Building Libertarianism from the Foundation Up

In “Common Law Liberalism: A New Theory of the Libertarian Society,” John Hasnas offers a refreshing reconsideration of libertarianism, proposing that the traditional approaches—natural rights and consequentialism—have reached their limits. For over 170 years, libertarian arguments have remained largely unchanged, deploying well-trodden paths that often culminate in intellectual stalemates. Hasnas challenges this status quo by positing that philosophical inquiries have detrimentally shaped our understanding of justice and governance. He contends that instead of starting with a theoretical framework, we should recognize that justice is an emergent property arising from the lived experiences and conflicts of individuals in community settings. This conceptual shift emphasizes that the practical function of law is to resolve disputes rather than to conform to rigid logical structures.

The book emphasizes the distinctiveness of the Anglo-American common law as a practical mechanism of governance that operates independently of legislated statutes. Hasnas argues that common law embodies a form of law rooted in local knowledge and traditions, respecting organic social evolution rather than attempting to impose a top-down legislative order. This perspective celebrates the flaws inherent in absolute governing theories while promoting a framework that prioritizes peace and coexistence. Hasnas posits that common law can furnish a society with the necessary adjudicative rules to facilitate resolution of conflicts without the need for coercive legislation, ultimately leading to an anarchist libertarianism wherein the state may be deemed unnecessary.

Moreover, Hasnas presents his conceptualization as an evolution in the realm of classical liberalism, drawing parallels with other contemporary philosophers like Gerald Gaus and David Schmidtz. While Gaus suggests a model where political agreements arise under ideal circumstances, Hasnas prefers a more grounded view that derives legitimacy from actual lived experiences and resolves disputes as they arise. Schmidtz’s perspective, likening justice to traffic management rather than moral imperatives, also resonates with Hasnas’ approach of regarding common law not as a system of absolutes but as an agile mechanism for conflict management. Through painting his philosophy as “anarchistic,” Hasnas seeks to delineate it from conventional minimalist state-oriented libertarian views which may miss the dynamism of a legal system grounded in common law.

In exploring the implications of grounding a libertarian doctrine in common law, Hasnas acknowledges the limitations and nuances found within this legal tradition. Unlike the absolutist tendencies typically associated with libertarian thought, common law is characterized by its acceptance of exceptions and its adaptability to specific contexts. For instance, case law like Ploof v. Putnam reflects the potential limitations of property rights when public safety or individual circumstances necessitate intervention. This injects an essential degree of complexity into legal discourse that most libertarian frameworks do not accommodate, thereby marking a departure from rigid dogmas towards a more pragmatic understanding of rights and responsibilities.

The recognition of these complexities within common law provides valuable insights into the essential role of flexibility in ensuring justice and harmony in society. Hasnas advocates for a model of libertarianism that respects individual freedoms while acknowledging that situations may arise which necessitate intervention and compromise. By embracing common law’s temperate approach, Hasnas revives libertarian theory, positioning it as more aligned with practical realities as opposed to aspirational scenarios. This redefinition does not dilute libertarian principles, but rather enriches them by embedding them within the context of societal needs and historical traditions.

In conclusion, Hasnas’ “Common Law Liberalism” presents a thought-provoking reevaluation of libertarianism that merges legal philosophy with a practical understanding of societal conflicts. By advocating for common law as a legitimate foundation for social organization, he paves a new path that acknowledges both the wisdom of human experience and the necessity of cooperation in addressing legal disputes. His work signals a shift towards a more grounded and mature form of classical liberalism, one that embraces the imperfections of human interactions and societal arrangements while striving for a common framework based on shared understanding and mutual respect. Through this reexamination, Hasnas offers a necessary critique of libertarian dogma by advocating for a more nuanced conception of justice that is responsive to the realities of human coexistence.