A Companion to Common Law Liberalism

My book, Common Law Liberalism, has been published, and I hope it will be read and well-received. The book benefited greatly from the suggestions of many colleagues who reviewed early drafts and from the editors at Oxford University Press. Their input helped me turn what began as a rambling memoir of my past work into a more serious and more tightly-integrated monograph. 

My first draft consisted of serious substantive chapters interspersed with what I hoped were somewhat amusing accounts of how my thinking developed, which served as introductions or afterwords to the chapters. All of this was stripped out. This was the sound advice I received both from my reviewers and from my editor, who made it clear that OUP did not publish works containing personal anecdotes and reflections. But as a result, I am left with a set of stories that I find amusing that have no use. 

I tried to write a book that would be useful to my academic colleagues, but would also be accessible to the non-expert reader. It struck me that not every lay reader will want to power straight through a book of political and legal philosophy. They might enjoy some light-hearted interludes between the chapters. So, for those who might want an intellectual break between chapters, I prepared this companion work that provides the interludes and where to reinsert them between the chapters.  

I think of it as an analog of a concert at which the performer tells a story about each song before singing it. 

The original preface:

In most respects, I am the most boring person I know. I have never been drunk. I have never smoked marijuana or used any illegal drug. I have never had a mustache or beard. I get the same haircut today that I got in the 1970's. I have never been in a fist fight. I have never been arrested. I have never smoked a cigar. Due to a student deferment, I was not drafted, and have never been in the military. I have never been in a serious automobile accident. I have never ridden a motorcycle. I have never been in a flood, earthquake, hurricane or other natural disaster. I have never been poor. I am happily married and have never been divorced. I have two lovely daughters.

My grandfather fled Romania to escape oppression, leaving his wife and two children behind in the belief that he could earn enough in America to buy their passage. He did. My father, who was born in this country, survived the great depression and utter poverty, being drafted into the army in World War II, and widespread anti-Semitism to earn enough to buy a home in the suburbs and support his wife and three children. They had interesting life stories. 

I did nothing. I overcame no hardship. I was raised in a middle class, insular, almost exclusively Jewish neighborhood in the suburbs of New York City. I attended good public schools, and went to summer camps with other middle class kids. I managed to get accepted into a good college, which my parents paid for. The closest thing to anti-Semitism I experienced were the geographical quotas designed to reduce the number of Jews admitted to the ivy league schools and a law school classmate who said he could always recognize a Jew refusing to believe that I was Jewish.

I graduated college, worked as a college soccer coach for one year, went to law school and then graduate school, became a professor, and with the exception of two years working in the legal department of a large corporation, have been one ever since.

A personal memoir of such a life would be boring and pointless.

On the other hand, I am somewhat distinctive in my philosophical beliefs. I am an anarchist who genuinely believes that people would be better off if there were no government. I arrived at this conclusion over a lifetime of learning and reflection. During my career as a professor, I have written many articles designed to show how a wide array of governmental functions can be better supplied without centralized politically-directed authority. If one thinks of these articles as the pieces of a jigsaw puzzle, there are now enough of them to be assembled into a coherent picture of a desirable form of anarchy; and I have arrived at an age at which putting the pieces together is a more valuable use of my time than creating additional pieces. 

In thinking about this, it occurred to me that I could put the pieces together in a way that reflected the development of my thinking over time; that is, I could create an intellectual memoir. It also occurred to me that such an intellectual memoir might not be boring or pointless. Hence, this book. 

In what follows, I have assembled my work in a way that I believe paints a picture of what a well-structured society without central government would be like. I have tried to do this in an entertaining way. To ensure that the presentation does not become too ponderous, I have inserted personal, and sometimes light-hearted, comments before and after the substantive chapters. As much as I enjoy my own writing, I am reluctant to subject my readers to too much heavy going without a break. These comments contain reflections showing how my thinking evolved, which gives the book the character of a memoir. 

