normative, and a just law is one that corresponds to the rights we have—the property rights we have.
But there is a difference between the laws actually in force in society and those that should be in force—those that are justified.
e. we can identify laws that “exist”, i.e. that are in force, which is descriptive/factual. The question of which laws are just or justified is a normative or moral question.
Understanding this distinction helps clear up the tired old debate between the natural law proponents (Lon Fuller) and the legal positivist (H.L.A. Hart, The Concept of Law).
Most people now are used to thinking of law as statutes or legislation: commands issued by a legislature, or the US Constitution itself, another written document drafted and approve by vote of a committee; a decree.
Until about 100 years ago law was not commonly thought of as synonymous with legislation; now it is.
- g. income tax protesters saying “show me the law!”

Positive Law in the World Today

Law was not always thought of as legislation
It actually emerged organically over centuries in relatively decentralized processes
Primarily, the Roman Law (from about 500BC to about 565 AD (the end of Justinian’s reign) and the Common Law, from about 1066 (Norman Conquest) to present.
Each approximately 1000 years
- The Roman Law was codified and preserved under Justinian in his Corpus Juris Civilis or Justinian Code (529–534 CE)
- In the meantime law in Europe was based on
  - Germanic customary laws (Salic, Lombard, Visigothic, etc.)
  - Canon law (Church law)
  - And local feudal customs and town statutes
- Rediscovery in northern Italy and “Reception” into continental practice
  - Around 1070, a complete copy of Justinian’s Digest was found in Bologna
  - It was studied by scholars and during the 11th–15th centuries, it was gradually incorporated into the European legal system, supplementing local customary law, especially in commercial and civil matters
- In the 19^th century, inspired by Enlightenment rationalism the Roman law, and the ideal of clear, written law, European law was largely systematized in codes using Roman legal categories and also incorporating European customary and case law developed after the fall of Rome (from 565–1804 or so).
Today’s positive law systems, the European civil law systems (Europe, Latin America) and Anglo-American countries (UK and commonwealth, the United States) embody private law developed in largely decentralized court-based legal systems spanning about 1,000 years each
With the decline of the ancien régime in France in 1789 and the collapse of monarchies after WWI and the emergence of democracies, the rise of “scientific” central planning and bureaucracies there was an explosion of regulation and legislation that has gradually crowded out and sometimes replaced the decentralized private law systems of the common law and Roman law countries
- Hoppe, Introductionto Democracy: The God That Failed
Thus, the modern habit of thinking of law as statutes, as legislation

Roman Law vs. Common Law

Perhaps because many of the pro-free market scholars were Anglo-American and thus familiar with the common law, there has long been sort of prejudice or view that the decentralized common law is an example of how a “spontaneous order” where order can emerge on the market
Many libertarians and others have a favorably impression of the common law
- As they should
Hayek, Bruno Leoni, many Chicago and “law and economics” type scholars
- https://x.com/i/grok/share/RkewVA5q7rcjyDXHXIsxjEtSe
The Roman Law and its modern instantiation in European civil law and civil codes, is largely ignored and given short shrift
- One reason may be the Anglo-American dominance of free market thinking
- Another is that Europe was less free market so European law is seen as more socialistic
  - Or because European civil codes are legislated as statutes, and thus enshrine a type of legislative or legal positivism
  - However, this is not because of the Roman law or the European civil codes, but because of non-code statutes
    - Some even erroneously think that civil law of Europe, because it is legislated or because Europe tends to be more socialistic, embodies the maxim “All that is not permitted is forbidden”
      - This is true of totalitarian systems, but not of modern civil law

Hoppe on the Civil Codes

As noted: many libertarians praise the common law, most fail to understand the civil law in Europe also came from a decentralized legal system (Roman law)
- In Professor Hoppe’s lecture on The Production of Law and Order: Natural Order, Feudalism, and Federalism, starting at 1:07:30 (loosely transcribed):
- “A little side remark, in English speaking countries there is a certain amount of pride in having the so called “common law,” which is in a way non-codified law, case law. The continental tradition has been for a long time different. There we have had codified law.
- “Anglo-Saxons look down on codified law and hail their non-codified common law. I want to remark that Max Weberhas a very interesting observation regarding this. He sees the reason for the non-codification of the common law in the self interest of the lawyers to make the law difficult to understand for the layman and thus make a lot of money. He emphasizes that codified law makes it possible for the layman on the street who can read to study the law book himself, and go to court himself, and point out “here this is written down” and so forth.
- “So maybe this excessive pride that Anglo-Saxons have in their common lawmight be a little bit overdrawn.”
  - [Update: See the more extensive comments by Hoppe in this regard in the book based on these lectures, as quoted in Roman Law and Hypothetical Cases; see his Economy, Society, and History(Mises Institute, 2021; https://www.hanshoppe.com/esh/), p. 111]

Libertarianism and Roman and Common Law; the “Libertarian Law Code”

