In this episode of the Underthrow Podcast, host Max Borders interviews Georgetown University law professor John Hasnas, author of Common Law Liberalism.
Hasnas critiques the U.S. Constitution as a document that established a powerful national government, contrary to libertarian ideals of liberty. He argues that the Bill of Rights merely addresses problems created by this centralization, and true freedom lies in shrinking power rather than constitutional frameworks.
The discussion centers on the distinction between common law and statutory law. Common law, Hasnas explains, emerges organically from human interactions in non-state societies, evolving through trial-and-error to foster peaceful cooperation. It begins as customary practices that resolve conflicts effectively, repeated over time until formalized in courts, as seen in post-Norman Conquest England. This includes core areas like contract, tort (personal injury), and property law, which enable prosperity without top-down design.
Statutory law, by contrast, is intentionally crafted by politicians through legislatures, overriding common law and often favoring powerful interests.
Hasnas portrays the “battle” between the two as one-sided: statutes always prevail, leading to a world dominated by them. Yet, he contends, reviving common law would resemble our current society but with reduced political strife. The underlying cooperative fabric—contracts facilitating business, torts providing compensation—stems from common law, while statutes exacerbate divisions on issues like abortion or free speech, pitting groups against each other in power struggles.
Illustrating with tort law, Hasnas notes how 19th-century railroad cases in casebooks reflect common law’s adaptation to new technologies through lawsuits and precedents. Unlike politicians, who lack foresight and are swayed by biases, common law learns via diversity: multiple jurisdictions experiment, and successful resolutions spread, akin to Hayekian market processes. It depends on cultural variety, not embodying any rigid theory of justice, but nudging toward peaceful outcomes.
Borders examines how common law evolves in light of cultural priors, such as conceptions of justice in arbitration. Hasnas likens it to markets: ineffective “mousetraps” (rules) fail, while cooperative ones persist. The medieval Law Merchant, facilitating international trade, exemplifies this—compelling enough that England’s Lord Mansfield incorporated it into common law. It’s not consent-based like libertarian contracts but coercive yet emergent, resistant to rent-seeking since precedents aren’t fixed like statutes.
On transitioning from statute-heavy systems, Hasnas admits limited expertise as a philosopher-lawyer, not a political scientist. He suggests government gridlock, as in the 1990s U.S., allowed common law to resolve issues like “junk science” in courts without tort reform legislation. Constitutions, he warns, are “terrible ideas” for creating power; even multilateral contracts risk rationalism over emergence. History shows that common law or customary systems existed in places like ancient Iceland, Ireland, and England—until power was centralized.
Hasnas outlines his book’s theses.
The moderate thesis. View common law as regulation, often superior to government versions. Businesses lobby for tort reform because plaintiff’s lawyers enforce safety inescapably, unlike capturable politicians who enable rent-seeking (e.g., subsidies). Frivolous lawsuits indicate over-regulation, underscoring no need for more statutes.
The radical thesis. Society can thrive without government, via evolved governance—true anarchism, not chaos. Closing on anarchism, Hasnas affirms his stance: no government, but rules from cooperation. History’s upward trend toward freedom, despite lows like McCarthyism (broken by a tort suit), offers hope.
Technology and existing commercial law could unleash prosperity if power were to shrink—perhaps through restricting executive authority or embracing “political nihilism” toward centralized systems. He quips that “way too much democracy” erodes limits, but peeling away abuses could revive freedom’s progress.
This dialogue champions common law as a pragmatic, emergent path to human freedom, urging a shift from idealistic power structures to real-world cooperation.