Because this work was compiled over the course of more than a quarter century, it is impossible to thank all those who aided in the creation of this compilation. As a result, I will not even try. I must, however, thank Professor Ralph Slaght of Lafayette College and Professor Martin Golding of Duke University for inspiring me to pursue a career in philosophy. Finally, I owe thanks to the John M. Olin Foundation, The Cato Institute, and The Institute for Humane Studies, each of which provided funding at various times that aided in the production of various chapters.  

John Hasnas

July, 2022

The original prologue: 

The Loneliness of the Long-time Libertarian

How did I become a Libertarian? It happened in the fifth grade at Public School #6 in Woodmere, New York at approximately 9:10 in the morning. In my elementary school, we began every day with the Pledge of Allegiance. Each morning, I and 29 of my ten-year-olds colleagues would tramp to school around 8:45, hang up our coats, take off our boots or rubbers when the weather was bad, put our books in the old-fashioned lift-top desks with attached chairs, and fool around while waiting for the bell to ring at 9:00 a.m. When it did, we would all quiet down, stand in line to the right of our desks, place our right hand over our hearts, and look at the upper right-hand corner of the classroom. Hanging there was an American flag next to a loudspeaker attached to the school’s public address system. Immediately after the bell, the school principal’s voice would emanate from the loudspeaker and lead us in the Pledge. Every school day for each of the last five years, we had mumbled the same meaningless words in unison, continually reaffirming our allegiance to the republic for Richard Stanz. But this day, something was different.

Immediately following the Pledge, our teacher instructed us to take out our "social studies" books. This was the day we were reading about the Soviet Union and why it was such a bad place. Our book explained (in language appropriate for fifth graders) that the Soviet Union was bad because its government enforced conformity on its citizens. To drive this point home, the book contained a picture of an elementary school class in the USSR showing the boys and girls lined up beside their desks (all wearing uniforms and hats with little red stars on them) reciting something in unison. Looking at the picture, something clicked in my ten-year-old brain and I thought, "Hey, didn’t we just do that? If government-enforced conformity is bad in Russia, why isn’t it bad here?" I remember looking around the room expecting a similar reaction from my prepubescent colleagues. I detected none. But I nevertheless began to regard the pronouncements of the adult authority figures in my state-run school with a little skepticism. And as we all know, the willingness to question authority puts one on the slippery slope to libertarianism.

This story, which is as true as an adult reconstruction of a childhood event can be, is, of course, not a full account of what led me to libertarianism. But it is the story I tell because it reflects my belief that libertarianism is a position one arrives at through a process of open inquiry. The number of libertarians who became so through indoctrination or who learn it at their mother’s knee must be vanishingly small.

I usually flatter myself that I adopted a libertarian political philosophy as a matter of conscious reflection. The truth is that I was probably predisposed to become a libertarian by cultural and familial factors. In the first place, I am a second-generation descendant of what is probably a stereotypical Eastern European Jewish immigrant family. My grandfather came to this country from Romania to escape the official oppression and utter lack of opportunity he faced as a Jew. Arriving with nothing, he worked unbelievably hard to earn the price of passage for the wife and children he had been forced to leave behind. Those children and my father, who was born in America, faced an employment market where opportunities were severely limited by anti-Semitism. By forming a family business, they worked their way out of poverty sufficiently to provide my generation with the opportunity to go to college. I was raised in an almost entirely Jewish enclave in the suburbs of New York City.

This is a family background designed to engender a skepticism of power that borders on paranoia. The experientially-based world-view of my extended family was that all gentiles would like to exploit and kill the Jews, and if they ever got the power to do so, they would. As a child, I attended Hebrew school where we were taught Jewish history. Jewish history is the story of millennia of oppression by church and state culminating with the Nazis. Although the lesson usually drawn is that the world is beset by irredeemable anti-Semitism, it requires only limited powers of abstraction to move to the more general conclusion that the evil resides not in who is oppressed, but in the existence of the power to oppress itself.

