Return to the Common Law?

In Common Law Liberalism: A New Theory of the Libertarian Society (Oxford 2024), John Hasnas presents a clear and provocative account of how customary legal orders can ground a libertarian society. Remarkably, for its legal philosophy, the book is highly readable. Three parts build on each other, but even readers who diverge before the final part will find substantial value along the way. Hasnas brings his characteristic talent for clarifying metaphors to this project. Whether or not the reader ends up agreeing with the final chapter’s statement of “the obviousness of anarchy,” you come away from this book having much to think about.

The Questioning Assumptions section is a deceptively gentle first step on the road to anarchy. Hasnas makes a compelling case that the assumption that the state must intervene to provide peace and order, tame market excesses, and protect the environment rests on a false choice between state regulation and no regulation of private behavior. Drawing on history (primarily post-Roman, pre-Norman England), psychology, and philosophy, Hasnas argues that such accounts fail to consider the extensive regulation of private conduct by early common law (derived from custom rather than judicial precedent) and ethics. Displaying his characteristic knack for a clarifying metaphor, Hasnas invokes classic psychology experiments in which participants instructed to count the number of times players pass a basketball amongst themselves fail to notice a person wearing a gorilla suit walking through the court. Like participants in those experiments, he argues that most people justifying the state overlook the pervasive regulation of private behavior by these forces.

Custom’s role, in particular, is rarely acknowledged in analyses of the modern world. Hasnas uses the term “common law” at times to describe both customary law as enforced by early English courts and modern judge-made law derived from written judicial opinions. This usage blurs a distinction crucial to his argument about the legitimacy and moral force of customary law. (This choice is puzzling, given Hasnas’ superb 2004 article, Hayek, the Common Law, and Fluid Drive corrected Hayek’s conflating of customary and common law in Law, Legislation and Liberty.) Hasnas argues that what distinguishes custom, ethics, and the common law from legislation (statutes and regulations) is the absence of political influence in their formation. He argues that these forces are powerful. For example, efforts at tort reform acknowledge that tort law exerts considerable influence on private behavior. The section concludes with a chapter comparing private means of achieving environmental protection with regulatory methods. The core argument is that the tragedy of the commons can be averted by both privatization and regulation, and that the former often works well.

A problem with the first part is the blurred distinction between custom and common law. For example, Hasnas argues that tort law can be summarized in three basic rules:

1. Do not intentionally harm others.

2. Exercise the degree of care that a reasonable person would use to avoid causing harm to others by his or her actions.

3. If you engage in actions that impose a risk of harm on others that cannot be reduced by being careful, compensate anyone your actions injure.”

The first two parts are a concise summary of the law of negligence, and the third adds strict liability for what are often termed “ultrahazardous activities.” However, drawing the boundary between negligence and strict liability is anything but straightforward. While the common law in most British-derived legal systems up through the 1960s generally restricted strict liability to a relatively small number of activities (e.g. blasting), U.S. state courts broadened strict liability far beyond its traditional confines, while many other British-related jurisdictions have not. Hasnas’ distinction between common-law-based-on-custom from common-law-in-appellate-decisions enables him to distinguish legal rules created by courts that expand liability from implicit ones that emerge from jury deliberations, but even the latter have vastly expanded liability.

A second problem is the need for sufficiently predictable liability rules to enable people to plan their activities. Consider product liability: whether the design of a lawnmower triggers strict liability or is governed by negligence affects pricing and safety. Similar complexity surrounds important issues such as comparative versus contributory negligence. Tort law is more complicated than Hasnas’ three points allow, and it is unclear how a custom-driven system would address such issues. While it would be impossible to fully develop a replacement tort system in such a short book, the brief discussion leaves the reader wanting more detail on how such a system would function.

In Applications, the second part, Hasnas uses debates over free speech to illustrate his argument for what he calls “empirical natural rights,” or rights that “evolve in the state of nature.” These are rights that evolved to solve problems in societies such as post-Roman England – local communities restricting access to resources, the evolution of compensatory payments as an alternative to blood feuds, and the law merchant that worked across medieval Europe. Applying his framework to free speech issues, he reads the First Amendment as a separation-of-powers bar on federal speech regulation, not a mandate for courts to calibrate permissible restrictions. Hasnas makes a convincing case that its purpose was to keep the federal government out of regulating speech, leaving that to a mix of custom, state common law (e.g. defamation), and regulation. His paragraph describing the confusing state of First Amendment law is a masterpiece, pairing short, direct statements of whether regulation is allowed with citations to the relevant case law: “Movies? Yes. Obscenity? No. Symbolic speech? Sometimes, unless it’s cross-burning, then no. Students’ speech in schools? Yes, unless it encourages drug use; then no.” This section offers a valuable thought experiment, although even the most libertarian justices on the Supreme Court are unlikely to accept Hasnas’ interpretation of the separation of powers within the First Amendment.

Moreover, Hasnas does not address the hard question raised by New York Times v Sullivan, the Supreme Court’s 1964 decision that barred Alabama courts from allowing a defamation action against the signers of an advertisement critical of local officials’ behavior on civil rights. Hasnas labels the opinion “clearly wrong,” as the “common law of defamation … is designed to place inhibitions on the way debate is conducted.” True. Yet in Sullivan, Alabama officials used the courts to suppress civil-rights advocacy, a context that complicates Hasnas’s reliance on the common law baseline. As Samantha Barbas’ Actual Malice: Civil Rights and Freedom of the Press in New York Times v Sullivan (2023) documents, the alleged “defamatory” statements were trivial, and the Alabama courts were not neutral in this dispute but solidly on the wrong side. Sullivan exemplifies the saying “hard cases make bad law,” but the book would have benefited from wrestling with the challenge posed by the atrocious behavior of the Alabama officials to the Supreme Court. Moreover, removing a barrier to government officials bankrupting their opponents through legal action doesn’t align with a vision of a libertarian society. A deeper discussion of how to handle such state-enabled misuse of private law would strengthen the argument.

The final part of the book, Anarchy, makes Hasnas’ main case for distinguishing customary law (more or less, pre-nineteenth century English law) from modern common law. One key is the absence of precedent in customary law, so that Hasnas argues that by the end of the nineteenth century, “the common law had lost its character as customary law.” The clarifications on the difference between customary and common law made in this part of the book would have been helpful earlier. Hasnas makes a compelling case for a moral duty to obey customary law and concludes the book by arguing that the legal rules generated by a customary legal system could be sufficient.

I think Hasnas is led astray by his choice of environmental regulation as the exemplar of legislation, however. Modern environmental law has evolved into a morass that rivals tax law complexity and concealment of special-interest provisions beneath a veneer of public purpose. Other forms of legislation, however, do things that case-generated law cannot. For instance, limited liability — a vital feature of modern business — is impossible without state action. Similarly, Article 9 of the Uniform Commercial Code demonstrates a statutory system in which clear rules that apply across jurisdictions facilitate a national market for secured transactions in movable property. In property, many transactions involving easements and servitudes rely on statutes that enable the rearrangement of rights within the bundle of rights that the common law allocates to fee simple absolute ownership of land. These laws enable complex economic activity at a scale a localized customary system is unlikely to achieve.

Common Law Liberalism is a unique book: original, tightly argued, and consistently thought-provoking. Even if it does not ultimately establish the ‘obviousness of anarchy’ for every reader, it compels readers to pinpoint precisely where they part ways. 

Andrew Morriss is Professor at the School of Law and Bush School of Government & Public Service at Texas A&M University. He’s been a dean and associate dean, served on ABA accreditation teams, and taught at four different ABA-accredited law schools.