Freedom, Society, and State - Ludwig von Mises Institute

soc i e t y • But the imp 0 r tan t poi ntis t hat wh i len0
legal system, and particularly that of the common law,
can long run widely counter to views dominant in the
communit y, c omm 0 n I a w j ud i cia Idecis ion s mus t res u Itin
a body of law establishing the protected domains of individual
action. Consequently, the common law probably
moves the community in a libertarian direction.
A further point should be made. Since the common
I a w wa s not enact e d and no i nd i v i dual or g r 0 up had the
power to change it, the common law served as a barrier
to power, and in particular, government power, But
sin c e law as made by the sovereign, i. e • , the king ora
1e g i s I a t u r e, i sacomma nd by the s 0 vere i gnand binding
on all its sUbjects, it is no longer a barr ier to power
but "an instrument for the use of power."(33) It is
therefore not surprising that the anarchists find
common law, though f I awed, fa r more acceptable than
legislated law. Rothbard, for example, advocates
" t a kin g the I a r gel y lib e r tar ian c omm 0 n 1aw, and corr
e c tin g i t b Y the use 0 f rna n 's rea son, be for e ens h r i n ­
ing it as a permanently fixed libertarian code or
construction."(34)
The problem with this position is that the common
law must reflect the prevailing views of the community.
Thus a "permanently fixed libertarian code" can be enshrined
only within an overwhelmingly libertarian communit
y • The comm0 n 1a w ma "y pus h the c omm un i t yin a
libertarian direction, but it seems unlikely, even
within an anarchist society, that it would ever be completely
successful in this. There will probably always
b e abod y 0 f tho ugh t 1a r geenough topreve n t the complete
and permanent triumph of the libertarian code.
The foregoing enables us to deal with the
anarchist-minarchist debate raised in Chapter I. The
minarchist charged that the natural rights anarchist
placed himself in a dilemma since the institutional
framework of anarchism rendered him incapable or protecting
the substantive principles he purports to
cherish. The anarchist replied that the natural rights
minarchist was hImself in a contradiction since the
I ibertarian "non-aggression axion" was, strictly speaking,
imcompatible with government. Probably both are
right: the anarchist because government is inconceivable
wi thout at least some initiated coercion; and the
min arc his t b e c a use therei s lit tIe do ub t t hat the common
law would ever become the complete exemplification
of pure 1 i b e r t.a ria n ism . Buta reformulation of the
335