Another factor predisposing me toward libertarianism was that my parents (inadvertently, according to them) inculcated in me a belief that knowledge came from investigating and thinking for oneself. Like most Jews, my parents placed an extraordinarily high value on learning, but they had neither the education nor time to answer most of my questions. The best they could do was to encourage me to figure things out for myself. The response I almost invariably received to my requests for information was, "Look it up." Thus, I grew up thinking that one was supposed to engage in independent thought rather than just receive wisdom from others; that one should believe something because it made sense rather then merely because an authority figure said it was true.

This cultural and familial background imbued me with a strong if inchoate skepticism of power and a desire to discover truth for myself. These two factors, when combined, would inevitably make one susceptible to the appeal of libertarianism. Thus, I was probably at least as predisposed to become a libertarian as the child of alcoholic parents is to become an alcoholic.

Of course, being predisposed toward a particular trait does not ensure that the trait will be expressed. Not all children of alcoholics become alcoholics. Something must trigger the predisposition. In my case, the trigger was a combination of my experience in the New York public schools system, my childhood love of science fiction, and a mistake.

In my day, the government-run elementary schools spent several years indoctrinating their students with belief in the value of liberty. We were taught that the American Revolution was fought to achieve freedom from an oppressive government that taxed its citizens unfairly. We learned that the Declaration of Independence recognized individual rights to life, liberty, and the pursuit of happiness and restricted government to protecting these rights. We were told that Americans possessed rights to freedom of speech and religion before we even knew what the Constitution was. We were taught that the Civil War was fought to free the slaves. In short, our early education was basically libertarian propaganda.

In middle school (what we used to call "junior high school"), this early indoctrination was followed immediately by the glorification of government power. We were taught how the federal government saved old people from being cast into the street, ended the vicious exploitation of poor women and children, repelled the depredations of the robber barons, provided education for all, empowered the working man, helped the needy, ended the Depression, and generally righted the wrongs inherent in the capitalist system.

Although the seamless passage from government is bad unless it is restricted to preserving liberty to government is good and should pursue all good ends was accepted without question by my public school compatriots, it was troubling to me. Was government good or bad? How could it be true both that people should be able to live their lives as they choose and that government should be allowed to tell them what to do? How could liberty be both good and bad at the same time? Something didn’t make sense in what we were being taught in school.

Meanwhile, from my elementary school days on, I loved reading comics (Marvel only please) and science fiction. Like most boys of my generation, I thought nothing was cooler than the astronauts. One day when I was rummaging through my father’s books, I found one called 1984. Assuming this was science fiction, I started reading it. Without realizing I was reading a political book, I found it fascinating, especially the parts about the concepts of newspeak and doublethink. The idea that certain thoughts could be eliminated through the manipulation of language and that people could be taught to believe both halves of a contradiction seemed to provide a good explanation for what I was experiencing in public school. This, and other books I encountered such as Brave New World, began to form my budding skepticism about authority into something resembling a political position.

Then came the mistake that crystallized my inchoate musings into a definite political philosophy. I was at a bookstore looking for a science fiction book whose title I could not remember clearly. Although actually looking for Isaac Asimov’s Foundation, I accidentally bought Ayn Rand’s The Fountainhead. I found the individualistic philosophy it contained quite inspiring, rapidly read the rest of her fiction and nonfiction, and found myself convinced that a morally proper government should be limited to the protection of individual rights. Even though the word was not in use at the time, I had become a libertarian.

Having arrived at this intellectual position, I quickly learned that it was a prescription for loneliness. It is difficult for students today to appreciate what it meant to be a libertarian before the term "libertarianism" was even coined. Today, being a libertarian means having to defend a minority position. In the 1960's and 70's, it meant total and utter isolation. Today’s students often complain to the one or two libertarian professors on their campus of feeling besieged. In my day, a libertarian had no one to complain to. There were no libertarian professors. Worse, virtually no libertarian sources were included in either high school or college curricula. A perhaps apocryphal story about William F. Buckley has it that when he addressed university audiences, he would write four names on a blackboard at the beginning of his talk. On one side of the board would be John Maynard Keynes and John Kenneth Galbraith; on the other side would be Ludwig von Mises and Friedrich Hayek. He would ask his student audience how many of them had heard of Keynes and Galbraith. All would raise their hands. He would then ask how many had heard of Mises and Hayek. No hands would go up.

