Is English Common Law Libertarian?


by Stephan Kinsella
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Is English Common Law Libertarian?

In a fascinating blogpost, Michael McConkey asks Is English Common Law Libertarian? Many libertarians tend to view the common law as being quasi- or proto-libertarian. McConkey argues, relying largely on Harold Berman’s classic Law and Revolution, II: The Impact of the Protestant Reformations on the Western Legal Tradition (v. 2), that,

in [Sir Edward] Coke’s time [1552-1634] and far before, England was characterized by what modern libertarians would celebrate as legal polycentricism. There was a wide range of legal and judicial systems at work. In addition to the common law, there was ecclesiastical and canon, manorial, merchant, Roman, martial and Chancery law: not an exhaustive list! These all had their own laws and courts. Furthermore, this diversity of judicial options had exactly the benefits which pro-polycentricist libertarians would anticipate. Anyone who felt they were being abused in one court system could appeal to another for redress. Berman tells of cases where individuals were imprisoned by one court system, but managed to secure release by the authority of another court system.

McConkey argues that this kind of polycentrism is quasi-libertarian, but that Coke and other common-law proponents largely destroyed it by pushing the common law and its central place to the fore:

[polycentrism] is just this kind of mitigation of legal and judicial monopoly that libertarians (certainly voluntarists and libertarian anarchists) aspire to with their opposition to the state. Yet, make no mistake, Coke and his fellow common lawyers were not conspirators in this regard. On the contrary, their rooting of English common law in a mythical antiquity was precisely intended to give it the historical authority not only to triumph over monarchial sovereignty, but over all the other competing courts in England. Coke and crew’s battle with James I was not a battle against legal monopoly, but for it – just the promotion of a different claimant to the throne of legal monopoly.

Further, this was achieved precisely by means of the distinctly common law premise of finding historical sources upon which the common law could claim superior jurisdiction. Legal systems based upon positive or natural law, by definition, did not have the fundamental recourse to historical revisionism (temporal imperialism) that was at the core of the common law tradition. It was uniquely situated to win at this game. And, of course, this project of institutional imperialism has proven remarkably successful: today awareness of a once polycentric English legal order has all but vanished from popular knowledge.

I see two lessons here, one for advocates of common law as libertarian and a second for promoters of Hayekian spontaneous order as a kind of meta-reason that leads inexorably to freedom. From the perspective of libertarian values, not only does the common law tradition have blood on its hands (the blood of legal polycentricism), but it has logically built into its conceptual DNA a will to power. The temporal imperialism of its historical revisionism turns a blind eye to the subjectivity inherent in any interpretation of the past. Coke himself was prone to find “new” precedents when he changed his mind on a legal matter. History provides far too rich a buffet from which the jurist may pick and choose the precedents of preconceptual convenience — including common laws’ own legal supremacy.

Secondly, as valuable has been Hayek’s observation on the nature of the market as a spontaneous order, emergent rather than planned, the tendency to apply this same lesson to other social domains overlooks the ubiquity of power. Whether or not it is possible in today’s world to have markets free of coercion and struggles for power, it seems unlikely in other domains of society. Certainly no existing order’s historical roots can ever be claimed to be free of such machinations. Common law, both its practice and its ascendance, is without doubt the result of spontaneous order. But neither the seeds nor the fruit of that result can be considered consistent with or beneficial to libertarian aspirations for freedom. The virtues of spontaneous orders for freedom, whether or not they’re always superior to planned ones, cannot be credibly assumed in any given instance.

None of this is to deny that there is some kind of potential for a market based customary law system to deal with the inevitable gray areas and space of subjective dispute that will arise even amid the most conscientious application of natural law. Its foundation though, unlike common law, should not be in subjective interpretation of history, but the aggregate application of subjective preferences, free from coercion. That may be a tall order, but it’s a picnic compared to getting consensus on the meanings of the past. And it is, indeed, the real lesson of value from Hayek on the virtues of spontaneous order.

