Common Law

From Critiques Of Libertarianism
Jump to: navigation, search

Libertarians often make ridiculous claims about the common law. Common law does not necessarily protect liberty: it certainly protected the practice of slavery. Common law is judge-made law, pure judicial activism.


"Constitutionalism": The White Man's Ghost Dance [More...]
A savagely funny mockery of the idiocy of Constitutionalists. "Constitutionalists look upon law as the word-magic of lawyer-necromancers who draw their wizardly powers from grimoires, from books of magic spells they have selfishly withheld from the people. "
Foucault in cyberspace -- Chapter 2: Libertarianism, Property and Harm [More...]
(Starts on page 11.) Law Professor James Boyle points out that libertarianism fails to justify which rights we should have in three ways: common law, natural rights and Property. "When the vague first principles turn more specific, then the fun really begins."
Hayek, the Common Law, and Fluid Drive [More...]
"Hayek’s confusion of customary and common law ultimately caused his argument for the law of liberty to crash."
The Nature of the Common Law (book)
The “Common Law Property” Myth in the Libertarian Critique of IP Rights (Part 1) [More...]
"It’s a complete myth for libertarians to argue that IP rights are “different” from property rights in land because property rights in land developed in “common law” as opposed to “statutory” IP rights."
The “Common Law Property” Myth in the Libertarian Critique of IP Rights (Part 2) [More...]
"[T]his is not just a historical myth about the source of property rights in land, which were created by both statutes and court decisions, but it’s also an historical myth about IP rights, which are also created by both statutes and court decisions."


All the English were free men and most of them were serfs. All the English were self-governing in counties run by sheriffs appointed by kings, the descendants of foreign conquerors. England alone enjoyed the Common Law, handed down from Sinai by Moses, and dating from 1215 A.D. Secured by the Common Law, all men's property was inviolable, and all of it belonged to the king. The Common Law, also known as Natural Law and God's Law, only restricted conduct which harmed the person or property of another, such as swearing, fornicating, possessing weapons in the royal forests, converting to Judaism, or dreaming that the king had died. There was complete religious freedom, i.e., Roman Catholicism was the state church, attendance at services was compulsory, and heretics were executed. As perfect, as unchangeable as the Common Law always was, it got even better when free and prosperous Englishmen fleeing persecution and poverty brought it to America. They repaired there, as Garrison Keilor quipped, to enjoy less freedom than they had in England.
Bob Black, ""Constitutionalism": The White Man's Ghost Dance"
Odes of praise to the common law, and mistrust of legislative modifications of it, allow libertarians to say that the true benchmark of rights is provided by the older rules, not the newer ones. Judged against this standard, of course, the rules that benefit employers, landlords and manufacturers simply define liberty and property rights whereas the rules that benefit workers, tenants and consumers are interferences with liberty. The rules one likes are the foundations of sacred property rights, those one does not like are meddlesome regulation. This is a nice trick...
James Boyle, "Foucault in cyberspace -- Chapter 2: Libertarianism, Property and Harm" pg. 19.
At common law, only the sovereign is said to have an absolute interest in land: ordinary landowners 'hold of the sovereign.'
Stephen Holmes & Cass Sunstein, "The Cost of Rights: Why Liberty Depends on Taxes", p. 63.
This is a point that Hayek and his libertarian followers fail to see: the Common Law may be a work of dispersed judges, but it would not have come into being in te first place, or been enforced, without a strong centralized state.
Francis Fukuyama, "The Origins of Political Order: From Prehuman Times to the French Revolution", p. 260.