It was not merely that all of your teachers and contemporaries disagreed with you, it was that they treated you as though you were crazy. One reason early libertarians became good arguers is that they were constantly trying to make their position sound reasonable to absolutely incredulous listeners. There is a scene in the 1987 movie Broadcast News that aptly captures what it felt like to be a libertarian in the 60's. Holly Hunter’s character continually disagrees with her boss over something, giving good reasons why his judgment is wrong. Exasperated, he says something like, "It must be wonderful to be so much smarter than everyone else and to always be right when everyone else is wrong." To this, Hunter’s character responds, "No, it’s horrible." At least part of the reason I became a philosophy major in college was that it was the only discipline in which one’s work was evaluated on the basis of the quality of one’s reasoning rather than the acceptability of one’s conclusion.

In my case, the situation quickly went from bad to worse. Beginning from a classical natural rights-based, police/courts/national defense minimal statist position, I found myself drifting toward anarcho-capitalism. The problem was that all of the arguments I used against the monopolistic state provision of services beyond the minimal protective services I supported seemed effective against those as well. Logic was leading me to support a free market in all respects. I was being seduced into thinking that competitive forces alone could solve all the problems of human interaction. And if people thought you were crazy for being a libertarian, imagine what it was like being an anarchist.

Fortunately, later in life, I discovered Hayek and became acquainted with the history of the common law. This freed me from the economists’ conception of a free market as the realm of unregulated voluntary transactions. Instead, I came to regard the free market as the realm of human interaction free of political interference, that is, as the realm of human interaction regulated by custom, ethics, and common law. The position that I now hold, which I refer to as common law liberalism, is consistent with the arguments against the monopolistic state provision of services without implying an absence of all morally legitimate coercive regulation of human activity.

The concept of common law liberalism has great explanatory power and I am firmly convinced that it is correct. Nevertheless, I expect and hope that as I learn more and gather more information, it will continue to evolve and change. This reflects my belief that libertarians usually are driven to their position by the logic of ideas. After all, no one sets out to adopt a position that almost everyone else regards as absurd and that subjects one to at best ridicule, and more typically, to scorn and characterization as a selfish bastard lacking in compassion. No one likes advocating a position everyone else disagrees with and having to constantly defend one’s beliefs as a minority of one. (Alright, if you really do come from an Eastern European Jewish background, maybe you do.)

This is what makes the process of engaging in open inquiry so dangerous. The fact is that it is extremely difficult to make convincing arguments for false conclusions. And because so much of the justification for our current political system rests on utter falsehoods, the willingness to subject its supporting arguments to close scrutiny is almost certain to lead one to radicalism. A moment’s reflection about whether majority rule is really self-government, whether politically-motivated elected representatives really express the "will of the people" or act for the common good, or whether government courts truly apply definite rules of law in a neutral and impersonal manner is likely to set one’s feet on the path to the social ignominy of being outside of the mainstream.

Many years ago, I taught the critical thinking course in the philosophy department at the University of Texas at Arlington. This course involved acquainting students with the informal rules of logical argument and teaching them how to both distinguish good arguments from bad and construct good arguments themselves. I used to begin this course by warning the students: "If you master the techniques covered in this course, no one will like you." Not a semester went by in which some number of students didn’t tell me that their ability to recognize logical fallacies and construct valid arguments for their opinions was causing them domestic strife and that their spouses or parents didn’t want to talk to them anymore. Applying these techniques to political matters is a prescription for alienation not merely from the members of your immediate family, but from all of polite society.

So, how did I become a libertarian? How does anyone? Libertarianism is what happens to you if you are willing to question assumptions and undertake a truly open-minded quest for the truth. But one should embark on such a quest aware of the potential consequences. It is immensely satisfying to discover a political philosophy that both integrates one’s experience into an intellectually consistent conceptual whole and provides an accurate account of how the world actually works. But such knowledge does not come without cost. With it comes the scorn and derision of those who chose not to undertake the quest; those who do not wish to see that the emperor has no clothes. So tread the path with care, for the price of knowledge can be loneliness.

