ABSTRACT
What are the qualities and characteristics of the common law that feature or reflect libertarianism? The common law is both a historical phenomenon and an active process or a juridical mode of settling disputes. Therefore, a precise answer to questions about the compatibility between libertarianism and the common law is difficult to articulate. This Essay describes elements of the common law – both its manifestation in history and its theoretical approaches to judging – that illuminate its libertarian attributes and tendencies. It suggests that the common law has epistemological importance as a kind of bottom-up ordering based on traceable patterns of human behavior.
Mendenhall, Allen, Libertarianism and the Common Law, Belmont Law Review, volume 11, issue 1, 91 (2023); Belmont University College of Law Research Paper No 2023-6.
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