Freedom, Society, and State - Ludwig von Mises Institute

ues, in actuality, "the common law has been able to
grow wi thout constant interference by legislation because
judges have b.een able in various ways to circumvent
disagreeable or obstructive precedents."(24)
P I u c k net t, for ex amp Ie, 0 b s e r ve s t hat i n rna nyca sest he
facts are such that the real question is which of
several possible precedents or customs, or which combination
of them, to use. This, clearly, gives the
j u d g e s s om e I a tit u de inad apt i ng the law to new and
changing situations, or at least guiding it away from
clearly outmoded precedents.(25)
Another important device for this has been noted
by wr i ters such as James B. Scott and Sir Henry Maine.
It "grew out of actual practice," says Scott in speaki
n g 0 f the a n c i e n t Rom a n I aw 0 f the jus gen t i urn , and
was "molded and interpreted in response to the needs of
daily life." But sometimes conditions changed or unfor
e see n sit u a t ion s a r 0 s e for wh i ch no I aw ex i s ted.
And it was here, he says, that "theory came to the aid
of practice." The jurisconsults looked for legal or
phi los 0 phi cal p r inc i piescornpat i b lewi t h the pr act i cal
common law. These principles were then used as guides
for applying the common law in new cases as well as
pro v j din g new i n t e r pre tat ion s 0 f ex i s ting c omm 0 n I aw
where new situations made such law outmoded or undesirab
Ie. The j ur i sconsul ts found the natural law aspects
of the Greek doctr ine of Stoicism quite useful here,
and it was in this way that the common law gradually
became associated with natural law. "If Rome conquered
Greece materially," says Scott, "Greece conquered Rome
spiritually."(26) And Maine points to the simIlar
de vel 0 pm entin the Eng lis h common law. " I t wa s ," he
says, "taken absolutely for granted that there is somewhere
a rule of known law which will cover the facts of
the dispute not litigated, and that, if such a rule be
not dis covered, itis 0 n 1y t hat the ne c e s sa r y patienee,
knowledge, or acumen is not forthcoming to detect
it."(27) Thus, by this "system of rationalization,"
Wormser adds, "law was found where it did not exist,
and a I I the c I eve r device s 0 f the log i cian we r e use d to
this end."(28)
Qui t e c I ear I y, the for ego i n g prov ide s a wa yin
which an anarchist common law legal system might be
able to deal with the question raised by critics like
Hayek. One example, say that of pollution control,
ought to suffice to illustrate the process. The important
point here is that not that the common law dId not
recogn ize ownership rIghts to air space but rather that
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