In any case, from a libertarian point of view, when we libertarians point to private law, we need to have in mind both the Roman law/civil law and the Anglo-American common law
Why does this matter?
It is because many libertarians have a naïve or rationalistic view of libertarian law as being designed top-down by libertarian philosophers
This is the source of obsessions with lifeboat scenarios, “would you push the button” scenarios, and armchair theorizing
- On Pushing the Button–the problem with magic
Even Rothbard talked about the “Libertarian Law Code” of a free society
- “While the book establishes the general outlines of a system of libertarian law, however, it is only an outline, a prolegomenon to what I hope will be a fully developed libertarian law codeof the future. Hopefully, libertarian jurists and legal theorists will arise to hammer out the system of libertarian law in detail, for such a law code will be necessary to the truly successful functioning of what we may hope will be the libertarian society of the future.” —Murray N. Rothbard. “Ethics of Liberty.”
The problem is that such scenarios leave out the context
There is a limit to deductive reasoning
- Some Randians have a point when they criticize “excessive rationalism”
  - Which many of them of course suffer from
  - And of course Austrians from Mises to Hayek to Rothbard and Hoppe have criticized scientism and various errors
    - g. Hayek’s critique of “Constructivist rationalism”
    - https://chatgpt.com/s/t_68c9c333780c81918ed02b12b2a0f843
    - https://x.com/i/grok/share/TCnOJ6HV40iO5Gc6U63ZY6QZz
    - Mises: Keep It Interesting
  - The essential point is that context matters and there are limits to armchair reasoning
- Law is a practical matter: property rights emerge as a normative response to the problem of conflict and disputes in a world of scarcity
- This is one reason law emerged over two separate 1000 year periods gradually by judges hearing real cases between actual parties having a dispute over control of some resource
  - In these cases, the judges can take testimony and evidence, they can take into account relevant evidence, customs, and context
- We must also remember modern libertarianism is a relatively young philosophy, about 70 years old
  - We cannot expect it to fully formed yet

The Task of Libertarian Law

It would futile to try to write a complete Libertarian Constitution, since constitutions are statist documents
Or even to write a complete Libertarian Law Code.
For one, it is premature.
For another, it would impossible. Law does not develop that way.
Finally, it would be stupid to throw out the accumulated wisdom that can be found in the Roman law and Common Law
- Chesterton: “In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, ‘I don’t see the use of this; let us clear it away.’ To which the more intelligent type of reformer will do well to answer: ‘If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.’”
  - On the Role of Commentators and Codes and the Oracles of the Law
  - See related Hoppe point that you don’t discard a causal theory merely after a falsification unless you have a better one to replace the old one
    - “There is no situation conceivable in which it would be reasonable to throw away any theory—conceived of as a cognitive instrument of action—that had been successfully applied in a past situation but proves unsuccessful in a new application—unless one already had a more successful theory at hand.” Hoppe, “In Defense of Extreme Rationalism,” in The Great Fiction
  - So the role of libertarian scholars is to carefully justify, elaborate, and clearly set out our principles
    - As for the former (scholarship), this is what many libertarian thinkers have done the past several decades, including, most importantly, Murray Rothbard and Professor Hoppe.
    - It is what I have tried to do in my own writing over the last 33 years, based largely on the work of Rothbard and Hoppe
      - Legal Foundations of a Free Society (Papinian Press, 2023)
    - As for the latter (setting out the principles), libertarian legal scholarship has reached point of maturity where our basic principles can be clearly and concisely stated
      - I have made an attempt at this in my recent Universal Principles of Liberty, written with the assistance of several people here today
        
        Alessandro Fusillo, David Dürr, and FreeMax, and Patrick Tinsley, under the watchful eye of Professor Hoppe
      - The idea is that jurists of a future society can refer to these basic principles in their reasoning and decisions
      - They would draw, as appropriate, the Roman law and Common Law, but only insofar as these laws are compatible with fundamental libertarian principles

Private Law as a Guide to Libertarian Law

Thus judges would regard previous private law as a starting point, perhaps with a presumption of validity, but subject to challenge in light of consistent and foundational libertarian principles.
- Rothbard was close to this view, but a bit more rationalistic
  - “there exists another alternative for law in society, an alternative not only to administrative decree or statutory legislation, but even to judge-made law. That alternative is the libertarian law, based on the criterion that violence may only be used against those who initiate violence, and based therefore on the inviolability of the person and property of every individual from “invasion” by violence. In practice, this means taking the largely libertarian common law, and correcting it by the use of man’s reason, before enshrining it as a permanently fixed libertarian code or constitution. And it means the continual interpretation and application of this libertarian law code by experts and judges in privately competitive courts.”
  - https://mises.org/library/how-have-law-without-legislation
- We can expect advocates on both sides of disputes in a young libertarian system to argue whether a given common law rule is or is not compatible with libertarian law and whether it should be adopted and incorporated into the growing body of libertarian law and jurisprudence, or rejected as incompatible
- Just as we are now at the point where the basic principles of libertarian justice can be succinctly and precisely stated, we can also comment on some aspects of existing private law that appear to be incompatible with libertarian principles, keeping in mind the limitations of armchair theorists
- I have collected a few examples of where I think the private law goes wrong (and what it gets right).

