What is Common Law?

“Common Law” is an umbrella concept, shorthand for a comprehensive order of limited sovereignty; restricted government; private law (property, contract, pledge); the self-reliant citizen; associationalism both public and private, institutional and voluntary; the market order not only of goods and services but of credit and debt and goodwill. It is the regime of the coordination and integration of equals, rather than of the command of superiors and inferiors. Another term for this is the rule of law; alternatively, the civil condition. But these terms can be fuzzy and left unfilled with concrete content, which makes common law the better alternative, and it is the better term for that reality anyway.

But the term does confuse. Usually when one hears it, one thinks of the historically determined Anglo-Saxon and cognate legal systems, with all of their peculiarities and practices, which only the practicing lawyer has occasion to master.

And indeed, this is one concrete meaning. For one salient characteristic of true common law is that it develops primarily as custom, and through the process of adjudication, in the courts, through the dialectic of adversarial thesis and antithesis. Here, of course, lawyers rule the roost. But that does not mean that common law is not also something more than mere practitioners’ fodder.

Hence, it cannot be that the practicing lawyer “owns” this system, and views any incursion by “laymen” to be illegitimate. But alas it is more often so than not. Yes, the guild mentality reigns here as everywhere else, despite the fact that in a democracy, the law ought to be a domain open to the citizen, accessible to his inquiry, amenable to his uses. Oh for a return to the days of a truly liberal conception of citizenship, where the professional saw his task as aiding the gentleman citizen rather than lording it over the unclean and untutored! But that is a subject for another day.

We need the historically grown positive law, even for legal and political philosophy, even for economics, because without it we are all at sea. Which means that the practitioners of that law cannot withhold it as their own private domain. The law is of and for us all.

But this does not rule out philosophy. On the contrary: to properly understand common law, one must understand the philosophy behind it. What makes it common law?

Very simply, common law is law which applies across the board in a given jurisdiction, applies to all equally, and is enforced on all equally. It is the uniform law of a sovereign polity. 

This is more than just a platitude. It entails specific positions. Common law being an integrating law of free and equal legal persons, it is the opposite of a hierarchical law arranging matters in terms of superior and inferior. Which means that it is a function of commutative as opposed to distributive justice. Commutative justice is “blind:” it is no respecter of persons. Distributive justice, on the other hand, does discriminate between persons on the basis of certain criteria of justice. There can be no common law, a law integrating free and equal legal persons, without commutative justice. (Go here for more on this).

That is the first meaning. Secondly, it is the general equity behind all positive law. This is corollary to the first. All legal systems must exemplify the legal principles of justice and equity. There are general rules and institutions that are valid across the board, but which require concretization in specific legal systems according to the varying requirements called for by differences in culture, climate, and the like. This is why, in Roman law, common law (ius commune) was also called the law of nations (ius gentium). It is the law conditioning sovereignty, establishing the principles for the exercise of sovereignty. In other words, sovereignty exists to generate and maintain positive law on the basis of the principles of common law.[1]

Common law, then, entails both basic principles and the practical application thereof. Opposed to this regime is the regime of privilege, where the rulers exercise their wills to impose commands or orders or distributions, rather than allowing matters to be arranged by free and equal individuals in the give-and-take of independent, bargaining owners, householders first and foremost. The regime of privilege had the upper hand in pre-modern Europe. It has since taken up its positions in modern government, with its war against the rule of law in favor of favoritism, privilege, and interest-group-based politics.

Under the guise of “equality,” the modern polity is dead set on reestablishing the regime of privilege. To combat privilege we need to recover the concept of the common law. This web site has been set up specifically to explore the common law paradigm. This will integrate the various books and other materials written by yours truly on the subject, as well as other work in the fields of law, politics, and economics, so as to see them in the light of this same paradigm.

[1] This phenomenon is traced out historically in my book A Common Law: The Law of Nations and Western Civilization (2nd ed., 2019).