The Common Law, Free Markets, and Voluntaristic Rather than Coercive Order: Three Great Things That Go Great Together

In America 3.0 we discuss the origins of the common law, and how it was well-suited to adapt inductively to changing conditions, in contrast to the more top-down Roman law that predominated on the Continent.

This recent post on the John Wilkes Club blog, makes this point nicely:

There is no eschatology in the common law: its purpose is to reflect changes in the cultural, social and economic structure, not to direct them towards an objective preconceived in the minds of cultured and erudite elites for our betterment. Likewise there is no eschatology in free markets: they are a tool for the allocation of goods and services according to ever-changing consumer preferences, not for directing them towards some imaginary ‘ideal’ allocation. Not only is there no ethical basis for the social and economic coercion which rational, artificial, imposed order inevitably involves; but also, because even a benevolent genius is trapped in the prison of imperfect information described by Hayek and others, it does not work.

The post cites to The New World of the Gothic Fox: Culture and Economy in English and Spanish America by Claudio Veliz, a great favorite of ours, and concludes in Hayekian fashion: “… the ability to manage the modern welfare state is not just beyond any particular person, but beyond anybody … .”

Quite so. And that why is it is failing. And that is why the next iteration of America will be flatter, more networked, less coercive and better, cheaper and faster at everything that matters. But we have to get all this detritus out of the way, first … .

Cross-posted on America 3.0.

5 thoughts on “The Common Law, Free Markets, and Voluntaristic Rather than Coercive Order: Three Great Things That Go Great Together”

  1. Blackstone’s commenaries ruled the frontier almost to the year 1900. However, America is as good as it ever will get. There were better days in the past but those days will never return.

    The pattern of development in America beginning in 1800 has been the replacement of Blackstone with the welfare state, beginning with the big ciy machines in the East and slowly spreading like cancer west to the Pacific. The ruling class took over by first creating political machines in the cities, then in the towns and finally creating modern latifundi in the countryside.

    Our future is not democratic. It is neo-fuedalism.

    An important thing to remember is that the Roman Empire never fell. The Ottomans still keep it going. Beginning in the 4th century taxes were so high that the rich left the cities and established armed camps in the country. They preserved Roman culture, archetecture, law and religion but refused to pay taxes. The emperors ran out of money and ended up in Istambul. And the rich developed the theory that God created a society where everyone had his place – with the titled rich at the top.

    America was an experiment based on the notion that peasants and serfs fresh off the boat can do a better job than the upper class in developing a new worrld.

    Now the ruling class has arrived and its taking over and sending us down the road to serfdom.

  2. Again I’m reminded of the conversation between Rose WIlder Lane and the Russian village leader, sometime in the 1920s. The village guy complained about the growing bureaucracy that was taking more and more men from productive work, and predicted chaos and suffering from the centralizing of economic power in Moscow. Rose, still in her communist phase, undertook to convince him of the benefits of central planning. He shook his head sadly.

    “It is too big – he said – too big. At the top, it is too small. It will not work. In Moscow there are only men, and man is not God. A man has only a man’s head, and one hundred heads together do not make one great big head. No. Only God can know Russia.”

    It seems almost impossible to get this point across to liberals/”progressives.”

    Even in business, there are many corporations which hurt themselves severely by excessive centralization on the wrong dimensions. The apparent edict of Yahoo’s Marissa Mayer that ALL hiring must be approved by HER, PERSONALLY represents the same kind of fallacy. But the nature of the free market limits the damage that can be done by the poor decisions of any individual company leader.

    Rose also contrasted the colonial strategies of Britain with those of France and Spain:

    “The Governments gave them (in the case of the French and Spanish colonies–ed) carefully detailed instructions for clearing and fencing the land, caring for the fence and the gate, and plowing and planting, cultivating, harvesting, and dividing the crops…The English Kings were never so efficient. They gave the land to traders. A few gentlemen, who had political pull enough to get a grant, organized a trading company; their agents collected a ship-load or two of settlers and made an agreement with them which was usually broken on both sides…To the scandalized French, the people in the English colonies seemed like undisciplined children, wild, rude, wretched subjects of bad rulers.”

    She also explained why central planning demands the categorization of people:

    “Nobody can plan the actions of even a thousand living persons, separately. Anyone attempting to control millions must divide them into classes, and make a plan applying to these classes. But these classes do not exist. No two persons are alike. No two are in the same circumstances; no two have the same abilities; beyond getting the barest necessities of life, no two have the same desires.Therefore the men who try to enforce, in real life, a planned economy that is their theory, come up against the infinite diversity of human beings. The most slavish multitude of men that was ever called “demos” or “labor” or “capital” or”agriculture” or “the masses,” actually are men; they are not sheep. Naturally, by their human nature, they escape in all directions from regulations applying to non-existent classes. It is necessary to increase the number of men who supervise their actions. Then (for officials are human, too) it is necessary that more men supervise the supervisors.”

  3. Regarding Rome

    See Joseph Tainter’s The Collapse of Complex Societies

    Nobody had it worse during the home stretch of the Empire then peasants. The complexity and costs fell disproportionately upon them to the point where the population could no longer support it all. In many ways they were better off after the dissolution.

    Yes culture and heritage and stores of knowledge were preserved in the Eastern Empire, but the western population was absorbed by the Germanic tribes that were far more capable of feeding them, protecting them, and giving purpose to their lives.

    Feudalism in the general sense of warlords controlling territory and demanding tribute was nothing new to the world.
    European style feudalism only came about later after Charlemagne’s empire collapsed. It certainly wasn’t set in stone that it was going to happen, and it could have just as easily not happened. The recent theory is that it was really a military institution based on supporting newly developed cavalries and the institution’s response to the constant warfare from all sides.

    It’s entirely possible (and likely in my humble, amateur opinion) that rather than being the natural progression after decentralization, feudalism was unique to its place and time and won’t be making any comebacks anytime soon, if ever.

  4. There are such things as Restorations many times in History.

    Restoration in America might look like throwing down the New Deal and restoring the Constitution and I daresay American Democracy. Not only is it a good idea, it’s an idea many would get behind.

    **The franchise will have to be restricted to the responsible**

    I love this part: “But we have to get all this detritus out of the way, first … ”

    Yeah. About that part. Look not to elections or the sheep, look to they who act. The sheep will despite any outrage vote for corn. They want to eat. They want someone else to fix problems. Blog away but understand talk does nothing.

  5. I have held back this comment because I was not sure how to phrase it. The Common Law was wonderful institution, but the legal system that we in the United States now have bears only a genetic relationship to the Common Law referenced in your illustration above (England in the late 18th or early 19th century).

    The common law in the US has been rooted out by an unholy alliance of lawyers, professors, and judges. Doctrines like “legal realism” and comparative negligence have eaten it away. Well intentioned, but inept reformers have enacted hundreds of statutes to “solve” what they regarded as problems. Just think of the damage done by the Federal Rules of Civil Procedure. And progressives (a/k/a socialism) has replaced law with administrative regimes.

    Sadly, I do not think we can go back to the way things were. The Common Law was not just a bunch of case reports. It was a living institution centered on the Inns of the Court and the Barristers and Solicitors of London.

    Creating new institutions that will implement the rule of law will be a devilishly difficult business.

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