The original introduction to Part I:

Part I: Law

A. The State Conception of Law

Early in my academic career, I was invited by the Institute for Humane Studies (IHS) to lecture in its summer seminars. The IHS sponsored week-long interdisciplinary seminars for students interested in classical liberal thought that included lectures on economics, history, political science, philosophy, and law. I was asked to prepare a couple of lectures on the common law. 

I was happy to be invited to participate in these seminars and wanted to do well. I prepared what I thought were good lectures on criminal law and civil liability, delivered them as best I could, and yet, they seemed to land with a thud. They were politely received, but I got the distinct impression that the audience found them a bit boring. I assumed that I would not be invited back the following year. When I was, I decided that I had to do better. 

When I analyzed the situation, I realized that I had written lectures that would have worked well for typical college students. But the students at the IHS seminars were not typical college students. They were already familiar with many aspects of classical liberalism. I realized that to interest this atypical audience, I would have to come up with lectures that would be thought-provoking to those who already had a grounding in classical liberal thought. 

So I asked myself what underlying assumptions about the law do classical liberals accept without critical examination. I identified three, which I subsumed under the provocative name of “The State Conception of Law.” They were: 

1) Criminal law is necessary for and serves to preserve an orderly, peaceful society.

2) Law must be made by the state.

3) Law consists of a body of definite rules that can be objectively administered by judges.  

I decided in my sophomore season with the IHS, I would present lectures that challenged each of these assumptions. 

These lectures produced much more discussion, perhaps because so many in the audience disagreed with them. But they were well-enough received to cement my status as an IHS summer faculty member for many years to come. 

As years passed, I refined the second assumption to read “Legislation (law made by the state) is necessary to regulate the market” and altered the second lecture to allow me to directly address the market failure argument most commonly used to justify government regulation of the market. Eventually, I added a fourth lecture applying the lesson of the second lecture to environmental issues to illustrate its practical functioning. The next four chapters are the descendants of those original lectures. 

Chapter 1 is designed to show that the first proposition is false–that not only is the criminal law not necessary to maintain an orderly, peaceful society, it is, in fact, antithetical to that end. Chapter 2 is designed to show that the second proposition is false–that not only is legislation not necessary for the proper regulation of the market, but that the law that most effectively regulates the market is the common law, which is not made by the state. Chapter 3 is designed to demonstrate how common law regulation applies to environmental issues. And Chapter 4 is designed to show that the third proposition is false–that the law does not and cannot consist of a body of definite rules that can be objectively administered by judges.

The Preamble to Chapter 1: 

The Scales Fell from My Eyes

I did my first year of law school at New York University School of Law, where my professor in criminal law was Graham Hughes. Professor Hughes was a brilliant criminal law scholar with a precise Welsh accent and a sophisticated dry wit. One of the things that made him a great professor was his ability to pose intriguing questions that made us think. At one point during the semester, he posed a question to the class about when it is proper to convict someone for “an impossible attempt”–for attempting to commit a crime the actor could not possibly complete. 

As I thought about this question, I was shocked to realize that I did not know the answer.  This was troubling to me because up to that point in my life, I was sure that I knew the answer to everything. (I was in my Cartesian, deduce everything from first principles phase back then.) Even more troubling was the fact that the longer I thought about the question, the clearer it became that I did not know the answer. Eventually, this annoyed me so much that, after completing law school, I pursued a PhD in philosophy for the specific purpose of writing a dissertation that answered this question.

My dissertation was similar to all philosophy dissertations in that it consisted predominately in the analysis of concepts. I developed theoretically sound definitions for both the mens rea–the state of mind–and actus reus–the prohibited act–required for conviction of an attempted crime. But I was not satisfied to rest my argument entirely on abstractions. I also wanted it to have some grounding in experience. As a result, I decided to include a chapter showing that my solution was consistent with the historical purpose of the criminal law. This meant that I had to actually learn something about the history of Anglo-American criminal law. 