See McConkey’s interesting post for elaboration. For related matters, see my posts/articles:

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13 responses to “Is English Common Law Libertarian?

  1. Better Coke (and Seldon and …..) and the guild of Common Lawyers – than James (or other such) and his would-be “enlightened” despotism.

    Note – always pick what Thomas Hobbes would call “The Kingdom Of Darkness” or his strawman “Student of the Common Laws of England” over Thomas Hobbes, Francis Bacon and other Legal Positivists.

    However, better neither the lawyers guild (with their “lawyers cant” and so on) or the “enlightened” tyranny of the state.

    Better neither one.

    Although I must confess that I have a bias against Common Law language (perhaps a failure in myself – rather than in that language). I remember Sean Gabb quoted an English judge here some weeks ago – he was not playing games (Sean often does – but this time he was quite sincere as he normally is about legal matters) he really did admire the person and what he was saying.

    To me it was without principles – the judge did not seem to be really saying anything.

    Common law language (yes – language) has that effect on me – I just have to hear somerthing like “and the law adventures into this new area, what now is considered against the flow of law may in time…..” and I want to leave the room.

    I may oppse some of the content of Roman law tradition stuff (the various Civil Codes) but the civilian language is far more congenial to my deductive habits of mind (first start with the principle [that is where the big arguement should be – at least I believe so], define it with logical care, – then apply the principle to the particular case….) – whereas the langage of the Common Law seems to be endless words that dance insanely before my eyes. But I will struggle on – and perhaps the “flow” will come to me (as it has come to many people I admire).

    I am surprised that Bruce Benson’s “The Enterprise of Law” is not mentioned here, and no mention of Randy B, either.

  2. This is why, to quote Hayek, I am not a conservative. Or maybe that was Keynes.Whatever. Mining the past is a dubious enterprise, and clocks cannot be turned back anyway. I see in the past a struggle between proto-libetarian ideas and proto-collectivist ideas, a struggle throughout the ages. I accept the point of this article, but I do not see much to admire in “polycentricism” either. A multiple hegemony is not much better than a single one, and if there are multiple laws then it is hard to know how one may behave. If it is legal to thump Mr Kinsella under one law, and not so under another, may I punch Mr Kinsella? Fucked if I know. I can see that it would appeal to lawyers, who might enjoy trooping from court to court arguing deep into the night, but to me it smacks of Puritan legalism and that makes me shiver.

    As a libertarian, I want *a* common law if not *the* Common Law. It should be a slim volume. It should reduce judges from being decision makers and legislators to being mere courtroom administrators. It should be sufficiently sparse that any competent citizen can understand it, and know it all, such that he has no doubt as to whether he may or may not punch Mr Kinsella or anyone else. I do not want a multitude of bad legal codes. One good one would suffice.

    • “As a libertarian, I want*a* common law if not*the* Common Law. It should be a slim volume. It should reduce judges from being decision makers and legislators to being mere courtroom administrators. It should be sufficiently sparse that any competent citizen can understand it, and know it all, such that he has no doubt as to whether he may or may not punch Mr Kinsella or anyone else. I do not want a multitude of bad legal codes. One good one would suffice.”

      That is what Napoleon wanted when he commissioned his Codes. They were, on the whole very good – much better than the ancien regime chaos, and better than anyone might have hoped from something a lunatic as the French Revolution. However, the Common Law of England is one of the greatest structures of collective human reasoning. To read a judgment like Donoghue v Stephenson is to be moved into the presence of a superior intellect dispensing justice. One of the few good things Labour did was to give the Common Law judges sufficient freedom and security to hold the entire government to account. Of course, Labour being Labour, it gave with one hand and took with the other – this being the degrading of the Bench by “inclusive” appointments. But it didn’t take away all it gave.

      There – praise from me, if through gritted teeth, for something done by Tony Blair!