Where the Common Law (and Roman Law) Goes Wrong

Consideration (in contract)
Blackmail
Trademark law
Defamation law/reputation rights
Trade secret law
Common law copyright
Slavery
Viewing contracts as binding promises giving rise to obligations

As I point out in Epstein on Roman Law,

And I think both the Roman and common law of contract are wrong—not really because it’s unlibertarian, but because of some initial mistakes in the understanding of the relationship between property rights and contracts that only became clearer later, primarily with some insights pioneered by Rothbard and Evers and expanded and clarified by me.

coverture (Suggested by Roberta Modugno in the comments to the Facebook post: “May I suggest you the common law doctrine of “coverture”? It was the doctrine denying the private property rights to married women. It was treated by William Blackstone in his Blackstone Code. Very, very unlibertarian.”)
primogeniture (suggested by Grok)]

Where the Common Law (and Roman Law) Gets Right

joint and several liability
felony murder rule
- a doctrine that elevates a homicide to murder if it occurs during the commission or attempted commission of an inherently dangerous felony (e.g., robbery, burglary, or arson). Under common law, the intent to commit the underlying felony supplies the malice required for murder, eliminating the need for specific intent to kill. This rule applies even if the death is accidental or caused by a co-felon or resisting victim, and it holds all participants liable.
actors in concert/burning down field – treating as if joint. Two hunters. ETc.
- to address this, common law recognizes an exception for duplicative causation or merged causes, often applying the substantial factor test to hold both actors liable. This exception treats each actor’s conduct as a cause if it was a substantial factor in producing the harm, even if neither was strictly necessary due to the other’s actions.
  - Restatement (Third) of Torts § 27 (2010)
    - If multiple acts occur, each of which under § 26 alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm.
  - Kingston v. Chicago & Northwestern Railway Co., Summers v. Tice, Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co. (1920)
  - https://x.com/i/grok/share/Q625ORjtqJHtmbdJJbn50jJcf
  - https://chatgpt.com/s/t_68c09ccb969c819196523dc0311f552c
- Similar to transferred intent
  - mens rea required for criminal liability
  - Act must be specific—specific intent is the highest level of mens rea, requiring a subjective desire for the prohibited result (intentional action)
  - Transferred intent is a doctrine that “transfers” a defendant’s criminal or tortious intent from the intended victim to an unintended one. If a person aims to harm or kill Victim A but instead harms or kills Victim B (e.g., a bystander), the original intent is imputed to the act against Victim B, preserving liability for the intended crime. This applies to intentional torts and crimes like battery or murder, ensuring the defendant’s mens rea (guilty mind) is not negated by a targeting error.
- conspiracy
- threats/assault – includes putting in fear and attempts
- jury trial
- higher standard of proof for crimes
- double jeopardy
- forced heirship
- dog’s first bite is free
  - owner was not strictly liable for injuries caused by a domestic animal (like a dog) unless the owner knew or had reason to know of the animal’s “vicious propensities.
  - a dog owner is generally not held liable for the first instance of a dog bite or attack, provided they had no prior knowledge (or “scienter”) of the dog’s dangerous or vicious propensities. The rationale is that an owner cannot be held responsible for harm caused by their dog unless they were aware—or reasonably should have been aware—that the dog posed a danger.
  - https://chatgpt.com/s/t_68c09da1cac081919588e45520a3ac9e
  - https://x.com/i/grok/share/MNw3mVb9glrmaiStxp7dzMqjw
- Slayer rule: can’t inherit or get insurance payout
  - The “Slayer Rule” (Inheritance and Insurance) Rule: A person cannot profit from his or her own wrongdoing. Thus, someone who intentionally and feloniously kills another cannot inherit from the victim’s estate nor collect life insurance proceeds. Sources: Riggs v. Palmer, 115 N.Y. 506 (1889) is the classic case: a grandson murdered his grandfather to ensure his inheritance, but the court held he could not take under the will because “no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong.” In life insurance, courts have long refused to allow a beneficiary who murders the insured to recover the proceeds. See e.g. Mutual Life Ins. Co. v. Armstrong, 117 U.S. 591 (1886).
  - https://chatgpt.com/s/t_68c09e81954c81918c267ef7aeaffc0d
  - https://x.com/i/grok/share/6t7ZKtZXK29XjtUh0ztNO6q6H
- Promissory estoppel and other forms of estoppel
- nemo dat quod non habet (“no one gives what they do not have”:
  - owner of stolen property can recover from new owner
  - Exception if it is more their fault
    - Estoppel: If the original owner’s actions (e.g., negligence or representation) led the good faith purchaser to believe the seller had authority to sell, the original owner may be estopped from reclaiming the property
  - Eggshell skull/take your victim as you find him— “talem qualem”, “such as they are” or “as they are.”

Transcript

0:03

[Music]

0:11

Casual Conversation

Sean’s presentation was great.

I know. I like that.

It’s all about Rome. Everything’s about Rome.