Not having a Christian background, I was not familiar with the concept of an epiphany. But doing research on the origins of the criminal law produced one. What follows is a consequence of that epiphany.

The Preamble to Chapter 2:

Ignorance Can be Bliss

I began my post-secondary education at Lafayette College in 1970, directly after the tumultuous student protests of the late 1960s. At that time many colleges and universities had reacted to the demands of students to be able to “do their own thing” by eliminating required courses. Lafayette was among them. During my time there, there were no graduation requirements other than those necessary to complete one's major. 

I applied to college thinking I was going to be a chemistry major, entered college as an English major, spent three years as a math major, and graduated as a philosophy major. This is a pretty good indication that I had no idea what I wanted to do. But one thing I knew I did not want to do was study economics. As a result, I graduated without ever taking an economics course. 

After a year as a soccer coach, I went to law school, graduate school in philosophy, and did a post-doctoral fellowship in Law and Humanities. It was quite easy to complete all three programs without learning anything about economics. However, when I went on the academic job market, the only offer I received was from Georgetown Business School. This meant I was a business professor with no training in or knowledge of economics, which I found quite intimidating at first. 

It turns out, however, that it can be beneficial to have studied tort law before economics. What follows is a fortunate consequence of my ignorance of economics.  

Coda to Chapter 2:

The year after graduating from Lafayette College, I stayed at Lafayette as its assistant soccer coach. I began law school the following year, but for many years during my time in law school and grad school, I ran a soccer program in the summers at a boys camp. 

As I mentioned earlier, soon after beginning my career as an academic, I began lecturing for the Institute for Humane Studies in its week-long summer seminars. I was really happy to be doing so, but lecturing indoors during the summer was a big change from coaching and teaching soccer skills outdoors. One of the first IHS seminars I participated in was held at University of Virginia, which was simultaneously sponsoring a soccer camp. I have a clear memory of walking to the lecture hall one day thinking that I should be following the kids in soccer gear to the soccer field. 

My job at the seminars was to acquaint the students with the nature of the common law. This was a bit of a challenge because, although undergraduates were familiar with economics, history, political science, and sometimes even philosophy from their college courses, they had not previously studied law. As I mentioned above, most of the students had the School House Rock image of the law as a bill singing and dancing its way through Congress. I needed a convincing way to introduce the concept of a law that evolved without a guiding human intelligence to students who had been raised with the idea that all law is consciously created by government.

In the event, I found a way to get the idea of an evolved common law across to the students while simultaneously assuaging my remorse at no longer being a soccer coach. In those years, the seminar schedule had two lectures in the morning, one in the late afternoon, and one in the evening. This left a good deal of free time after lunch. On the first day of the seminar, I coaxed many of the students into playing an informal, choose-up soccer game during the free time. We went out to a field, put down shirts for two small goals, and as everyone was standing around looking for guidance, I said “Let's play.” People standing together in clumps drifted to one side or the other and became the teams. 

This took place far enough in the past so that not everyone in the United States played soccer. The players included a small number of Europeans, who knew how to play well, some Americans who had playing experience, and several people who had never played, but just came out to have fun. Not surprisingly, the teams were unbalanced, which produced a lopsided score. Because we had not established any side boundaries, people often kept chasing the ball and each other when the ball would normally be out of play. In addition, not everyone understood all the rules of soccer and several had no idea of how to play with others, which produced a rather ragged game. When the time came to go back to our rooms and get ready for the afternoon lecture, I said, “That was fun. Let's play again tomorrow.”

The next day many of the previous day's players returned as did several others who heard about the game through word of mouth. But now many of the students had an idea of who the better players were. As a result, the division of teams was much more balanced and the game was more competitive. In addition, people stopped playing when the ball got unreasonably far to side, and simply let one party walk the ball back into the field to get the game going again. 

