Is English Common Law Libertarian?

In a fascinating blogpost, Michael McConkey asks Is English Common Law Libertarian? Many libertarians tend to view the common law as being quasi- or proto-libertarian. McConkey argues, relying largely on Harold Berman’s classic Law and Revolution, II: The Impact of the Protestant Reformations on the Western Legal Tradition (v. 2), that,

in [Sir Edward] Coke’s time  [1552-1634] and far before, England was characterized by what modern libertarians would celebrate as legal polycentricism. There was a wide range of legal and judicial systems at work. In addition to the common law, there was ecclesiastical and canon, manorial, merchant, Roman, martial and Chancery law: not an exhaustive list! These all had their own laws and courts. Furthermore, this diversity of judicial options had exactly the benefits which pro-polycentricist libertarians would anticipate. Anyone who felt they were being abused in one court system could appeal to another for redress. Berman tells of cases where individuals were imprisoned by one court system, but managed to secure release by the authority of another court system.

McConkey argues that this kind of polycentrism is quasi-libertarian, but that Coke and other common-law proponents largely destroyed it by pushing the common law and its central place to the fore:

[polycentrism] is just this kind of mitigation of legal and judicial monopoly that libertarians (certainly voluntarists and libertarian anarchists) aspire to with their opposition to the state. Yet, make no mistake, Coke and his fellow common lawyers were not conspirators in this regard. On the contrary, their rooting of English common law in a mythical antiquity was precisely intended to give it the historical authority not only to triumph over monarchial sovereignty, but over all the other competing courts in England. Coke and crew’s battle with James I was not a battle against legal monopoly, but for it – just the promotion of a different claimant to the throne of legal monopoly.

Further, this was achieved precisely by means of the distinctly common law premise of finding historical sources upon which the common law could claim superior jurisdiction. Legal systems based upon positive or natural law, by definition, did not have the fundamental recourse to historical revisionism (temporal imperialism) that was at the core of the common law tradition. It was uniquely situated to win at this game. And, of course, this project of institutional imperialism has proven remarkably successful: today awareness of a once polycentric English legal order has all but vanished from popular knowledge.

I see two lessons here, one for advocates of common law as libertarian and a second for promoters of Hayekian spontaneous order as a kind of meta-reason that leads inexorably to freedom. From the perspective of libertarian values, not only does the common law tradition have blood on its hands (the blood of legal polycentricism), but it has logically built into its conceptual DNA a will to power. The temporal imperialism of its historical revisionism turns a blind eye to the subjectivity inherent in any interpretation of the past. Coke himself was prone to find “new” precedents when he changed his mind on a legal matter. History provides far too rich a buffet from which the jurist may pick and choose the precedents of preconceptual convenience — including common laws’ own legal supremacy.

Secondly, as valuable has been Hayek’s observation on the nature of the market  as a spontaneous order, emergent rather than planned, the tendency to apply this same lesson to other social domains overlooks the ubiquity of power. Whether or not it is possible in today’s world to have markets free of coercion and struggles for power, it seems unlikely in other domains of society. Certainly no existing order’s historical roots can ever be claimed to be free of such machinations. Common law, both its practice and its ascendance, is without doubt the result of spontaneous order. But neither the seeds nor the fruit of that result can be considered consistent with or beneficial to libertarian aspirations for freedom. The virtues of spontaneous orders for freedom, whether or not they’re always superior to planned ones, cannot be credibly assumed in any given instance.

None of this is to deny that there is some kind of potential for a market based customary law system to deal with the inevitable gray areas and space of subjective dispute that will arise even amid the most conscientious application of natural law. Its foundation though, unlike common law, should not be in subjective interpretation of history, but the aggregate application of subjective preferences, free from coercion. That may be a tall order, but it’s a picnic compared to getting consensus on the meanings of the past. And it is, indeed, the real lesson of value from Hayek on the virtues of spontaneous order.

See McConkey’s interesting post for elaboration. For related matters, see my posts/articles:

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