  3. OF COURSE! Common law, and most older legal systems that were not specifically designed to further the despots, were by our modern standard sortof Libertarian. The main reason is that the law was small. Nobody had the manpower to produce the massive pile of laws and regulations that most residents in industrial countries suffer under. As it was written
    L’etat opprime et la loi triche,
    L’impôt saigne le malheureux,

    Thorodinfrey

  4. I’ve thought for some time that one useful innovation might be an additional verdict called something like “refuse to convict”. That verdict would mean that the jury consider that the defendant may or may not be guilty but, regardless, it would be unjust to punish him. Any law which receives a certain number of “refuse to convict” verdicts (within a given time period, perhaps) would automatically be abolished.

    • In the US, there is a similar movement, known under various names, such as “The fully informed jury” movement. This is about educating current and prospective (almost everybody) about the option of finding “Not Guilty” regardless of evidence, on the basis that they don’t like the law. One of the first proponents of this was the first Chief Justice of the US (i.e. the head of the Supreme Court). But if you try that in almost any court in the US, the judge will shut you up. And if repeated, or by a lawyer, followed by contempt of court charges.

      ThorodinFrey

      • It’s a defence tactic commonly used in England. The defence barrister, or the defendant in person, will cite the rule established by Bushell’s Case (1670). The Judge must then explain that the Jury can acquit in the face of all the evidence. I believe it’s one of the reasons why the drug laws became unenforceable in the 1990s.

  5. We certainly need a revival of jury nullification. Our ancestors fought for it, and we’ve let it slip away.

  6. I may be wrong about this, but as I understand it, Jury Nullification is effectively dead in the USA. Nice to see it still happening here occasionally.

    Of course in the USA, the plea bargaining system seems to have virtually destroyed the criminal justice system anyway.

    • Ian – So far as I can tell, jury nullification is being used here for its main function – which is the voiding of oppressive laws.

      One of the reasons the State won’t bring Emma West to court is fear that even an all-black jury will throw out the charges. Remember also how juries have made the Obscene Publications Act unenforceable, and how a jury let that man off this year who was caught with all the fisting porn, and was done under the “extreme pornography” law. Oh, and Nick Griffin got off on those absurd charges, which were almost certainly criminal according to the corrupt law under which he was charged.

      It’s hit or miss. I wouldn’t like to go into court with no other strategy than asking the jury to acquit. But the jury system does still sort of work in this country.

  7. First – the Ian B. quote “Why I a not a Conservative” is indeed from Hayek (it is the title of the postscipt in “Constitution of Liberty”).

    Plea bargaining is a vile practice.

    A friend of mine was charged last year with offenses of which he was totally innocent (indeed he was the victim of a serious crime – conspiracy to pervert the course of justice, by producing knowingly false evidence). Yet neither the police or the legal authorities wanted to talk to him about his innocense – all they kept saying (and it was even written on the documents) was make a deal and you get very little punishment……..

    If he was not as stubborn as a mule (an Ulster Protestant) he would now have a criminal record – having done nothing (nothing) dishonest.

    “But plea bargaining is inevitable”,

    Which is why it was unknown in the German legal system till only a few years ago?

    Perhaps if the American Federal system (and many State systems) did not lay down such absurd lengths of imprisonment (totally disproportionate to the offence) and perhaps if America law accepted that the authorities had a duty of care to those whom they put in prison (so that “well we are very sorry you were raped – but the other prisoners did it, so it is nothing to do with us” is not a defence for the authorities) there would be such a mess of “plea bargaining” in the American system.

    No more “we know you are innocent – but unless you agree to…… you risk going to prison for 20 years” or “I am sorry – but a man like you would not survive in a normal prison, but sign here and you get to go to Club Fed”.

    And this is one of many features that make the American Federal “Justice” system a “conviction machine”. And, of course, under “RICO” they can take your money and property – they can be “frozen” before you are convicted of anything at all.

    One must not only be innocent but also very brave – to come out of the Federal system without admitting something (admitting something false – out of fear and desperation).

    And even if one is found innocent of everything (a very rare thing in the Federal system) one is still a marked person.

    Everywhere one goes people will be told “a Grand Jury held there was a case to answer….” as if that is some sort of crime?