I managed to keep the game going for four days, during which the number of players slowly grew. Over the course of the games, several informal practices developed that made the game more fun. For example, if one of the experienced players took the ball away from someone who was new to the game, he (this was invariably a he) would get the evil eye from the other players or someone would tell him to stop doing that. Over the week, the people came to understand that they should give the new players space to be able to participate in the game. Another informal rule was that if the attacking team shot on goal and missed, someone from that team would have to retrieve the ball; the defending team had to run only if the attackers scored. And because we were playing with small goals and no goalkeepers, a rule prohibiting defenders from standing directly in the goal mouth developed. By the last game on Thursday afternoon, we would have a fair and enjoyable game, well-adapted to the conditions and variegated skill levels of the players. 

I usually had a lecture on Thursday evening designed to show how the common law can provide needed regulation of potentially harmful conduct. (This eventually grew into Chapter 2.) During the question and answer session following the lecture, students often expressed skepticism in the form of “But who makes the laws?” In response, I would refer them to our afternoon soccer games. I would point out that we began with no rules at all, and then point out all the informal rules that we observed by the final game. Asking them “Who made those rules?” usually got the point across. 

Preamble to Chapter 3:

Yeah, but You Can't Fence the Air

During the years that I was lecturing for the Institute for Humane Studies in the summer seminars, the IHS employed an interesting lecture format. The faculty speaker would present a lecture for the first 45 to 50 minutes. The students would then retire to break-out rooms in groups to discuss the lecture and develop questions about it, which they would record on large Post-it pads. After 20 minutes of such discussion, the students would return to the main lecture room, and post their questions on the blackboards at the front of the room. The lecturer would then respond to the questions and engage in discussion with the students.

The questions that my lectures generated indicated that the students were sure that my theses were wrong, but were not sure why. When I presented the progenitor of Chapter 2, the questions that came back invariably indicated skepticism (a euphemism for disbelief) that the common law could protect the environment. The students' belief that the government must act to protect the environment was too ingrained to relinquish.

Eventually, I decided to simply add a lecture designed to show how common law environmental regulation would function. Then, when the students asked their questions after my lecture on the market failure argument, I could just say, “Tune in tomorrow.” This chapter is the direct descendant of that lecture.

Entr’acte 1 - Between Part 1 and Part 2:

The Defining Characteristic of a Libertarian 

A liberal or a conservative is someone who identifies a social ill and then asks what laws can be passed to cure it.

A libertarian is someone who identifies a social ill and then asks what would be the best way to cure it.

Preamble to Chapter 4:

As a youth, I was enamored of the concept of natural rights. The idea that human beings came into the world clothed with rights that governments were morally bound to respect was very comforting. This belief was supported by the language of the Declaration of Independence, which instructed us that individuals “are endowed by their creator with certain unalienable rights,” that the purpose of government is to secure these rights, and that whenever government failed to do so “it is the right of the people to alter or to abolish it.” This provided my unsophisticated proto-libertarian-self with what appeared to be a conclusive argument against intrusive government. I soon discovered, however, that the problem with the argument was convincing anyone who did not already believe in natural rights that they existed. If human beings had natural rights, then I had a great argument for limited government. But how could I show that human beings actually had natural rights?

Claiming that it was a self-evident truth or that human beings were “endowed by their creator” with rights wouldn't do. That was exhortation, not reasoning. And as I began to explore the philosophical literature on natural rights, I found that most arguments for their existence were based on either theological foundations or assertions about human nature that were easily refuted.

Eventually, I gave up on the argument from natural rights. Even though the idea of natural rights retained its appeal to me, I could not base an argument on it without a good explanation for where the rights come from. So I decided that it was time for me to put away childish things. But then, later in my career, I learned about the evolutionary process that gave rise to customary and common law. When I subsequently reread Locke, I noticed that the sphere of liberty protected by his natural rights corresponded remarkably well with the sphere of liberty protected by the rules embedded in the common law. When I had first read Locke, I assumed that he was deductively deriving natural rights from first principles, as he claimed to be doing. But on my more informed rereading, I began to wonder whether he was merely presenting a philosophically refined version of what he observed in the English common law.

