Libertarianism From the Ground Up

In Common Law Liberalism, legal scholar John Hasnas offers a new vision for a free society.

Common Law Liberalism: A New Theory of the Libertarian Society, by John Hasnas, Oxford University Press, 328 pages, $90

Arguments for libertarianism typically take two forms. Some libertarians base their creed on natural rights—the idea that each individual has an inborn right to self-ownership, or freedom from aggression, or whatever—and proceed to argue that only a libertarian political regime is compatible with those rights. Others take a consequentialist approach, claiming libertarianism is the best system because it produces the best results, defined according to some philosophical conception of the good.

Libertarians have been making these arguments for the last 170 years or so, and by this point the weak spots are fairly well known. As a result, the arguments on both sides have the character of the opening moves in a chess game: It's all by the book.

Once in a while, however, an argument opens a genuinely different path. John Hasnas, a legal scholar at Georgetown University, has been clearing such a path for a while now, and the chapters in his new book, Common Law Liberalism, have all been previously published elsewhere. But brought together in one volume, these essays set forth an intriguing, novel, and highly promising approach to thinking about a free society.

The book's core idea, to put a sophisticated argument rather crudely, is that the philosophers have screwed us all up. Philosophers, Hasnas argues, tend to put far too much stock in the construction of logically consistent systems of thought, proceeding from premise to conclusion in a neat, orderly sequence. Logic sets the standard, and if the world fails to live up to that standard, well, that's the world's problem, not ours.

For Hasnas, by contrast, thinking about politics begins not with a moral theory but with the actual conflicts people face when they go about the difficult business of living in a community together. Justice is not something first discerned by philosophical reason and then applied (by lesser minds) to settle particular disputes. Justice develops out of those disputes as an emergent phenomenon, often in ways that are neither foreseen nor intended by the people directly involved.

The test of a theory of justice, in this approach, is not logical consistency or completeness. To ask this of justice is to ask too much—and to ask more than is required. We do not need an airtight theory; we simply need rules that bring a dispute to an end and allow people to get on living together in peace.

This requirement is largely met, in Hasnas' view, by the Anglo-American common law. The common law serves as a mechanism for providing law without legislation—law, that is, without need for a monopolistic legislative body that attempts to anticipate and resolve all problems in advance and from afar. It embodies both a Hayekian openness to dispersed, local knowledge and a Burkean respect for the wisdom of evolved tradition.

The conservative elements of Hasnas' approach should not blind us to its radicalism. Hasnas does not merely want to claim that the common law is better, in some respects, than legislation. He thinks society can do without legislation altogether. From there, Hasnas claims, it is a short—even obvious!—step to the conclusion that society can do just fine without the state itself. Hasnas' libertarianism is common-law anarchism.

There are interesting parallels between Hasnas' work and other recent developments in classical liberal political philosophy. "Public reason liberalism," especially as developed by the late philosopher Gerald Gaus, similarly eschews the dream of convergence upon a single comprehensive political ideal around which society might be molded. The aim of liberalism, according to Gaus, is to figure out how people with deep and enduring disagreements might nevertheless find a way of endorsing a shared political order. Gaus' view, however, involves a kind of idealization that Hasnas presumably would reject. For Gaus, what matters is not merely what people happen to agree to, but what they would agree to under suitably defined circumstances. After all, the agreements that actually get made, or the rules that develop out of actual legal decisions, might be marred by injustice or ignorance, in which case we might not want to take them as authoritative.

Closer to Hasnas' position is the view laid out by the philosopher David Schmidtz in his recent book Living Together. Schmidtz, like Hasnas, begins by rejecting the view that political philosophy ought to be subservient to moral theory. Instead he argues that justice should be thought of as a kind of traffic management. The point of an institution like property rights, in this view, is not to instantiate some timeless axiom of self-ownership. It is to avoid conflict by determining who has the right of way in a particular situation. We can achieve consensus about that, even if we cannot achieve consensus about the bigger philosophical question of who has the superior destination.

So Hasnas is not treading alone on his path. He stands out, however, in labeling his view "anarchist." Or even, for that matter, calling it "libertarian"—a label that different people use in different ways, but which generally picks out a fairly radical political position that countenances, at most, a minimal state devoted to the protection of person and property.

How much radicalism can one really get out of a commitment to the common law? Libertarians can find much to admire in the common law's general respect for property, contract, and individual autonomy. What they will not find is the absolutism that is characteristic of the libertarian creed. The common law is full of exceptions to broader rules, as in Ploof v. Putnam, a 1908 Vermont Supreme Court case involving a family that was caught up in a storm while sailing and took refuge on the defendant's dock. The defendant cut the boat loose, leading to the destruction of the boat and injury to the family. The family sued and won. Property rights are great, but according to the common law they have limits.

So too with contracts, individual autonomy, and the other great principles of classical liberalism. The common law establishes a heavy presumption in favor of these principles. But the exceptions are many. Contracts that are deemed to be unfairly one-sided may be held unconscionable and unenforceable. Pollution from a factory that makes a neighbor ill may be justified based on a kind of cost-benefit analysis. Under the common law, property rights and contracts are useful tools for enabling people to live together in peace and prosperity. But as with all tools, their value is limited and context-specific.

Hasnas appears to embrace many of these exceptions. This strikes me as an eminently sensible move. It does not strike me as strictly libertarian, but that is perfectly fine with me. Hasnas is probably right that libertarian thought has been too much guided by a somewhat simplistic and overly abstract philosophy. By seeking to ground his defense of a free society in the evolved tradition of common law, Hasnas has gone a long way toward revising and revitalizing libertarian theory. But the same specificity that gives the common law its wisdom and its concrete grounding also serves to undermine many of the grand, universalizing pretensions of libertarianism. It means less Robert Nozick, more Friedrich Hayek. Less John Locke, more David Hume. A more modest, more moderate, and more mature form of classical liberalism.