Cue Card Libertarianism -- Common law

Common law arose in England almost by accident, but much of the English-speaking world has benefited from its property-rights based solutions to otherwise complex problems.

What began in the late twelfth-century as a formalisation of existing customary law, was to become a century later under the reign of Edward Longshanks -- King Edward I -- a way of dealing in an ordered, uncomplicated way with the legitimate concerns of his subjects.

Traditionally, subjects would petition the king in person; Edward, known as The Hammer of the Scots, preferred to be up north hammering Scots rather than sitting at home surrounded by his subject’s chickens, about which an inordinate number of complaints were commonly raised.

Edward reasoned that a system of courts common throughout the land could easily sort such complaints using principles of customary law common to them all. For instance, the easiest way to resolve disputes about neighbours’ chickens damaging a plaintiff’s vegetable garden was to determine 1) whose chickens; 3) whose garden; and 3) what damage.

Thus common law became property-based, and was focussed on specific harm or damages – it focussed on determining the rights in a property, and on finding remedies to damage caused by specific nuisance or trespass. Common law held that those who had rights in property were entitled to the quiet enjoyment of that property; that a man’s land and his house were his castle, and that protecting it from harm was his right. Common law was case-based rather than statute-based, and was tied by precedent: decisions made in cases using these guiding principles were made common to all similar cases by the principle of stare decisis, so that decisions were consistent across the country, and over time.

Common law was simple enough that the principles determined in these cases were quickly codified by writs that allowed property-owners easy access to the protection of law for common causes of action. By the eighteenth-century the laws of nuisance and trespass were already highly sophisticated, and were to become more so as the industrial revolution and the railway age took shape. Rights to light, to air, and to support were widely recognised as being a part of the peaceful enjoyment of land; rights associated with water and protections against noise, smell and other pollution were clear and in place; remedies for trespass and nuisance were well-known and based on the principle that a defendant should acquire no value thereby.

The principle of ‘coming to the nuisance’ was established (and then sadly in some jurisdictions dis-established); as was the principle of a ‘bundle of rights’ being associated with land, and some of those rights being acquired over time by ‘prescription.’

Easements over land and voluntary restrictive covenants that attach to land in favour of particular neighbours were recognised; these are registered with title, and can be traded and removed. You might for instance agree to protect a neighbours’ view over your land (a ‘view easement’) in return for the neighbour keeping a large tree on his that you like (by either a restrictive covenant or ‘conservation easement’). In this way a ‘net’ of rights is voluntarily built up reflecting the values of the right-holders rather than that of the legislators.

Much of the apparent confusion in the common law was made simple by eighteenth-century legal scholar William Blackstone, who with a few simple principles explained “the mass of medieval law” in England. Blackstone’s Commentaries on the Law of England were to become the bible of English-speaking law for more than a century – a young circuit lawyer in rural Illinois called Abraham Lincoln would carry a copy in his saddlebag as the only legal text he needed.

Many aspects of common law are now regularised as a part of Tort law, but the explosion of statute law in the last fifty years has meant that duties imposed by statute now encumber and complicate what was once the simple but remarkably sophisticated realm of common law.

Common law is not just simpler than statute law, it is also immune to political hijack – one particular reason for its popularity with libertarians and its unpopularity with big government advocates. Rights are protected in practice, not just proclaimed on parchment or ignored altogether.

Further, unlike statute law, common law always has a plaintiff or victim – there are no ‘victimless crimes’ under common law. Finally, it is the pre-eminent law to protect both environment and property, and unlike zoning laws, anti-pollution statutes and the Resource Management Act it has over seven-hundred years of sophistication in actually doing so.

English common law brought real property rights into the world and made all Englishmen equal before the law – in doing both it helped make England and her colonies wealthy and free. Noted Adam Smith in his Wealth of Nations: “The security of the tenant is equal to that of the proprietor.” He concluded that “Those laws and customs [of the common law], so favourable to the yeomanry, have perhaps contributed more to the present grandeur of England than all their boasted regulations of commerce taken together.”

Unfortunately the “boasted regulations” of today have turned Smith’s insight on its head, and removed many of the rights that common law once protected.

This is part of a continuing series explaining the concepts and terms used by libertarians, originally published in The Free Radical in 1993. The 'Introduction' to the series is here. Tomorrow, 'Drugs.'