    This was the reason that Grand Juries were abolished in England and Wales in (I think) 1933 – as people can always say “a jury held you had a case to answer…..” (with a cold look and a firm voice – as if they were saying “be off with you, unclean person…..”).

    It is enough to deny someone any real chance of employment and so on.

    The N. Code.

    Well law was a bit of a mess before the Revolution – but not as much of a mess as is sometimes claimed.

    The local customs had been written down some decades before the Revolution.

    Although this did, of course, did still mean that different areas of France had different laws.

    And some of the bad things that are commonally associated with the Ancient Regime has actually been removed by Louis XVI (some years before the Revolution).

    “Putting the question” (torture) – abolished before the Revolution.

    The laws against Protestants – again abolished before the Revlution.

    The laws agains the Jews – also mostly abolished (apart from in Alsace – a German speaking area that was in a way part of France and in a way not part of France, it gets complicated…..).

    The N. Code was indeed more humane than English law at the time – in England and Wales one could be hanged for theft and so on (although Sean Gabb would rightly point this is largely about mad statutes being passed in England and Wales in the 18th century).

    Jury nulification was desperatly needed in England and Wales because the law (or large parts of it) was bonkers.

    In the United States all the Founding Fathers (including Hamliton) were firm supporter of Jury Nulification – and, yes Ian, modern American judges will throw you in prison if you even mention the words “jury nulification” in their court rooms.

    They are simply on a different wavelength from the Founders – whose ideas have far more in common with Feudal Law, and Cannon Law, than they do with the stuff that is now taught in American “Law Schools”,

    Of course, under a pure Common Law system (whether a guild one like the old one in England and Wales – or an “open common law” system that existed in most American States in the 19th century) “going to university and getting a law degree” is no part of the system.

    In England and Wales (in the old days) the “Inns of Court” were not just places where one had “dinners” – they where places where a lawyer learned his trade (like any other craftsmen learing his trade from a master).

    And in the United States one really could be a “railway hand one day – a lawyer the next” (as Lincoln was).

    All one needed was a client – and anyone could stand up in court (for money) and plead the case of the client before the jury.

    And if you did well (if the jury liked what you had to say) you got more clients – and stopped being poor. If you were no good – then back to manual labour.

    This all ended at the end of the 19th century (as lawyer licensing spread like a plague from State to State – as part of the general “Progressive” movement). These days one seems to need a university degree to wipe ones backside in the United States – indeed two university degrees, the general “Liberal Arts” one, and then the specialist “post grad” one.

    Part of the reason there is a trillion (yes – trillion) government backed student loan debt in the United States.

    As well as the vast majority of mortgages being owned by the Federal government (ask the average American who owns his house – I doubt most know that “Uncle Sam” is the correct reply) and so on.

    This is all too depressing – back to the N. Code.

    One of the problems with it is that Napoleon (although he is sometimes argued not to have wanted to) kept with the Revolutionary principle of the compulsory break up of farms – via inheritance law.

    This had been been done (with Catholic owned farms) in Ireland, as a form of punshment, under the “Penal Laws” (after a couple of generations of this madness farms become uneconomic penny packets and the population become subsistance peasants vulerable to potato blight and so on).

    The French had this madness inflicted upon them by the Revolution – and it was kept by Napolean (in spite of his farmer’s son common sense revolting against it).

    This led to some (how many is hotly contested) French peasants kiling their own children (if they had more than one son) and other horror in the 19th century. And helped produce the relative decline of France compared to Germany.

    I am told the Austrian Civil Code (1811 – only a few years after the N. Code) avoided this compulsory breaking up of farms.

    But establishment historians do not like to be told that the Hapsburgs (or their kin over the border in Bavaria) got anything right.

    Even the French (in a backhanded way) admitted that the basis of the N. code in landed inheritance was wrong.

    After the return of Alsace to France in 1918-19 the French government quitely said that German land law could be kept.

    To this day in France one must go through careful to pay off potential claiments to a farm (in order to preserve the farm).