KOL474 | Where The Common Law Goes Wrong (PFS 2025)

Kinsella on Liberty Podcast, Episode 474. “Where The Common Law Goes Wrong,” 2025 Annual Meeting, Property and Freedom Society, Bodrum, Turkey (Sep. 19, 2025). Also at PFP297 | Stephan Kinsella, Where The Common Law Goes Wrong (PFS 2025). Below are my notes, Shownotes provided by Grok, and the transcript. This recording is from my iphone. Professional recording and video will be uploaded later. See also Sebastian Wang, "Stephan Kinsella on the Common Law: Lessons from Bodrum 2025," Libertarian Alliance [UK] Blog (Sep. 19, 2025). Pix. https://youtu.be/93rGev1O-D4 Grok Shownotes Show Notes: Stephan Kinsella’s “Where the Common Law Goes Wrong” – Property and Freedom Society 2025 Annual Meeting Introduction and Context Stephan Kinsella delivered his talk, “Where the Common Law Goes Wrong,” at the Property and Freedom Society’s 2025 Annual Meeting in Bodrum, Turkey, on September 21, 2025. Introduced by Hans-Hermann Hoppe, who shared a brief anecdote about media bias in translating Donald Trump’s interactions, Kinsella’s presentation revisits themes from his earlier PFS talks in 2012 and 2021, focusing on the interplay between libertarian principles, Roman law, and the common law. Drawing on his recent work, including the Universal Principles of Liberty (co-authored with Alessandro Fusillo, David Dürr, FreeMax, and Patrick Tinsley, under Hoppe’s guidance), Kinsella emphasizes the organic development of law and critiques the modern tendency to equate law with legislation. He humorously recounts preparing for the talk with his trainer, who mistook “common law” for “common law marriage,” highlighting the need to clarify legal concepts for a broader audience. Defining Law and Its Evolution Kinsella begins by distinguishing types of law: descriptive (e.g., laws of physics, economics) and normative (e.g., moral codes, legal systems). Legal laws, he argues, blend normative guidance with descriptive consequences, aiming to achieve justice through property rights. He contrasts the modern view of law as statutory decrees—illustrated by tax protesters demanding to “show me the law”—with its historical roots in decentralized systems like Roman law (500 BC–565 AD) and English common law (1066–present). These systems evolved organically through court decisions, with Roman law preserved in Justinian’s Corpus Juris Civilis and later rediscovered in Bologna around 1070, influencing European civil codes. Kinsella notes that post-1789 democratic shifts and bureaucratic growth led to an explosion of legislation, overshadowing these private law traditions. Roman Law vs. Common Law The talk explores why Anglo-American scholars, like Hayek and Leoni, often praise the common law’s spontaneous order while overlooking Roman law’s similar decentralized origins. Kinsella cites Hoppe’s observation, from Democracy: The God That Failed, that the common law’s non-codified nature may serve lawyers’ interests by making it less accessible to laypeople, unlike Europe’s clearer civil codes. He refutes the misconception that civil law systems inherently embody totalitarian principles (“all that is not permitted is forbidden”), attributing Europe’s socialism to separate legislation, not civil codes. Both Roman and common law, Kinsella argues, offer valuable insights for libertarians, despite the former’s neglect in free-market scholarship. Libertarian Law and Rationalism Critique Kinsella critiques the rationalistic tendency among libertarians to design top-down “libertarian law codes,” as exemplified by Rothbard’s hope for a comprehensive code in The Ethics of Liberty. Such approaches, he argues, ignore context and the limits of deductive reasoning, echoing Hayek’s critique of constructivist rationalism. Law, as a practical response to scarcity and conflict, developed through real-world judicial decisions over centuries. Kinsella suggests that libertarian law should evolve organically, using Roman and common law as starting points, guided by principles like non-aggression but subject to scrutiny for compatibility with liberty. He references G.K. Chesterton’s “fence paradox” to caution against discarding established legal traditions without understanding their purpose. Where Common Law Goes Wrong and Right Kinsella identifies aspects of common law incompatible with libertarian principles, including the doctrine of consideration in contracts (unnecessary, as Roman law shows), blackmail, trademark, defamation, trade secret laws, common law copyright, coverture (denying married women’s property rights), and primogeniture. Conversely, he praises common law solutions like mens rea, joint and several liability, and the felony murder rule, which holds felons liable for deaths during dangerous crimes. He highlights the “but for” causation test’s limitation in cases of multiple actors (e.g., two hunters simultaneously shooting a victim) and the common law’s ingenious solution of treating independent actors as jointly liable, ensuring accountability. Vision for Libertarian Legal Development Kinsella envisions a future libertarian society where judges apply core principles, such as those outlined in his Universal Principles of Liberty, while drawing on Roman and common law traditions. These traditions would serve as presumptively valid starting points, subject to rejection if they conflict with libertarian justice. He argues that a fixed libertarian law code is neither feasible nor desirable, given law’s contextual and evolutionary nature. Instead, advocates would argue cases based on libertarian principles and private law precedents, gradually building a distinct libertarian jurisprudence. Kinsella’s talk, rooted in his Legal Foundations of a Free Society and decades of scholarship, underscores the importance of learning from historical legal systems while refining them through libertarian reasoning. Kinsella's Notes Where The Common Law Goes Wrong Background KOL001 | “The (State’s) Corruption of (Private) Law” (PFS 2012) KOL359 | State Constitutions vs. the Libertarian Private Law Code (PFS 2021) Examples of Libertarian Law vs. Louisiana vs. French vs. Common Law: Consideration and Formalities Legislative Positivism and Rationalism in the Louisiana and French Civil Codes KOL129 | Guest Lecture to Montessori Students: “The Story of Law: What Is Law, and Where Does it Come From?”   Today I’m going to talk about law In particular, about libertarian law, and about decentralized law like the common law and Roman law Returning to a topic I have touched on here before KOL001 | “The (State’s) Corruption of (Private) Law” (PFS 2012) KOL359 | State Constitutions vs. the Libertarian Private Law Code (PFS 2021) But hopefully with some more wisdom about this topic Stephanie discussion Telling her what my talk would be about She said we are not all lawyers I said well I don’t think most lawyers know about Roman law, or even much about the common law other than how to use it in their daily practice I should have known this already In short, I realized that, contrary to a recent meme, not everyone thinks of Rome once a day Much less knows about Roman Law, or even much about common law So I decided to try to start from some basics And to speak slowly, as Renata Jacobs keeps asking me to do What is Law? That said, let me start from some basics. The word “law” has a broad meaning in different contexts. Law refers some regularity in events; to order, regularity, or rule, depending on the context Various types: descriptive, and normative/prescriptive Descriptive: causal laws; economic laws; laws of logic Normative: moral laws, narrow codes of ethics (doctors, lawyers) Legal laws: are a blend of normative and descriptive. Normative: Just as humans aspire to do good or right—things they “should” do—they are interested in what interpersonal actions involving force are justified, and what enforceable rules are just—what are normally called “laws”. The purpose of law is to do justice, which is normative, and a just law is one that corresponds to the rights we have—the property rights we have. But there is a difference between the laws actually in force in society and those that should be in force—those that are justified. e. we can identify laws that “exist”, i.e. that are in force, which is descriptive/factual. The question of which laws are just or justified is a normative or moral question. Understanding this distinction helps clear up the tired old debate between the natural law proponents (Lon Fuller) and the legal positivist (H.L.A. Hart, The Concept of Law). Most people now are used to thinking of law as statutes or legislation: commands issued by a legislature, or the US Constitution itself, another written document drafted and approve by vote of a committee; a decree. Until about 100 years ago law was not commonly thought of as synonymous with legislation; now it is. g. income tax protesters saying “show me the law!” Positive Law in the World Today Law was not always thought of as legislation It actually emerged organically over centuries in relatively decentralized processes Primarily, the Roman Law (from about 500BC to about 565 AD (the end of Justinian’s reign) and the Common Law, from about 1066 (Norman Conquest) to present. Each approximately 1000 years The Roman Law was codified and preserved under Justinian in his Corpus Juris Civilis or Justinian Code (529–534 CE) In the meantime law in Europe was based on Germanic customary laws (Salic, Lombard, Visigothic, etc.) Canon law (Church law) And local feudal customs and town statutes Rediscovery in northern Italy and “Reception” into continental practice Around 1070, a complete copy of Justinian’s Digest was found in Bologna