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, by the end of the next century (mostly because of King Edward I, known as Edward Longshanks) a way of dealing in an ordered, uncomplicated way with the legitimate concerns of his subjects.

What Longshanks was trying to solve was what we might call ‘The Problem of the Chickens.’

Traditionally, subjects would petition the king in person over their grievances, which were mostly about their neighbours. Edward, also known to his friends 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.  (“My neighbour's chickens ate my crops.” “Go ‘way with you, of course they didn’t! Just look at their innocent faces…”)

Edward reasoned that a system of courts that were common throughout the land could easily sort such complaints using principles of customary law that were 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. The principles established in one-such courtroom were then applied in common to them all.

Thus was born the simplicity and beauty of the common law system. Common law became principles-based and 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 also case-based rather than statute-based, and was tied by precedent: decisions made in cases using these guiding principles (which were held to be the ancient and customary law of the land) were made common to all similar cases by the principle of stare decisis (Anglo-Latin pronunciation “starry dis-SIS-us; literally “Let the decision stand”), so that decisions were consistent across the country, and over time.

Common law was simple enough that the principles determined in these cases were known in advance of action, and also became 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 valuable 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 also recognised, offering (as did the ‘‘coming to the nuisance’ doctrine) a peaceful way to negotiate neighbourly relations without the ruler needing to do anything other than file papers. Easements are registered with titles, 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. In the late nineteenth century for example a young circuit lawyer in rural Illinois wrote the only law books he needed to carry in his saddlebag were a copy of the Constitution, and his volumes of Blackstone. That lawyer’s name was Abraham Lincoln.

The objection is sometimes raised that as common law is ‘judge-made’ law it is consequently somewhat arbitrary, and open to judicial abuse.  Blackstone for one would disagree.  He held that judges’ responsibility was not to make law but to find the law; that is to say that with the facts laid out before them, it is the job of judges to determine the relevant principles in the matter, and apply them. Thereafter, when the context of subsequent cases was the same or similar, the principles applied would (by the principle of stare decisis) be the same. And when the context was a new one (as was with so many cases as the Industrial Revolution took off) the job was to see how the leading principles applied in this new context.

Many aspects of common law are now regularised as a part of Tort law (and the best way to see them is to pick up an early twentieth-century book on the Law of Torts), 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 relatively immune to political hijack – one particular reason for its  unpopularity with big government advocates. Rights are protected in practice rather than just proclaimed on parchment, and ignored thereafter.

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. Not least among those rights are property rights.

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