Remember the Common Law

Regulators have media operations to tell reporters what they are doing. Common-law rules, on the other hand, are mostly unseen. Legal doctrines such as property and contract emerged quietly from series of court decisions over decades and even centuries, so they often go unconsidered and unspoken. Many people may believe that legislation and regulation do most of the work of ordering society. The common law process for making the rules of a free society has much to commend it. And where it falls down, it is more readily fixable than legislation and government regulation. Part of the genius of the common law is its mix of adaptability and consistency.

Common law is an important inheritance from England that differs from the civil-law tradition dominant on the European continent. In the common-law tradition, the basic rules that govern our interactions arise from years of experience over generations. Our forebears learned that justice is served and benefits accrue when people avoid violence, stick to their promises, and allocate things in an orderly way. The law of battery, contract law, and property law all emerged as common practice solidified into common law. It’s often called “judge-made” law, but at its best common law is “judge-found” law. Judges discover law in common practices that are deeply ingrained in society.

The United States lives under a dual system. In many areas, they continue to enjoy the benefits of the common law. But legislatures increasingly insert themselves, making temporal judgments that rejigger the rules that people and businesses must live by. People look to legislation and regulation first, rather than examining how time-honored rules can be adapted to solve new problems. The Common law is an important part of structuring and ordering a free and prosperous society. It is preferable to legislation and government regulation.

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