This started me thinking anew about where natural rights might come from. This chapter is the result of that thought.

Preamble to Chapter 5:

Stop Saying That

In the much beloved movie, The Princess Bride, Inigo Montoya has spent his life seeking revenge against Count Rugen, the man who murdered his father. When he finally confronts Count Rugen, he keeps repeating, "Hello. My name is Inigo Montoya. You killed my father. Prepare to die." Finally, in utter frustration, Count Rugen yells, "Stop saying that!" 

When the subject turns to freedom of speech, I think I know how Count Rugen felt. No discussion proceeds for long without someone pointing out that freedom of speech does not permit one to shout “Fire” in a crowded theater. I have heard this repeated so many times in so many contexts that, like Count Rugen, I find myself wanting to yell, “Stop saying that.” This chapter is a more reasoned expression of this urge. 

Entr’acte 2 - Between Part 2 and Part 3:

How a Libertarian Knows He’s Making Progress

Quote from a transcript of a conference at Brooklyn Law School:

"Actually, I mean I would go a step further on this, as long as no one throws anything at me, I’m going to agree with John Hasnas . . ."

Preamble to Chapter 7:

Questioning an Assumption

For most of my intellectual life I believed that there cannot be a moral duty to obey the law. In fact, this seemed so obvious to me that I did not think to question it. Just because something was required by the law did not make it the right thing to do. Whenever the issue came up, I immediately repaired to my standard counter-examples. Laws requiring racial segregation did not mean that one had a moral duty to exclude African-Americans. Laws prohibiting homosexual sex did not mean that same sex couples had a moral duty not to make love. Laws prohibiting Catholicism did not mean that Catholic had a moral duty not to practice their religion. Therefore, there could not be a general duty to obey the law. 

The problem was that I came to this crude line of reasoning in my college days when I was still possessed of the School House rock conception of the law as legislation. As a result I could not see that I was committing the fallacy of improper generalization–of reasoning from some–legislation–to all–law.

Over the course of my graduate studies and early academic career, I gained an ever-deepening understanding of the nature of the common law. I also became acquainted with the thought of Freidrich Hayek, and began to understand what spontaneous order was and to appreciate the inherent limitations on human knowledge. Then one day, for some unknown reason (my wife thinks it is as example of my general inability to focus), these diverse bits of knowledge entered my mind at the same time, and I found myself thinking, “Am I really sure that there cannot be a duty to obey the law?” The following chapter is product of the thought process that question initiated. 

Epilogue

This book exists only because of inattentional blindness. There is nothing very profound within its pages. There is no deep philosophical insight, no brilliant economic proofs, no novel political theory. It exists only because political theorists, philosophers, and economists fail to see the common law. I am doing no more than waving my arms, pointing, and saying look at this. 

My colleagues know that I have only one idea–that the common law can supply most of the regulation necessary for human beings to live together in peace and prosperity. But it is a good idea, and one worth repeating. So I have been repeating it for a quarter century. 

Now is the time for me to assemble the various iterations of this idea into a book. I could not do so when I was younger. I am a classic example of someone with attention deficit hyperactivity disorder, something evidenced by the fact that I spent a considerable portion of elementary school standing in the corner or being sent to the principal's office. My daughters are amused by my report cards showing grades of D in conduct and effort. When I was young, I channeled this inability to sit still into sports. As I aged I continued to spend most of my free time playing soccer, tennis, ice skating, skiing, or anything involving physical activity. Then came the birth of my daughters and more of my free time was spent with them. Now, one of them is grown and the other has reached the age at which nothing could be worse than hanging out with one's father. And as I move through my seventh decade, various body parts are wearing out, reducing my ability to participate in sports. Finally, with age, I seem to have developed the ability to sit at a desk and focus for an extended period of time. So this is a good time to write a book. 

For most of my career, I regretted the fact that I was not more productive as an academic. But now, I think that I got things right. I devoted time to physical activity and my children while I was young enough to enjoy it, and now I write books when I am old enough to enjoy that. Looking back, that seems like a good life.